Rajasthan High Court - Jodhpur
Vikram vs State Of Rajasthan ... on 4 October, 2023
Bench: Arun Bhansali, Rajendra Prakash Soni
[2023:RJ-JD:32822-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 377/2022
Vikram S/o Om Prakash, Aged About 33 Years, R/o Thuiyan,
Police Station Bhattukala, District Fatehabad (Hariyana) (Lodged
In Central Jail, Bikaner)
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Mr.Vineet Jain, Sr. Advocate with
Mr. Manjeet Godara.
For Respondent(s) : Mr. B.R.Bishnoi, P.P.
HON'BLE MR. JUSTICE ARUN BHANSALI
HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI
Order
04/10/2023
1. The appellant-applicant herein has been convicted and
sentenced as below vide judgment dated 25/3/2022 passed by the
learned Addl. Sessions Judge No.2, Nohar Distt. Hanumangarh in
Session Case No.47/2014 (CIS No. 133/2014):
Offence Sentence Fine
302/34 IPC Life Imprisonment Rs.50,000/- and in default of
which to further undergo one
year R.I.
3/25 Arms Act One year R.I. Rs.1,000/- and in default of
which to further undergo one
month R.I.
27 Arm Act Three years R.I. Rs.1,000/- and in default of
which to further undergo one
month R.I.
2. The appellant-applicant has preferred the application for
suspension of sentence under Section 389 Cr.P.C. for suspension
[2023:RJ-JD:32822-DB] (2 of 5) [SOSA-377/2022]
of sentence during the pendency of the appeal and for release of
the applicant on bail.
3. It is submitted by learned counsel for the applicant-appellant
that sentence of the co-accused - Sunil @ Sadu has been
suspended by this Court in D.B.Criminal Misc. Suspension of
Sentence Application No. 817/2022 on 16/2/2023 and the case of
the applicant is similar to that of Sunil @ Sadu.
4. With reference to the evidence available on record, it was
submitted that the conviction is based on the statement of
purported eye witnesses, Rajendra Singh - P.W.3 and Kan Singh -
P.W.4. While Rajendra Singh in his chief clearly asserted that, who
fired the gunshot he did not know as all the four accused were at
the site, and P.W.4 - Kan Singh, though stated that the applicant
fired the gunshot and that he knew the applicant, despite the
applicant present in the court, he indicated that the applicant was
not present in the Court, which aspect was noted in bold by the
Sessions Judge in examination in chief. Further, in the cross
examination, said Kan Singh stated that he did not know the
applicant from before the incident; the bullet was fired from about
44 ft. distance at 2.30 am, there was pitch dark and on account of
darkness in night he could not see the face of the person firing the
bullet. He also conceded that he has difficulty in sighting the
object at a distance and cannot see at a distance of 40 ft. at night
and, therefore, based on the said submissions, the conviction of
the applicant is ex facie unjust.
5. Further submissions have been made that the applicant is in
custody for about six years now, hearing of the appeal would take
[2023:RJ-JD:32822-DB] (3 of 5) [SOSA-377/2022]
sufficiently long time and, therefore, sentence of the applicant
may be suspended and he be enlarged on bail.
6. Learned Public Prosecutor vehemently opposed the
submissions.
7. It was submitted that the trial court, based on the evidence
available on record has rightly convicted the applicant. The
applicant has very bad antecedents, wherein, as many as 37 cases
have been registered against him other than the present case.
Further, the firearm from which the gunshot was fired was
recovered from the applicant and, therefore, the application
deserves dismissal.
8. Learned counsel for the applicant with regard to antecedents
made submissions that most of the cases registered against the
applicant pertain to the alleged offence under Section 379 IPC,
wherein, the applicant was working as recovery agent for financier
and whenever any vehicle was detained, FIR under Section 379
IPC was lodged against him. Few matters pertain to Excise Act
and, therefore, it cannot be said that the antecedents of the
applicant disentitle him for being released on bail, only based on
the number of cases registered against him.
9. We have considered the submissions made by learned
counsel for the parties and h ave perused the record of the case.
10. After going through the statement of P.W.3 and P.W.4, eye
witnesses in the case, and specially the cross examination of
P.W.4, who, though in the chief examination alleged that the
applicant had fired gunshot, failed to recognize him, though he
was available in the court and indicated his inability to see objects
at a distance and claimed that the gunshot was fired from a
[2023:RJ-JD:32822-DB] (4 of 5) [SOSA-377/2022]
distance of 44 ft., the statements cannot be accepted on face
value.
11. Having considered the totality of the facts and circumstances
of the case and after carefully scrutinizing the record of the case,
without making any observations on merits of the case, we are
inclined to suspend the substantive sentence of the appellant-
applicant Vikram s/o Om Prakash during the pendency of the
appeal.
12. 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 Addl.
Sessions Judge No.2, Nohar, Distt. Hanumangarh in Session Case
No.47/2014 (CIS No. 133/2014) against the appellant-applicant
Vikram s/o Om Prakash 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.2,00,000/- with two
sureties of Rs.1,00,000/- each along with one local surety from
Rajasthan in the like amount to the satisfaction of 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.
3. Similarly, if the sureties change their address(s)
they will give in writing their changed address to the
trial court.
[2023:RJ-JD:32822-DB] (5 of 5) [SOSA-377/2022]
13. 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-applic+
-ant does 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
82-baweja/-
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