Ramesh vs State Of Rajasthan
2021 Latest Caselaw 15365 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Criminal Misc Suspension of Sentence Application (Appeal) No. 453/2021

1. Ramesh S/o Shri Madiya, aged about 23 years, R/o Utiyapada/Utiyapan, P.S. Kotwali, Banswara, District Banswara.

2. Dilip S/o Shri Narayan, aged about 21 years, R/o Utiyapada/utiyapan, P.S. Kotwali, Banswara, District Banswara.

(Presently lodged in Central Jail, Udaipur).

----Petitioners Versus State of Rajasthan

----Respondent

For Petitioner(s) : Mr. Devendra Sanwalot For Respondent(s) : Mr. B.R. Bishnoi, AGC Mr. Shambhoo Singh with Mr. Hitendra Singh for the complainant

HON'BLE MR. JUSTICE SANDEEP MEHTA HON'BLE MR. JUSTICE RAMESHWAR VYAS

Order

04/10/2021

The appellants-applicants have been convicted and

sentenced as below vide Judgment dated 28.01.2021 passed by

Sessions Judge, Banswara in Sessions Case No.184/2017 (C.I.S.

No. 184/2017) :-

Offence              Sentences                   Fine             Fine    Default
                                                                  sentences
U/s 302/34 IPC       Life Imprisonment Rs.20,000/- 2 years RI
U/s 460 IPC          Life Imprisonment Rs.20,000/- 2 years RI

All the sentences were ordered to run concurrently.

(2 of 6) [SOSA-453/2021]

The appellants have preferred this application under Section

389 of Cr.P.C. seeking suspension of sentences awarded to them

by the trial court.

Learned Public Prosecutor has filed reply to the application

for suspension of sentences.

We have heard and considered the submissions advanced by

learned counsel for the appellants and learned Public Prosecutor

and have gone through impugned judgment and original record of

the case.

The case of the prosecution is based purely on circumstantial

evidence. Shri Laxman Singh was found dead in his field with

marks of violence. The written report (Ex.P/3) came to be lodged

by Sohit Kumar (P.W. 3) with an allegation that in the night

intervening 3rd and 4th September, 2017, he got a call at about

11.17 P.M. that someone had beaten his maternal uncle (deceased

Laxman Singh). He reached at the spot and made enquiry from

his maternal aunt Saju Devi who told him that she was sleeping

inside the house and her husband was sleeping outside. She

heard cries of her husband on which, she went outside. Two

unknown men were beating Laxman Singh by lathis and other

weapons. These two persons belaboured Laxman Singh and went

away by scaling the main gate. One person had tied a hanky on

his head and both were wearing trousers and shirts. A sharp

weapon injury was noticeable on the head of Laxman Singh. On

the basis of this report, an F.I.R. came to be registered for the

offence punishable under Section 302/34 of I.P.C. The accused-

appellants were arrested on 06.09.2017. In the meantime, the

blood stained soil from the place of incident and blood stained

clothes of the deceased were seized. After arresting the accused-

(3 of 6) [SOSA-453/2021]

appellants and acting in furtherance of the information provided

by them, a knife was recovered at the instance of the accused

Ramesh and a "tommy" was recovered from the accused Dilip. The

clothes of two accused allegedly bearing blood stains were also

seized. The Investigation Officer could not collect any evidence of

motive nor was any incriminating recovery of valuables etc.

affected from the appellants. Though, the accused were not

named in the F.I.R. but no effort was made by the Investigation

Officer to get test identification proceedings conducted at the

instance of the witness Saju Devi.

The trial court has convicted the accused-appellants solely on

the basis of the incriminating recoveries observing in Para 51 of

the impugned judgment as below :-

"51- bl laca/k esa i=koyh dk /;kuiwoZd voyksdu djus ij ;g rF; mHkjdj lkeus vk;k gS fd vkjksihx.k ds [kwu ds uewus ugha fy, tkus dks Hkh ,d izeq[k vk/kkj cuk;k x;k gSA bl U;k;ky; dh fouez jk; esa i=koyh ij vkbZ lk{; ;g izdV ugha djrh gS fd tks ?kVukØe lqlaxr frfFk] le; ,oa LFkku ij gqvk gS mlesa vkjksihx.k ds Hkh fdlh izdkj dh pksVsa vkbZ gks rFkk e`rd ,oa bu vkjksihx.k ds diM+ks ij [kwu ds NhVs yxs gksA bl laca/k esa fof/k foKku iz;ksx'kkyk dh tkap fjiksVZ izn'kZ ih&44 dk /;kuiwoZd voyksdu djus ij ;g rF; mHkjdj lkeus vk;k gS fd fof/k foKku iz;ksx'kkyk dks Hksts x, lhYM iSdsV ekdZ ,]ch]Mh]bZ] ,p rFkk ds ij ekuo jDr gksuk crk;k x;k gSA bl ekuo jDr ds vkjksihx.k ds laca/k esa fdlh izdkj dks dksbZ fcUnw ugha gS cfYd iqfyl dk ;g ekuuk gS fd bl ij tks ekuo jDr ik;k x;k gS og e`rd y{e.kflag dk gS vFkok ugha\ fof/k foKku iz;ksx'kkyk dh tkap fjiksVZ izn'kZ ih&44 esa tks oSKkfud fu"d"kZ vafdr fd;k x;k gS mlds vuqlkj bu lHkh iSdsV~l esa j[ks 'kVZ] [kwu vkywnk feV~Vh] pkdw] Vkeh vkfn ij ,d gh izdkj dk ekuo jDr crk;k x;k gSA ?kVukLFky ls tks vkywnk feV~Vh ,oa e`rd ds diM+s

(4 of 6) [SOSA-453/2021]

cjken fd, x, Fks ml ij e`rd dks tks ekuo jDr yxk gqvk Fkk ogh ekuo jDr vkjksihx.k jes'k rFkk fnyhi }kjk djokbZ xbZ cjkenfx;ksa ds lanHkZ es muds 'kVZ~l o gfFk;kjksa ij ik;k x;k gSA ,slh fLFkfr esa bl U;k;ky; dh fouez jk; esa bl laca/k esa fo}ku vf/koDrk cpko i{k dh vksj ls cgl esa tks vk/kkj fy;k x;k gS og dkYifud gS o bl dkj.k Lohdkj fd, tkus ;ksX; ugha gSA"

The trial court has observed that the blood group noticeable

on the shirt, soil, knife and tommy was of human origin and thus,

this circumstance is incriminating against the accused. However,

on a perusal of the F.S.L. Report (Ex.P/44), it becomes clear that

apart from the knife, none of the other articles including the

clothes of the deceased, blood smeared soil collected from the

place of incident and the shirts recovered from the person of the

accused at the time of their arrest, gave test for the presence of

blood of any particular group. Thus, we are of the firm opinion

that this circumstance, which has been considered to be

incriminating in the impugned judgment, is of no value

whatsoever.

The witness Saju Devi (P.W. 4) tried to portray in her

evidence that she could identify the accused in her sworn

testimony. However, Saju Devi was examined as P.W. 4 after

nearly eight months of the incident. The Investigation Officer did

not make any effort to get test identification conducted after

arresting the accused. In this background, whether or not, the

identification of the accused by Saju Devi (P.W. 4) for the first

time when examined on oath would be acceptable, will have to be

looked into when the appeal will be finally decided.

For the present, we are of the view that the accused-

appellants have available to them strong/significant grounds for

assailing the impugned judgment. They are behind the bars for

(5 of 6) [SOSA-453/2021]

more than four years. The hearing of the appeal is unlikely in the

near future. Thus, we are inclined to accept the application for

suspension of sentences and to release the appellants on bail

during the pendency of the appeal.

Accordingly, the application for suspension of sentence filed

under Section 389 of Cr.P.C. is allowed and it is ordered that the

sentences passed by the Sessions Judge, Banswara vide judgment

dated 28.01.2021 in Sessions Case No. 184/2017 (C.I.S. No.

184/2017) against the appellants-applicants (1) Ramesh S/o

Madiya and (2) Dilip S/o Shri Narayan, 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 08.11.2021 and whenever ordered to do so till the

disposal of the appeal on the conditions indicated below:-

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

2. That if the applicants change the place of residence, they will give in writing 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-applicants in a separate file. Such file be registered as

Criminal Misc. Case related to original case in which the accused-

applicants was 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

(6 of 6) [SOSA-453/2021]

pendency and disposal of cases in the trial court. In case, the said

accused-applicants do not appear before the trial court, the

learned trial Judge shall report the matter to the High Court for

cancellation of bail.

                                   (RAMESHWAR VYAS),J                                         (SANDEEP MEHTA),J




                                    26-Inder/Rahul Arya/-









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