Anita vs State Of Rajasthan
2021 Latest Caselaw 15443 Raj

                                           (1 of 5)                  [SOSA-480/2021]


       HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                        JODHPUR

D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 480/2021

1. Anita D/o Nana Lal Sahel, aged about 19 years, R/o Kanadoki Pada, P.S. Bhungda, District Banswara.

2. Rishma D/o Shambhu Ninama, aged about 19 years, Kanadoki Pada, P.S. Bhungda, District Banswara.

(At present lodged in District Jail, Banswara).

----Petitioners Versus State of Rajasthan

----Respondent

For Petitioner(s) : Mr. Devendra Sanwalot For Respondent(s) : Mr. Anil Joshi, Public Prosecutor

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

Order

05/10/2021

The appellants-applicants have been convicted and

sentenced as below vide Judgment dated 27.07.2021 passed by

Additional Sessions Judge, Banswara in Sessions Case

No.292/2014 (C.I.S. No. 292/2014) :-

Offence               Sentences                   Fine             Fine   Default
                                                                   sentences
U/s 302/34 IPC        Life Imprisonment Rs.10,000/- 6 Months S.I

The appellants have preferred this application under Section

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

by the trial court.

(2 of 5) [SOSA-480/2021]

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 parties and learned Public Prosecutor and

have gone through impugned judgment and original record of the

case.

Learned counsel for the appellants-applicants submits that

the trial court has erred in relying upon dying declaration of the

deceased Kala (Ex.P/15). There was no motive attributed by the

deceased in her dying declaration (Ex.P/15) recorded before the

Judicial Magistrate, for burning her. In the dying declaration, she

simply stated that she did not know as to why Rishma and Anita

quarreled with her. Further, she stated that there was old dispute

on trivial issues. He further submits that the evidence produced by

the prosecution reveals that the deceased Ms. Kala was having

love affairs with one Roopa. Subsequently, Roopa discontinued his

relations with Ms. Kala and started relations with the applicant

Anita. The applicant Rishma is sister of Roopa. When deceased

Kala found that Roopa was not agreeable to maintain relations

with her, she burnt herself in the house of Roopa, where the

applicant Anita was not present. He further submits that there are

material contradictions in the dying declarations recorded by the

Judicial Magistrate and S.H.O. Mohd. Mustafa (PW-12). Mohd.

Mustafa (P.W. 12) himself did not record the statement of

deceased (dying declaration). In his cross-examination, he

admitted that the parcha bayan (Ex.P/2) was not recorded by him

but was recorded under his directions by his Munshi Sohan Lal,

who has not been produced by the prosecution in the witness box

during trial. He further submits that the mother of the deceased

(3 of 5) [SOSA-480/2021]

Smt. Kamla (P.W. 2) who as per the S.H.O. was also present at

the time of recording the dying declaration, admitted in her cross

examination that Kala (deceased), in her statement told that

Roopa was also involved in the incident of burning her, whereas

the prosecution after investigation came to the conclusion that

Roopa and his brother tried to save her. Learned counsel for the

appellants-applicants further submits that during investigation,

police did not record the statements of Shambhu Lal and his other

sons. He further submits that in this case, the prosecution did not

produce important witness Manjula (a friend of deceased) whose

statement was recorded by the police during investigation. The

specific suggestion was made to the prosecution witnesses by the

defence that on account of quarrel with Roopa, Kala set her on

fire. Learned counsel for the appellants-applicants further submits

that both the appellants-applicants were 19 years of age at the

time of incident. Both are having minor children as Anita gave

birth to her child on 07.12.2020 and Rishma gave birth to her

child on 18.01.2021. The appellants-applicants were enlarged on

bail during trial. The hearing of the appeal is unlikely in near

future. On the basis of above arguments, learned counsel for the

appellants-applicants prays to suspend the sentences awarded to

the appellants-applicants by the trial court.

Learned Public Prosecutor opposes the application for SOS.

He has prayed to rely upon the dying declaration of the deceased,

however, he does not dispute that the appellants-applicants were

below 21 years of age at the time of incident and were enlarged

on bail during trial.

We have considered the rival contentions of learned counsel

for the parties and perused the record thoroughly. It is not

(4 of 5) [SOSA-480/2021]

disputed that the dying declaration of the deceased Kala (EX.P/15)

recorded by the Judicial Magistrate does not show any motive

behind burning her by Anita and Rishma. This fact also does not

remain disputed that Roopa was having love affair with deceased

Kala and afterwards, he developed relations with the applicant

Anita. The Munshi who recorded the parcha bayan (EX.P/2) has

not been produced by the prosecution. In this parcha bayan also,

no motive has been attributed behind burning her by the

appellants-applicants. The place of occurrence was house of

Shambhu, who has four sons and nobody has been produced by

the prosecution, rather, the defence has produced Shanker s/o

Shambhu Lal and Rooplal s/o Shambhu Lal as D.W.1 & D.W.2. The

appellants-applicants are ladies now aged about 25 years and

both the applicants are nursing mothers and their small children

are also confined in the jail.

In the above background, we are of the opinion that

appellants-applicants have strong and significant grounds to assail

the impugned judgment passed by learned trial court. 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 Additional Sessions Judge, Banswara vide

Judgment dated 27.07.2021 in Sessions Case No.292/2014 (C.I.S.

No. 292/2014) against the appellants-applicants (1) Anita D/o

Nana Lal Sahel and (2) Rishma D/o Shambhu Ninama, shall

remain suspended till final disposal of the aforesaid appeal and

they shall be released on bail, provided each of them executes a

(5 of 5) [SOSA-480/2021]

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

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




                                   38-Inder/Rahul Arya/-









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