Rajasthan High Court - Jodhpur
Vijay Narayan Poonia vs State Of Rajasthan ... on 18 August, 2025
Author: Dinesh Mehta
Bench: Dinesh Mehta
[2025:RJ-JD:36715-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 164/2025
In
D.B. Criminal Appeal No.269/2024
Vijay Narayan Poonia S/o Ramkaran Poonia, Aged About 30
Years, R/o House No. 36, Vayu Vihar, Jhalamand Circle, Jodhpur
(Raj.)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Arun Kumar
Mr. Puneet Jangu
For Respondent(s) : Mr. C. S. Ojha, Public Prosecutor
HON'BLE MR. JUSTICE DINESH MEHTA
HON'BLE MRS. JUSTICE SANGEETA SHARMA
Order
18/08/2025
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 the
following sentences awarded to him by the learned Additional
Sessions Judge, Jodhpur (hereinafter referred to as 'trial Court')
vide order dated 09.10.2024 passed in Session Case No.22/2015
(56/2012) (172/2004):-
Sr. No. Offence Sentence Fine
1. 147 IPC One year simple Rs.2000/- and in
Imprisonment default of which to
further undergo three
months additional S.I.
2. 148 IPC Two years Rs.3,000/- and in
simple default of which to
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Imprisonment further undergo three
month's additional S.I.
3. 323 IPC Three months Rs.1,000/- and in
simple default of which to
Imprisonment further undergo seven
days' additional S.I.
4. 324/149 IPC Two years Rs.5,000/- and in
simple default of which to
Imprisonment further undergo three
months' additional S.I.
5. 307/149 IPC Five years Rs.5,000/- and in
rigorous default of which to
Imprisonment further undergo three
months' additional S.I.
6. 302/149 IPC Life Long Rs.20,000/- and in
Imprisonment default of which to
further undergo one
year additional S.I.
7. 364 IPC Five years Rs.5,000/- and in
rigorous default of which to
Imprisonment further undergo three
months' additional S.I.
8. 367 IPC Five years Rs.5,000/- and in
rigorous default of which to
Imprisonment further undergo three
months' additional S.I.
2. Learned counsel for the applicant arguing the present
application for suspension of sentence filed on behalf of accused-
applicant Vijay Narayan contended that the applicant had been
falsely implicated by the Police, which is evident from the fact that
while lodging the FIR about the incident at 10:30 p.m. on 11 July,
2004, the complainant had not mentioned the name of the
applicant. He submitted that when the complainant contacted the
Police, perhaps at the instance of Police, name of the applicant
was taken by the complainant in his statement under Section 161
Cr.P.C. recorded on that very date or the same was manipulatively
included by the Police.
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3. Inviting Court's attention towards the star witness of the
prosecution, PW-1 namely Bhoma Ram, learned counsel argued
that the said eye witness could not even identify the applicant,
while he was present in the Court.
4. Learned counsel further invited Court's attention towards the
cross-examination of such witness and pointed out that the
complainant had also asserted that while lodging the written
complaint, he had carefully read the written report.
5. Learned counsel pointed out that even other injured eye
witness PW-2 Tikamchand and PW-3 Pradeep Gaur and PW-4 Prem
Singh respectively, did not identify the present applicant.
6. Inviting Court's attention towards the question asked by the
Court to PW-3 Pradeep Gaur, learned counsel underscored that in
pursuant to the Court's query, said eye witness had clearly stated
that the present applicant was not in the pick-up in which all the
accused persons had come.
7. Learned counsel further submitted that the applicant's
conviction hinges upon the testimony of eye witness so also on the
recovery of base-ball bat and the blood stained T-shirt of the
present applicant but so far as the eye witnesses are concerned,
they are not trustworthy.
8. Learned counsel submitted that the applicant has remained
behind the bars for about three years and in view of the
discrepancies in the testimony, his application for suspension of
sentence merits acceptance.
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9. Learned Public Prosecutor on the other hand, submitted that
the applicant is having long list of criminal antecedents inasmuch
as seven cases of serious nature are/were lodged against him.
10. Learned Public Prosecutor submitted that the weapon of
offense and T-shirt were recovered from the applicant and both
were found blood stained and the FSL report supported the
conviction of the applicant, as the blood group of the deceased
matched with the blood found on the base-ball bat and the T-shirt
of the accused, which were recovered by the Police at his instance.
11. In rejoinder, Mr. Arun Kumar, learned counsel for the
applicant submitted that out of 7 cases mentioned in the reply, the
applicant has been acquitted in three cases and exonerated in two
cases. He further submitted that true it is, that in one case under
Section 307 IPC, the applicant has been convicted, but his
application for suspension of sentence has been allowed and the
7th case is the present one.
12. Heard learned counsel for the parties and carefully gone
through the record.
13. On going through the record, we find that immediately after
the incident, the FIR came to be lodged at about 10:15 p.m.,
which does not contain applicant's name. Considering that written
complainant was filed by none other Bhoma Ram (PW-1) who was
accompanying the deceased, non mentioning of applicant's name
acquires relevance.
14. It is also pertinent to note that PW-1 Bhoma Ram had
deposed in his testimony that while he was taking the deceased to
the hospital, the deceased had mentioned name of all the
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accused, which have been duly mentioned in the statement, but
applicant's name doesn't reflect in those names.
15. Surprisingly enough, when the applicant's statement under
Section 161 Cr.P.C. was recorded by the Police, name of the
applicant got mentioned. Upon considering the testimony of the
complainant and other eye witnesses examined, we find that
though, the complainant and other two eye witnesses namely PW-
3 Pradeep Gaur and PW-4 Prem Singh have mentioned applicant's
name in their examination-in-chief, but they have failed to identify
the present applicant despite he being present.
16. It is noteworthy that when the Court pointed a question
towards PW-3 Pradeep Gaur, he had mentioned that the applicant
was not in the pick-up in which the assailants had come to assault
the deceased Prahlad Singh, but later he goes to the extent that
the name of Vijay Narayan Poonia - the present applicant had
been included by him at the instance of Police and Vijay Singh
Mertiya (who is a member of the opposite party).
17. Similarly PW-6 (Arjun Singh) PW-8 (Gautam), PW-9 (Vijay
Singh) (injured witness) have also mentioned the applicant's name
but they also failed to identify him. Such being the position, the
presence of applicant at the time of incident and his role becomes
doubtful. True it is, that the complainant - Bhoma Ram and other
injured eye witnesses injured or otherwise have mentioned the
name of the applicant but their failure to identify him with the fact
that the applicant's name was not mentioned in the FIR, raises
some doubt about the applicant's role in the felony, if the
statement of PW-1 is examined.
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18. Such being the position, the only incriminating evidence
against the applicant remains is, the blood stained base-ball bat
and the T-shirt qua which the FSL report indicates the applicant's
involvement in the offence.
19. In light of the judgment of Hon'ble the Supreme Court in the
case of State of Rajasthan Vs. Hanuman (Criminal Appeal
No.631/2017, decided on 19.06.2025) that the conviction of an
accused solely on the basis of recovery of weapon of offence is not
sufficient.
20. According to us, the applicant has made out a prima-facie
arguable case in his favour and considering that the incident dates
back to 2004, we are of the view that the application for
suspension of sentence deserves acceptance.
21. Accordingly, the application for suspension of sentence filed
by the applicant is hereby allowed. It is ordered that the sentence
passed by the learned Additional Sessions Judge, Jodhpur, vide
order dated 09.10.2024 passed in Session Case No.22/2015
(56/2012) (172/2004) against the applicant - Vijay Narayan
Poonia S/o Ramkaran Poonia, 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.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 22.09.2025
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.
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(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.
22. 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.
23. Needless to state that the observations made hereinabove in
relation to guilt or otherwise of the applicants 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 final hearing of the appeal.
(SANGEETA SHARMA),J (DINESH MEHTA),J
17-amit/-
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