Rajasthan High Court - Jodhpur
Banshi Giri @ Banti vs State Of Rajasthan on 12 July, 2022
Bench: Sandeep Mehta, Kuldeep Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 778/2021
Banshi Giri @ Banti S/o Late Mohan Giri Goswami, Aged About
32 Years, R/o Daru, Police Station Baghana, District Neemach
(M.p.) Presently Residing At Gufa Bhadesar, Police Station
Bhadesar, District Chittorgarh (Raj.) (Presently Lodged At District
Jail, Chittorgarh)
----Petitioner
Versus
1. State Of Rajasthan, Through PP
2. Smt. Deu W/o Shri Chhogalal, aged about 43 years, R/o
Meeno Ka Mohalla, Police Station Bhadesar, District Chittorgarh.
----Respondent
For Petitioner(s) : Mr. D.S. Rathore
For Respondent(s) : Mr. B.R. Bishnoi, AGC
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE KULDEEP MATHUR
Order
12/07/2022
The appellant-applicant herein has been convicted and
sentenced as below vide judgment dated 01.10.2021 passed by
the learned Special Judge, SC/ST (Prevention of Atrocities Cases),
Chittorgarh in Sessions Case No.122/2019 (51/2018):
Offences Sentences Fine Fine Default
sentences
Section 302 IPC Life Imprisonment Rs.20,000/- 1 Year's R.I.
Section 3 (2)(v) Life Imprisonment Rs.20,000/- 1 Year's R.I.
of the SC/ST Act
(Both the sentences were ordered to run concurrently)
(2 of 4) [SOSA-778/2021]
He has preferred the instant application for SOS with the
prayer to be released on bail during pendency of the appeal.
Notice of the appeal as well as application for SOS has been
served on the complainant/respondent No.2 but no one has put
appearance on her behalf.
Learned Public Prosecutor has filed reply to the application
for SOS which indicates that the appellant does not have any
criminal antecedents. He has suffered custodial period of nearly
five years by now.
Shri D.S. Rathore, learned counsel representing the appellant
urged that there is no plausible evidence to connect the appellant
with the alleged murder of the victim Arun. The only semblance of
evidence which the prosecution gave against the appellant was by
virtue of statements of Deepak (PW.4) and Nepal Singh (PW.13)
regarding the circumstance of last seen. However, the evidence of
both these witnesses is flimsy and unreliable. No other
incriminating circumstance was proved by the prosecution so as to
bring home the guilt of the accused. He thus, urged that the
appellant deserves indulgence of bail during pendency of the
appeal.
Learned Public Prosecutor, on the other hand, vehemently
and fervently opposed the submissions advanced by the
appellant's counsel. He submitted that the evidence of the
witnesses Deepak (PW.4) and Babulal (PW.6) who gave testimony
proving the circumstance of last seen against the appellant is
reliable. The appellant did not give any explanation as to how
Arun was found dead by mechanical asphyxia soon after being in
his (accused's company). Thus, learned Public Prosecutor urged
that the appellant does not deserve indulgence of bail in this case.
(3 of 4) [SOSA-778/2021]
we have given our thoughtful consideration to the
submissions advanced at bar and have gone through the material
available on record.
On a wholesome perusal of the evidence led by the
prosecution, we are of the view that it being a case of
circumstantial evidence plain and simple, the only circumstance
which the prosecution proved against the accused was in form of
last seen. No plausible evidence of motive was given by the
prosecution against the accused. Any comment on the reliability or
veracity of the evidence of Deepak (PW.4) and Babulal (PW.6) who
purportedly gave the evidence of last seen circumstance against
the appellant shall be premature and might prejudice the outcome
of the appeal.
However, regard to the overall facts and circumstances as
available on record and considering the pertinent fact that the
appellant had no motive whatsoever so as to commit murder of
the deceased Arun, we are inclined to suspend the sentences
awarded to the appellant by the trial court and release him on bail
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 learned Special Judge,
SC/ST (Prevention of Atrocities Cases), Chittorgarh vide judgment
dated 01.10.2021 in Sessions Case No.122/2019 against the
appellant-applicant Banshi Giri @ Banti S/o Late Shri Mohan Giri
Goswami 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
(4 of 4) [SOSA-778/2021]
his appearance in this court on 16.08.2022 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.
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 in a separate file. Such file be
registered as Criminal Misc. Case related to original case in which
the accused-applicant was 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 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
44-Sudhir Asopa/-
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