Bheru Lal @ Bheru vs State Of Rajasthan ...
2023 Latest Caselaw 4614 Raj

[2023/RJJD/015341]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 1057/2022

In D.B. Criminal Appeal No.156/2022

Bheru Lal @ Bheru S/o Jeeva, Aged About 46 Years, B/c Meena, R/o Naharpura, Tehsil Vallabhnagar, Police Station Bhinder, District Udaipur (Rajasthan) (Presently Lodged In Central Jail, Udaipur)

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

----Respondent

For Petitioner(s) : Mr. Rajendra Singh Rathore For Respondent(s) : Mr. B.R. Bishnoi, PP

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

Order

15/05/2023

1. The instant application for suspension of sentences has been

preferred on behalf of the applicant-appellant Bheru Lal, who has been

convicted and sentenced as below vide judgment dated 13.09.2022

passed by the learned Additional Sessions Judge No.4, Udaipur in

Sessions Case No. 55/2016 (CIS No.490/2016).

Sentence Sentences awarded Fine Imposed Fine Default Sentence Under Section 302 of IPC Life Imprisonment Rs.5,000/- Two months simple imprisonment 397 of IPC 7 Years Rigorous - -

Imprisonment 201 of IPC 7 Years Simple Rs.5,000/- Two months simple Imprisonment imprisonment

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2. The appellant has been convicted and sentenced for the murder of

Smt. Jamana by having her neck slit with a sharp weapon and

committing robbery of her silver ornament namely a pair of Kadiya worn

on her feet.

3. Learned Public Prosecutor has filed reply to the application for

suspension of sentences wherein it is indicated that by now, applicant

has undergone 6 years and 6 months imprisonment including

remissions.

4. Mr. Rajendra Singh Rathore, learned counsel for the applicant has

fervently urged that the case of the prosecution is based on very weak

chain of circumstantial evidence. Evidence of Witness of "last seen"

circumstance namely Papulal (P.W.-10) is not reliable and the trial court

was absolutely unjustified in admitting his evidence so as to find the

circumstance of "last seen" proved. He urged that in the examination in

chief itself he deposed that he had seen Jamana leaving at 2:00 in the

day, then after half an hour accused Bherulal had left for the bus stand

by a motor cycle but his statement is not clear as to whether Jamana

also went towards the bus stand, nor does he deposed that he saw

Jamana and Bherulal together, at the same time. The said statement of

the Papulal is outside the purview of "last seen" factum; that the trial

court has not properly comprehend the fact of deceased and accused

being "last seen" together.

5. He further urged that the recoveries of clothes of accused, knife

and a pair of silver ornament namely Kadiya of the deceased weighing 1

Kg. effected at the instance of the appellant are totally fabricated; that

it is the admission of the investigating officer that no tool for removing

Kadiya was recovered from the accused; that according to the

prosecution case, the accused had given Jamana two vials of poison

[2023/RJJD/015341] (3 of 5) [SOSA-1057/2022]

brought with him before killing her with the knife but there is no

evidence of effect of poison on the body of the deceased in the

statement of Dr. Mohd. Irfan (P.W.-27); that present case is based on

circumstantial evidence only, in which the prosecution was required to

prove the strong motive of the accused but even the slightest evidence

is not available on the record regarding motive of the accused; that the

prosecution has not been able to prove the motive of accused for

murdering his own paramour because it was not a case of a ill-fated

love story or a betrayal in love on the part of the deceased; that the

trial court has held the accused guilty ignoring the very important

aspect of motive; that the judgment of the trial court on the point of

recovery is based on misreading and wrong narration of evidence in the

judgment which is apparent on the face of the record. On these

grounds, he implored the Court to accept the application for suspension

of sentences and enlarge the appellant on bail.

6. Learned Public Prosecutor has vehemently and fervently opposed

the submissions advanced by the learned counsel for the applicant-

appellant. He urged that applicant-appellant has rightly been held guilty

for the murder of Jamana because significant circumstance was proved

by the prosecution to bring home the charges.

7. We have heard and considered the submission advanced at the

Bar and, have gone through the impugned judgment as well as the

material available on record.

8. Ex-Facie, we find that the evidence of the witnesses of

circumstance of "last seen together" does suffer from apparent

infirmities. Whether or not, their statements could be relied upon so as

to uphold connection of the appellant, which would have to be

considered when the appeal is being finally decided. However, the fact

[2023/RJJD/015341] (4 of 5) [SOSA-1057/2022]

remains that if the evidence of last seen together is excluded, the only

circumstance which remains on record to prove the charges would be of

recoveries. There is an absolute lack of evidence of motive. The

appellant has been in custody for more than 6 and half years. Hearing

of the appeal is unlikely in near future.

9. Thus, having regard to the overall facts and circumstances

available on record and, considering the prolonged custody of the

applicant-appellant and the bleak chances of early disposal of the

appeal, we are inclined to suspend the sentences awarded to the

appellant, during pendency of the appeal.

10. Accordingly, the application for suspension of sentence filed under

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

passed by learned Additional Sessions Judge No.4, Udaipur vide

judgment dated 13.09.2022 in Sessions Case No. 55/2016 (CIS

No.490/2016) against the applicant-appellant Bheru Lal @ Bheru

S/o Jeeva 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/- (Rupees: Fifty Thousand Only)

with two sureties of Rs.25,000/- (Rupees: Twenty Five Thosuand Only)

each to the satisfaction of the learned trial Judge for his appearance in

this Court on 03.07.2023 and whenever ordered to do so till the

disposal of the appeal on the conditions indicated below.

11. That he will appear before the trial Court in the month of January

of every year till the appeal is decided. That if the applicant(s) 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. Similarly, if the

sureties change their address(s), they will give in writing their changed

address to the trial Court.

[2023/RJJD/015341] (5 of 5) [SOSA-1057/2022]

12. The learned trial Court shall keep the record of attendance of the

accused-applicant(s) in a separate file. Such file be registered as

Criminal Misc. Case related to original case in which the accused-

applicant(s) was/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

applicant(s) does not appear before the trial court, the learned trial

Judge shall report the matter to the High Court for cancellation of bail.

(RAJENDRA PRAKASH SONI),J (ARUN BHANSALI),J 23-nitin/-

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