Rajasthan High Court

Rahul S/O Kundan Lal vs State Of Rajasthan (2024:Rj-Jp:5903) on 5 February, 2024

Author: Praveer Bhatnagar

Bench: Praveer Bhatnagar

[2024:RJ-JP:5903]

          HIGH COURT OF JUDICATURE FOR RAJASTHAN
                      BENCH AT JAIPUR

  S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
                                   No.1/2024
                                         IN
                    S.B. Criminal Appeal No.5/2024

Rahul S/o Kundan Lal, Resident Of Ganeshchowk Khedli Phatak
Police Station Bhimganjmandi District Kota (Raj) (At Present
Confined In Central Jail Kota)
                                                            ----Accused-Appellant
                                     Versus
State of Rajasthan, through PP
                                                                  ----Respondent

For Petitioner(s)          :     Mr. Rohit Khandelwal
For Respondent(s)          :     Mr. Imran Khan, PP



          HON'BLE MR. JUSTICE PRAVEER BHATNAGAR

                                      Order

05/02/2024

The accused-appellant herein has 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' S.I.

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

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

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

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Learned counsel for the accused-appellant submits that

accused-appellant has been wrongly convicted under Sections

308, 325, 341 and 323/34 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-appellant 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-appellant 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-appellant has already suffered custody of four

years and one month, so also the decision of the appeal may take

considerable, therefore, sentence awarded to 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

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before the Court have specifically stated that accused-appellant

along with other co-accused Shakti and Sawan @ Anil 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-appellant under Sections 308, 325, 341 and 323/34 I.P.C.

He further submits that accused-appellant is having criminal

antecedents, therefore, the application for suspending the

sentence of accuse-appellant may be dismissed.

Heard learned counsel for the accused-appellant 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-

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 accused-appellant along with

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other co-accused Mukesh @ Makku, Shakti and Sawan @ Anil

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-appellant 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-appellant for suspending the sentence awarded to

accused-appellant 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 appellant-applicant Rahul S/o Kundan Lal, 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

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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.