Hidayat Kha vs State Of Rajasthan ...
2023 Latest Caselaw 10410 Raj

Rajasthan High Court - Jodhpur

Hidayat Kha vs State Of Rajasthan ... on 5 December, 2023

Author: Vijay Bishnoi

Bench: Vijay Bishnoi

[2023:RJ-JD:42322-DB]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
 D.B. Criminal Misc Suspension Of Sentence Application (Appeal)
                         No. 877/2022
1.       Hidayat Kha S/o Mahnu Kha, Aged About 59 Years, B/c
         Kayamkhani (Muslim), R/o Ward No. 8, Athuna Mohalla,
         Churu, Rajasthan. (At Present Lodged In District Jail,
         Bikaner)

2.       Subhan Kha @ Nanu Kha S/o Ahmad Kha, Aged About 57
         Years, B/c Kayamkhani (Muslim), R/o Ward No. 06,
         Churu, Rajasthan. (At Present Lodged In District Jail,
         Bikaner)

                                                                     ----Applicants

                                       Versus

State of Rajasthan, Through PP

                                                                    ----Respondent


For Applicant(s)             :     Mr. Bhanwar Singh Rathore
For Respondent(s)            :     Mr. B.R. Bishnoi, P.P.
For Complainant(s)           :     Mr. Vikas Bijarnia


             HON'BLE MR. JUSTICE VIJAY BISHNOI

HON'BLE MR. JUSTICE MUNNURI LAXMAN Order

05/12/2023

Heard learned counsel for the parties on the application for

suspension of sentence.

The instant application for suspension of sentence has been

preferred by the appellant-applicants, who have been convicted

and sentenced by the learned Additional District and Sessions

Judge, Churu vide judgment dated 06.09.2022 in Sessions Case

No.22/1987, 06/2008(40/2014). The appellant-applicants have

been sentenced as under :-

[2023:RJ-JD:42322-DB] (2 of 6) [SOSA-877/2022]

Offence U/s Sentence Fine Sentence in default of (In Rs.) payment of fine 302/149 IPC Life 50,000/- One year's Imprisonment additional SI 147 IPC Two years' RI 5,000/- Ten days' additional SI 148 IPC Three years' RI 5,000/- Ten days' additional SI 323/149 IPC One year's RI 10,000/- Fifteen days' additional SI 325/149 IPC Seven years' 20,000/- One month's RI additional SI

Learned counsel for the appellant-applicants has submitted

that the alleged incident took place on 09.09.1986 and it is

alleged that the appellant-applicants along with the other

co-accused persons assaulted deceased Safi Khan on 09.09.1986

at about 10:30 P.M. and on account of the said injuries, the

injured Safi Khan expired on 13.09.1986. Learned counsel for the

appellant-applicants has submitted that the star witness P.W.8

Ayub Kha, in his court statements, has levelled omnibus

allegations against the appellants and other co-accused persons,

however, no specific role of the appellants has been assigned. It is

further submitted that the said witness has stated that all the

accused persons assaulted the deceased with the common

intention to kill him. It is also submitted that the trial court

without their being any cogent and reliable evidence has convicted

the accused appellants vide impugned judgment. It is also

submitted that the trial of co-accused persons viz. Pratap @ Ismail

Kha and Zafar Kha was concluded on 19.03.2015 and they were

also convicted and sentenced by the trial court for life

imprisonment but their sentence has been suspended by this

[2023:RJ-JD:42322-DB] (3 of 6) [SOSA-877/2022]

Court. It is submitted that the case of the appellants is not

distinguishable from the above named accused persons. Learned

counsel for the appellant-applicants has also submitted that the

appellants were on bail during trial. It is, thus, prayed that the

sentence awarded to the appellant-applicants by the trial court

may be suspended.

Per contra, learned Public Prosecutor as well as the learned

counsel for the complainant have vehemently opposed this

application for suspension of sentence.

Learned counsel for the complainant has submitted that as a

matter of fact, the appellant-applicants had not joined the trial

and remained absconded since October 1994 to 15.05.2017. It is

submitted that during that period, the applicant No.1-Hidayat Kha

went to abroad on a forged passport and remained there for many

years. It is also submitted that during the pendency of the trial,

the appellant-applicants and the other co-accused persons

regularly threatened the complainant party and pressurized them

to enter into a compromise. It is also submitted that apart from

this case, as many as 22 criminal cases are registered against the

applicant No.1 - Hidayat Kha and looking to the above facts and

circumstances of the case, he is not entitled to be enlarged on bail

at this stage.

Learned counsel for the appellant-applicants has submitted

that the applicant No.1 - Hidayat Kha has attended the court

proceedings before the trial court regularly from initial date of his

arrest up to October 1994. Later on, the record of the trial court

[2023:RJ-JD:42322-DB] (4 of 6) [SOSA-877/2022]

was summoned in some other proceedings by this Court and

during pendency of those proceedings, the record of the trial court

got missing. Ultimately, as per the order of this Court, the record

was reconstructed in the year 2007 and thereafter, the trial was

commenced. However, in between the bail bonds of the appellants

were forfeited and they appeared before the trial court and again

the trial court enlarged them on bail on 03.10.2018. After that,

the de novo trial against the appellants was commenced and

ultimately, the applicants were convicted and sentenced by the

trial court vide judgment dated 06.09.2022.

Learned counsel for the appellants has submitted that as a

matter of fact, when the record of the trial court got missing the

appellants went to abroad for earning livelihood, however, they

joined the trial after their arrest. Learned counsel for the

appellant-applicants has submitted that in future the appellants

will abide by all the conditions imposed by this Court. It is also

submitted that allegation against the applicant No.1 Hidayat Kha

of procuring forged passport is false and in the police investigation

in this regard nothing is found against him.

Having heard the learned counsel for the parties and after

taking into consideration the overall facts and circumstances of

the case, particularly, the fact that the co-accused persons,

namely, Pratap @ Ismail and Zafar Kha, though convicted in

separate trial, have been enlarged on bail by this Court and also

taking into consideration the statement of main witness P.W.8

Ayub Kha, wherein, no specific allegation has been levelled against

[2023:RJ-JD:42322-DB] (5 of 6) [SOSA-877/2022]

the appellants, without commenting on the merits of the case, we

are inclined to suspend the sentence awarded to the appellant-

applicants.

Accordingly, this application for suspension of sentence filed

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

sentence passed by the learned Additional District and Sessions

Judge, Churu vide judgment dated 06.09.2022 in Sessions Case

No.22/1987, 06/2008(40/2014) against appellant-applicants (1)

Hidayat Kha S/o Mahnu Kha and (2) Subhan Kha @ Nanu

Kha S/o Ahmad Kha shall remain suspended till final disposal of

the appeal, provided each of the 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 Court on 11.01.2024 and whenever ordered to do so till the

disposal of the appeal 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 appellants 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 address, they will give in writing their changed address to the trial Court.

4. The appellant-applicants shall surrender their passport before the trial court and shall not leave the country without prior permission of this Court.

The learned trial Court shall keep the record of attendance of

the accused-appellants in a separate file. Such file be registered

[2023:RJ-JD:42322-DB] (6 of 6) [SOSA-877/2022]

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

accused-appellants were 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-appellants does not appear before the trial court, the

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

cancellation of bail.

                                   (MUNNURI LAXMAN),J                                           (VIJAY BISHNOI),J


                                    25-AnilKC/-









Powered by TCPDF (www.tcpdf.org)