Rajasthan High Court - Jodhpur

Hemant Upadhyay vs State Of Rajasthan ... on 22 January, 2025

Author: Nupur Bhati

Bench: Nupur Bhati

[2025:RJ-JD:4200-DB]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
     D.B. Criminal Misc. Application for Suspension of Sentence
                           No.337/2024
                                          IN
                D.B. Criminal Appeal (DB) No. 74/2024

Hemant Upadhyay son of Om Prakash Upadhyay, aged about 46
Years,    resident     of    E-46      Mahaveer          Nagar     Police   Station
Pratapnagar Jodhapur (lodged in Central Jail Jodhpur)
                                                                     ----Appellant
                                      Versus
State Of Rajasthan, Through PP
                                                                   ----Respondent


For Appellant(s)            :     Mr. Vineet Jain, Sr. Advocate, assisted
                                  by Mr. Rajiv Bishnoi.
For Respondent(s)           :     Mr. N.K. Gurjar, GA-cum-AAG assisted
                                  by Mr. Ashutosh Sharma, AAAG.
For Complainant(s)          :     Mr. Gokulesh Bohra for Mr. Neelkanth
                                  Bohra.



      HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR

HON'BLE DR. JUSTICE NUPUR BHATI

Order

22/01/2025

This suspension of sentence application has been filed by the

convict-appellant, namely, Hemant Upadhyay who has been

convicted in Session Case No.84/2017 (N.C.V. No.84/2017) for

committing the offences under sections 302/120B and 201/34 of

the Indian Penal Code.

2. In Sessions Case No.84/2017, Pawan Kumar, Bhupendra

Rankawat, Hemant Upadhyay and Sultan Khan were convicted for

committing various offences under the Indian Penal Code.

3. The prosecution case against the accused persons is based

on circumstantial evidence and, in particular, last seen together

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evidence. In the trial, the prosecution examined 34 witnesses out

of whom P.W.1-Teja Ram, P.W.5-Ramesh Mundra, P.W.6-Dinesh

Bhati, P.W.11-Tarun Kumar, P.W.24-Pankaj are projected as the

witnesses to last seen together theory. This is the case of the

prosecution that at the instance of Hemant Upadhyay a cotton

strap used for weaving cot was recovered. This is also the

prosecution story that Hemant Upadhyay was seen in the

company of the deceased Pramod Rao at various places on 22 nd

January 2017. Mr. N.K. Gurjar, the learned Additional Advocate

General has indicated that there were other evidences such as

CDRs, clothes, etc. and that would connect Hemant Upadhyay with

the crime.

4. Mr. Vineet Jain, the learned senior counsel for the convict-

applicant, namely, Hemant Upadhyay has raised manifold

contentions viz. (i) Hemant Upadhyay was not named in the First

Information Report, (ii) he was arrested around 6.00 PM at the

Police Station on the date of registration of the First Information

Report, (iii) recovery was effected from him on 27 th though

according to the prosecution, the accused had supplied the

information on 23rd of January 2017, (iv) P.W.10, namely,

Mahaveer Jain who is the recovery witness stated in the Court that

no recovery was effected by the Investigating Officer in his

presence and Hemant Upadhyay was beaten by the police, (v) no

motive was attributed against the convict-applicant for committing

murder, (vi) P.W.33 who is the Investigating Officer admitted in his

cross-examination that till 30th January he could not collect any

information against Hemant Upadhyay regarding the last seen

story. The learned senior counsel for the applicant-convict further

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indicated that the Investigating Officer categorically admitted in

the Court that the call detail records collected by him did not

indicate the location of Hemant Upadhyay along with the deceased

Pawan Rao.

5. Mr. N.K. Gurjar, the learned Additional Advocate General has

vehemently opposed this application for the suspension of

sentence primarily on the ground that after the conviction of the

accused the presumption of innocence dilutes and unless there is

substantial error in the judgment under challenge the accused

should not be enlarged on bail.

6. Mr. Gokulesh Bohra, the learned counsel for the complainant

has also opposed this application for suspension of sentence

referring to the findings recorded by the Additional District and

Sessions Judge No.5, Jodhpur Metropolitan. The learned counsel

for the complainant has indicated that this convict-applicant was

constantly seen in the company of the deceased Pramod Rao and

the evidence tendered by as many as 5 witnesses on last seen

together has remained in-tact.

7. In a case based on circumstantial evidence, this is the duty

of the prosecution to produce cogent and clinching evidence as to

the circumstances sought to be proved against the accused. This

is also necessary for the prosecution to demonstrate that the

chain of circumstances is so complete and every possibility of

innocence of the accused has been ruled out. Quite apparently,

the law on the subject attaches a different rigor to accept the

evidence tendered by the prosecution.

8. To begin with, we would indicate that mere recovery of the

crime article is not sufficient to convict a person for a serious

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crime like murder (Brijesh Mavi v. State of NCT of Delhi "AIR 2012

SC 2657"). This is also the matter of record that the recovery of

cotton strap has been made from an open place. Furthermore, the

stand taken by the convict-applicant that he was not

accompanying Pramod Rao on 22 nd January 2017 seems to be

prima facie corroborated by the evidence tendered by P.W.33-

Jabbar Singh. However, at this stage, we are not inclined to record

any finding on these aspects as such matters can thrash out at the

final hearing of the criminal appeal filed by the convict-applicant.

9. In our opinion, the convict-applicant who has remained in

custody for about 8 years is entitled for suspension of sentence.

10. Therefore, D.B. Criminal Misc Suspension of Sentence

Application (Appeal) No. 337 of 2024 filed in D.B. Criminal Appeal

(DB) No.74 of 2024 is allowed and it is ordered that the

substantive sentence awarded to the convict, namely, Hemant

Upadhyay in Sessions Case No.84 of 2017 shall remain suspended

during pendency of the D.B. Criminal Appeal No.74 of 2024 and he

shall be released on bail, provided he executes a personal bond of

Rs.1,00,000/- with two sureties of Rs. 50,000/- each to the

satisfaction of learned trial Judge. He shall appear in this Court on

24th February 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 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.