Rajendra Kumar @ Vajir vs State
2021 Latest Caselaw 17379 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 572/2021

Shivlal @ Shivla S/o Raj Kumar, Aged About 33 Years, Ward No. 24, Rawatsar, Tehsil Rawatsar, District Hanumangarh (Raj.). (Presently Lodged In Central Jail Bikaner).

----Petitioner Versus State Of Rajasthan-State, Through PP

----Respondent Connected With D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 830/2020 Rajendra Kumar @ Vajir S/o Krishan Lal, Aged About 30 Years, Khetanwali Dhani P.S. Rawatar, Tehsil Rawatsar, District Hanumangarh. (At Present Lodged In Central Jail, Bikaner).

----Petitioner Versus State, Through P.P.

----Respondent D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 831/2020 Pratap Nath @ Ram Pratap S/o Shri Mani Ram, Aged About 35 Years, Ward No. 02, Rawatsar, Tehsil Rawatsar, District Hanumangarh. (At Present Lodged In District Jail Hanumangarh).

----Petitioner Versus State, Through P.P.

                                                                     ----Respondent


For Petitioner(s)          :     Mr. Vineet Jain.
                                 Mr. R.S. Choudhary.
                                 Mr. Deepak Menaria.
For Respondent(s)          :     Mr. B.R. Bishnoi, AGC.





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             HON'BLE MR. JUSTICE SANDEEP MEHTA
               HON'BLE MR. JUSTICE SAMEER JAIN

                                       Order

22/11/2021

Heard learned counsel representing the parties. Perused the

impugned Judgment and the material available on record.

The appellants applicants herein stand convicted and

sentenced as below vide judgment dated 11.08.2020 passed by

the learned Additional Sessions Judge No.1, Nohar, District

Hanumangarh in Sessions Case No.1/2016:

Offences                  Sentences                   Fine            Fine      Default
                                                                      sentences
Section 302/34IPC         Life                        Rs.10,000/- 1              Year's
                          Imprisonment                                additional
                                                                      imprisonment

The applicants-appellants have preferred these applications

under Section 389 Cr.P.C. with a prayer for being released on bail

during pendency of the appeal.

Learned counsel Sarva Shri Vineet Jain, R.S. Choudhary and

Deepak Menaria representing the appellants applicants,

vehemently and fervently contended that the entire prosecution

case is false and fabricated. As a matter of fact, Anil Kumar (P.W.-

4), who claimed to be an eye-witness of the incident, has

fabricated the story of having seen the appellants herein

assaulting his brother-in-law Raju @ Rajkumar. They pointed out

that the incident took place on 19.08.2015 at around 11.00 PM.

The FIR (Ex.P/11) came to be registered as late as on 20.08.2015

at about 04.00 PM. Learned counsel drew the Court's attention to

(3 of 7) [SOSA-572/2021]

the I.O.'s noting below the FIR wherein, it is mentioned that the

108 Ambulance had reached the place of incident and that the

victim was taken to the hospital in the said ambulance. Attention

of the Court was drawn to the entry No.936 (Ex.P/36A), which was

recorded in the Roznamcha (Daily Diary) of the Police Station

Rawatsar at 11.45 PM on 19.08.2015 wherein, the police was

informed regarding the admission of Raju Bugati in CHC,

Rawatsar. In continuation, the Court was taken through the entry

No.938 recorded at 12.20 AM wherein, it is noted that the head

constable Ranveer Singh (PW-11) reached the hospital where, the

injured Raju was admitted. The constable made an attempt to

record the statement of the victim but the doctor opined that he

was not in the condition to do so. Learned defence counsel urged

that if at all, there is an iota of truth in the case set out by Anil

Kumar (PW-4) that he was an eye-witness of the incident and that

he had taken his brother-in-law the victim Raju @ Rajkumar to the

hospital then, he would immediately have disclosed the details of

incident to the constable Ranveer Singh when he reached the

hospital. It was contended that Raju was referred to higher center

at Sri Ganganagar and was got admitted to the Tantia Hospital at

about 6 O' Clock in the morning on 20.08.2015 but at that time

also, no attempt was made to report the matter to the police. This

Court was also taken through the medical reports/ admission

forms (Ex.P/3 and Ex.P/7) wherein, it is noted that there is no

reference of the name of the attendant associated with the

patient. Learned defence counsel also drew the Court's attention

to the postmortem report (Ex.P/1) wherein, the dead body of Shri

Raju was identified by Devilal. Learned defence counsel thus urged

that had Anil Kumar (PW-4) been present with the victim then

(4 of 7) [SOSA-572/2021]

firstly, he would immediately have divulged about the incident to

the constable Ranveer Singh (PW-11) when he reached the CHC

Rawatsar. They urged that the 108 Ambulance driver Sandeep

Saharan (PW-2), upon being examined on oath, did not state that

Anil Kumar was present when he picked up the victim and brought

him to the hospital. Rather, the witness stated that he lifted the

injured, who was lying outside a hotel, with the aid of the people

who were working in the said hotel. As per the defence counsel,

even though the incident took place in front of a hotel named

"Sweet Garden" but no one working in the hotel was examined to

support the prosecution case. On these grounds, learned defence

counsel urged that the FIR is a post investigation document. Eye-

witnesses Anil Kumar (PW-4), Rai Singh (PW-10) and Shakti Singh

(PW-13) were not present at the spot and were subsequently

created to be eye-witnesses of the incident in the highly belated

FIR. They urged that there is no plausible evidence on the record

of the case so as to connect the appellants with the alleged crime.

The appellants are in custody for the last nearly 4-5 years.

Hearing of the appeal is unlikely in the near future. On these

grounds, learned counsel representing the appellants, sought

acceptance of the applications for suspension of sentences craving

indulgence of bail to the appellants, during pendency of the

appeal.

Per contra, learned Public Prosecutor vehemently and

fervently opposed the submissions advanced by the appellants'

counsel and urged that as the witness Anil Kumar was engaged in

treatment of his brother-in-law, the deceased Raju, the delay in

lodging of the FIR is properly explained. He submitted that at this

stage, there is no reason to doubt the testimony of Anil Kumar

(5 of 7) [SOSA-572/2021]

(PW-4), Rai Singh (PW-10) and Shakti Singh (PW-13) all of whom,

have given categoric evidence implicating the appellants in the

brutal assault leading to the death of Raju @ Rajkumar. On these

grounds, learned Public Prosecutor vehemently and fervently

opposed the applications for suspension of sentences seeking

dismissal thereof.

We have given our thoughtful consideration to the

submissions advanced at bar and, have gone through the

impugned Judgment and have carefully perused the record.

It is an admitted case that the incident involving assault on

the deceased Raju @ Rajkumar took place on 19.08.2015 at about

11.30 PM. The police got prompt information of the incident which

was entered in the Rojnamcha entry No.936 (Ex.P/36A) dated

19.08.2015 at 11.45 PM. In this report, no presence of any

witness who might have seen the incident, is noted. The injured

Raju was immediately taken to and was got admitted at the CHC

Rawatsar by Shri Sandeep Saharan (PW-2) the 108 Ambulance

driver. This witness, was though declared hostile but he did not

state about the presence of the so-called eye-witnesses at the

place of the incident. Constable Ranveer Singh reached the CHC

Rawatsar at about 11.45 pm. When he was cross-examined, he

admitted that he stayed at the hospital for about half an hour but

no one associated with the victim, gave him any oral information

of the incident nor was any written report submitted to him. As

per the site inspection plan (Ex.P/12), the incident took place in

front of Sweet Garden Hotel. The ambulance driver clearly stated

that the hotel people helped to lift the injured to the ambulance.

No one from the hotel was examined in support of the prosecution

case. The FIR (Ex.P/11) came to be registered as late as on

(6 of 7) [SOSA-572/2021]

20.08.2015 at 04.00 pm. There is merit in the argument of the

defence counsel that the delay in lodging of the FIR is quite

significant and is likely to cast doubt on the truthfulness of the

entire prosecution story. Even in the postmortem report (Ex.P/1),

the person who identified the deceased, was Devilal and not the

first informant Anil Kumar (PW-4).

In wake of the discussion made herein above, we are of the

opinion that the appellants have available to them strong and

plausible grounds for assailing the impugned Judgment. Hearing of

the appeal is likely to consume time. The appellants have

remained in custody for the last nearly 4-5 years.

In this view of the matter and, having regard to the facts

and circumstance as available on record, it is considered just and

proper to suspend the sentences awarded to the appellants,

during pendency of the appeals.

Accordingly, these applications for suspension of

sentences filed under Section 389 Cr.P.C. are allowed and it

is ordered that the sentences passed by the Additional Sessions

Judge No.1, Nohar, District Hanumangarh, vide judgment dated

11.08.2020 in Sessions Case No.1/2016 against the appellants-

applicants (1) Shivlal @ Shivla, (2) Rajendra Kumar @ Vajir,

(3) Pratap Nath @ Ram Pratap, shall remain suspended till final

disposal of the aforesaid appeal and they shall be released on bail,

provided each of them executes a personal bond in the sum of

Rs.50,000/- with two sureties of Rs.25,000/- each to the

satisfaction of the learned trial Judge for their appearance in this

court on 21.12.2021 and whenever ordered to do so till the

disposal of the appeal on the conditions indicated below:-

(7 of 7) [SOSA-572/2021]

1. That he/she/they will appear before the trial Court in the month of January of every year till the appeal is decided.

2. That if the applicant(s) changes the place of residence, he/she/they will give in writing his/her/their changed address to the trial Court as well as to the counsel in the High Court.

3. Similarly, if the sureties change their address(s), they will give in writing their changed address to the trial Court.

The learned trial Court shall keep the record of attendance of

the accused-applicant(s) in a separate file. Such file be registered

as Criminal Misc. Case related to original case in which the

accused-applicant(s) was/were tried and convicted. A copy of this

order shall also be placed in that file for ready reference. Criminal

Misc. file shall not be taken into account for statistical purpose

relating to pendency and disposal of cases in the trial court. In

case the said accused applicant(s) does not appear before the trial

court, the learned trial Judge shall report the matter to the High

Court for cancellation of bail.

A copy of this order be placed in each file.

                                   (SAMEER JAIN),J                                           (SANDEEP MEHTA),J


                                    63-Tikam/-









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