Babbu Singh vs State Of Rajasthan ...
2023 Latest Caselaw 6027 Raj

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HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JODHPUR

D.B. Criminal Misc Suspension of Sentence Application (Appeal) No. 895/2023

in

D.B. Criminal Appeal No.77/2021

Babbu Singh S/o Inderaj Singh, aged about 32 Years, R/o Ward No. 2, Dhaban, P.S. Sangaria Dist. Hanumangarh.

(Presently lodged at Central Jail, Bikaner).

----Petitioner Versus State of Rajasthan

----Respondent

For Petitioner(s) : Mr. H.S.S. Kharlia, Sr. Advocate with Ms. Kinjal Purohit.

For Respondent(s) : Mr. R.R. Chhaparwal, PP.

HON'BLE MR. JUSTICE ARUN BHANSALI HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI

Order

18/08/2023

1. The appellant-applicant herein has been convicted and

sentenced vide judgment dated 14.07.2021 passed by the

Additional Sessions Judge, Sangaria, District Hanumangarh, in

Session Case No.7/2018 (CIS No.10/2018), whereby the applicant

has been convicted for offence under Section 302 IPC and

sentenced to imprisonment for life with fine of Rs.20,000/-, with

default stipulation to further undergo two years' additional simple

imprisonment.

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2. The appellant-applicant has preferred the application for

suspension of sentence under Section 389 Cr.P.C. for suspension

of sentence during the pendency of the appeal and for release on

bail.

3. It is submitted by counsel for the applicant that conviction of

the applicant is in disregard of the evidence and against the facts

and circumstances of the case. Submissions have been made that

the applicant has been convicted based on the statement of PW.9

Amandeep, a purported eyewitness, and recovery of the weapons

of the offence and the fact that they were blood stains having the

same group as that of the deceased and lower of the applicant,

which also purportedly bore blood stains having the same blood

group.

4. It was emphasized that the case was registered based on

Exhibit-P/1, a written complaint given by Indrajeet Singh, younger

brother of deceased Rajendra, specifically indicating that

Amandeep informed him that his brother was beaten by Babbu

and thereafter he ran away. The report was given on 26.12.2017,

however, said Amandeep's statement (PW.9) was recorded by the

police on 16.02.2018 and when the investigating officer was

confronted with the said aspect, he indicated that based on other

statements, he had found the applicant guilty and it is only after

objection of the Assistant Director Prosecution ('ADP'), he

recorded the statement inter-alia of Amandeep.

5. It is submitted that other than said PW.9, none of the

witness have been indicated as eyewitnesses to the purported

incident of applicant beating Rajendra (deceased). With reference

to statements of other witnesses on the site, it is submitted that

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none of them has indicated presence of Amandeep at the site. As

such, the presence of Amandeep (PW.9) at the site is not

corroborated and the fact that his statement was recorded after

one and half/two months of the date of incident, the said witness

cannot be relied on.

6. It was emphasized with reference to the postmortem report

(Exhibit-P/18) that there were four stab wounds, one lacerated

wound and one incised wound, found on the body of deceased.

The case of the prosecution is that the applicant had beaten

Rajendra with axe and stick. Dr. Anil Gaur (PW.7), who conducted

the postmortem, clearly indicated that stab wounds were inflicted

with knife. It is submitted that it is nobody's case that the

deceased was attacked with knife and the presence of stab

wounds on the body of the deceased, have not been explained.

7. It was emphasized that the applicant has wrongly been

implicated, which aspect is fortified from the fact that he was

arrested on 28.12.2017 at 04:30 pm from Bus Stand Jutawali,

wherein it is specifically indicated in Exhibit-P/9 (arrest memo)

that the applicant was wearing inner (lower) bearing blood stains,

which is being separately sealed. However, on 31.12.2017,

purportedly information under Section 27 of the Evidence Act was

recorded indicating that the applicant has concealed a lower in his

house and recovery of the said lower has been shown on

01.01.2018 from the house of the applicant vide Exhibit-P/15.

How the lower, which the applicant was wearing at the time of

arrest, could find its way to applicant's house?

8. Further submissions were made that PW.4 Kalwant Singh,

cousin of deceased Rajendra, indicated that funeral took place on

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next day of the incident i.e. on 27.12.2017 when the police has

taken the applicant at the place of incident. It is submitted that if

the applicant was taken on the site on 27.12.2017, the arrest

memo dated 28.12.2017 (Exhibit-P/9) itself is concocted.

9. Submissions were also made that the witness produced by

the prosecution viz. PW.3 Mahendra Kumar, stated that he saw the

applicant holding a wood piece, which he threw and ran away. It is

nobody's case that any of the witness indicated that the applicant

was holding the stick and the axe in his hand. However, the

recovery of alleged weapon of offence i.e. stick and axe said to

have been used by the applicant for beating deceased Rajendra

have been recovered from his house, which clearly proves that the

applicant has wrongly been implicated.

10. It is submitted that there was no previous enmity between

the deceased and the applicant and no evidence of any motive

also has come on record and, therefore, conviction of the

application by the trial court is ex-facie contrary to the record and

the applicant has a fair chance of acquittal. It was also

emphasized that the applicant is in custody now for over five years

and seven months, the hearing of the appeal is likely to take

significantly long time and on that count also, the sentence

deserves to be suspended.

11. Learned Public Prosecutor vehemently opposed the

submissions made. It was submitted that the trial court was

justified based on the ocular and documentary evidence to convict

the applicant of the offence under Section 302 IPC. It was

submitted that various pleas sought to be raised by the applicant

have no substance, inasmuch as Amandeep (PW.9) in his

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statements has categorically indicated that he saw the applicant

beating deceased Rajendra with axe and stick. Further, PW.3 saw

him running from the site and recovery of the lower as well as the

weapons of offence i.e. axe and stick, are at the instance of the

applicant which bear the same blood group as that of the

deceased and as such the application deserves dismissal.

12. We have considered the submissions made by counsel for the

parties and have perused the record of the case.

13. The conviction, as submitted by the counsel for the

applicant, is based on the statement of PW.9 Amandeep, the

recovery and the fact that blood stains on the articles recovered,

are of the same blood group as that of the deceased, however,

two aspects, which are significant, deserve consideration.

14. Once the arrest memo (Exhibit-P/9) dated 28.12.2017

indicates the applicant wearing blood stained lower, how based on

the information under Section 27 of the Evidence Act (Ex.P/14),

the same could be recovered from his house on 01.01.2018.

Further, it was the specific case of the prosecution that the

applicant after the incident ran away to Jutawali in Punjab, from

where he was arrested on 28.12.2017. Witness PW.3 indicated

that the applicant was carrying a stick in his hand, while running

from the site, which also he saw him throwing; how the said piece

of wood thrown by the applicant, which was purportedly used for

inflicting injuries on the person of deceased Rajendra found its

way to the house of the applicant and was recovered on his

information under Section 27 of the Evidence Act, also is

unanswered and hovers in a cloud of suspicion.

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15. Further, none of the witnesses indicated that they saw the

applicant running with the axe and, therefore, the recovery of said

axe also at the instance of applicant, is rendered highly doubtful.

Four stabbed wounds on the body of the deceased, which the

doctor conducting the postmortem indicated as injuries from knife,

have also not been connected with any of the weapon, said to

have been used by the applicant. The explanation provided by the

investigating officer for recording the statement of Amandeep

(PW.9), the only eyewitness, named in the written complaint, on

16.02.2018 with regard to incident, which happened on

26.12.2017, that the same was recorded on the instructions of

ADP, is also telltale, which witness is now the star witness in the

present case.

16. In the above circumstances, without further commenting on

the merits of the case, we are of the opinion that looking to the

nature and status of evidence, it can be said that applicant has

fair chance of acquittal. The above observations have been made

keeping in view of the parameters/law laid down by the Hon'ble

Supreme Court in Omprakash Sahni vs. Jai Shankar Chaudhary &

Anr. : Criminal Appeal Nos.1331-1332 of 2023 decided on

02.05.2023 and Rohit Bishnoi vs. State of Rajasthan & Anr :

Criminal Appeal No.2078/2023 decided on 24.07.2023.

17. Consequently, we are inclined to suspend the substantive

sentence of the appellant-applicant, namely, Babbu Singh S/o

Inderaj Singh during the pendency of the appeal.

18. Accordingly, the instant application for suspension of

sentence filed under Section 389 Cr.P.C. is allowed and it is

ordered that substantive sentence passed by the learned

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Additional Sessions Judge, Sangaria, District Hanumangarh, in

Session Case No.7/2018 (CIS No.10/2018), against the appellant-

applicant, namely, Babbu Singh S/o Inderaj Singh, 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.1,00,000/- with two sureties of Rs.50,000/- each to the

satisfaction of learned trial Judge for his appearance in this court

on 18.09.2023 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 change 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 his address(s) he will give in writing their changed address to the trial court.

19. 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 relating 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 been taken into account for statistical purpose relating to

pendency and disposal of the cases in the trial court. In case the

said accused-applicant do not appear before the trial court,

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

cancellation of bail.

(RAJENDRA PRAKASH SONI),J (ARUN BHANSALI),J 38-DJ/-

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