Rajasthan High Court - Jodhpur

Asuram vs State on 12 January, 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. 789/2021

Asuram S/o Ridmal Ram, Aged About 30 Years, R/o Barudi, Police Station Gudamalani, District Barmer (Raj.) (Presently Lodged In District Jail, Barmer)

----Petitioner Versus State, Through PP

----Respondent

For Petitioner(s) : Mr. Vineet Jain (through VC) For Respondent(s) : Mr. R.R. Chhaparwal, PP Mr. S.P. Joshi (through VC)

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

Order

12/01/2022

The appellant-applicant herein has been convicted and

sentenced as below vide judgment dated 10.09.2020 passed by

learned Additional District & Sessions Judge No.1, Barmer in

Sessions Case No.155/2016:

Offence         Sentences                   Fine                Fine     Default
                                                                sentences

Sec. 302/34 IPC Life Imprisonment           Rs.20,000/-         1 Month's S.I.

Shri Jain, learned counsel representing the appellant has

preferred the instant application under Section 389 Cr.P.C. seeking

release of the appellant on bail during pendency of the appeal.

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Learned Public Prosecutor has filed reply to the application

for SOS.

As per the prosecution case, the appellant and the co-

accused Ridmalram had prior enmity with the deceased

Ramchandra. On 07.06.2016, they accosted Ramchandra when he

was proceeding on his tractor and assaulted him. Ramchandra was

pulled down from the tractor and thereafter Asuram boarded the

same and drove it over Ramchandra thereby killing him at the

spot.

A typed report (Ex.P/4) came to be lodged by Hariram

(PW.4) in which, he alleged that his father Ramchadra was

proceeding from the village Bhakharpura on his tractor. At about

10:30 in the morning, while he was passing through the village

Barudi, Ridmalram and Asuram came across in a pre-planned

manner and launched an attack. Ridmalram gave a lathi blow on

the head of his father Ramchandra and Asuram gave him a lathi

blow on the hand. Thereafter, Ramchandra was pulled down and

Asuram drove the tractor over him. The first informant claimed

that he and Bhanwarlal were proceeding from their home towards

Gudamalani and saw the incident with their own eyes.

Ramchandra was taken to the hospital where he was declared

dead.

Shri Jain, urged that ex-facie the allegations as set out in the

FIR are absolutely false and frivolous. As a matter of fact, it is the

deceased who had a motive to quarrel with the appellant. Neither

Hariram nor Bhanwarlal were present at the spot when the

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incident took place. Ramchadra tried to drive the tractor over the

accused persons when suddenly his foot slipped from the clutch

and the tractor went out of control. Ramchandra fell down and

came under the rear tyre of the tractor. Thus, it is a case of

accidental death plain and simple. In support of his contentions,

Shri Jain drew the Court's attention to the statements of the IO

PW.26 Devendra Singh who stated in his cross-examination that

as per the call detail records collected during the investigation,

Ramchandra had talked to his son Hariram on 07.06.2016 at

10:34 AM, 10.40 AM, 10:43 AM and 12:34 PM. As per the tower

locations, Bhanwarlal's phone was operative in a different area of

Gudamalani Kasba. Shri Jain further submitted that the

prosecution tried to present PW.12 Ramniwas and PW.13 Meera as

eyewitnesses of the incident but absence of the names of these

witnesses in the written report (Ex.P/4) completely discredits their

claim to be the eye-witnesses. He urges that the independent

witness Hariram (PW.1) admitted in his evidence that Ramchandra

was driving the tractor. Ramchandra's foot slipped from the clutch

due to which, the tractor went out of the control. Ramchandra fell

down and was crushed under the rear tyre of the tractor. Shri Jain

submits that prima-facie this story is more probable and the

allegation as set out in the statements of Shri Bhanwarlal (PW.3)

and Shri Hariram (PW.4) is unbelievable because if as per their

case, Asuram had started the tractor, then it would be impossible

for Ridmalram to singly, handle and push Ramchandra under the

tractor wheel. He thus, urges that the appellant who is in custody

since June, 2016 has strong grounds for assailing the impugned

judgment. Hearing of the appeal is likely to consume time. On

these submissions, he implored the Court to accept the instant

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application for SOS and direct enlargement of the appellant on bail

during pendency of the appeal.

Per contra, learned Public Prosecutor and Shri S.P. Joshi,

learned counsel representing the complainant vehemently and

fervently opposed the submissions of the appellant's counsel. They

urged that the witnesses PW.3 Bhanwarlal, PW.4 Hariram (the first

informant), PW.12 Ramniwas and PW.13 Meera Devi categorically

alleged that Ridmalram and Asuram first dragged Ramchandra

under the tractor and then Asuram drove the tractor over the

victim. They thus, urged that as there is a distinct allegation of the

prosecution witnesses that the appellant drove the tractor over the

deceased, he does not deserve indulgence of bail in this matter.

We have given our thoughtful consideration to the

submissions advanced at bar and have gone through the material

available on record.

The prosecution has come out with a categoric case that the

appellant drove the tractor over the victim/deceased Ramchandra.

However, it is an admitted case that the tractor was of

Ramchandra. He was proceeding thereupon when the incident

took place. As per the statements of the eyewitnesses (referred to

supra), the accused Asuram and Ridmalram accosted the

deceased while he was driving the tractor and pulled him down

from the vehicle whereafter he was forced down and the tractor

was driven over the deceased by the appellant Asuram.

Nonetheless, physically and practically such a scenario seems to

be improbable. If both the accused were holding the deceased

down on the ground then, it is a matter of surprise as to how

Asuram could climb on the tractor and drive the same over the

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victim. It is equally improbable that Ridmalram alone would have

been in the power and position to control the deceased in such a

fashion that the accused Asuram would be able to drive the tractor

over him because in such a scenario, Shri Ridmalram would have

faced the equal danger of being run over by the tractor. In view of

the call details record, referred to supra, in the statement of the

IO, the time of the incident as stated in the FIR and the claim of

the Hariram and Bhanwarlal that they were the eye-witnesses is

questionable. However, these observations are being made only

for the purpose of decision of the instant application for SOS and

will not prejudice the outcome of the appeal in any manner.

Having considered the entirety of the facts and

circumstances as available on record, we are of the view that the

appellant has available to him strong and plausible grounds for

assailing the impugned judgment. He has been in custody for a

period in excess of five and half years. Hearing of the appeal is

likely to consume time. There is no likelihood of the appellant

absconding or threatening the prosecution witnesses, in case he

is released on bail.

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 learned Additional

District & Sessions Judge No.1, Barmer vide judgment dated

10.09.2020 in Sessions Case No.155/2016 against the appellant-

applicant Asuram S/o Shri Ridmalram 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

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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 14.02.2022 and whenever ordered to do so till the

disposal of the appeal on the conditions indicated below:-

1. That he will appear before the trial Court in the month of January of every year till the appeal is decided.

2. That if the applicant changes the place of residence, he will give in writing his changed address to the trial Court as well as to the counsel in the High Court.