Rajasthan High Court - Jodhpur
Sunil Kumar vs State Of Rajasthan ... on 15 February, 2024
Bench: Pushpendra Singh Bhati, Rajendra Prakash Soni
[2024:RJ-JD:8003-DB] (1 of 4) [SOSA-1229/2023]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 1229/2023
Sunil Kumar S/o Shri Kalyan Ji, Aged About 20 Years, R/o-
Housing Board, Shiv Nagar, Kachhi Bastim, Madangarh Police
Station, Kishangarh, District Ajmer.
(Lodged In Central Jail, Jodhpur)
----Appellant
Versus
State Of Rajasthan, Through Pp
----Respondent
For Appellant(s) : Mr. Bhagirath Ray Bishnoi
For Respondent(s) : Mr. R.R. Chhaparwal, PP
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI
Order
15/02/2024
1. The appellant-applicant herein has been convicted and
sentenced vide judgment dated 16.08.2023 passed by learned
Additional Sessions Judge No.2, Jodhpur Metro in Sessions Case
No.23/2023 for the offences punishable under Sections 148, 449,
302/149, 307/149 of IPC and Section 25(1-B)[b] of Arms Act.
2. Mr. Bhagirath Ray Bishnoi, learned counsel appearing on
behalf of the appellant-applicant submits that the only eyewitness
to the case was the injured witness Kashish (PW-2), and the said
witness owing to her deposition cannot be termed as a reliable
witness; the identification parade was not carried out and the
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eyewitness Kashish (PW-2) refused to make identification,
therefore, the identification parade was not conducted.
2.1 Learned counsel further submits that the CCTV footage was
there, but the same has not been subjected to any kind of FSL or
any kind of expert opinion; there should have been a proper
matching of the photographs between the CCTV footage and the
accused persons and the reason why the appellant has been
arrayed as one of the accused is also not clear as none of the
phones or any kind of SIM has been recovered.
2.2 Learned counsel also submits that regarding the appellant's
clothes, the FSL report is silent; the injuries attributed to the
persons is also not clear and there are omnibus allegation.
Learned counsel further submits that no motive against the
appellant has been found in the whole investigation, nor any
recovery of money or jewelry has been made from the appellant.
2.3 Learned counsel however, vehemently submits that each of
these submissions have also been admitted by PW-45 Himanshu
Sharma and he has deposed that each of the facts submitted by
him are correct. In this regard, attention of this Court has been
drawn towards Para 139 of the impugned judgment.
3. Learned Public Prosecutor however, submits that the
bloodstained clothes were recovered from the appellant. He
further submits that the knife has been recovered from the
appellant and the knife has been subjected to FSL and human
blood has been found there. He insists that Kashish (PW-2) is the
injured witness and has maintained the consistency in her
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statement even when she is comparatively not of a matured age.
He further submits that it is also noted by the learned trial court in
the impugned order that injured witness Kashish (PW-2) had
categorically recognized and identified the accused persons.
4. After hearing learned counsel for the parties at length as well
as perusing the record of the case, this Court finds that the
statement of injured witness Kashish (PW-2) is consistent and in
the present case, the brutal murder of Dharmendra @ Mahesh,
Smt. Rakhi, Tanish, Smt. Laxmi Devi and Sunita Rakhlani has
been proved with the help of CCTV footage and the FSL report;
recovery of bloodstained weapons used in the crime in question
from the applicant-appellant, so also recovery of the bloodstained
clothes from him, clearly connect the accused-applicant with the
crime in question. Though the learned counsel for the appellant
had tried to impress upon this Court that there is a prolonged
custody of 11 years, and therefore, as per the precedent law of
Saudan Singh v. The State of Uttar Pradesh : SLP (Crl.)
No.4633/2021, also appellant-applicant is entitled for suspension
of sentence awarded to him, but this Court finds that in the same
precedent law, a probable exception has been carved out to the
effect that when the number of murders are more than two, the
custody period would not be relevant for releasing the applicant,
who moved suspension of sentence application.
5. This Court further finds from the record and as observed by
the learned trial court in the impugned judgment, that even if the
prosecution has failed to prove its case, as regards the motive of
the accused to commit the crime in question, the same is not
[2024:RJ-JD:8003-DB] (4 of 4) [SOSA-1229/2023]
fatal to the prosecution case, more particularly, looking into the
consistent depositions made by the sole eye witness, namely,
Kashish (PW-2).
5.1. This Court further finds from the record that the present
applicant-appellant, alongwith other accused persons, entered the
house of the deceased persons, armed with dangerous weapons,
with an intention to cause injuries to the deceased persons, which
in ordinary course of nature, were sufficient to cause death.
6. Regarding the call details and CCTV footage, though learned
counsel for the appellant has raised some doubt and read a part of
the judgment also to substantiate his submissions, but at the
same time, the conclusion of the learned trial court is definite, and
in the overall circumstances including brutality of crime, the
connection of the appellant with the crime has been properly dealt
with by the learned trial court and does not call for any kind of
indulgence by this Court at this stage.
7. Thus, on overall consideration of the facts and circumstances
of the case, this Court is not inclined to suspend the substantive
suspension of the appellant at this stage, hence, the suspension of
sentence application is dismissed.
(RAJENDRA PRAKASH SONI),J (DR.PUSHPENDRA SINGH BHATI),J
39-Zeeshan
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