Rajasthan High Court - Jodhpur

Sunil Yadav vs State on 18 January, 2022

Bench: Sandeep Mehta, Vinod Kumar Bharwani

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      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR

D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 767/2021

Sunil Yadav S/o Arshafi Yadav, B/c Yadav, Aged About 37 Years, R/o Morvo, P.S. Taatpura, District Samastipur (Bihar). Presently Residing At Moti Rice And Oil Mill A1 First Phase Industries Area Hanumangarh Junction.

(Presently Lodged At Central Jail Bikaner).

----Petitioner Versus State, Through PP

----Respondent

For Petitioner(s) : Mr. H.S.S. Kharlia, Sr. Advocate with Ms. Harvinder through VC.

For Respondent(s) : Mr. R.R. Chhaparwal, PP.

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

Order

18/01/2022

Heard learned counsel representing the applicant appellant

and the learned Public Prosecutor. Perused the impugned

Judgment and the material available on record.

The appellant applicant herein stands convicted and

sentenced as below vide judgment dated 15.10.2019 passed by

the learned Additional Sessions Judge No.1, Hanumangarh in

Sessions Case No.10/2017 (CIS No.52/2017):

Offences                 Sentences                            Fine
Section 302 IPC          3      Times                  Life 3                  Times
                         Imprisonment.
                                                              Rs.20,000/-





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The case involves triple murders of one Shri Shambhu

Sharan Yadav and his children Deepak and Jyoti. The dead bodies

of the three victims were found locked inside the House No.2/133,

Housing Board, Hanumangarh Junction where, Shri Shambhu

Sharan Yadav resided with his wife Smt. Reema (the co-convict)

and his two deceased children. The prosecution has come out with

a case that Smt. Reema was involved in an extramarital affair with

the appellant herein and that both conspired to kill Shri Shambhu

Sharan Yadav and the two children and then absconded. When the

foul smell started emanating from the house, the matter was

reported to the SHO, Police Station Hanumangarh Junction who

broke open the lock of the house and found the three dead bodies

lying inside. An FIR No.372/2016 was registered for the offences

under Sections 302, 34 of the IPC and investigation was

commenced. After conclusion of investigation, the appellant Sunil

Yadav and the co-accused Smt. Reema were charge-sheeted and

finally, both were convicted and sentenced as above. The

appellant, who is in custody since 30.07.2016, has approached

this Court by way of this application under Section 389 Cr.P.C.

seeking suspension of sentences awarded to him by the trial court.

Reply to the application for suspension of sentences has

been filed by the learned Public Prosecutor.

Shri H.S.S. Kharlia, Sr. Advocate assisted by Ms. Harvinder,

Advocate representing the applicant appellant, vehemently and

fervently contended that the prosecution has failed to prove the

case as against the appellant by convincing evidence. The

prosecution case was based on ocular/direct testimony and

circumstantial evidence. However, the star prosecution witness

Neelam Yadav (PW-7), wife of the appellant, did not support the

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prosecution case and was declared hostile and thus, there is no

direct evidence against the appellant who was convicted on the

basis of three circumstances:

(i) Extramarital affair with the co-accused Smt. Reema;

(ii) Recovery of blood stained vest having same blood group as

that of the deceased child Jyoti (AB); and

(iii) Circumstance of abscondance of the accused appellant from

the place of incident after committing the murders.

Shri Kharlia pointed out that the appellant was arrested on

the very day of registration of the FIR as is evident from the

testimony of Constable Pradeep Singh (PW-9) and thus, the

conclusion of the learned trial court that the appellant absconded

from the place of incident, is totally unsubstantiated. He further

submitted that the allegation regarding the appellant having been

involved in an extramarital affair with the co-accused Smt. Reema

is totally conjectural because the witness Mahesh (PW-1), who

levelled this allegation, stated that one Ajay had told him

regarding the extramarital affair of these two accused. Ajay, upon

being examined as PW-4, gave evidence of extra-judicial

confession made by both the accused at the police station and

also stated that Neelam Yadav (PW-7) and Ashrafi (PW-5) told him

regarding the two accused being involved in an extramarital affair.

However, neither Neelam Yadav (PW-7) nor Ashrafi (PW-5)

supported the prosecution case and were declared hostile.

Regarding the recovery of blood stained vest, the contention of

Shri Kharlia was that the I.O. claimed to have recovered the vest

from the body of the accused on 30.07.2016 at 06.10 PM. But this

claim of the I.O. is falsified from the evidence of Malkhana

Incharge Virendra Singh (PW-10) who admitted that the Article

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Nos.1 to 13 (which included the vest of Shri Sunil Yadav) were

deposited by the SHO Ranveer Singh at 04.30 PM. Shri Kharlia

thus urged that the recovery has been fabricated and hence, there

is no evidence on the record of the case so as to connect the

appellant with the crime. On these submissions, Shri Kharlia

implored the Court to accept the application for suspension of

sentences and direct enlargement of the applicant appellant on

bail during pendency of the appeal.

Learned Public Prosecutor, on the other hand, opposed the

submissions advanced by the appellant's counsel and urged that

the prosecution has proved its case regarding the appellant being

involved in the gruesome conspiracy and murder of the three

innocent victims by leading unimpeachable circumstantial

evidence. However, he too is not in a position to dispute the fact

that the star prosecution witnesses Neelam Yadav (PW-7) and

Ashrafi (PW-5), who gave a semblance of direct testimony

regarding extramarital affair between the appellant and the co-

accused Smt. Reema, did not support the prosecution case and

were declared hostile. The conclusion of the trial court that the

appellant absconded from the place of incident is not

substantiated in light of the fact that he was arrested on

30.07.2016 i.e. on the very day, the FIR came to be registered.

The circumstance of recovery of the blood stained vest of the

accused appellant comes under a cloud of doubt from the evidence

of the Maalkhana Incharge Virendra Singh (PW-10) who admitted

in his cross-examination that the vest along with other articles

were deposited in the Maalkhana by the SHO Ranveer Singh at

04.30 PM. On the contrary, the claim of the I.O. is that the

accused appellant was arrested vide arrest memo (Ex.P/33) at

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05.15 PM and the recovery of the vest is shown to have been

effected at 06.10 PM. vide recovery memo (Ex.P/35). The trial

court discarded the evidence of extra-judicial confession while

recording finding at Para No.18 of the impugned Judgment.

In this background, we are of the opinion that the appellant

applicant has available to him strong and plausible grounds so as

to assail the impugned Judgment. He has remained in custody for

a period in excess of 5 ½ years. Hearing of the appeal is unlikely

in near future.

In this view of the matter and, having regard to the facts

and circumstance as available on record, we deem it just and

proper to suspend the sentences awarded to the appellant

applicant, 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.1, Hanumangarh, vide judgment dated 15.10.2019 in

Sessions Case No.10/2017 (CIS No.52/2017) against the

appellant-applicant Sunil Yadav, 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 22.02.2022

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

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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.