Rajasthan High Court - Jodhpur
Bhura vs State Of Rajasthan on 5 December, 2022
Bench: Sandeep Mehta, Kuldeep Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Misc II Suspension Of Sentence Application
(Appeal) No. 1092/2022
Bhura S/o Sh. Paratha Mogiya, Aged About 65 Years, R/o
Mogiya-Ka-Thana, Sadara, P.s. Sayara, Dist. Udaipur (Raj.).
(Presently Lodged In Central Jail, Udaipur).
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Mr. J.V. S. Deora
For Respondent(s) : Mr. B.R. Bishnoi, AGC
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE KULDEEP MATHUR
Order
05/12/2022
The instant second 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 06.03.2020 passed by learned Addl. Sessions
Judge No.4, Udaipur in Sessions Case No.43/2016 (359/2016):-
Offence Imprisonment Fine Sentence in
Under default of fine
Section
302 IPC Life imprisonment Rs.10,000/- 1 Year's RI
323 IPC 1 Year's SI Rs.1,000/- 1 Month's SI
Both the sentences were ordered to run concurrently.
(2 of 4) [SOSA-1092/2022]
The first application for suspension of sentences
(No.526/2020) was dismissed by this Court on 28.01.2021.
Learned Public Prosecutor has filed reply to the application for SOS
as per which, the appellant has undergone imprisonment of 7
years and 9 months including remission. As per arrest memo
(Ex.P/2) available on record, the age of the appellant as on
09.06.2016, was 65 years.
As per the prosecution case, the appellant and his son
Amring, the deceased quarreled with each other over a trivial
issued of cattle fodder and during the course of this quarrel, the
appellant gave an axe blow on the neck of his son which landed
from the reverse side causing a grievous injury fracturing the
vertebra/spinal chord leading to the death of Amring.
Learned counsel Shri Deora urges that the appellant has
remained in custody for nearly eight years. Even if the prosecution
allegations are accepted to be true on the face of record, then
also, the offence would not travel to beyond Section 304 Part II
IPC. He urges that the appellant, neither had any intention nor the
knowledge that by inflicting such injury to his own son, he could
cause his death. He submits that the incident took place at the
spur of moment without any premeditation and hence, it is a fit
case to suspend the sentences awarded to the appellant by the
trial court.
Learned Public Prosecutor vehemently and fervently opposed
the submissions advanced by the appellant's counsel. However, he
(3 of 4) [SOSA-1092/2022]
too is not in a position to dispute the fact that the appellant is a
70 years old man.
As per the allegations set out in the statement of Suresh, his
father Shri Amring and the appellant were quarreling with each
other over the issue of cattle fodder and during the course of such
altercation, the appellant inflicted a single blow of the axe on the
neck of the deceased. As per the medical jurist PW.17 Dr. Vaibhav
Bhatnagar, the solitary injury on the neck of the deceased was a
lacerated wound. Apparently thus, the sharp weapon was used
from the reverse side. Hence, there is a merit in the contention of
Shri Deora that the offence to be applied in this case would not be
Section 302 IPC and could possibly be toned down to one under
Section 304 Part II IPC. The appellant, who is an old man, aged
about 70 years, has remained in custody for nearly eight years.
Hearing of the appeal is likely 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. Sessions
Judge No.4, Udaipur vide judgment dated 06.03.2020 in Sessions
Case No.43/2016 (359/2016) against the appellant-applicant
Bhura S/o Shri Paratha Mogiya 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
(4 of 4) [SOSA-1092/2022]
court on 03.01.2023 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.
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
11-Sudhir Asopa/-
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