Vishal vs State Of Rajasthan
2022 Latest Caselaw 4681 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 67/2022

Vishal S/o Sh. Rajendra Kumar, Minor Through His Natural Guardian Father, Sh. Rajendra Kumar S/o Sh. Kewal, Aged 42 Years, B/c Patidar, R/o Village Gowadi, Police Station and Tehsil Sagwada, District Dungarpur (Raj.).

(Presently Lodged In Central Jail, Udaipur).

----Applicant Versus State of Rajasthan through Public Prosecutor

----Respondent

For Applicant : Mr. Pradeep Shah For Respondent : Mr. B.R. Bishnoi, AGC

HON'BLE MR. JUSTICE VIJAY BISHNOI HON'BLE MS. JUSTICE REKHA BORANA

Order

29/03/2022

This suspension of sentence application has been preferred

on behalf of the applicant-appellant against the judgment dated

07.01.2022 passed by the Children Court, Protection of Children

from Sexual Offences Act, 2012 and the Commission for Protection

of Child Rights Act, 2005, Dungarpur (hereinafter to be referred as

'the trial court') in Sessions Case No.28/2019 (CIS No.28/2019),

whereby the trial court has convicted and sentenced the applicant-

appellant for the offence punishable under Section 302 IPC.

Learned counsel for the applicant-appellant has submitted

that the trial court has grossly erred in convicting and sentencing

the accused applicant-appellant for the offence punishable under

(2 of 4) [SOSA-67/2022]

Section 302 IPC vide impugned judgment dated 07.01.2022.

It is argued that the trial court has convicted the accused

applicant-appellant while observing that prior to the murder of the

deceased, the applicant-appellant was seen in the company of the

deceased. It is also submitted that the trial court has relied upon

the CCTV footage (Exhibits - P/8 and P/10) of 21.12.2018 for the

period running between 11:00 AM to 12:00 PM. It is submitted

that the dead body of the deceased was found on 22.12.2018 at

10:15 PM and as per the postmortem report (Exhibit - P/22), the

doctor has opined that the duration of death of the deceased was

between 16 to 24 hours.

Learned counsel for the applicant-appellant has argued that

from the said piece of evidence, it can be concluded that the

deceased was murdered between 10:00 AM of 22.12.2018 to early

morning of 23.12.2018 and not on the date when the applicant-

appellant was seen in the company of the deceased i.e. on

21.12.2018 between 11:00 AM to 12:00 PM.

Learned counsel for the applicant-appellant has submitted

that the circumstantial evidence, upon which the trial court has

relied for convicting and sentencing the applicant-appellant, is not

conclusive. It is argued that there is no eyewitness of the incident

and as such the applicant-appellant had no motive to commit the

murder of the deceased. It is further submitted that the story

introduced by the prosecution of friendship of the applicant-

appellant and the deceased by one girl is concocted.

Learned counsel for the applicant-appellant has further

submitted that the blood stain stone, recovered by the police at

the instance of the applicant-appellant, was lying there since the

(3 of 4) [SOSA-67/2022]

recovery of the dead body of the deceased i.e. on 22.12.2018 at

10:15 PM but the recovery of the same was shown after the arrest

of the applicant-appellant i.e. on 07.01.2019 and in such

circumstances, the recovery of the alleged weapon used in the

commission of crime is doubtful. Learned counsel for the

applicant-appellant has, therefore, submitted that the applicant-

appellant is in custody since 07.01.2019 and hearing of the appeal

will take time.

Learned AGC has opposed the prayer of the applicant-

appellant for suspending his sentence.

Heard learned counsel for the parties on this suspension of

sentence application.

Having considered the totality of facts and circumstances of

the case, we consider it just and proper to suspend the

substantive sentence awarded to the accused applicant-appellant.

Accordingly, this suspension of sentence application filed

under Sec.389 Cr.P.C. is allowed and it is ordered that the

substantive sentence passed by the trial court vide judgment

dated 07.01.2022 in Sessions Case No.28/2019 (CIS No.28/2019)

against applicant-appellant - Vishal S/o Rajendra Kumar shall

remain suspended till final disposal of the aforesaid appeal,

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 04.05.2022

and whenever ordered to do so, till the disposal of the appeal on

the conditions indicated below:-

(4 of 4) [SOSA-67/2022]

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-appellant 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,

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-appellant in a separate file. Such file be

registered as Criminal Misc. Case related to original case in which

the accused applicant-appellant 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-appellant 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                                           (VIJAY BISHNOI),J




                                   Abhishek Kumar
                                   S.No.6









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