Rajasthan High Court - Jodhpur
Salam @ Chotiya vs State Of Rajasthan on 8 July, 2025
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2025:RJ-JD:28973-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 700/2025
Salam @ Chotiya S/o Yusuf Khan, Aged About 29 Years, R/o
Khanta, Tehsil Pipar, P.s. Pipar, Distt. Jodhpur. (Presently Lodged
In Central Jail Jodhpur).
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Ms. Shivangi Pathak for Mr. Deepak
Menaria
For Respondent(s) : Mr. C.S. Ojha, PP
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE SUNIL BENIWAL
Order
Reserved on 04/07/2025
Pronounced on 08/07/2025
Per Dr. Pushpendra Singh Bhati, J:
1. The applicant-appellant had preferred this application for
suspension of sentence under Section 430 Bharatiya Nagrik
Suraksha Sanhita (B.N.S.S.) with the following prayer:
"It is, therefore, most respectfully prayed that the
application for 2nd Application for Suspension Of Sentence
may kindly be allowed and the sentence of imprisonment
and fine awarded to the appellant may kindly be suspended
and the appellant may kindly be ordered to release on bail."
[2025:RJ-JD:28973-DB] (2 of 8) [SOSA-700/2025]
2. Brief facts of the case were that a written report (Ex.P. 24)
dated 22.03.2014 was presented by complainant Ammu before
the Commissioner of Police, Commissionerate, Jodhpur, wherein it
was alleged that on 30.01.2014 her husband Yunus Khan @ Lala
(deceased) left for Merta in car, along with two passengers. The
report further alleged that she became known, through
information received by few persons from her locality, namely
Akram Khan son of Ikbal Khan Lohar, Liyakat son of Mammu khan,
her brother in law Jameel Khan, and the information received
through the investigation in pursuance of the missing person
report submitted by her brother in law Jameel khan, that her
husband Yunus Khan @ Lala (deceased) was abducted by
applicant-appellant Salam @ Chotiya son of Yusuf Khan and
Ramdeen son of Shravan. On the basis of the aforementioned
written report investigation commenced which resulted into
discovery of the car and body of deceased, and subsequently the
chargesheet was presented, and charges were framed under
sections 365 or 365/34, 394 or 394/34, 302 or 302/34, 201 or
201/34, 397 or 397/34 Indian Penal Code (I.P.C.).
3. After the Trial, applicant-appellant was convicted and
sentenced as below vide judgment dated 16.02.2019 passed by
additional Session Judge No. 2, Jodhpur in Session Case No.
05/2014.
Offence Sentence In Default of
payment of fine
further undergo
365/34 of I.P.C. Rigorous imprisonment Two (02) months
of seven years with additional rigorous
fine of Rupees 5000/- imprisonment
(five thousand)
[2025:RJ-JD:28973-DB] (3 of 8) [SOSA-700/2025]
394/34 of I.P.C. Rigorous imprisonment Two (02) months
for nine years with fine additional rigorous
of Rupees 10,000/- imprisonment
(ten thousand)
397/34 of I.P.C. Rigorous imprisonment Two (02) months
for ten years with fine additional rigorous
of Rupees 10,000/- imprisonment
(ten thousand)
302/34 of I.P.C. Life imprisonment with Six(6) months
fine of Rupees additional rigorous
10,000/- (ten imprisonment
thousand)
201/34 of I.P.C. Rigorous imprisonment Two (02) months
for seven years with additional rigorous
fine of Rupees 5,000/- imprisonment
(five thousand)
4. The applicant-appellant has preferred an appeal before this
Hon'ble Court against the Judgment dated 16.02.2019, and within
the said appeal, earlier an application for suspension of sentence
(D.B. Criminal Misc. Suspension Of Sentence Application (Appeal)
No. 1238/2019) under Section 389 Criminal Procedure
Code(Cr.P.C.) was preferred by the applicant-appellant, which was
dismissed vide the order dated 20.01.2021. Subsequently, the
applicant-appellant had preferred the application for suspension of
sentence (D.B. Criminal Misc. 2nd Application for Suspension of
Sentence No. 700/2025), which is under consideration herein.
5. Ms. Shivangi Pathak, learned counsel on behalf of applicant-
appellant submitted that the grounds raised in the appeal against
the Judgment dated 16.02.2019 should be treated as part and
parcel of this application. It was further submitted that there is
every chance of success of the appeal, because it is apparent from
the facts and circumstances of the case that the applicant-
appellant has been falsely implicated in the instant case.
[2025:RJ-JD:28973-DB] (4 of 8) [SOSA-700/2025]
5.1. Learned counsel also submitted that earlier the suspension of
sentence application preferred by applicant-appellant was
dismissed by order dated 20.01.2021, however, the suspension of
sentence of co-accused Ramdeen was allowed.
5.2. Learned counsel further submitted that the applicant-
appellant is in custody for last more than 10 years and the hearing
of the appeal would consume a long time, therefore, it is a fit case
for grant of indulgence of suspension of sentence to the present
applicant-appellant in light of the judgments passed by Hon'ble
Supreme Court in the cases of In Re: Policy Strategy for Grant
of Bail (Suo Moto Writ Petition (Crl) No. 4/2021 decided on
14.09.2022) and Sonadhar vs. The State of Chattisgarh (SLP
(Crl) No. 579/2021 decided on 15.09.2022).
5.3. Learned counsel also submitted that there is no reason or
extenuating circumstances for denial of bail, and reliance was
placed on the order of Hon'ble Supreme Court passed in the case
of Saudan Singh vs. The State of Uttar Pradesh (SLP (Crl.)
No. 4633/2021 decided on 05.10.2021), wherein observation
have been made regarding grant of bail in the appeal preferred
before Hon'ble High Court(s) except upon application of the
exceptions provided therein. It was submitted that none of the
exceptions were applicable in the present case.
6. Per Contra, C.S. Ojha, learned Public Prosecutor opposed the
application for suspenion of sentence and submitted that the
applicant-appellant has committed an offence which was grave
and gruesome in nature, furthermore it was brought to the notice
of the Court that applicant-appellant has 27 criminal cases
[2025:RJ-JD:28973-DB] (5 of 8) [SOSA-700/2025]
registered against him, indicating extensive criminal antecedents,
and that suspension of sentence of such an offender would send
adverse message in the society. However, it was not denied that
the applicant-appellant has already undergone the custody of
more than 10 years during trial and after passing of the order of
conviction and sentence.
7. We have considered the submissions made by learned
counsel for the parties and have perused the material available on
record along with judgments cited at the bar.
8. At the outset it is pertinent to clarify that vide order dated
20.01.2021 Coordinate bench of this Hon'ble Court while rejecting
the earlier application for suspension of sentence preferred by
applicant-appellant, allowed the application of suspension of
sentence of the co-accused Ramdeen and noted as follows :-
"The information prior in point of time leading to
discovery of the skeleton of Yunus is attributed to the
accused Salam, whereas the information of Ramdeen was
recorded subsequently."
8.1. This Court finds that the aforementioned observation was
made with respect to information under Section 27 of the Indian
Evidence Act, 1872 leading to the discovery of the dead body of
Yunus(deceased) from a well. The information was provided by
applicant-appellant Salam vide memo Ex.P.69 dated 11.06.2014 at
9:00 p.m., whereas the co-accused Ramdeen provided the
information vide memo Ex.P.70 dated 12.06.2014 at 08.45 a.m.
8.2. This Court observes that the said fact distinguishes the case
of the applicant-appellant from that of co-accused Ramdeen as
the disclosure made by applicant-applleant Salam @ Chotiya was
[2025:RJ-JD:28973-DB] (6 of 8) [SOSA-700/2025]
prior in point of time and led to the discovery of the skeleton of
the deceased from the well. In contrast, the information attributed
to co-accused Ramdeen was recorded subsequently. Therefore,
the role and implication of the applicant-appellant in the offence
merits a differentiated treatment while deciding the application for
suspension of sentence.
9. This Court is also conscious of the precedent law laid down
by the Hon'ble Supreme Court in the case of Saudan Singh
(supra) observed an exception, which could be a broad guideline,
which reads as follows :-
"1. Heinous nature of crime : (a) Prohibited categories : To
ensure public peace and the well-being of the society, life
convicts who are hardened criminals, repeat offenders,
kidnappers, in crimes related to massacre (three or more than
three murders), habitual criminals, and fall in prohibited
categories as per the U.P. Jail Standing Policy- no bail should
be granted."
9.1. The Hon'ble Supreme Court in the case of Sonadhar
(supra), while dealing with SMW (Crl.) No.4/2021 pertaining to
'life convicts in jail whose appeals are pending before the High
Court' inter-alia, issued the following directions :-
"We consider appropriate to issue directions in terms of the
aforesaid suggestions to the Patna High Court and on a pari
materia basis to even the other High Courts. However, in
order to carry out this exercise, the data would have to be
compiled of such of the persons who have been in custody for
more than 10 years and more than 14 years, with these
persons being considered for grant of bail pending appeal, if
there is no chance of hearing of the appeal in the near future,
unless there are reasons for denial of bail. We can understand
if any of the parties is delaying the appeal itself but short of
[2025:RJ-JD:28973-DB] (7 of 8) [SOSA-700/2025]
that, we are of the view that all persons who have completed
10 years of sentence and appeal is not in proximity of hearing
with no extenuating circumstances should be enlarged on
bail."
9.2. Having regard to the above principles laid down by the
Hon'ble Supreme Court in Saudan Singh (Supra) and
Sonadhar (Supra), this Court is mindful that prolonged
incarceration of more than 10 years during pendency of appeal is
indeed a significant consideration for grant of bail. However, both
decisions carve out clear exceptions where bail may be refused. In
Saudan Singh (supra), the Hon'ble Supreme Court explicitly
noted that life convicts who are repeat offenders or hardened
criminals fall within the prohibited category for grant of bail in
order to ensure public peace and societal well-being. In the
present case, it is brought to the notice of the Court that the
applicant-appellant has 27 criminal cases registered against
him,including for serious offences under Sections 365, Section 376
IPC 394/34 IPC, and POCSO Act demonstrating a consistent
pattern of serious criminal behaviour. Such extensive criminal
antecedents clearly brings him within the category of "repeat
offenders" contemplated in the Saudan Singh exception.
Therefore, despite the fact that the applicant-appellant has
undergone more than 10 years in custody, this Court finds there
exist strong, extenuating circumstances justifying denial of
suspension of sentence to him in this case.
10. In view of the above, this Court finds no ground to suspend
the sentence of the applicant-appellant. His prior disclosure under
[2025:RJ-JD:28973-DB] (8 of 8) [SOSA-700/2025]
Section 27 of the Evidence Act directly led to the discovery of the
deceased's body, distinguishes his role from that of the co-
accused. Furthermore, with 27 criminal cases registered against
him, he clearly falls within the category of repeat offenders which
is an exception for grant of bail, as per Saudan Singh (supra).
11. Consequently, the present application for suspension of
sentence is dismissed. However, the observations made in this
order, shall not prejudice the case of the applicant-appellant on
merits in the main appeal.
(SUNIL BENIWAL),J (DR.PUSHPENDRA SINGH BHATI),J
SKant/-
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