Rajasthan High Court - Jodhpur

Babu Lal @ Babu vs State Of Rajasthan ... on 4 March, 2024

Bench: Dinesh Mehta, Rajendra Prakash Soni

[2024:RJ-JD:10758-DB]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
 D.B. Criminal Misc Suspension Of Sentence Application (Appeal)
                                  No. 894/2023
                                           IN
                    D.B. Criminal Appeal No.49/2023

Babu Lal @ Babu S/o Kanhaiya Lal, Aged About 52 Years, R/o
Karunda Ps Chhoti Sadari Dist. Pratapgarh
      (Lodged In Central Jail Udaipur).
                                                                      ----Petitioner
                                       Versus
State Of Rajasthan, Through Pp
                                                                    ----Respondent


For Petitioner(s)            :     Mr. J. S. Choudhary, Sr. Adv. assisted
                                   by Mr. Pradeep Choudhary
                                   Ms. Sampati Choudhary
For Respondent(s)            :     Mr. R. R. Chhaparwal, PP


              HON'BLE MR. JUSTICE DINESH MEHTA

HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI Judgment

04/03/2024

1. Heard learned counsel for the parties on the application for

suspension of sentence.

2. The instant application for suspension of sentence has been

preferred by the appellant-applicant, who has been convicted and

sentenced by the learned trial court vide judgment dated

10.02.2023 in Sessions Case No.02/2018, as under :-

 Sentenced under           Sentence                   Fine            Sentence in
     Section               awarded                  imposed          default of fine
 341 of IPC             One month of                Rs.500/-         Seven days of
                           Simple                                       Simple
                        Imprisonment                                 Imprisonment

 302 of IPC                  Life                 Rs.25,000/-        Six months of
                        Imprisonment                                     Simple
                                                                     Imprisonment





 [2024:RJ-JD:10758-DB]                   (2 of 5)                    [SOSA-894/2023]

3. Mr. J. S. Choudhary, learned senior counsel has submitted

that the applicant has been falsely implicated and wrongly

convicted in the present case. Learned Senior Counsel firstly

invited court's attention towards the written report lodged by the

complainant - Anil, son of the deceased and highlighted that while

lodging the written complaint, he did not state any weapon or

even rod to be held by any individual person and omnibus

allegations were leveled on the persons named in the FIR,

including the applicant.

4. Learned counsel thereafter took the Court through the

postmortem report and pointed out that the cause of death of the

deceased is the injury on the occipital region of the deceased

which was inflicted by a sharp weapon whereas an iron rod has

been recovered from the appellant.

5. While informing that the applicant was enlarged on bail by

the High Court vide order dated 12.06.2020, learned counsel

submitted that there is an apparent discrepancy, rather irregularly

in the recovery of the weapon, and accordingly, the recovery of

the alleged weapon of offence is doubtful. In support of his

contention, learned Senior Counsel submitted that as per the

seizure memo, the recovery of the iron rod was made from the

applicant on 12.07.2017, whereas, as per Malkhana register,

(Ex/P-21) the axe so also iron rod were deposited in Malkhana on

05.07.2017, atleast 7 days prior to the alleged recovery, which

has been shown to have been made form the applicant.

6. Learned Senior Counsel submitted that the statement of the

informant - sole eye-witness is ex-facie unreliable as he has

improved his stand. It was also highlighted that in the cross-

[2024:RJ-JD:10758-DB] (3 of 5) [SOSA-894/2023]

examination, the eye-witness Anil (P.W.4) could not withstand the

questions put to him by the defence counsel and he failed to

explain the reason for not informing about the weapon used by

each of the accused-appellant as also the injury which was

inflicted by each of the accused persons in the FIR and the

statement under Section 161 of Cr.P.C, particularly when he was

present on the spot.

7. Learned counsel further submitted that so far as the

applicant is concerned. He had no motive to murder, maybe, the

co-accused Sohan Lal did have some motive.

8. Learned Public Prosecutor opposed the application for

suspension of sentence by submitting that in the face of the

evidence led by the eye-witness - Anil, even if there is some

discrepancy in the recovery, the appicant's conviction cannot be

faulted with. He prayed that the application for suspension of

sentence be rejected.

9. Heard learned counsel for the parties and perused the

record.

10. Upon surfing through the relevant material and considering

the arguments advanced, we are of the view that irregularity and

lapse in the recovery of axe and iron rod made from the applicant

is writ large - the recovery has been shown to have been made

from the appellant on 12.07.2017, whereas the requisite entry in

the Malkhana register (Ex/P-21) is found on 05.07.2017. The eye-

witness Anil has improved his case during the course of trial and

what was not stated in the written complaint and statement before

police, has later on been added.

[2024:RJ-JD:10758-DB] (4 of 5) [SOSA-894/2023]

11. It is also to be noted that the FSL Report (Ex.P/26) is

inconclusive and the report states that blood group of the blood

found on the clothes (Shirt, Baniyan) of the deceased, and blood

smeared soil and axe could not be deciphered, while blood stains

on metallic rod have been reported to be of Group 'A'. It is beyond

comprehension that despite profuse bleeding that the deceased

ought to have had on account of the axe blow on the head, the

FSL report is inconclusive, regarding the blood group. Inconclusive

report on the iron rod and axe raises a natural doubt about the

same being stained with the blood of the deceased, particularly

when the recovery of axe and rod is doubtful as observed earlier.

12. For the reasons aforesaid, we are of the view that the

appellant has plausible grounds to assail his conviction. That apart

the applicant - Babu Lal was on bail during the trial, hence, we

are inclined to accept the application for suspension of sentence,

as the hearing of the appeal is likely to take time.

13. Accordingly, this application for suspension of sentence filed

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

substantive sentence passed by the learned Sessions Judge,

Pratapgarh vide judgment dated 10.02.2023 in Sessions Case

No.02/2018 against appellant-applicant Babu Lal @ Babu S/o

Kanhaiya Lal shall remain suspended till final disposal of the

appeal, 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

court on 05.04.2024 and whenever ordered to do so, till the

disposal of the appeal on the conditions indicated below:-

[2024:RJ-JD:10758-DB] (5 of 5) [SOSA-894/2023]

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 appellant 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.