Rajasthan High Court - Jodhpur

Mahesh @ Manish Kumar vs State Of Rajasthan on 9 April, 2025

Author: Pushpendra Singh Bhati

Bench: Pushpendra Singh Bhati

[2025:RJ-JD:18011-DB]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
 D.B. Criminal Misc Suspension of Sentence Application (Appeal)
                                  No. 420/2025

                                           in

                    D.B. Criminal Appeal No.25/2025

Mahesh @ Manish Kumar son of Hanuman Ram, aged About 34
Years, resident of Gram Village Lunsara, P.S. Kuchera, District
Nagaur (Raj.) (At present Incarcerated at Central Jail, Ajmer)
                                                                      ----Petitioner
                                       Versus
State of Rajasthan, Through PP
                                                                    ----Respondent


For Petitioner(s)            :     Mr. Aditya Sharma, Advocate
For Respondent(s)            :     Mr. Deepak Choudhary, AAG


     HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

HON'BLE MR. JUSTICE SANDEEP SHAH Order

Reserved on: 08/04/2025 Pronounced on: 09/04/2025 Per Mr. Sandeep Shah, J :

1. The appellant-applicant herein has been convicted and

sentenced as below vide judgment dated 10.12.2024 passed by

the learned Additional Sessions Judge No.2, Nagaur in Sessions

Case No.43/2012 (73/2015) (CIS No.128/2014):

Offences Prison In default of payment of fine U/s Punishment further undergo 364/120-B of IPC Imprisonment for Extra 2 Years of imprisonment life with the fine of Rs.20,000/-

302/120-B of IPC Imprisonment for Extra 2 Years of imprisonment Life with the fine of Rs.20,000/-

201/120-B of IPC Imprisonment for 7 Extra 6 Months of imprisonment years with the fine of Rs.5,000/-

[2025:RJ-JD:18011-DB] (2 of 5) [SOSA-420/2025]

2. The appellant-applicant has preferred the application for

suspension of sentence under Section 430 of the B.N.S.S. (Earlier

Section 389 Cr.P.C.) for suspension of sentences during the

pendency of the appeal and for release on bail.

3. The case of the prosecution is that on 30.05.2012 an FIR

came to be lodged by Mewaram i.e. father of the deceased Sewai

Singh stating that his son was staying as tenant in the house of

Motiram Chandel near Laxmitara Cinema and was studying there.

It was further asserted that every day he used to send the food

for Sewai Singh through bus. On 29.05.2012 again after sending

the food in morning at 09:00 AM, he called Sewai Singh but his

phone was switched off. Thus, Mewaram requested his son-in-law

Darasingh to find the whereabouts of Sewai Singh and Darasingh

subsequently informed the complainant- Mewaram that Sewai

Singh had went out at around 10 O'clock and has not come back

to home. It was further informed that on asking the neighbors one

Sh. Nirmal Sunar informed that on 28.05.2012 at around 10:30

PM, he had seen the deceased- Sewai Singh going in a Camper car

(Jeep) along with two persons. It was later on that post

investigation, the police officials found that the present appellant-

Mahesh @ Manish Kumar, Durga Devi and Siyaram were involved

and thus implicated them in the case above mentioned for

offences punishable under Sections 302, 364 & 201 read with 120-

B of IPC.

4. Learned counsel for the appellant-applicant submitted that

the suspension of sentence application filed by similarly situated

co-accused Durga Devi being D.B. Criminal Misc. Suspension of

[2025:RJ-JD:18011-DB] (3 of 5) [SOSA-420/2025]

Sentence Application (Appeal) No.1808/2024 was allowed by a co-

ordinate Bench of this Court vide order dated 11.02.2025.

5. Learned counsel further submitted that the present

appellant-applicant has been implicated in the present case simply

on the basis of testimony of two witnesses i.e. PW-9 Rugaram

Sangwa and PW-17 Dharmaram, who have stated to have last

seen the appellant-applicant with the deceased- Sewai Singh.

Learned counsel for the appellant-applicant further stated that the

witnesses do not inspire confidence as they are related witness

and further there are huge inconsistencies in their statements.

Furthermore, it has been stated that the recovery of the dead

body of the deceased- Sewai Singh based upon the confessional

statements given by the appellant-applicant under Section 27 of

the Indian Evidence Act does not inspire confidence as the

recovery witnesses have not supported the version of the

prosecution and further the recovery of the dead body of the

deceased was from an open space. Learned counsel further

submitted that the main accused Siyaram who was allegedly

having an affair with Durga Devi i.e. the wife of the deceased-

Sewai Singh had already expired and there is no evidence to link

the present appellant-applicant with other co-accused nor there is

any motive available on record to link the present appellant-

applicant to the crime in question.

6. Learned Public Prosecutor opposed the application for

suspension of sentence and submitted that the statements of the

witnesses emphasising that the appellant-applicant was last seen

with the deceased are trustworthy and furthermore the order

allowing the suspension of sentence application of co-accused

[2025:RJ-JD:18011-DB] (4 of 5) [SOSA-420/2025]

Durga Devi is clearly distinguishable as the role assigned to her

was totally different. The recovery of dead body at the instance of

appellant-applicant has also been proved by the prosecution.

7. This Court, on a conjoint consideration of the facts of the

case and considering the fact that the last seen witnesses

themselves have admitted in the statements recorded before the

police under Section 161 of Cr.P.C. that there was no mention of

the name of the present appellant-applicant nor his name was

mentioned in the FIR which raises suspicion with regard to his

involvement in the crime. Furthermore, PW-9 Rugaram Sangwa

has himself admitted that he did not know the appellant-applicant

and no test identification parade of the appellant-applicant was

undertaken by the prosecution. The prosecution has even prima

facie failed to prove any motive relating the appellant-applicant

with the crime in question. Further, the recovery of the dead body

was from an open space and there are inconsistencies in the

statements of the recovery witnesses also. Therefore, this Court is

of the prima facie opinion that it is a fit case for suspending the

sentences awarded to the appellant-applicant during the pendency

of the instant appeal.

8. Accordingly, the instant application for suspension of

sentence filed under Section 430 of the B.N.S.S. (Earlier Section

389 Cr.P.C.) is allowed and it is ordered that substantive sentence

passed by learned Additional Sessions Judge No.2, Nagaur in

Sessions Case No.43/2012 (73/2015) (CIS No.128/2014) against

the appellant-applicant, namely, Mahesh @ Manish Kumar son

of Hanuman Ram, shall remain suspended till final disposal of

the aforesaid appeal and he shall be released on bail, provided he

[2025:RJ-JD:18011-DB] (5 of 5) [SOSA-420/2025]

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 19.05.2025 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.

3. Similarly, if the sureties change their address(s) they will give in writing their changed address to the trial court.

9. The learned trial court shall keep the record of attendance of

the accused-applicant in a separate file. Such file be registered as

Criminal Misc. Case relating to original case in which the accused-

applicant was tried and convicted. A copy of this order shall also

be placed in that file for ready reference. Criminal Misc. file shall

not been taken into account for statistical purpose relating to

pendency and disposal of the cases in the trial court. In case the

said accused-applicant does not appear before the trial court,

learned trial Judge shall report the matter to the High Court for

cancellation of bail.

(SANDEEP SHAH),J (DR.PUSHPENDRA SINGH BHATI),J 27-mohit/-