Pawan Harijan vs State Of Rajasthan ...
2023 Latest Caselaw 5883 Raj

[2023:RJ-JD:25819]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 149/2023 in S.B. Criminal Appeal No.232/2023

Pawan Harijan S/o Shri Shankarlal Harijan, Aged About 32 Years, R/o 112, D Block, Sector 9, Hiranmagri, District Udaipur, Rajasthan. (At Present Lodged In Central Jail, Udaipur)

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

----Respondent Connected With S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 148/2023 in S.B. Criminal Appeal No.232/2023

Bhupesh Lohar S/o Prabhulal Lohar, Aged About 29 Years, Chanbor Fala Kaya, P.s. Goverdhanvilas, Distt. Udaipur (Raj.). (At Present Lodged In Central Jail, Udaipur).

----Petitioner Versus

1. State Of Rajasthan, Through Pp

2. Mukesh S/o Udailal Gameti, Ambafala, P.s. Hiranmagari, Dist. Udaipur (Raj.).

                                                                 ----Respondents


For Petitioner(s)          :    Mr. Deepak Menaria
                                Mr. Vijay Kumar Gaur
                                Mr. Anuj Sahlot
For Respondent(s)          :    Mr. S.K. Bhati, PP



                HON'BLE MR. JUSTICE FARJAND ALI

                                     Order

16/08/2023

1. The instant applications for suspension of sentence have

been moved on behalf of the applicants in the matter of judgment

dated 01.02.2023 passed by the learned Special Judge,

[2023:RJ-JD:25819] (2 of 4) [SOSA-149/2023]

SC/ST Act Court, District Udaipur in Special Sessions Case

No.11/2016 (CIS No.107/2017) for the offences under Sections

304/149, 147, 148, 336 and 323 of IPC and Section 3(2)(v) of SC/

ST Act.

2. Learned counsel for the applicants-petitioners submits that

as a matter of fact, there was no previous animosity between the

parties and the dispute arose in spur of the moment on a very

trivial issue. Now, there are allegations that the mother of the

complainant and the complainant himself tried to cool down the

dispute between the appellant and the deceased Jitendra and it is

alleged that after half an hour, they came there again along with

co-accused Ajay who happens to be a juvenile. For him, the

proceeding under Juvenile Justice Act is underway.

3. Learned counsel drew the attention of this Court towards Ex-

P.4, which is alleged at the instance of complainant PW.4 and

nowhere in the report as well as in his statement, it is reflected

that any specific or overt act has been attributed to the

appellants. Learned counsel further drew the attention of this

Court towards Ex-P.16, the injury report of Jitendra prepared on

the very same day and time, as per which, the doctor noticed only

one laceration on the left side of his forehead. It is contended that

on 28.02.2016, he came back home and thereafter, he died on

03.03.2016. As per the postmortem report (Ex-P.18), the cause of

death was shown to be coma due to antemortem head injury.

There is no specific assertion as to who was the author of the fatal

blow. It is submitted that the appellants have a strong arguable

case and rather hope of success in this appeal. The hearing of the

[2023:RJ-JD:25819] (3 of 4) [SOSA-149/2023]

same is likely to take a long time. During the trial, the appellants

were on bail, and during that time, they never abused the liberty

granted to them. The appellants served about nine months in

incarceration.

4. Per contra, learned public prosecutor has opposed the

prayer made on behalf of the accused-appellants.

5. I have minutely gone through the record of the case. The

defects pointed out by learned counsel for the appellants and the

submissions made at their end are required to be considered

again. Additionally, the discrepancy between the injury report and

the postmortem report further persuaded this Court to make

indulgence in this matter though observation at this stage may put

a dent on the merit of the case, thus, while refraining from that,

but considering overall submissions, this Court deems it fit to

allow the application for Suspension of Sentence.

6. Accordingly, the applications for suspension of sentence filed

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

sentence passed by learned Special Judge, SC/ST Cases, Udaipur

who passed the impugned order dated 01.02.2023 in Special

Sessions Case No.11/2016 against the petitioners-applicants-

Pawan Harijan S/o Shri Shankarlal Harijan and Bhupesh

Lohar S/o Prabhulal Lohar shall remain suspended till final

disposal of the aforesaid revision and they shall be released on

bail provided each of them 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 their appearance in this

[2023:RJ-JD:25819] (4 of 4) [SOSA-149/2023]

court on 16.09.2023 and whenever ordered to do so till the

disposal of the revision on the conditions indicated below:-

1. That they will appear before the trial Court in the month of January of every year till the appeal is decided.

2. That if the applicants changes the place of residence, they will give in writing their changed address to the trial Court as well as to the counsel in the High Court.

3. Similarly, if the sureties change their addresses, 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-applicants 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 applicants do not appear before the trial court, the

learned trial Judge shall report the matter to the High Court for

cancellation of bail.

(FARJAND ALI),J 197-198-Rashi/-

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