Rajasthan High Court - Jodhpur
Heeraram vs State Of Rajasthan ... on 5 August, 2025
Author: Dinesh Mehta
Bench: Dinesh Mehta
[2025:RJ-JD:34517-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 1256/2025
In D.B. Criminal Appeal No.23/2025
Heeraram S/o Rudaji, Aged About 65 Years, R/o Aamlakheda,
P.s. Anadara, Dist. Sirohi (Lodged In Central Jail, Jodhpur)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Ruchin Surana
For Respondent(s) : Mr. CS Ojha, PP
HON'BLE MR. JUSTICE DINESH MEHTA
HON'BLE SMT. JUSTICE SANGEETA SHARMA
Order
05/08/2025
1. The present application has been filed by the applicant under
section 430(2) of the Bhartiya Nagrik Suraksha Sanhita, 2023
(hereinafter referred to as 'B.N.S.S.') seeking suspension of
sentence awarded to him by the learned Sessions Judge, Sirohi
(hereinafter referred to as 'trial Court') vide judgment dated
25.10.2024 passed in Session Case No.87/2017 (CIS No.
87/2017) whereby following sentences have been awarded against
the accused-applicant.
S.No. Offence Sentence Fine
1. 302/34 IPC Life To pay a fine of Rs.25,000/-; in
Imprisonment default thereof to further
undergo two months' additional
sentence
2. 201 IPC Three Years To pay a fine of Rs.5,000/-; in
Rigorous default thereof to further
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Imprisonment undergo one month additional
S.I.
2. Informing that the accused-applicant has been convicted for
the offence under section 302 read with section 34 of Indian Penal
Code, 1860 (hereinafter referred to as 'IPC') on the basis of
circumstantial evidence, learned counsel for the applicant
submitted that the applicant has been held guilty on the basis of
evidence of last seen, motive, recovery of mobile and blood
stained T-shirt.
3. Taking the Court through the relevant evidence, learned
counsel submitted that the case was registered pursuant to FIR,
which was registered on 10.05.2017 in furtherance of earlier
Missing Person Report (MPR) dated 30.04.2017, in which the
complainant had expressed his doubt about one Dinesh Kohli and
the applicant.
4. Learned counsel for the applicant submitted that during the
course of investigation, the Investigating Officer had recovered a
mobile instrument of 'carbon' brand (Ex.P/6) and blood stained T-
shirt and believing the testimony of Prakash Kumar (PW-7), who
has deposed that he had seen Dinesh Kohli along with the
deceased and two other persons, the trial Court has convicted.
5. Learned counsel tried to impeach each of the evidence by
contending as under:-
(i) In relation to last seen witness, learned counsel submitted that
if the testimony of Prakash Kumar (PW-7) is taken into account,
he has simply disclosed the fact that the deceased was lastly seen
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with Dinesh Kohli and two other persons (not mentioning name of
the applicant). He submitted that the police did not conduct
identification parade so as to ascertain and establish that it was
the applicant who was with Dinesh Kohli, who had reportedly been
seen lastly with the deceased;
(ii) So far as recovery of the mobile instrument is concerned,
learned counsel argued that the same was effected in the
presence of Mahaveer Singh, who was a police constable and Lalit
Kumar, who in his testimony in the Court, has though accepted the
factum of recovery of mobile phone and thus, proved it to some
extent but the basic fact that it was the same mobile phone which
was being used by the deceased has not been proved;
(iii) With respect to the recovery of blood stained T-shirt, learned
counsel submitted that, true it is, that FSL Report showed that the
blood stain(s) found on the T-shirt was that of Blood Group 'B',
which matched with the blood group of the deceased but solely on
the basis of such recovery, the conviction cannot take place, as
has been held by Hon'ble the Supreme Court in its judgment
dated 19.06.2025 rendered in the case of State of Rajasthan vs.
Hanuman (Criminal Appeal No.631/2017, decided on
19.06.2025).
6. Inviting Court's attention towards the testimony of the seller
of the mobile phone Hitesh Kumar (PW-14), learned counsel
submitted that although the mobile phone was marked as an
article but it was not got identified/verified by the dealer Hitesh
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Kumar who had purportedly sold the said mobile to the deceased,
though his statement was recorded.
7. Learned counsel argued that the Investigating Officer -
Bhanwar Lal had apeared as PW-19 but failed to state much less
prove that the mobile phone which was recovered from the
applicant was being used by the deceased. He submitted that
neither any call detail report tallying the calls with IMEI number of
the instrument nor any other scientific evidence was produced so
as to establish that the mobile phone which was recovered from
the applicant was being used by the deceased.
8. Learned counsel pointed out that during the course of
investigation, it had clearly been revealed that the deceased had a
strained relationship with one Deepak Kumar, but the police had
intentionally not conducted any investigation, despite there being
sufficient material indicating his involvement.
9. Having said so, learned counsel highlighted that the
applicant who had been falsely implicated and wrongly convicted
had remained on bail during the trial and submitted that hearing
of the appeal will take substantial time and prayed that the
application for suspension of sentence be allowed.
10. Mr. Ojha, learned Public Prosecutor on the other hand
submitted that the trial Court after weighing the evidence found
the applicant guilty of offence of murder and each link of the chain
is duly connected and requisite components have been proved
beyond any pale of doubt, while emphasizing that the applicant's
conviction is not based solely upon the recovery of blood stained
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T-shirt. He submitted that judgment of Hon'ble the Supreme Court
rendered in the case of Hanuman (supra) does not help the
applicant.
11. Learned Public Prosecutor submitted that the recovery of T-
shirt was followed by recovery of mobile phone of 'carbon' brand
sold by PW-14 to the deceased. He further submitted that
deposition of PW-14 in his Court statement clearly proves the
deceased's ownership of said instrument and that the burden to
prove that the mobile phone which has been recovered from the
applicant did not belong to the deceased lays upon the applicant.
He argued that the applicant has failed to discharge his burden
even while giving his deposition under section 313 of Code of
Criminal Procedure, 1973 (hereinafter referred to as ' Cr.P.C.) in
relation to the evidence led against him.
12. Learned Public Prosecutor submitted that some lacunae here
and there in prosecution case or in appreciation of evidence does
not confer any right upon the applicant to claim suspension of
sentence, when he has been convicted for a heinous offence like
murder.
13. Having heard learned counsel for the parties and upon
perusal of the record, we are of the prima-facie view that recovery
of T-shirt from the applicant, which had the blood traces/stains of
Blood Group 'B', matching with the Blood Group of the deceased,
is a substantial evidence against against him. Because, the
argument of learned counsel for the applicant that since blood
group of the applicant was not taken, the possibility that the blood
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stains were that of his own blood cannot be ruled out does not
convince us much. There is no allegation or evidence of scuffle
between the applicant and the deceased which could have caused
injury to the applicant which might lead to his bleeding, hence the
fact that the blood sample of the applicant was not taken, does
not cut much ice.
14. So far as recovery of mobile phone is concerned, firstly the
applicant has an arguable case, as the Investigating Officer
despite having IMEI number of mobile phone had not produced
call detail report in which IMEI number of the instrument and the
SIM being used by the deceased could have been traced.
Secondly, the same could be proved by the testimony of PW-14 -
the vendor of the mobile. Simply because the testimony in relation
to recovery of mobile phone has remained consistent, though PW-
6 has turned hostile, it cannot be concluded that the mobile which
has been recovered from the applicant is the same mobile which
was used by the deceased.
15. So far as last seen witness is concerned, we find substance
in the argument of learned counsel for the applicant that the
testimony of Prakash Kumar (PW-7) only speaks of Dinesh Kohli
and two other persons being seen with the deceased when she
was last seen but no identification parade was got done from
Prakash Kumar so as to establish that applicant was with the
deceased on the day when she was seen with Dinesh Kohli.
16. The testimony of Bhanwar Lal (PW-19) is also having various
lacunae and he has routinely given deposition without proving the
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circumstances beyond all reasonable doubts. Hence, according to
us, the applicant has made out an arguable case.
17. In view of the aforesaid and considering that hearing of the
appeal is likely to take substantial time and the applicant was on
bail during the trial, we are inclined to accept the application for
suspension of sentence of the applicant.
18. Accordingly, the application for suspension of sentence filed
by the applicant is hereby allowed. It is ordered that the sentence
passed by the learned Sessions Judge, Sirohi vide judgment dated
25.10.2024 in Session Case No.87/2017 (CIS No.87/2017) against
the applicant - Heeraram S/o Rudaji 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
Court on 29.08.2025 and whenever ordered to do so till the
disposal of the appeal on the conditions indicated below:-
(i) That he will appear before the trial Court in the month of
January of every year till the appeal is decided.
(ii) That if the applicant 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.
(iii) 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-applicant in a separate file. Such file be registered as
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Criminal Misc. Case related 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 be taken into account for statistical purpose relating to
pendency and disposal of cases in the trial court. In case the said
accused applicant does not appear before the trial court, the
learned trial Judge shall report the matter to the High Court for
cancellation of bail.
(SANGEETA SHARMA),J (DINESH MEHTA),J
37-raksha/-
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