Rajasthan High Court

Shakti Son Of Shri Suresh @ Seeti vs State Of Rajasthan (2024:Rj-Jp:5902) on 5 February, 2024

Author: Praveer Bhatnagar

Bench: Praveer Bhatnagar

[2024:RJ-JP:5902]

          HIGH COURT OF JUDICATURE FOR RAJASTHAN
                      BENCH AT JAIPUR

  S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
                                 No. 57/2024
                                         IN
                    S.B. Criminal Appeal No.80/2024

1.        Shakti Son Of Shri Suresh @ Seeti, Resident Of Harijan
          Basti Ismael, Chowk, Nayapura, Police Station Nayapura
          District Kota (Raj) (At Present Confined In District Jail,
          Kota)
2.        Sawan @ Anil Son Of Shri Surender, Resident Of
          Bhatapada, Ladpura, Police Station Kotwali Dsitrict Kota
          (Raj) (At Present Confined In District Jail, Kota)
                                                          ----Accused-Appellants
                                     Versus
State of Rajasthan, through PP
                                                                  ----Respondent

For Petitioner(s)          :     Mr. Pawan Kumar Verma
For Respondent(s)          :     Mr. Imran Khan, PP



           HON'BLE MR. JUSTICE PRAVEER BHATNAGAR

                                      Order

05/02/2024

The accused-appellants herein have been convicted and

sentenced vide judgment dated 18.12.2023 passed by the learned

Court of Sessions Judge, Kota in Sessions Case No.64/2017 as

under:-

Offence Under Imprisonment Fine Sentence in Section default of payment 308/34 I.P.C. Four years' R.I. Rs.5,000/- Three months' each S.I.

325/34 I.P.C. Two years' R.I. Rs.1,000/- Three months' each S.I.

341/34 I.P.C. Fifteen days' S.I. Rs.100/- Three days' S.I.

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each 323/34 I.P.C. Three months' R.I. Rs.500/- Five days' S.I. each

Learned counsel for the accused-appellants submits that

accused-appellants have been wrongly convicted under Section

308 of I.P.C. He further submits that PW-1 Dr. Brijesh Tatwal

examined PW-2 injured Gaurav Mehra and found ten injuries on his

body. There is no specific opinion of PW-1 Dr. Brijesh Tatwal that

injuries were dangerous to life.

Learned counsel for the accused-appellants further submits

that as per statement of PW-1 Dr. Brijesh Tatwal, injury Nos.2, 6, 7

and 9 were found to be grievous in nature. Injury Nos.2, 6, 7 and 9

were caused on left knee, elbow of right hand and on the palm of

the right hand. These injuries were not on the vital part. He further

submits that PW-2 injured Gaurav Mehra did not turn up in the

Court, therefore, accused could not cross-examine the witness.

Learned counsel for the accused-appellants further submits

that PW-3 Devendra Mehra is a hearsay witness. PW-10

Omprakash and PW-15 Tejkaran in their statements have named

Mukesh @ Makku as an accused, whereas, PW-2 injured Gaurav

Mehra in his examination in chief has stated that Mukesh @ Makku

was not present and he did not cause any injury to him. He further

submits that learned trial court has not assigned cogent reason

regarding convicting the accused-appellants under Section 308

I.P.C. The accused-appellants are in custody since 18.12.2023 and

during trial accused-appellants were on bail, so also the decision of

the appeal may take considerable, therefore, sentence awarded to

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the accused-appellants may be suspended during the pendency of

the appeal.

Learned Public Prosecutor vehemently opposes the

suspension of sentence application and submits that PW-10

Omprakash and PW-15 Tejkaran in their statements recorded

before the Court have specifically stated that accused-appellants

along with other co-accused Rahul assaulted the injured Gaurav

Mehra with iron rods and caused several injuries on his body. He

further submits that PW-1 Dr. Brijesh Tatwal, who examined injured

Gaurav Mehra, in his statement before the Court, has proved the

injuries caused to injured Gaurav Mehra and as many as ten

injuries were found at various body parts of the injured.

Learned Public Prosecutor further submits that injury Nos.2,

6, 7 and 9 were found to be grievous in nature, therefore, the

learned trial court vide impugned order has rightly convicted the

accused-appellants under Sections 308, 325, 341 and 323/34 of

I.P.C. He further submits that accused-appellants are having

criminal antecedents, therefore, the application for suspending the

sentence of accused-appellants may be dismissed.

Heard learned counsel for the accused-appellants as well as

learned Public Prosecutor on the application for suspension of

sentence and perused the material available on record.

PW-1 Dr. Brijesh Tatwal, who examined PW-2 injured Gaurav

Mehra, in his statement has corroborated the injuries sustained to

injured Gaurav Mehra. He has stated that ten injuries were found

at various body parts of injured Gaurav Mehra, specifying the

injuries. He has deposed that injury Nos.2, 6, 7 and 9 were

grievous in nature. PW-2 injured Gaurav Mehra could not be cross-

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examine as after examination in chief, despite several efforts by

the learned trial court, he did not turn up. PW-10 Omprakash and

PW-15 Tejkaran are other eye-witnesses to the incident. In their

statements, they have deposed that accuse-appellants along with

other co-accused Mukesh @ Makku and Rahul assaulted the

injured causing various injuries to PW-2 injured Gaurav Mehra. The

learned trial court acquitted the accused Mukesh @ Makku under

Sections 323, 341, 325 and 308/34 I.P.C. as PW-2 Gaurav Singh

has not stated his name and despite the cross-examination by the

learned Public Prosecutor, the witness has denied the presence of

Mukesh @ Makku. The learned trial court at para No.20 of its

judgment has convicted the accused-appellants under Sections

308, 325, 341 and 323/34 I.P.C. The learned trial court has not

assigned any cogent reason regarding convicting the accused-

appellants under Section 308 I.P.C. Though, at this juncture, it is

not desirable to comment upon the merit of the case, whether the

offence under Section 308 I.P.C. is made out or not but after

considering the nature of injuries sustained to PW-2 Gaurav Mehra

and more particularly to the fact that no injuries were found to be

on the vital part & no injuries were on the vital part and dangerous

to life, I deem it proper to allow the application of accused-

appellants for suspending the sentence awarded to accused-

appellants during pendency of the instant appeal.

Accordingly, the application for suspension of sentence filed

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

sentences passed by the learned Court of Sessions Judge, Kota in

Sessions Case No.64/2017 vide judgment dated 18.12.2023

against the appellants-applicants (1) Shakti Son Of Shri Suresh

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@ Seeti and (2) Sawan @ Anil Son Of Shri Surender, shall

remain suspended till final disposal of the aforesaid appeal and

they shall be released on bail, provided each of them execute 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 07.03.2024 and whenever

ordered to do so till the disposal of the appeal on the conditions

indicated below:-

1. That he/she/they will appear before the trial Court in the month of January of every year till the appeal is decided.

2. That if the applicant(s) change(s) the place of residence, he/she/they will give in writing his/her/their changed address to the trial Court as well as to the counsel in the High Court.