Gendmal vs State Of Rajasthan
2022 Latest Caselaw 14096 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 960/2022

Gendmal S/o Heera Lal Bheel, Aged About 37 Years, Girdiya, P.s. Begun, Teh. Rawatbhata, Dist. Chittorgarh (Raj.). (At Present Lodged In Central Jail, Udaipur).

                                                                  ----Petitioner
                                   Versus
State of Rajasthan, Through PP
                                                                ----Respondent


For Petitioner(s)        :     Mr. Manish Pitaliya
For Respondent(s)        :     Mr Anil Joshi, GA-cum-AAG with
                               Mr. Rajat Chhaparwal



           HON'BLE MR. JUSTICE SANDEEP MEHTA
           HON'BLE MR. JUSTICE KULDEEP MATHUR

                                    Order

01/12/2022

The instant application for suspension of sentences under

Section 389 Cr.P.C. has been preferred by appellant-applicant who

has been convicted and sentenced as below vide judgment dated

22.09.2022 passed by learned Addl. District & Sessions Judge,

Begun, Chittorgarh in Sessions Case No.74/2021 (54/2016):-

Offence       Imprisonment                Fine                  Sentence        in
Under                                                           default of fine
Section
302 IPC       Life imprisonment           Rs.5,00,000/- 2 Years' SI
201 IPC       7 Years' SI                 Rs.5,000/-            1 Year's SI
323 IPC       1 Year's SI                 Rs.1,000/-            6 Months' SI

All the sentences were ordered to run concurrently.

(2 of 5) [SOSA-960/2022]

As per the reply submitted by learned Public Prosecutor, the

appellant has suffered incarceration of more than six years.

Learned counsel Shri Pitaliya submitted that the case set up

in the evidence of the sole prosecution eyewitness Smt. Mangi Bai

(PW.1) that the appellant herein was having a motive to murder

her husband Shri Bheru Lal is totally unacceptable. As a matter of

fact, Smt. Mangi Bai and her husband Bheru Lal, the deceased

were bearing grudge against the appellant because Bheru Lal's

brother Shri Devi Lal had given up the adoption of their son Kela

Ram and had taken the appellant in adoption at a later point of

time. Thus, this witness and Shri Bheru Lal were peeved by this

fact and bore a grudge that their son would be deprived of Devil

Lal's property on account of adoption of the appellant.

Shri Pitaliya further submitted that the alleged incident took

place on 13.09.2016 wherein an allegation was levelled that the

appellant intentionally collided his motorcycle with the deceased

Shri Bherul Lal leading to him receiving the fatal injury. The victim

was admitted to the Government Hospital, Udaipur on 14.09.2016

but none of the family members including Smt. Mangi Bai gave

any information to the police regarding the intentional collision by

the appellant with the intention to kill the deceased. Shri Bheru Lal

expired on 19.09.2016 and thereafter, a highly belated FIR

(Ex.P/1) came to be submitted by Smt. Mangi Bai on 21.09.2016

wherein an allegation was set out for the first time that the

appellant intentionally collided his motorcycle and caused injury to

Shri Bheru Lal. Shri Pitaliya urged that both Mangi Bai (PW.1) and

his son Kela Ram (PW.2) who was earlier taken in adoption by

(3 of 5) [SOSA-960/2022]

Devi Lal, admitted in their cross-examination that if Devi Lal had

not taken Gendmal in adoption, then they would not have

proceeded to file this criminal case. He urged that the petitioner

was implicated in this case with the sole motive of putting him

behind the bars so that Smt. Mangi Bai and Kela Ram could lay

their hands on the property of Devi Lal. He submitted that the

hearing of the appeal is bound to take a long time. The appellant

is in custody for the last more than 6 years. He has strong

grounds to assail the impugned judgment. On these submissions,

Shri Pitaliya implored the Court to accept the instant application

for suspension of sentences and direct enlargement of the

appellant on bail during pendency of appeal.

Learned Public Prosecutor, on the other hand, vehemently

and fervently opposed the submissions advanced by the

appellant's counsel. He urged that Smt. Mangi Bai (PW.1) is a

truthful eyewitness of the incident. Merely because the FIR was

lodged with some delay, the entire prosecution case cannot be

discarded because Mangi Bai is an illiterate rustic villager and she

had no clue that the FIR had to be submitted promptly. The family

members were busy tending to the victim who was admitted to

the hospital for treatment and thus, the delay in lodging the FIR is

well explained.

However, learned Public Prosecutor was not in a position to

dispute the fact that Mangi Bai and Kela Ram would be the ones

having a grudge against the appellant because Devil Lal, brother

of the deceased had taken the appellant Gendmal in adoption by

retracting the earlier adoption of Kela Ram. Thus, the appellant

(4 of 5) [SOSA-960/2022]

had not motive to commit the offence. It is also not in dispute that

Bheru Lal was admitted to the Government Hospital, Udaipur on

14.09.2016. The incident took place on 13.09.2016. A perusal of

the bedhead ticket, though not proved but available on the

original record indicates the history which was given out by the

patient's relatives to the doctors at the Udaipur Hospital was that

the injuries were received in a RTA (Road Traffic Accident) on

13.09.2016 at 3:00 PM at Village Garadia Apparently thus, the

delay in lodging the FIR is of great significance and would go to

the root of matter. It is clear that the story that the appellant

intentionally collided his motorcycle against Shri Bheru Lal was

created for the first time after nearly eights days of the incindent.

The appellant has been behind the bars for the last more than six

years. Hearing of the appeal is bound to consume time. We are,

thus of the view that the appellant has available to him strong

grounds for assailing the impugned judgment.

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 Addl. District &

Sessions Judge, Begun, Chittorgarh vide judgment dated

22.09.2022 in Sessions Case No.74/2021 (54/2016) against the

appellant-applicant Gendmal S/o Shri Heera Lal shall remain

suspended till final disposal of the aforesaid appeal and he shall be

released on bail subject to the condition that he shall furnish

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 03.01.2023 and whenever ordered

(5 of 5) [SOSA-960/2022]

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.

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.

                                   (KULDEEP MATHUR),J                                          (SANDEEP MEHTA),J
                                    5-Sudhir Asopa/-









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