Rajasthan High Court - Jodhpur

Salim Kha vs State Of Rajasthan on 27 September, 2022

Bench: Sandeep Mehta, Kuldeep Mathur

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 626/2022

Salim Kha S/o Askar Kha, Aged About 34 Years, B/c Musalman, R/o Malkosani Road Bera Nimbadiya, Bilara, Dist. Jodhpur. (Presently Lodged At Central Jail, Jodhpur).

----Petitioner Versus State Of Rajasthan, Through Pp

----Respondent Connected With D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 510/2022 Dinesh Kumar S/o Shri Jagdish Prasad, Aged About 32 Years, B/c Mali, R/o Masjid Ke Pass, Bar , Dist. Pali (Raj.) (Presently Lodged At Central Jail, Jodhpur)

----Petitioner Versus State Of Rajasthan, Through Pp

----Respondent

For Petitioner(s) : Mr. Girish Choudhary Mr. Sanjay Bishnoi For Respondent(s) : Mr. R.R. Chhaparwal, P.P.

HON'BLE MR. JUSTICE SANDEEP MEHTA HON'BLE MR. JUSTICE KULDEEP MATHUR

Order

27/09/2022

The appellant-applicants have been convicted and

sentenced as below vide the judgment dated 21.02.2022 passed

by the learned Additional Sessions Judge, Bilara in Sessions Case

No.96/2020 :-

                                         (2 of 7)                 [SOSA-626/2022]




Offences          Sentences                   Fine              Fine   Default
                                                                Sentences
Section 450 IPC 10 Years' R.I.                Rs.2,000/-        2      Month's
                                                                Additional
                                                                Imprisonment

Section 459 IPC 10 Years' R.I.                Rs.2,000/-        2      Month's
                                                                Additional
                                                                Imprisonment

Section 460 IPC 10 Years' R.I.                Rs.2,000/-        2      Month's
                                                                Additional
                                                                Imprisonment
Section 394 IPC 10 Years' R.I.                Rs.2,000/-        2      Month's
                                                                Additional
                                                                Imprisonment
Section 397 IPC 7         Years'
                Imprisonment
Section    323/34 1 Year's R.I.               Rs.500/-          15        Days'
IPC                                                             Additional
                                                                Imprisonment
Section    324/34 3 Years' R.I.               Rs.1,000/-        1      Month's
IPC                                                             Additional
                                                                Imprisonment
Section    325/34 7 Years' R.I.               Rs.1500/-         45        Days'
IPC                                                             Additional
                                                                Imprisonment
Section    307/34 10 Years' R.I.              Rs.2,000/-        2      Month's
IPC                                                             Additional
                                                                Imprisonment
Section    302/34 Life Imprisonment Rs.5,000/-                  6      Month's
IPC                                                             Additional
                                                                Imprisonment

All the substantive sentences were ordered to run concurrently.

They have filed these applications under Section 389

CrPC seeking suspension of sentences awarded by the trial court.

Learned Public Prosecutor has filed reply to both the

applications for suspension of sentences.

Two more criminal cases in addition to the one at hand

have been registered against the appellant Saleem Kha, whereas a

(3 of 7) [SOSA-626/2022]

total of 11 cases are registered against the appellant Dinesh

Kumar, of which 5 pertain to jail offences.

Learned counsel Mr. Girish Choudhary and Mr. Sanjay

Bishnoi, representing the appellant-applicants, vehemently and

fervently urged that the case of the appellant Dinesh Kumar

stands on an identical footing with that of co-accused Ghewarram,

whose application for suspension of sentence No.327/2022 has

been accepted by this court vide order dated 24.05.2022. The

only evidence which has been portrayed by the prosecution to

connect the said appellant with the crime is in the form of

recoveries of clothes and sandals of that appellant. He urged that

the material prosecution witnesses Dhagli Devi and Dariyav Devi

did not identify the appellant Dinesh Kumar. They submitted that

though the witness Dariyav Devi identified the accused Saleem

Kha in her evidence, but this identification was made for the first

time during the sworn testimony of the witness, thus, the same is

of no consequence. The appellants have remained in custody for

a period in excess of 10 years and the hearing of the appeal is

unlikely in near future. Learned counsel for the appellant-

applicants have placed reliance on the order passed by the Hon'ble

Supreme Court in the case of Suleman Vs. State of Uttar

Pradesh [Misc. Application No.764/2022 in Criminal Appeal

No.491/2022 decided on 15.09.2022 with SMW (Crl)

No.4/2021] and urged that the appellant-applicants deserve

indulgence of bail in this matter.

The learned Public Prosecutor on the other hand

vehemently and fervently opposed the submissions advanced by

Mr. Choudhary and Mr. Bishnoi and submitted that the case

involves gruesome charges of dacoity with triple murder. The

(4 of 7) [SOSA-626/2022]

prosecution has given cogent and convincing evidence to connect

the appellants with the heinous crime. Hence, he implored the

court to dismiss the applications for suspension of sentences.

We have given our thoughtful consideration to the

submissions advanced at bar and have gone through the material

available on record. At the outset, we may note that in the case

of Suleman (supra) relied upon by the learned counsel for the

appellants, no absolute proposition has been laid down that all life

convicts, whose appeals are pending in the High Courts and who

are in custody for more than 10 years, must unexceptionally be

released on bail. We may note here that the present is case with

gruesome allegations of dacoity associated with triple murder and

thus, this court would be circumspect while considering the matter

even at the stage of bail during pendency of the appeal. So far as

the appellant-applicant Dinesh Kumar is concerned, this case

appears to be in no manner distinguishable from that of the co-

accused Ghewarram, whose application for suspension of sentence

has been accepted by this court with the following observations

and thus, we feel that the accused Dinesh Kumar deserves

indulgence of bail during pendency of the appeal :-

"As per the prosecution allegations, three unknown assailants committed house breaking by the night in the house of Mangla Ram in the night of 14.01.2012 with the intention of committing dacoity and during this process, they assaulted the inmates Smt. Dhagli, Dakhu Devi, Dariyav Devi, Ratna Ram and Sangeeta and looted the valuable articles, ornaments, etc. and a Tavera Car No.RJ-19-UA-5033. Dakhu, Ratna Ram and Sangeeta expired as a result of the injuries received in the assault whereas Dhagli Devi and Dariyav Devi were

(5 of 7) [SOSA-626/2022]

injured. The prosecution has tried to portray that the faces of the assailants were covered by clothes. However, during the assault, the cloth covering the face of one of the assailants slipped and the deceased Sangeeta identified him to be Salim who blurted out the names of the two other assailants. However, the witness Dariyav (PW-17) could only identify the accused Salim in her evidence whereas Dhagli Devi (PW-18) could not identify any of the assailants.

The case of the prosecution as against the appellant is thus based totally on recovery of the blood stained shirt and the number plate of the Tavera Vehicle. Whether or not, these recoveries would be finally considered constituting proper evidence so as to affirm the conviction of the appellant applicant Ghewar Ram, would be for the Court to contemplate when the appeal is being finally decided. However, for the present, we are duly satisfied that the appellant has significant grounds to assault the impugned Judgment. He has suffered more than 10 years imprisonment without there being any possibility of an early hearing of the appeal. The appellant does not have any criminal antecedent as per the reply filed by the learned Public Prosecutor.

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."

However, so far as the appellant Saleem Kha is

concerned, he was identified by eye-witness Dariyav Devi during

her sworn testimony. Thus, looking to the nature and gravity of

the allegations attributed to the said appellant, he does not

deserve indulgence of bail. Needless to say that as the appellant

(6 of 7) [SOSA-626/2022]

is in custody for last more than 10 years, the appeal itself shall be

listed for hearing on topmost priority.

Accordingly, D.B. Criminal Misc. Suspension of Sentence

Application No.626/2022 filed on behalf of appellant-applicant

Salim Kha is dismissed and D.B. Criminal Misc. Suspension of

Sentence Application No.510/2022 filed on behalf of appellant-

applicant Dinesh Kumar is allowed and it is ordered that the

sentences passed by the Additional Sessions Judge, Bilara,

District Jodhpur, vide judgment dated 21.02.2022 in Sessions

Case No.96/2020 against the appellant-applicant Dinesh Kumar

S/o Jagdish Prasad, 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 31.10.2022 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 his/her/their changed address to the trial Court as well as to the counsel in the High Court.