Rajasthan High Court - Jodhpur

Subhash vs State Of Rajasthan ... on 19 March, 2025

Author: Pushpendra Singh Bhati

Bench: Pushpendra Singh Bhati

[2025:RJ-JD:14644-DB]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
   D.B. Criminal Misc Suspension Of Sentence Application
                         (Appeal) No. 372/2025

Subhash S/o Shri Harish Chandra, Aged About 32 Years, R/o 65
N.p. Ps Sameja Kothi, Dist. Sri Ganganagar Raj.
        (At Present Lodged In Central Jail, Sri Ganganagar)
                                                                      ----Petitioner
                                       Versus
State Of Rajasthan
                                                                    ----Respondent
                                 Connected With
   D.B. Criminal Misc Suspension Of Sentence Application
                        (Appeal) No. 1780/2024
Brij Lal S/o Mana Ram, Aged About 32 Years, R/o Sukhchainpura
Ps Sameja Kothi Dist. Sri Ganganagar Raj.
         (At Present Lodged In Central Jail Sriganganagar)
                                                                      ----Petitioner
                                       Versus
State Of Rajasthan
                                                                    ----Respondent
   D.B. Criminal Misc Suspension Of Sentence Application
                         (Appeal) No. 368/2025
Gopi Ram S/o Shri Chet Ram, Aged About 37 Years, Resident Of
3 Ksd, Sukhchainpura, Police Station Sameja Kothi, District Sri
Ganganagar (Rajasthan)
        (At Present Lodged In Central Jail, Sri Ganganagar)
                                                                      ----Petitioner
                                       Versus
State Of Rajasthan
                                                                    ----Respondent
   D.B. Criminal Misc Suspension Of Sentence Application
                         (Appeal) No. 370/2025
Dharmpal S/o Shri Puran Ram, Aged About 37 Years, R/o 3 Ksd,
Sukhchainpura, Ps Sameja Kothi, Dist. Sri Ganganagar Raj.
         (At Present Lodged In Central Jail, Sriganganagar)
                                                                      ----Petitioner


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                                       Versus
State Of Rajasthan
                                                                     ----Respondent


For Petitioner(s)            :     Mr. Trilok Joshi.
For Respondent(s)            :     Mr. C.S. Ojha, PP.



      HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

HON'BLE MR. JUSTICE CHANDRA PRAKASH SHRIMALI

Order

19/03/2025

1. The appellants-applicants herein have been convicted and

sentenced as below vide judgment dated 25.07.2023 passed by

the learned Additional Sessions Judge Raisinghangar, District Sri

Ganganagar in Sessions Case No.10/2018 (CIS No.10/2018):

      Offence               Sentence                                Fine
     302/149 IPC        Life Imprisonment          Rs.20,000/- and in default of
                                                   which to further undergo six
                                                   months' R.I.
     377/149 IPC        Life Imprisonment          Rs.20,000/- and in default of
                                                   which to further undergo six
                                                   months' R.I.
     397/149 IPC          7 Years' R.I.
     323/149 IPC           1 Year's R.I.           Rs.1,000/- and in default of which
                                                   to further undergo two months'
                                                   S.I.
       342 IPC             1 Year's R.I.           Rs.1,000/- and in default of which
                                                   to further undergo two months'
                                                   S.I.

2. The appellants-applicants have preferred these applications

under Section 430 B.N.S.S./389 Cr.P.C. for suspension of sentence

during the pendency of the appeal and for release on bail.

3. Mr. Trilok Joshi, learned counsel appearing on behalf of the

appellants-applicants submits that the sentences of co-accused

Pawan Dev and Pawan have been suspended by a Coordinate

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Bench of this Hon'ble Court vide order dated 14.11.2024 in D.B.

Criminal Misc. Suspension of Sentence Application (Appeal)

No.742/2024 and D.B. Criminal Misc. Suspension of

Sentence Application (Appeal) No.485/2024, respectively.

The order dated 14.11.2024 passed in D.B. Criminal Misc.

Suspension of Sentence Application (Appeal) No.742/2024 is

reproduced hereunder:

"1. In Sessions Case No.10 of 2018, the applicant namely, Pawan Dev son of Tulsaram alongwith five other persons was convicted and sentenced to imprisonment for life with fine of Rs.20,000/- both under section 302/149 of the Indian Penal Code and section 377/149 of the Indian Penal Code; R.I. for seven years under section 397/149; S.I. for one year with fine of Rs.1,000/- both under section 323/149 of the Indian Penal Code and section 342 of the Indian Penal Code with default stipulations to undergo a S.I. for two months on both counts.

2. The prosecution case as unfolded in the fard bayan of Shyam Lal who was examined in the trial as PW-1 is that unnatural sexual offence was committed with the deceased Shyam Sundar. On 26th January 2018, a report was lodged with the officer-in-charge of Sameja Kothi P.S. making various allegations of assault upon Shyam Sundar by the accused persons with lathi. As PW-8, Dr. Dinesh Kumar tendered evidence in the trial that as many as eleven injuries on various parts of the body of Shyam Sundar were observed by him. In the opinion of the Medical Board, death of Shyam Sundar was caused on account of cumulative effect of such injuries particularly the injury Nos.10 and 11.

3. Dr. Ramesh Kumar who tendered evidence in the trial as PW-7 examined Krishan Lal on 26th January 2018 and had found four simple injuries on his person. During the trial the prosecution had examined 1 6 witnesses, out of whom Krishan Lal was projected as an eye witness who, as noticed above, is an injured witness.

4. In a criminal trial, the evidence tendered by an injured eye witness lends sufficient assurance to the Court that he was the person who was present at the place of occurrence and therefore he would give the correct description of the incident in the Court. However, what is relevant in the context of the present suspension of sentence application is that the applicant-convict has been found guilty of the offences under sections 302, 377, 397 and 323 with the aid of section 149 of the Indian Penal Code. As the provisions under section 149 of the Indian Penal Code provide that in order to rope in an accused with

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the aid of section 149 of the Indian Penal Code the prosecution must prove that the common object of the unlawful assembly was to commit that crime or, that, it can be reasonably inferred that all the members of the unlawful assembly had knowledge that particular crime would be committed; in the present case, death of Shyam Sundar. Having regard to the number of injuries caused to Shyam Sundar and the fact that nine injuries were caused around hand and leg of Shyam Sundar, prima facie, it appears that common object of the unlawful assembly was to teach a lesson to Shyam Sundar and not to cause his death.

5. This has been brought to the notice of this Court that applicant Pawan Dev had remained in actual custody for around seven years.

6. Having regard to the aforesaid facts and circumstances in the case, the sentence awarded to applicant Pawan Dev son of Shri Tulsaram is suspended till the final disposal of the Criminal Appeal No.162 of 2023 and he shall be released on bail on furnishing personal bond of Rs. Two Lakhs with two sureties to the sum of Rs. Fifty Thousand/- each, on the following conditions:

1.He shall appear before the Deputy Registrar (Judicial), Rajasthan High Court, Jodhpur on 17th December 2024.

2. He shall provide a copy of his Aadhar Card and mobile number and furnish his place of residence to the Court.

3. That he will appear before the trial Court in the month of January of every year till the appeal is decided.

4. 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.

5. Similarly, if the sureties change their address(s) they will give in writing their changed address to the trial court.

7. 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 relating 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 been taken into account for statistical purpose relating to pendency and disposal of the cases in the trial Court. In case the said accused-applicant did not appear before the trial Court, the learned trial Judge shall report the matter to the High Court for cancellation of bail.

8. D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 742 of 2024 is allowed."

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3.1 Learned counsel further submits that the appellants-

applicants have undergone custody for more than seven years and

the role assigned to them is same as that of the co-accused,

whose sentences have been suspended.

4. Learned Public Prosecutor though opposes the applications

for suspension of sentence, but is unable to refute that suspension

of sentences of co-accused was based on the same facts and

circumstances and that the custody period of the applicants-

appellants is similar. Furthermore, learned Public Prosecutor points

out the antecedents of applicants-appellant Subhash and Gopi

Ram.

5. After arguing vehemently for some time, learned counsel

does not press the D.B. Criminal Misc. Suspension of Sentence

Application No.372/2025 (appellant-Subhash) and D.B. Criminal

Misc. Suspension of Sentence Application No.368/2025 (appellant-

Gopi Ram).

6. Considering the overall factual matrix of the case and

without making any observation on merits, which shall require

consideration at the time of final hearing, this Court deems it

appropriate to suspend the substantive sentence awarded to the

applicant-appellant Brij Lal (D.B. Criminal Misc. Suspension of

Sentence Application No.1780/2024) and applicant-appellant

Dharmpal (D.B. Criminal Misc. Suspension of Sentence Application

No.370/2025). However, looking into the antecedents of applicant-

appellant Subhash and Gopi Ram, the D.B. Criminal Misc.

Suspension of Sentence Application No.372/2025 and D.B.

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Criminal Misc. Suspension of Sentence Application No.368/2025

stands dismissed.

7. Accordingly, D.B. Criminal Misc. Suspension of Sentence

Application No.372/2025 (applicant-appellant Subhash)

and D.B. Criminal Misc. Suspension of Sentence Application

No.368/2025 (applicant-appellant Gopi Ram) filed under

Section 430 B.N.S.S./389 Cr.P.C. are dismissed as not pressed.

However, D.B. Criminal Misc. Suspension of Sentence

Application No.1780/2024 (applicant-appellant Brij Lal)

and D.B. Criminal Misc. Suspension of Sentence Application

No.370/2025 (applicant-appellant Dharmpal) filed under

Section 430 B.N.S.S./389 Cr.P.C. are allowed and it is ordered

that substantive sentence passed by learned Additional Sessions

Judge Raisinghnagar, District Sri Ganganagar in Sessions Case

No.10/2018 (CIS No.10/2018) against the appellants-applicants

Brijlal S/o Shri Mana Ram and Dharmpal S/o Shri Pooran

Ram shall remain suspended till final disposal of the aforesaid

appeal and they shall be released on bail, provided each of them

execute a personal bond in the sum of Rs.50,000/- with two

sureties of Rs.25,000/- each to the satisfaction of learned trial

Judge for their appearance in this Court on 21.04.2025 and

whenever ordered to do so till the disposal of the appeal on the

conditions indicated below:

1. That they will appear before the trial court in the month of January of every year till the appeal is decided.

2. That if the applicants change the place of residence, they will give in writing their changed address to the trial Court as well as to the counsel in the High Court.

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3. Similarly, if the sureties change their address(s) they will give in writing their changed address to the trial court.

8. The learned trial court shall keep the record of attendance of

the accused-applicants in a separate file. Such file be registered as

Criminal Misc. Case relating to original case in which the accused-

applicants were tried and convicted. A copy of this order shall also

be placed in that file for ready reference. Criminal Misc. file shall

not been taken into account for statistical purpose relating to

pendency and disposal of the cases in the trial court. In case the

said accused-applicants do not appear before the trial court,

learned trial Judge shall report the matter to the High Court for

cancellation of bail.