Deepak @ Devilal vs State Of Rajasthan
2022 Latest Caselaw 10154 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 587/2022

1. Deepak @ Devilal S/o Madan Lal, Aged About 18 Years,

R/o Charliya Post Arnoda, P.s. Sadar Nimbahera, District

Chittorgarh. (Presently Lodged At Central Jail, Udaipur)

2. Pushkar S/o Rajaram, Aged About 19 Years, R/o Charliya

Post Arnoda, P.s. Sadar Nimbahera, District Chittorgarh.

(Presently Lodged At Central Jail, Udaipur)

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

----Respondent

For Petitioner(s) : Mr. R.K. Charan.

For Respondent(s) : Mr. R.R. Chhaparwal, PP.

Mr. Bharat Shrimali.

HON'BLE MR. JUSTICE SANDEEP MEHTA HON'BLE MR. JUSTICE FARJAND ALI

Order

03/08/2022

Heard learned counsel representing the applicants

appellants, learned Public Prosecutor and learned counsel

representing the complainant. Perused the impugned Judgment

and the material available on record.

The appellants applicants herein have been convicted and

sentenced as below vide judgment dated 30.06.2022 passed by

the learned Additional Sessions Judge, No.2, Nimbahera, District

Chittorgarh, in Sessions Case No.17/2020 (47/2017):

                                        (2 of 5)                [SOSA-587/2022]


Deepak @ Devilal
Offences              Sentences                   Fine         Fine Default
                                                               sentences
Section    302/120B Life                          Rs.20,000/- 2 Years' S.I.
IPC                 Imprisonment
Section 450 IPC       5 Years R.I.                Rs.5,000/-   6 Months' S.I.


Pushkar
Offences              Sentences                   Fine         Fine Default
                                                               sentences
Section    302/120B Life                          Rs.20,000/- 2 Years' S.I.
IPC                 Imprisonment

The applicants-appellants have preferred this application

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

during pendency of the appeal.

Reply to the application for suspension of sentences has

been filed by the learned Public Prosecutor.

Shri Charan, learned counsel representing the appellants,

urged that there is no evidence whatsoever on the record of the

case so as to connect them with the charges. He submitted that

the prosecution has come out with a case that dead body of

Kishan son of the first informant Chunni Lal was found lying inside

his house with the neck severed on 09.07.2017. Suspicion for the

murder was cast on the co-accused Bhairu Lal. The said Bhairu Lal

was arrested and when the Investigating Officer Praveen Singh

(PW-15) conducted interrogation, the said accused allegedly

divulged that he conspired with Deepak and Pushkar, the

appellants herein and acting in furtherance of the said conspiracy,

all three went to the house of deceased Kishan. There, Bhairu Lal

inflicted the sword blow on the neck of Kishan whilst Deepak held

him down. Learned counsel, Shri Charan submits that this

information of the accused (Ex.P/34) should not have been

(3 of 5) [SOSA-587/2022]

allowed to be proved during evidence because it is nothing but the

confession of an accused recorded by the police officer and is hit

by Section 25 of the Indian Evidence Act. He urged that the

adverse finding recorded by the trial Court against the appellants

at page 15 of impugned judgment, is based on the confessional

statement of the co-accused recorded by the police office and is

perverse on the face of the record. He further submitted that none

of the witnesses examined during the course of trial, claimed to

have seen the incident and hence, implication of the accused

appellants on the basis of the confessional statement of the co-

accused, is grossly unjust, illegal and perverse and hence, the

appellants deserve indulgence of bail in this case.

Per contra, learned Public Prosecutor and counsel

representing the complainant, vehemently and fervently opposed

the submissions advanced by the appellants' counsel. However,

they too are not in a position to dispute the fact that the trial

court has based the conviction of the appellants solely on the

interrogation note of the co-accused Bhairu Lal (Ex.P/34) as

recorded by the Sub-Inspector Shri Praveen Singh (PW/15). It is a

fundamental principle of criminal jurisprudence by virtue of

Section 25 of the Indian Evidence Act that confession of an

accused recorded by a police officer cannot be proved in evidence.

A perusal of the statement of Praveen Singh (PW-15) reveals that

the Presiding Officer, allowed incorporation of the entire confession

made by Bhairu Lal when the testimony of the Investigating

Officer was recorded. The procedure so adopted by the trial court

is grossly illegal and reflects a fundamental lack of understanding

of principles of criminal jurisprudence. Once the interrogation note

(Ex.P/34) is excluded from consideration as it must be, there is no

(4 of 5) [SOSA-587/2022]

evidence on the record of the case so as to connect the appellants

with the crime. The appellants were on bail during the course of

trial. They did not misuse the liberty so granted to them.

In this background, we are of the view that the appellants-

applicants have available to them valid and substantial grounds for

assailing the impugned Judgment. Hearing of the appeal is

unlikely in the near future.

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-

appellants, during pendency of the appeal.

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 the Additional Sessions

Judge, No.2, Nimbahera, District Chittorgarh, vide judgment dated

30.06.2022 in Sessions Case No.17/2020 (47/2017) against the

appellants-applicants (1) Deepak @ Devilal and (2) Pushkar,

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 07.09.2022 and 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.

(5 of 5) [SOSA-587/2022]

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 before Hon'ble the Guardian

Judge of Chittorgarh Judgship for information.

                                   (FARJAND ALI),J                                        (SANDEEP MEHTA),J


                                    21-Tikam/-









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