Rajasthan High Court - Jodhpur

Durg Singh vs State Of Rajasthan on 18 April, 2022

Bench: Sandeep Mehta, Vinod Kumar Bharwani

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 244/2022

1. Durg Singh, S/o Shri Deep Singh, Aged About 29 Years, R/o Govindpuri-Baori, Ps Kherapa, Distt Jodhpur (Raj.). (Presently Lodged In Central Jail, Jodhpur)

2. Bhom Singh S/o Narayan Singh, aged about 29 years, R/o Khejarla, Police Station Bilara, District Jodhpur. (presently loged in Central Jail, Jodhpur)

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

----Respondent

For Petitioner(s) : Mr. Vineet Jain, Sr. Advocate assisted by Mr. Rajeev Bishnoi For Respondent(s) : Mr. B.R. Bishnoi, AGC

HON'BLE MR. JUSTICE SANDEEP MEHTA HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI

Judgment / Order

18/04/2022

The instant application for suspension of sentences under

Section 389 Cr.P.C. has been preferred by appellants-applicants

who have been convicted and sentenced as below vide judgment

dated 11.03.2022 passed by learned Sessions Judge, Jodhpur in

Sessions Case No.120/2013:


Offence   Under Imprisonment                   Fine               Sentence        in
Section                                                           default of fine
302 IPC             Life Imprisonment Rs.20,000/- 2 Months' SI
201 R.W.S 34 5 Years' SI                       Rs.5,000/-         1 Month's SI
IPC

Both the sentences were ordered to run concurrently.

(2 of 5) [SOSA-244/2022]

Learned Public Prosecutor has filed reply to the application

for suspension of sentences.

We have heard and considered the submissions advanced by

Shri Jain, learned senior counsel, assisted by Shri Rajeev Bishnoi,

representing the appellants and learned Public Prosecutor and

have gone through the impugned judgment.

The prosecution case emanates from the written report

dated 17.04.2013 submitted by complainant Ladu Ram (PW.11)

alleging inter alia that his nephew Kishore Singh went away from

his home on the night of 13.04.2013 after receiving a call on his

mobile. A missing person report was lodged at the Police Station

Khedapa on 14.04.2013. On 16.04.2013, the dead body of Kishore

Singh was recovered in a well in the village Puniyo Ki Basni. The

informant raised a suspicion on Pappu Singh and his associates

who had threatened Kishore Singh of dire consequences over the

issue of a girl. On the basis of this report, FIR No.39/2013 was

registered at the Police Station Khedapa for the offence punishable

under Section 302 IPC. After investigation, chargesheet was filed

against the appellants herein in the regular Court whereas two

juveniles Bhawani Singh and Ganpat Singh were charge-sheeted

before Juvenile Justice Board. These two juveniles have reportedly

been acquitted after inquiry.

Shri Jain urged that there is no evidence worth the name on

the record of the case to connect the appellants with the alleged

crime. The incident took place on the night intervening 13 and 14

April, 2013. The Investigating Officer Kishan Lal (PW.23), arrested

the accused persons without there being any evidence to connect

them with the alleged crime. Incriminating recoveries of knife and

(3 of 5) [SOSA-244/2022]

shirt (from the accused Durg Singh) and a mobile and shirt (from

the accused Bhom Singh) were shown to have been effected. Shri

Jain pointed out that the prosecution claimed that the knife and

the clothes recovered from both the accused persons tested

positive for presence of 'B' Group blood when examined at the

FSL. However, he referred to the statement of the Malkhana In-

charge Shri Kumbhgiri (PW.20) and pointed out that the witness

stated that the Malkhana articles were forwarded to the FSL

Jodhpur with Constable Harendra Singh on 26.06.2013. However,

in cross-examination, he admitted that prior thereto, the

Malkhana articles had been sent to the FSL on 24.06.2013 and

were returned with objections. However, the nature of objections

was not explained by the prosecution. The witness also admitted

that there was no entry in the Malkhana Register (Ex.D4A)

regarding transmission of the Malkhana articles to the FSL. Thus,

as per Shri Jain, the link evidence is breached and consequently,

the FSL report is rendered worthless. The appellants were on bail

during pendency of the trial and they did not misuse the liberty so

granted to them. He further urged that from the sole circumstance

of recovery of blood stained articles, no inference of guilt can be

drawn against the appellants and hence also, they deserve

indulgence of bail during pendency of the appeal. With these

submissions, learned counsel Shri Jain implored the Court to

accept the instant application for suspension of sentences and

direct enlargement of the appellants on bail during pendency of

the appeal.

Per contra, learned Public Prosecutor, vehemently and

fervently opposed the submissions advanced by the appellants'

counsel. However, he too was not in a position to dispute the fact

(4 of 5) [SOSA-244/2022]

that other than the circumstance of recoveries of the blood stained

knife and clothes, there is nothing on record which can connect

the appellants with the murder of Kishore Singh. It is not in

dispute that the incident took place night intervening 13 and 14

April, 2013 and the recoveries were effected after 7-8 days. The

IO arrested the accused appellants without there being any

plausible material to connect them with the alleged crime. There is

a grave lacuna in the prosecution case regarding the link evidence

mandatorily required to prove the safekeeping of the Malkhana

articles in the self-same condition as has been discussed above.

There is also a serious question mark as to whether, sole

circumstance of recovery of blood stained articles can be

considered sufficient to bring home the charge of murder in

absence of any substantive evidence to link the accused with the

crime. The appellants were on bail during the pendency of trial.

They did not misuse the liberty so granted to them. Hearing of the

appeal is unlikely in near future. As per the reply, the appellants

do not have any criminal antecedents.

Accordingly, the instant application for suspension of

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

ordered that the sentences passed by learned Sessions Judge,

Jodhpur vide judgment dated 11.03.2022 in Sessions Case

No.120/2013 against the appellants-applicants (1) Durg Singh S/o

Shri Deep Singh and (2) Bhom Singh S/o Shri Narayan Singh shall

remain suspended till final disposal of the aforesaid appeal and

they shall be released on bail subject to the condition that each of

them shall furnish 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 his appearance in this court on 18.05.2022 and

(5 of 5) [SOSA-244/2022]

whenever ordered to do so till the disposal of the appeal on the

conditions indicated below:-

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.