Rajasthan High Court - Jodhpur
Kamla Shankar @ Kamlesh vs State Of Rajasthan on 11 March, 2022
Bench: Sandeep Mehta, Rekha Borana
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 10/2022
Kamla Shankar @ Kamlesh S/o Marta Ji, Aged About 46 Years,
R/o Khaniya Limbadi Panchayat Karcha Khurd Police Thana
Kherwada District Udaipur (Raj.)
(At present lodged in Central Jail, Udaipur)
----Petitioner
Versus
State of Rajasthan, through PP
----Respondent
For Petitioner(s) : Mr. Jitendra Ojha
For Respondent(s) : Mr. R.R. Chhaparwal, P.P.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MS. JUSTICE REKHA BORANA
Order
11/03/2022
The appellant-applicant herein has been convicted and
sentenced as below vide judgment dated 30.09.2021 passed by
learned Additional Session Judge, Kherwada, District Udaipur in
Criminal (Session) Case No.32/2018.
Offence Sentences Fine Fine Default
sentences
Sec. 302 IPC Life Imprisonment Rs.25,000/- 1 year S.I.
Learned Public Prosecutor has filed reply to the application
for SOS as per which, the appellant had served sentence of 4
years, 2 months and 9 days as on 28.02.2022.
(2 of 4) [SOSA-10/2022]
We have given our thoughtful consideration to the
submissions advanced at Bar and have gone through the material
available on record.
Shri Jitendra Ojha, 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. He urges that a plain and simple case of accident has
been given a color of murder. There was no animosity whatsoever
between the appellant and the deceased Shanti Lal. He urged that
the statement of sole eye witness Smt. Geeta PW-11 during the
investigation was recorded after significant delay. As a matter of
fact, if her cross-examination is seen, she was not present at the
spot because she admitted that by the time she reached the place
of incident, the Police had already taken away the dead body. He
also drew the Court's attention to MTO report Ex. PW-19, as per
which, both front wheels of the jeep of the appellant had been
detached and the bumper was totally damaged, he thus urges that
it is a case of accidental collision plain and simple and hence,
conviction of the appellant as recorded by the trial Court is
absolutely unjustified.
Learned Public Prosecutor, on the other hand 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 as per the Mechanical Report, PW-19, the wheels of
the jeep had been detached. As per the F.I.R. and the evidence of
Smt. Meena, wife of deceased, there was no significant animosity
between the appellant and the deceased- Shri Lala Ram. The
appellant is in the custody for last three and a half years.
(3 of 4) [SOSA-10/2022]
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 last three and a half years. Hearing of the appeal is
unlikely in the near future.
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 Additional Session
Judge, Kherwada, District Udaipur vide judgment dated
30.09.2021 in Criminal (Session) Case No.32/2018 against the
appellant-applicant Kamla Shankar @ Kamlesh S/o Marta Ji
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 13.04.2022 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
(4 of 4) [SOSA-10/2022]
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.
(REKHA BORANA),J (SANDEEP MEHTA),J
51-Ashutosh/Anil/-
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