Prakash vs State
2022 Latest Caselaw 2568 Raj

Citation : 2022 Latest Caselaw 2568 Raj
Judgement Date : 14 February, 2022

Rajasthan High Court - Jodhpur

Prakash vs State on 14 February, 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. 800/2021

Prakash S/o Govind, Aged About 28 Years, B/c Meghwal (Balai), R/o Near Crasher Machine, Maderna Colony, P.s. Mahamandir, Jodhpur. (At Present Confined In Central Jail, Jodhpur)

----Petitioner Versus State, Through PP

----Respondent

For Petitioner(s) : Mr. Ravindra Acharya.

For Respondent(s) : Mr. B.R. Bishnoi, AGC.

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

Order

14/02/2022

The instant application for suspension of sentences has been

preferred on behalf of the appellant applicant under Section 389

Cr.P.C. who has been convicted and sentenced as below vide

judgment dated 04.09.2021 passed by the learned Additional

Sessions Judge, No.6, Jodhpur Metropolitan in Sessions Case

No.74/2017:

Offences            Sentences                     Fine
Section 302 IPC     Life Imprisonment.            Rs.10,000/- in default of
                                                  which to further undergo
                                                  6   Months'    Additional
                                                  Imprisonment
Section 364 IPC     10 Years' R.I.                Rs.10,000/- in default of
                                                  which to further undergo
                                                  6   Months'    Additional
                                                  Imprisonment





                                          (2 of 5)                   [SOSA-800/2021]

Learned Public Prosecutor has filed reply to the application

for suspension of sentences.

We have heard and considered the submissions advanced at

bar and have gone through the record.

Learned counsel Shri Acharya representing the appellant

vehemently and fervently contended that there is no evidence to

connect the appellant with the crime. The case set up by the

prosecution regarding the alleged murder of Bhagwan Ram is

based purely on circumstantial evidence. The trial court placed

reliance on the Rojnamcha entry (Ex.P/22) wherein, it is recorded

that the appellant himself appeared at the Police Station

Soorsagar and confessed to have murdered his cousin brother

Bhagwan Ram by strangulating him. Shri Acharya drew the Court's

attention to the statement of the SHO Nitin Dave (PW-25), who

was not made to prove the said Rojnamcha Entry in his

examination-in-chief. The SHO admitted in his cross-examination

that the original Rojnamcha entry was not available on the record.

He did not include the same with the file and that copy (Ex.P/22)

did not bear his signatures. The witness rather admitted that he

could not say as to when document (Ex.P/22) was proved. Shri

Acharya also drew the Court's attention to the other investigating

officer Krishan Chandra (PW-24) who admitted in his statement

that the Rojnamcha entry (Ex.P/22) was taken on record on

18.02.2017 whereas the incident took place on 18.12.2016. Shri

Acharya submitted that the evidence of the witnesses of last seen

is not reliable. The recoveries of rope and chain effected from the

appellant is of no avail because these articles were not sent for

serological examination. He thus urges that the appellant has

available to him strong grounds for assailing the impugned

(3 of 5) [SOSA-800/2021]

judgment. The appellant is in custody from 19.12.2016. Hearing

of the appeal is likely to consume time. On these submissions,

Shri Acharya sought acceptance of the application for suspension

of sentences craving bail for the appellant during pendency of the

appeal.

On the other hand, learned Public Prosecutor vehemently

and fervently opposed the submissions advanced by the

appellant's counsel. However, he too is not in a position to dispute

the fact that the Rojnamcha Entry (Ex.P/22) on which, the trial

court placed heavy reliance for convicting the appellant was not

proved as per law. The document which is available on record is

simply a hand-written one with no endorsement of it being a

certified copy. The SHO Nitin Dave (PW-25) admitted in his cross-

examination that he did not sign the document. The document

does bear the signatures of the accused as well. Even if the

original had been proved, the defence would have been well within

its right to claim that the document (Ex.P/22) is nothing but a

confession of the accused recorded by the police officials. There

are significant contradictions in the statements of the witnesses of

last seen PW-1 Hanuman, PW-2 Kailash, etc. Few other witnesses

of last seen namely Babulal (PW-7), Pushpa (PW-8), Manju (PW-

9), Ashok (PW-10) did not support the prosecution case and were

declared hostile. The articles (rope and chain) recovered at the

instance of the appellant were not sent for forensic/serological

examination.

Having considered the entirety of the circumstances as

available on record, we are of the opinion that the appellant has

available to him strong and plausible grounds so as to assail the

(4 of 5) [SOSA-800/2021]

impugned judgment. Hearing of the appeal is unlikely in the near

future. The appellant is in custody since December, 2016.

Thus, having regard to the overall facts and circumstances

available on record and, we are inclined to enlarge the appellant

on bail while suspending the sentences awarded to him by the trial

court, 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.6, Jodhpur Metropolitan, vide judgment dated

04.09.2021 in Sessions Case No.74/2017 against the appellant-

applicant Prakash, shall remain suspended till final disposal of the

aforesaid appeal and he shall be released on bail, provided he

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 his appearance in this court on 14.03.2022 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.