Rajasthan High Court - Jodhpur
Bhawani Singh vs State Of Rajasthan ... on 8 August, 2025
Author: Dinesh Mehta
Bench: Dinesh Mehta
[2025:RJ-JD:35260-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Misc. Suspension Of Sentence
Application (Appeal) No. 279/2025
in
D.B. Criminal Appeal No. 63/2025
Bhawani Singh S/o Tulchi Singh, Aged About 34 Years, R/o Laxmi
Nagar, Barmer.
(At Present Lodged In Central Jail, Jodhpur)
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Ms. Vandana Bhansali
For Respondent(s) : Mr. C.S. Ojha, Public Prosecutor
HON'BLE MR. JUSTICE DINESH MEHTA
HON'BLE MRS. JUSTICE SANGEETA SHARMA
Order
08/08/2025
1. The present application has been filed by the applicant under
section 389 of the Code of Criminal Procedure, 1973 (hereinafter
referred to as 'Cr.P.C.') (430 of the Bhartiya Nagrik Suraksha
Sanhita, 2023) seeking suspension of following sentence awarded
to him by the learned Sessions Judge, Scheduled Caste and
Scheduled Tribe (Prevention of Atrocities) Act, 1989, Barmer
(hereinafter referred to as 'trial Court') vide judgment dated
29.11.2024 passed in Session Case No. 135/2016:-
[2025:RJ-JD:35260-DB] (2 of 6) [SOSA-279/2025]
S.No Offence Sentence Fine
1. 341 IPC One month Simple -
Imprisonment
2. 302 IPC Life Imprisonment To pay a fine of Rs.50,000/-; in
default thereof to further
undergo two years rigorous
imprisonment
3. 4/25 of Two Years' Simple To pay a fine of Rs.5,000/-; in
Arms Imprisonment default thereof to further
Act undergo three months S.I.
2. Ms. Vandana Bhansali, learned counsel for the applicant
argued that the main grounds for which the applicant has been
convicted is the so called dying declaration (Exhibit-P/20) and the
recovery of weapon of offence i.e. the knife. Having informed so,
learned counsel also submitted that all the witnesses have turned
hostile and argued that conviction of the applicant is based on no
material, because the dying declaration is not in accordance with
law and the recovery of the knife has not been proved.
3. Learned counsel elaborated that purported dying declaration
(Exhibit-P/20) cannot be relied upon inasmuch as the signatures
inscribed thereupon is with different pen and different ink than the
Parchabayan (which has later on been taken as dying declaration),
obtained by one Devaram (P.W.24), Head Constable posted at
Hospital Chowki. She submitted that in spite of the fact that there
was sufficient time, neither Devaram (P.W.24) had obtained fitness
certificate from doctor, nor had he called the Judicial Magistrate for
recording the statement of the victim who was seriously injured.
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4. Inviting Court's attention towards the testimony of Dr. Bihari
Lal Soni (P.W.22), who was posted as Medical Officer at
Government Hospital, Barmer, learned counsel highlighted that
according to the said doctor, when the deceased was brought to
the hospital, he was unconscious. She pointed out that P.W.22
clearly stated that a patient, who is unconscious cannot give any
statement.
5. Learned Public Prosecutor on the other hand submitted that
the trial court has committed no error of law in convicting the
applicant for the offence under section 302 of Indian Penal Code,
inasmuch as, the conviction is not solely based upon the
Parchabayan/dying declaration, but also on the recovery of blood
stained knife, qua which the Forensic Science Laboratory has
reported the presence of human blood of Group 'A'.
6. Heard learned counsel for the parties and perused the
material available on record.
7. The Parchabayan (which has been treated to be dying
declaration) was obtained at 07:10 p.m. on 10.11.2015, that too
without any fitness certificate by the doctor, much less in presence
of a Judicial Magistrate. It is to be noted that the dying declaration
has been written by a different pen and signed by a different pen.
8. For ready reference, Rule 6.22 of the Rajasthan Police Rules,
1965 (hereinafter referred to as 'Rules of 1965') reads thus:-
"6.22. Dying declarations. - (1) A dying
declaration shall, whenever possible, be recorded by
a Magistrate.
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(2) The person making the declaration shall, if
possible, be examined by a medical officer with a
view to ascertaining that he is sufficiently in
possession of his reason to make a lucid statement.
(3) If no magistrate can be obtained, the
declaration shall,when a gazetted police officer is
not present, be recorded, it shall be recorded in the
presence of two or more reliable witnesses
unconnected with the police department and with
the parties concerned in the case.
(4) If no such witnesses can be obtained without
risk of the injured person dying before his
statement can be recorded, it shall be recorded in
the presence of two or more police officers.
(5) A dying declaration made to a police officer
should, under section 162, Code of Criminal
Procedure, be signed by the person making it"
9. The signatures inscribed thereupon by the deceased
Bhagwan Singh has also not been proved or identified by any
independent witness. The parchabayan has not been taken in
presence of any other person not even a police officer, let alone
independent witness, which is mandatory as per Rule 6.22 of the
Rules of 1965.
10. In view of the above, in our prima-facie opinion, such
Parchabayan cannot be taken as a dying declaration.
11. That apart, the testimony of Dr. Bihari Lal Soni (P.W.22),
Medical Officer at Government Hospital, Barmer shows that when
the deceased was brought to the hospital, he was unconscious.
Such being the position, we have our own doubts about the
credibility of purported dying declaration (Exhibit-P/20), more
particularly when all the witnesses have turned hostile.
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12. Now remains the ground of recovery of weapon of offence -
blood stained knife. The witnesses of recovery of knife namely,
Kushal Singh (P.W.1) and Balwant Singh (P.W.8) have turned
hostile and therefore, the recovery of weapon of offence i.e. knife
remains not proved.
13. So far as the FSL Report (Exhibit-P/30) is concerned, it is
clear that human blood found on Shirt of the deceased (marked as
Article 'A') so also human blood found on knife (marked as Article
'B') are identical i.e. Blood Group 'A' and accordingly, the blood
stained knife and the blood stained Shirt of the deceased have the
same blood group.
14. However, since the recovery of knife itself is doubtful, so also
is the purported dying declaration, we are of the view that the
applicant, who has remained behind the bars for a period of two
years and three months and has remained on bail during the trial,
has made out a strong prima-facie case in his favour.
15. 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, Scheduled Caste and
Scheduled Tribe (Prevention of Atrocities) Act, 1989, Barmer in
Session Case No.135/2016 against the applicant - Bhawani
Singh S/o Tulchi Singh shall remain suspended till final disposal
of the appeal and he shall be released on bail, provided he
execute 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 08.09.2025 and
[2025:RJ-JD:35260-DB] (6 of 6) [SOSA-279/2025]
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.
16. 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 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.
17. Needless to state that the observations made hereinabove in
relation to guilt or otherwise of the applicant are prima-facie
opinion considering the material to the extent necessary for the
purpose of consideration of instant application. None of the parties
shall rely upon the findings or observations made herein at the
time of arguing or final hearing of the appeal.
(SANGEETA SHARMA),J (DINESH MEHTA),J
14-Mak/-
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