Rajasthan High Court - Jodhpur

Bharat Kumar vs State Of Rajasthan ... on 8 April, 2025

Author: Pushpendra Singh Bhati

Bench: Pushpendra Singh Bhati

[2025:RJ-JD:18018-DB]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                           JODHPUR
  D.B. Criminal Misc Suspension of Sentence Application (Appeal)
                         No. 1396/2024

Bharat Kumar son of Anil Kumar, aged about 33 Years, resident
of Brahmpole PS Ambamata Udaipur (lodged in Central Jail
Jodhpur)
                                                    ----Petitioner
                             Versus
State of Rajasthan, Through PP
                                                 ----Respondent
                         Connected With
             D.B. Criminal Appeal (DB) No. 239/2023
Neeraj Sen @ Sallu son of Prem Lal Sen, aged about 29 Years,
resident of Gupadi, P.S. Dabok, at present Naru Singhji
Goverdhan Vilas, Udaipur. (at present lodged in Central Jail,
Udaipur)
                                                    ----Petitioner
                             Versus
1.   State of Rajasthan, Through PP
2.   Mahendra Kumar son of Ram Lal Salvi, resident of Main
     Road, Santosh Nagar, P.S. Hiranmagri, Udaipur.
                                                ----Respondents


For Petitioner(s)            :     Mr. Amardeep Lamba
                                   Mr. Tarun Dhaka
For Respondent(s)            :     Mr. Deepak Choudhary, GA cum AAG



        HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

HON'BLE MR. JUSTICE SANDEEP SHAH

Order

08/04/2025

In D.B. Criminal Misc. Suspension of Sentence

Application No. 1396/2024:-

1. The appellant-applicant has preferred the application for

suspension of sentence under Section 389 Cr.P.C. for suspension

of sentences during the pendency of the appeal and for release on

bail.

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2. Learned counsel for the appellant-applicant has referred to

the judgment of Neeraj Sen @ Sallu passed in D.B. Criminal Misc.

Suspension of Sentence Application No.1487/223 on 04.04.2024.

The order dated 04.04.2024, reads as follows:-

"1. Heard learned counsel for the parties on the application for suspension of sentences.

2. The instant application for suspension of sentences has been preferred by the appellant- applicant, who has been convicted and sentenced by the learned trial court vide judgment dated 31.08.2023 in Sessions Case No. 16/2018, as under:-

Offences Sentence Fine Imposed Sentence in default of U/s Awarded time 341 of IPC One month of Rs.500/- Three days of R.I. R.I. 307/34 of Ten Years of Rs.5,000/- Two Months of R.I. IPC R.I. 397/34 of IPC Seven Years of Rs.5,000/- Two Months of R.I. R.I. 4/25 of Arms Three Years of Rs.5,000/- Two Months of R.I. Act R.I. 3(2) (v) of Life Rs.5,000/- Two Months of R.I. SC/ST Act Imprisonment

3. Mr. Dhaka, learned counsel for the appellant- applicant argued that the trial Court has committed an error of law as well as of facts in convicting the appellant-applicant for the offence under Section 307 of the Indian Penal Code by completely ignoring the evidence led by the Doctor Mohd. Irfan (PW-2) who has not only given testimony in relation to the nature and size of the injury but has also deposed that the injury caused to the injured was not life threatening.

4. Learned counsel further argued that for the injury that has been inflicted upon the injured and in light of the testimony of the Doctor, who has conducted medical examination of the injured, the learned trial Court could not have come to a conclusion that the appellant-applicant had intention to murder the victim.

5. Learned counsel also argued that no evidence has been brought on record for which it could be said that the appellant- applicant intended to murder the injured for which, he had inflicted knife blows.

6. It was also argued that the trial Court has awarded 10 years' rigorous imprisonment to the appellant-applicant for the offence under Section 307 of the Indian Penal Code but has surprisingly

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awarded life imprisonment for the offence under Section 3(2)(V) of the Scheduled Castes/Scheduled Tribes Act, 1989.

7. Learned counsel Mr. Dhaka further submitted that the appellant's conviction under the provisions of the Scheduled Castes and Scheduled Tribes Act, 1989 is unsustainable while punishment is harsh because neither in the FIR nor in the evidence, the prosecution has been able to prove that the appellant-applicant was aware of the fact that the injured/victim was a member of the Scheduled Caste.

8. While submitting that the appellant-applicant has remained behind the bars for more than four years, learned counsel prayed that the sentences awarded to the appellant-applicant may kindly be suspended during the pendency of the appeal.

9. Learned Public Prosecutor vehemently opposed the application for suspension of sentences by contending that there are as many 26 cases of different offences pending against the present applicant which includes offence under Sections 392, 34 IPC, 380, 411 IPC, 454, 380 IPC, 436, 427 & 504 IPC, 457, 380 & 411 IPC, 332, 353 & 224 IPC, 392 IPC, 457, 380 & 411 IPC, 341, 307, 397/34 IPC & Section 3(2)(V) of SC/ST Act, 341, 323 & 34 IPC, 399, 402 IPC, 341, 323, 394, 397 & 34 IPC, 379 IPC, 457 & 380 IPC, 457 & 380 IPC, 457 & 380 IPC, 4/25 Arms Act, 379 IPC, 341, & 323 IPC, 309 IPC, 341, 323 & 324 IPC and 392 IPC. He prayed that no indulgence be granted to the appellant-applicant.

10. Mr. Love Jain, learned counsel for the respondent No.2 (complainant) has also opposed the application for suspension of sentences.

11. Heard learned counsel for the parties and perused the record.

12. A simple look at the testimony of the Dr. Mohd. Irfan (PW-02) shows that the injury caused to the injured/victim was neither life threatening nor was the same on any vital part of the body.

13. Adverting to the appellant's conviction under the provisions of Scheduled Castes and Scheduled Tribes Act, 1989, on perusal of the record, we find that neither in the FIR nor in the testimony of PW- 3 (Mahendra S/o Ramlal), it has been averred that the appellant-applicant was aware of the victim's caste and knowing it fully well, he had committed the offence so as to convict him un- der Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes Act, 1989.

14. A plain reading of the provisions contained under Section 3(2 (V) of the Scheduled Castes and Scheduled Tribes Act, 1989 shows that knowledge of the caste of the victim before the offence is committed is a precursor for conviction under the provisions of the Act of 1989.

15. Upon perusal of the order impugned, it is apparent that despite noticing that Dr. Mohd. Irfan (PW-2) has expressed his opinion that the injury caused to the injured/victim was not life threatening, the trial Court has proceeded to convict the appellant-applicant under Section 307 of the Indian Penal Code, without assigning any reason for the same.

16. That apart, sentence (life imprisonment) awarded for offence under Section 3(2)(V) of

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SC/ST Act appears to be excessive, particularly when punishment of 10 years has been awarded for the basic/substantive allegation.

17. For the reasons aforesaid, we are of the view that the appellant-applicant has plausible grounds to assail his conviction. That apart, the applicant - Neeraj Sen @ Sallu has remained behind the bars for more than four years, hence, we are inclined to accept the application for suspension of sentences, as the hear- ing of the appeal is likely to take time.

18. Accordingly, this application for suspension of sentence filed under Section 389 Cr.P.C. is allowed and it is ordered that the sub- stantive sentence passed by the learned Special Judge, SC/ST (Prevention of Atrocity Cases) Udaipur vide judgment dated 31.08.2023 in Sessions Case No. 16/2018 against appellant- applicant Neeraj Sen @ Sallu S/o Prem Lal Sen shall remain suspended till final disposal of the appeal, provided he executes a personal bond in the sum of Rs. 1,00,000/- with two sureties of Rs.50,000/- each to the satisfaction of the learned trial Judge for his appearance in this Court on 05.05.2024 and whenever ordered to do so, till the disposal of the appeal on the conditions indicated below:-

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.

3. Similarly, if the sureties change their address, they will give in writing their changed address to the trial Court.

19. The learned trial Court shall keep the record of attendance of the accused-appellant in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused- appellant was tried and convicted. A copy of this order shall also be placed in that file for ready reference. Criminal Misc. file shall not be taken into account for statistical purpose relating to pendency and disposal of cases in the trial court. In case the said accused-appellant does not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of bail."

3. Learned counsel for the appellant-applicant submits that the

Neeraj Sen @ Sallu was the main accused as both the injuries of

the knife has been attributed to him. He further submits that as

per the statement of Doctor Mohd. Irfan (PW-2), no injuries were

danger to life on vital part.

3.1 Learned counsel for the appellant-applicant submits that the

allegations against the present appellant-applicant is of lessor

degree of Neeraj Sen.

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4. Learned Public Prosecutor opposes the application for

suspension of sentence, but at the same time, he is unable to

refute that the applicant-appellant is a lower pedestal as far as the

gravity of offence is concerned, when compare to Neeraj Sen

which has been attributed to the knife injuries.

5. Accordingly, the instant application for suspension of

sentence filed under Section 389 Cr.P.C. is allowed and it is

ordered that substantive sentence passed by learned Special

Judge SC/ST (Prevention of Atrocity Cases), Udaipur in Sessions

Case No.16/2016, against the appellant-applicant, namely,

Bharat Kumar son of Anil Kumar, 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 learned trial Judge for his appearance in this court

on 12.05.2025 and whenever ordered to do so till the disposal of

the appeal on the conditions indicated below:

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 applicant change 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.