Rajasthan High Court - Jodhpur

Rakesh Kumar @ Rana vs State Of Rajasthan on 4 October, 2023

Bench: Farjand Ali

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc. Suspension of Sentence Application No.836/2023

S.B. Criminal Appeal (Sb) No. 1391/2023

Rakesh Kumar @ Rana S/o Babulal, Aged About 37 Years, R/o Chak No. 9, Dwm Tehsil Rawatsar, District Hanumangarh. (At Present Lodged In Bikaner Central Jail)

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

----Respondent

For Appellant(s) : Mr. R.S.Shekawat For Respondent(s) : Mr. Anees Bhurat, PP

HON'BLE MR. JUSTICE FARJAND ALI

Order

04/10/2023

1. The instant application for suspension of sentence has been

moved on behalf of the applicant in the matter of judgment dated

01.06.2023 passed by the learned Additional Sessions Judge No.1,

Nohar, District Hanumangarh in Sessions Case No.71/2016

whereby he was convicted for the offence under Section 304-II

IPC and sentenced to ten years RI along with fine of Rs.2,00,000/-

and in default in payment of fine to further undergo six months

SI.

2. Learned counsel for the applicant-appellant vehemently

urges that there is no direct evidence with regard to the fact that

the deceased was bludgeoned to death. There is no evidence to

concretely establish the fact that the deceased died due to

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beatings meted out by the appellant. The evidence of first

informant and the other eye-witnesses are not cogent and

plausible enough to sustain the conviction. There is no definite

medical evidence and some of the witnesses have turned hostile.

Lastly, he contends that the applicant-appellant is behind the bars

and hearing of appeal will take a long time, he may be extended

benefit of bail as he has a strong arguable case in his favour.

3. Per contra, learned public prosecutor has vehemently

opposed the prayer made on behalf of the accused-applicant for

releasing the appellant on application for suspension of sentence

by contending that it is a matter wherein the father has been

beaten to death by his son.

4. Heard learned counsel for the parties and perused the

material available on record.

5. The followings are the points which if considered objectively

and decided in favour of the appellant then he may get acquittal.

However, due to voluminous pendency of the appeals, final

hearing would not be possible in near future. The grounds which

are taken into consideration by this Court are as under:-

(a) That the deceased is the father of the appellant; they were residing under one roof along with mother and wife of the appellant;

(b) both mother and wife of the appellant have not supported the story of prosecution;

(c) the incident took place in a close precinct of the house; there is no direct evidence or evidence of impeccable quality to establish the fact beyond

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reasonable doubt that the deceased died due to the injuries allegedly inflicted by the appellant.

(d) though the prosecution witness P.W. 1 Ladu Ram has deposed that he heard some hue and cry upon which he went to his terrace and noticed that the appellant was clobbering the deceased by giving fists blow and by using a tong. However, it has not been stated that as a necessary consequence of the above mentioned injuries, the deceased succumbed his death. This witness has further deposed that his brother (deceased) and his sister-in-law (bhabhi) used to quarrel with each other regularly and therefore, he did not intervene between them. He has further admitted that the deceased was in habit of consuming heavy liqour and after that, he used to reach an inebriated condition and the main cause of quarrel between the spouses was regular consumption of liqour by the deceased. He has admitted that the dispute between the couple was of ordinary petulance.

(e) Similar is the statement of P.W.2 Ashu Ram, who admits that on the fateful day of incident both father and son quarreled with each other.

(f) the death of the deceased was noticed by P.W. 1 and P.W. 2 Ladu Ram and Ashu Ram on the next day of the occurrence thus, actual cause of death cannot be defined.

(g) the postmortem report Ex.P/28, prepared by the Medical Board, in which, cause of death has been opined as 'COMA' due to head injury and the visceras were preserved for final opinion, however, the final opinion has not been placed on record.

(h) Strangely in postmortem report Ex.P/28, the injury No.1 & 2 have been shown on abdomen and the third injury is around the neck having vesicles with

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serous fluid; the another injury was noticed near the right eye and eye-brow; in the column of organ condition of cranium and spinal cord, no injury on the brain and spinal code has been noticed rather, the spinal cord was not opened when dissection was done. The another injury was scattered on the waist (lumber) and one echymosis was noticed on the left eye however, no injury on any part of skull is mentioned in the postmortem report despite the fact that the cause of death has been given by the doctor as head injury.

(i) there was no motive for the appellant to kill his father; there is nothing on record from which an intent to kill the deceased can be inferred;

(j) the evidence in the nature of extra judicial confession is usually treated as a weak type of evidence and here in this case, the establishment of the same has not been made beyond reasonable doubt.

(h) the wife of the deceased is in favour of the appellant; the unnatural conduct of P.W. 1 & P.W. 2 Ladu Ram and Ashu Ram to the effect that despite noticing by them that the deceased was being beaten by the appellant as alleged, no intervention was made by them in this regard rather, on the next day of the incident, they were told about the death of deceased.

6. Considering the submissions of learned counsel for the

parties and looking to the totality of facts and circumstances of

the case, more particularly the fact that looking to the large

pendency of the cases, hearing of appeal would take a long time,

the appeal has been admitted for making further appreciation of

evidence. There appears no reasonable grounds to keep the

appellant behind the bars until the disposal of the appeal because

if the judgment of appeal is passed in his favour, the days he

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might have spent in prison can never be brought back to him,

thus, taking into account the above mentioned points of

consideration, this Court is of the opinion that it is a fit case for

suspending the sentence awarded to the accused-appellant.

7. Accordingly, the application for suspension of sentence filed

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

sentence passed by learned Additional Sessions Judge No.1,

Nohar, District Hanumangarh who passed the impugned order

dated 01.06.2023 in Sessions Case No.71/2016 against the

appellant-applicant- Rakesh Kumar @ Rana 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/-with two sureties of Rs.25,000/- each to the

satisfaction of the learned trial Judge for his appearance in this

court on 06.11.2023 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 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.