Rajasthan High Court - Jodhpur

Kalyan Singh vs State Of Rajasthan ... on 10 October, 2023

Bench: Arun Bhansali, Rajendra Prakash Soni

[2023:RJ-JD:34841-DB]

HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JODHPUR

D.B. Criminal Misc Suspension of Sentence Application (Appeal) No. 1193/2023

1. Kalyan Singh S/o Shri Gautam Singh, aged about 21 years, R/o Village Pachalasa Chhota, Khadakiwada, P.S. Aspur, District Dungarpur (Raj.)

2. Gajendra Singh @ Gajraj Singh S/o Shri Kishore Singh, aged about 40 years, R/o Village Pachalasa Chhota, Hakiyotwada, P.S. Aspur, District Dungarpur (Raj.) (Presently lodged in Central Jail, Udaipur)

----Petitioners Versus State of Rajasthan

----Respondent Connected With D.B. Criminal Misc Suspension of Sentence Application (Appeal) No. 574/2023 Ishwar Singh S/o Shri Bheru Singh, aged about 73 years, R/o Village Vanot-Kawada, P.S. Sabala, District Dungarpur (Rajasthan) (Presently lodged in Central Jail, Udaipur)

----Petitioner Versus State of Rajasthan

----Respondent D.B. Criminal Misc Suspension of Sentence Application (Appeal) No. 1067/2023 Ranjeet Singh S/o Sh. Gautam, aged about 36 years, R/o Pachlasa Chhota, Tembo Ka Wada, Sabla Police Station, District Dungarpur.

(Lodged in Central Jail, Udaipur)

----Petitioner Versus State of Rajasthan

----Respondent

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For Petitioner(s) : Mr. Mridul Jain with Mr. Bhagat Dadhich.

Mr. Vinod Sharma.

Mr. Shambhoo Singh Rathore.

Mr. Girwar Singh.

For Respondent(s) : Mr. B.R. Bishnoi, PP.

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

Order

10/10/2023

1. These applications seeking suspension of sentence have

been filed by applicants, namely, Kalyan Singh, Gajendra Singh,

Ishwar Singh S/o Bheru Singh and Ranjeet Singh in relation to

judgment passed by Additional Sessions Judge, Sagwara, District

Dungarpur dated 12.05.2023 passed in Session Case No.36/2018

(Old No.33/2016 & 25/2016), whereby the applicants have been

convicted for offences under Sections 147, 323/149, 458, 364,

302/149, 120-B and 201/149 of IPC and sentenced as infra:

      Offences             Sentence                                 Fine
       147 IPC      Two        Years' Rs.5000/-       with    default
                    rigorous          stipulation to further undergo
                    imprisonment      one      month's     additional
                                      simple imprisonment.
     323/149 IPC    One        Year's Rs.1000/-       with    default
                    rigorous          stipulation to further undergo
                    imprisonment      fifteen days' additional simple
                                      imprisonment.
       458 IPC      Fourteen   Years' Rs.5000/-       with    default
                    rigorous          stipulation to further undergo
                    imprisonment      one      month's     additional
                                      simple imprisonment.
       364 IPC      Imprisonment for Rs.50,000/-      with   default
                    Life             stipulation to further undergo
                                     six months' additional simple
                                     imprisonment.


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     302/149IPC     Imprisonment for Rs.50,000/-      with   default
                    Life             stipulation to further undergo
                                     six months' additional simple
                                     imprisonment.
      120B IPC      Imprisonment for Rs.50,000/-      with   default
                    Life             stipulation to further undergo
                                     six months' additional simple
                                     imprisonment.
     201/149 IPC    Seven      Years' Rs.5000/-       with    default
                    rigorous          stipulation to further undergo
                    imprisonment      one      month's     additional
                                      simple imprisonment.

2. Learned counsel for the applicants made submissions that

the trial court committed grave error in convicting the applicants

for the offences alleged. It was emphasized that Challan was filed

against as many as 26 accused, out of which 5 including

applicants have been convicted and rest of them have been

acquitted. It was further submitted that initially Challan was filed

against 15 persons and investigation was kept pending against

rest of the accused under Section 173 (8) Cr.P.C. Whereafter, after

three years, second Challan was filed against 3 persons and more

than one and half year, after filing of second Challan, third Challan

was filed against 8 persons. It was submitted that while against

Kalyan Singh and Gajendra Singh, Challan was filed in the first

instance against Ranjeet Singh and Ishwar Singh, the same was

filed after four and half years of the incident, which it is alleged,

was committed on 04.03.2016.

3. It was emphasized that when written report dated

05.03.2016 (Ex.P/1) was filed by the mother-in-law of the

deceased, the allegations were made against Laxman Singh,

Praveen Singh and 30-35 other persons from their family, whereby

Praveen Singh and Laxman Singh etc. took away the deceased

and after pouring kerosene over her, she was burnt to death.

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4. In the statements recorded under Section 161 Cr.P.C. (Ex.D/

1), said Smt. Kalawati (PW.1), mother-in-law of the deceased,

gave out names of as many as 30 persons and alleged that

Praveen Singh and Laxman Singh took out the deceased from the

home, she was taken in front of Laxmi Narayan temple, wherein

Laxman Singh and Praveen Singh, poured kerosene on her.

Laxman Singh lit the matchstick and burnt her daughter-in-law to

death.

5. The said mother-in-law of the deceased was examined as

PW.1 and her statements were recorded on three different

occasions, i.e. as and when the supplementary charge sheets

were filed. In her statements as PW.1, she, for the first time,

specifically roped in Ishwar Singh, Kalyan Singh, Gajendra Singh

and several others and made allegations regarding their

involvement in the incident. She made specific allegations that

kerosene was poured by Moti Kanwar, Preven Singh and Pratap

Kanwar. For several accused, she indicated that they were not

involved. She also indicated that those involved in the incident,

were 60-70 years old persons, who are not accused in the case.

She didn't inform the names of those, who were actually involved

in the incident, because she was frightened.

6. PW.2- Smt. Bhawana, who is the sister-in-law of the

deceased, also made specific allegations against Pratap Kanwar,

Moti Kanwar and Praveen Singh etc. She also alleged that

kerosene was inter-alia poured by Moti Kanwar along with Praveen

Singh and Gautam Singh. First matchstick was lit by Praveen

Singh, another matchstick was lit by Moti Kanwar and Pratap

Kanwar also put matchstick.

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7. It was emphasized that insofar as the allegations regarding

pouring of the kerosene and lighting the matchstick, which

resulted in the deceased being burnt death are concerned, the

same were confined initially to Laxman Singh and Praveen Singh,

and whereafter Moti Kanwar, Pratap Kanwar and Gautam Singh

were involved qua the said acts, there are no allegations qua the

said acts against the applicants.

8. It is submitted that most of other material witness turned

hostile. It is submitted that despite the above status of evidence

qua the incident, the trial court has acquitted Laxman Singh,

Pratap Kanwar, Moti Kanwar, Gautam Singh of the charges and

have held the applicants guilty of the alleged offences wherein,

there is no evidence available against them.

9. Submissions have been made that when despite specific

allegations against Laxman Singh, Moti Kanwar, Pratap Kanwar

and Gautam Singh, they have been acquitted, based on the

statements of same witnesses, the applicants couldn't have been

convicted. Submissions have been made that during the trial, all

the applicants were on bail and hearing of the appeal would take

substantially long time and, therefore, the substantive sentence

passed against the applicants be suspended.

10. Learned Public Prosecutor vehemently opposed the

submissions made. It was submitted that submissions made may

be relevant while arguing the appeal, however, insofar as

suspension of sentence qua the applicants is concerned, the

applicants are not entitled for any indulgence looking to the nature

of the offence, which is essentially a purported honour killing of a

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young lady, who had married in different caste. However, it was

not denied that all the applicants were on bail during trial.

11. We have considered the submissions made by the counsel for

the parties and have perused the record.

12. The contradictions, as pointed out by the counsel for the

applicants in the written report (Ex.P/1), statements under

Section 161 Cr.P.C. (Ex.D/1) and thereafter the statements of

PW.1 and PW.2 are glaring, stark and vacillating in nature,

inasmuch as while specific names of Laxman Singh and Praveen

Singh were mentioned on 05.03.2016 i.e. the next date of the

incident; in the statements recorded before the court below qua

Laxman Singh, statements were given that his name was taken

under pressure and new names were introduced and qua several

of the accused, against whom Challan was filed, it was stated that

they were not involved. Specific allegations were made against

Moti Kanwar, Pratap Kanwar and Gautam Singh with regard to

their active participation in pouring kerosene over the deceased

and lighting up the matchsticks, which resulted in burning of the

deceased to death. The trial court while analyzing the evidence

qua Moti Kanwar, Pratap Kanwar and Gautam Singh by finding the

variation in the statements of the said witnesses in relation to

written report and the fact that their names were not indicated

earlier, gave benefit of doubt, however, apparently the same

treatment was not extended to the applicants, whose names were

also not included in the written report. Even Laxman Singh, who

was specifically named in the written report (Ex.P/1) and in the

statements under Section 161 Cr.P.C. (Ex.D/1), was also acquitted

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by giving benefit of doubt based on vacillating statements of PW.1

and the statements of PW.2.

13. In view of status of the evidence qua the applicants, the

analysis made by the trial court while holding them guilty of the

offences alleged, in contrast to the analysis made qua those, who

have been acquitted, the fact that the Challan was filed against

two applicants, Ranjeet Singh and Ishwar Singh, after four and

half years of the incident, that also in a case where only the

investigation was kept pending under Section 173 (89) Cr.P.C. and

it was not a case of accused absconding and the fact that all the

applicants were on bail during trial, without going into the merits

of the case, we are inclined to suspend the substantive sentence

of the applicants, namely, (1) Kalyan Singh S/o Shri Gautam

Singh, (2) Gajendra Singh @ Gajraj Singh S/o Shri Kishore Singh,

(3) Ishwar Singh S/o Shri Bheru Singh and (4) Ranjeet Singh S/o

Sh. Gautam, during the pendency of the appeal.

14. Accordingly, this applications for suspension of sentence filed

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

substantive sentence passed by the Additional Sessions Judge,

Sagwada, District Dungarpur vide judgment dated 12.05.2023 in

Session Case No.36/2018 (Old No.33/2016 & 25/2016) against

appellants-applicants (1) Kalyan Singh S/o Shri Gautam Singh, (2)

Gajendra Singh @ Gajraj Singh S/o Shri Kishore Singh, (3) Ishwar

Singh S/o Shri Bheru Singh and (4) Ranjeet Singh S/o Sh. Gautam

shall remain suspended till final disposal of the appeal, provided

they execute a personal bond in the sum of Rs.1,00,000/- along

with two sureties of Rs.50,000/- each to the satisfaction of the

learned trial Judge for their appearance in this Court on

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09.11.2023 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 change the place of residence(s), they will give in writing their changed address to the trial Court as well as to the counsel in the High Court.