Bhanwarlal vs State Of Rajasthan
2022 Latest Caselaw 14247 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 834/2022

1. Bhanwarlal S/o Shri Derama Ram, Aged About 40 Years,

2. Talka Ram son of Shri Naranaji, aged 28 years,

3. Bhava Ram son of Shri Premaji, aged 58 years,

4. Bhagwana Ram son of Shri Naranaji, aged 53 years,

All are resident of Village Bhadruna, P.S. Jhab Dist. Jalore

(At Present Lodged In Central Jail Jodhpur)

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

----Respondent

For Petitioner(s) : Mr. Suresh Kumbhat.

Mr. Sheetal Kumbhat.

For Respondent(s) : Mr. Anil Joshi, GA-cum-AAG.

Mr. Vikram Choudhary.

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

Order

05/12/2022

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 02.08.2022 passed by

the learned Additional Sessions Judge, Sanchore, District Jalore, in

Sessions Case No.438/2015 (54/2020) (CIS No.85/2020):

                                        (2 of 6)                [SOSA-834/2022]




Offences              Sentences                   Fine         Fine Default
                                                               sentences
Section     302/149 Life                          Rs.25,000/- 6 Months' R.I.
IPC                 Imprisonment

Section 120B IPC      Life                        Rs.25,000/- 6 Months' R.I.
                      Imprisonment

Section 341 IPC       1 Month's S.I.              Rs.5,000/-   7 Days' S.I.

Section 148 IPC       3 Years' R.I.               Rs.10,000/- 15 Days' S.I.

The applicants-appellants have preferred this application for

suspension of sentences under Section 389 Cr.P.C. with a prayer

for being released on bail during pendency of the appeal.

Learned Public Prosecutor has filed reply to the application

for suspension of sentences as per which, the appellants do not

have any criminal antecedents.

Shri Kumbhat, learned counsel representing the appellants,

submitted that as many as 10 accused were named in the FIR

(Ex.P/7) whereas, charge-sheet came to be filed only against four

appellants and the accused Chamna Ram. He pointed out that ten

persons were implicated as assailants in the written FIR submitted

by Karsan Ram son of the deceased Shri Masra Ram. Neither any

specific act of violence was attributed to the appellants nor was

any of the appellants alleged to be armed with a specific weapon

in the written report. He further submitted that the prosecution

did not make any effort to implead the accused who were

exonerated by the I.O. by filing an application under Section 319

Cr.P.C. He referred to the statement of the Medical Jurist Dr.

Ravindra Kumar (PW-17) and pointed out that the Jurist clearly

opined that the cause of death of the victim Shri Masra Ram was

(3 of 6) [SOSA-834/2022]

the solitary head injury as described in the postmortem report

(Ex.P/15). Shri Kumbhat pointed out that the said head injury has

been specifically attributed by the witness Dalpat Ram (PW-4) to

the accused Chamna Ram. He also drew the Court's attention to

the statement of the first informant Karsan Ram (PW-2) and more

particularly his cross-examination wherein, the witness stated that

Magna, Mahendra and Shankra all gave blows of sharp edged

weapon on the head of his father but in a later part of statement,

he stated that Chamna Ram had caused the sharp weapon injury

to the deceased. He further submitted that looking to the evidence

of the material prosecution witnesses, the trial court convicted

Chamna Ram for the offence punishable under Section 302 IPC

Simplicitor whereas the applicants-appellants were convicted for

the offence punishable under Section 302/149 IPC. As per Shri

Kumbhat, no elements of formation of unlawful assembly are

disclosed from the evidence of the prosecution witnesses. Shri

Kumbhat thus urged that so far as the applicants-appellants are

concerned, their implication in this case for the offence punishable

under Section 302 IPC with the aid of Section 149 IPC is totally

unjustified. Shri Kumbhat further submitted that the accused

appellants were on bail during the course of the trial. On these

grounds, Shri Kumbhat implored the Court to accept the

application for suspension of sentences and direct enlargement of

the applicants-appellants on bail during pendency of the appeal.

Per contra, Shri Anil Joshi, learned GA-cum-AAG and Shri

Vikram Choudhary, learned counsel representing the complainant,

vehemently and fervently opposed the submissions advanced by

Shri Kumbhat. They urged that the applicants-appellants and the

accused Chamna Ram and so also the left out accused, formed an

(4 of 6) [SOSA-834/2022]

unlawful assembly and waylaid the complainant Karsan Ram, his

father Masra Ram and Dalpat near the Mahaveer School, Sanchore

on 02.12.2014 at about 11 O' Clock. All the accused gave

indiscriminate blows of their respective weapons to the deceased

Masra Ram. The head injury caused to Shri Masra Ram proved

fatal. Thus, it was contended that the appellants have been rightly

held guilty for the offence under Section 302 IPC with the aid of

Section 149 IPC. On these grounds, learned GA-cum-AAG and the

counsel representing the complainant implored the Court to

dismiss the application for suspension of sentences filed on behalf

of the appellants-applicants.

We have given our thoughtful consideration to the

submissions advanced at bar and, have gone through the

impugned Judgment as well as the record.

Suffice it to say that after appreciating the evidence available

on record, the trial court has convicted the accused Chamna Ram

for the offence under Section 302 IPC Simplicitor whereas the

applicants-appellans were convicted with the aid of Section 149

IPC. The witness Dalpat (PW-4) made a pertinent allegation in his

examination-in-chief that Chamna Ram gave an iron rod blow on

the head of the deceased and thereafter, 8-10 other assailants

including the appellants-applicants herein landed indiscriminate

blows of lathis on the body of Masra Ram. However, the said

allegation is belied by the testimony of the Medical Jurist Dr.

Ravindra Kumar (PW-17) who found only a single injury on the

head of the deceased. Other accused persons named in the FIR,

who had been assigned similar roles to that of the appellants-

applicants, were not even charge-sheeted by the I.O. The

applicants-appellants were on bail during the course of the trial.

(5 of 6) [SOSA-834/2022]

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, Sanchore, District Jalore, vide judgment dated 02.08.2022

in Sessions Case No.438/2015 (54/2020) (CIS No.85/2020)

against the appellants-applicants (1) Bhanwarlal, (2) Talka

Ram, (3) Bhava Ram and (4) Bhagwana Ram, 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 09.01.2023 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.

3. Similarly, if the sureties change their address(s), they will give in writing their changed address to the trial Court.

(6 of 6) [SOSA-834/2022]

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


                                    10-Tikam/-









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