Arfi Khan @ Kau vs State Of Rajasthan ...
2023 Latest Caselaw 8954 Raj

[2023:RJ-JD:37444-DB]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 802/2023

1. Arif Khan @ Kalu S/o Shrawan Khan @ Sarwar, Aged About 36 Years, Dukosi, P.s. Sadar, Dist. Nagaur. (At Present Lodged In Central Jail, Ajmer).

2. Nawab Khan S/o Alim Khan, Aged About 32 Years, Dukosi, P.s. Sadar, Dist. Nagaur.

(At Present Lodged In Central Jail, Ajmer).

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

----Respondent

For Petitioner(s) : Mr. Sunil Kumar Mehta Mr. Sammer Khan For Respondent(s) : Mr. B. R. Bishnoi, PP Mr. Suresh Kumbhat, Mr. Sheetal Kumbhat

HON'BLE MR. JUSTICE VIJAY BISHNOI HON'BLE MR. JUSTICE MUNNURI LAXMAN

Order

02/11/2023

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-applicant, who has been convicted and

sentenced by the Additional Sessions Judge No.1, Nagaur vide

judgment dated 19.06.2023 in Sessions Case No.132/2017. The

appellant-applicant has been sentenced as under :-

Offence U/s Sentence Fine Sentence in default of

payment of fine

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148 IPC 2 Years R.I. Rs.5,000/- Six months S.I. 365 IPC 5 Years R.I. Rs.10,000/- Six Months S.I. 302/149 IPC Life Rs.20,000/- One year S.I.

Imprisonment

Learned counsel for the appellant-applicant has argued that

the trial court has grossly erred in sentencing and convicting the

appellant-applicant vide impugned judgment. Learned counsel

while inviting attention of this Court towards the FIR (Ex.-P/1) has

argued that in the said FIR, the appellants have not been named

by the complainant. It is further submitted that for the first time,

name of the appellants were introduced by two so-called eye

witnesses - Mohd. Hussain (PW-2) and Mohd. Sahid on 5.12.2016

in their police statement. It is further submitted that another eye

witness namely Mohd. Ali (PW-3) has named the appellants in his

police statement on 14.12.2016.

Learned counsel while inviting our attention towards the

statement of Mohd. Hussain (PW-2) has argued that the said

witness, in his evidence, has specifically stated that before

registering FIR on the basis of written report filed by complainant

Mohd. Iqbal (PW-1), the police has read over the complaint to the

complainant and thereafter has registered the FIR. Learned

counsel has further submitted that when in the written report, on

the basis of which, FIR has been registered, wherein names of the

appellants were not there, then, it is clear that they have been

falsely implicated after deliberations. It is also submitted that the

trial court has not taken into consideration this aspect of the

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matter and has illegally passed the impugned judgment.

Learned counsel for the appellant has argued that as a

matter of fact, Ex.-P/1 is not the only FIR, however, prior to that

from the statement of the prosecution witnesses, it is clear that

the police was already in receipt of information of the incident,

however, no FIR was registered on the said complaint and later

on, the FIR has been lodged on their written complaint filed by

Mohd. Iqbal (PW-1), wherein the appellants have not been named

as accused.

It is submitted that the prosecution has failed to produced

reliable and cogent evidence to prove the guilt of the appellants

and the trial court, without considering the said aspect, has

illegally passed the impugned judgment, wherein it has convicted

and sentenced the appellants.

Learned counsel for the appellants has further submitted that

the appellants were on bail during trial and they did not misuse

the conditions of the bail.

It is also submitted that the appellants are in jail since long

and hearing of the appeal is likely to take time.

Learned Public Prosecutor and learned counsel for the

complainant have vehemently opposed this application for

suspension of sentence.

Taking into consideration the overall facts and circumstances

of the case and without making any observation on the merits of

the case, we are inclined to suspend the sentence awarded to the

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appellants.

Accordingly, this application for suspension of sentence filed

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

substantive sentence passed by the Addl. Sessions Judge No.1,

Nagaur vide judgment dated 19.06.2023 in Sessions Case

No.132/2017 against appellant - Arif Khan @ Kalu S/o

Shrawan Khan @ Sarwar and Nawab Khan S/o Alim Khan

shall remain suspended till final disposal of the appeal, 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 Court on

18.12.2023 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 appellant 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.

3. Similarly, if the sureties change their address,

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-appellant in a separate file. Such file be registered as

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

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appellant 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-appellant 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 39-Arun/-

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