Rajasthan High Court - Jodhpur
Gopal @ Ramgopal vs State Of Rajasthan on 28 May, 2025
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2025:RJ-JD:25153-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 1214/2024
1. Gopal @ Ramgopal S/o Shri Gangaram, Aged About 31
Years, R/o Village Sadu Chhoti, Police Station Sandwa,
District Churu (Rajasthan) (Presently Lodged In Central
Jail, Bikaner)
2. Girdhari S/o Rameshwar Lal, Aged About 40 Years, R/o
Village Sadu Chhoti, Police Station Sandwa, District Churu
(Rajasthan) (Presently Lodged In Central Jail, Bikaner)
3. Rameshwar Lal S/o Shri Chatra Ram, Aged About 67
Years, R/o Village Sadu Chhoti, Police Station Sandwa,
District Churu (Rajasthan) (Presently Lodged In Central
Jail, Bikaner)
----Petitioners
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Shambhoo Singh Rathore
For Respondent(s) : Mr. C.S. Ojha, P.P.
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE SUNIL BENIWAL
Order
Reserved on 22/05/2025
Pronounced on 28/05/2025
Per Dr. Pushpendra Singh Bhati, J:
1. The applicants-appellants have preferred this application
under Section 389 Cr.P.C./430 of B.N.S.S., seeking suspension of
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sentence, as awarded to them vide the judgment of conviction and
order of sentence dated 30.08.2024 passed by the learned
Additional Sessions Judge, Sujangarh, District Churu in Sessions
Case No.09/2009 (CIS No.311/2014), whereby the applicants-
appellants were convicted and sentenced as under:
Offence Sentence In Default of
payment of fine
further undergo
148 of I.P.C. Three Years' -
Imprisonment
(each of the
applicants)
302/149 of I.P.C. Life Imprisonment with Six months' additional
fine of Rs.10,000/- simple imprisonment
(each of the (each of the
applicants) applicants)
323/149 of I.P.C. Simple imprisonment -
for one year
(each of the
applicants)
2. In connection with an incident dated 10.03.2009, wherein
one Bhanwarlal (brother of the complainant) was attacked using
weapons like Barchi, axe & sword, whereafter, an FIR bearing
No.25/2009 has been registered at Police Station, Sandwa, District
Churu for the offences under Sections 307, 342, 323, 147, 148 &
149 IPC against the applicant-appellants and other co-accused
persons. However, since Bhanwarlal died during his treatment in a
hospital, therefore, after investigation, the charge-sheet was
presented against other accused persons, namely, Gangaram &
Sukhram under Sections 147, 148, 149, 341, 323 & 302 I.P.C,
while keeping the investigation pending qua the present applicant-
appellants Gopal @ Ramgopal, Girdhari, and Rameshwarlal under
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Section 178(3) Cr.P.C. Thereafter, applicants-appellants Girdhari
and Rameshwarlal were not found to be involved in the crime in
question, while qua applicant-appellant Gopal @ Ramgopal, a
separate charge-sheet was presented.
2.1. On an application filed on behalf of the prosecution before
the concerned Court under Section 319 Cr.P.C., applicant-
appellants Girdhari and Rameshwarlal were summoned as
accused. Thereafter, the charges were framed against the
applicant-appellants under Section 148, 302 IPC in alternative
Section 302/149 & 323 IPC, in alternative, Section 323/149 IPC.
Subsequently, after due proceedings, the trial commenced and
after conclusion of the trial, the applicant-appellants were
convicted and sentenced vide the impugned judgment and order
dated 30.08.2024, as above.
3. Mr. Shambhoo Singh Rathore, learned counsel for the
applicant-appellants submitted that the case of the applicants-
appellants has not been proved beyond all reasonable doubts, as
there was an unexplained case with respect to the injuries
received by applicant-appellants and there was delay in lodging
the FIR. However, the learned Trial Court has convicted the
applicant-appellants. Therefore, an appeal has been preferred
against the impugned judgment of conviction.
3.1. Learned counsel further submitted that the names of the
applicant-appellants was there in the FIR; the police, after
thorough examination and on the basis of the critical testimonies
of the witnesses who did not mention the name the applicants-
appellants in their statements under Section 161 Cr.P.C., did not
[2025:RJ-JD:25153-DB] (4 of 8) [SOSA-1214/2024]
file the charge-sheet against the applicant-appellants. It was
further submitted that it was only when the application dated
26.05.2011 under Section 319 Cr.P.C. was preferred, the
applicant-appellants were added to face the prosecution.
3.2. Learned counsel also submitted that the applicant-appellants
were on bail during trial and they in no way misused the liberty
granted to them and the disposal of the appeal preferred against
the impugned judgment of conviction and order of sentence is
likely to consume a long time. Thus, as per learned counsel, the
sentences as awarded to the applicants-appellants by the learned
Trial Court deserves to be suspended, during pendency of the
appeal.
3.3. Learned counsel further submitted that the learned Trial
Court has failed to appreciate the evidence, as there was a cross-
case, which was also needed to be examined simultaneously by
the learned Trial Court. It was further submitted that in the
present case, there was a free fight between the deceased and his
companions on one side and the applicant-appellants and other
accused persons on the other hand, and in the said fight the
aggressors were from the side of the deceased. It was further
submitted that the learned Trial Court ought to have considered
this fact while passing the impugned judgment of conviction.
3.4. Learned counsel also submitted that the nature of injuries on
the body of the deceased do not match with the description of
weapons. As per the doctor's testimony, the injuries sustained
were caused from a blunt weapon, however, the testimony of the
witnesses and the FIR, attribute the injuries to sharp-edged
[2025:RJ-JD:25153-DB] (5 of 8) [SOSA-1214/2024]
weapons. It was further submitted that the only recovery in the
present case was of 'kulhadi'.
4. Per Contra, Mr. C.S. Ojha, learned Public Prosecutor, while
opposing the aforesaid submissions made on behalf of the
applicant-appellants, submitted that the applicant-appellants were
rightly added to face the prosecution on the application under
Section 319 Cr.P.C. and the learned Trial Court after conducting
due trial and hearing both the parties came to the conclusion that
the prosecution has proved its case beyond all reasonable doubts,
and therefore, it was a fit case for conviction of the applicants-
appellants.
4.1. Learned Public Prosecutor also submitted that as per the
testimony of Kishanaram PW.8 (eye-witness), the aggressors in
the present case were the applicant-appellants, who were at the
relevant time intoxicated. It was further submitted that the said
witness has stated that Rameshwar had a burchi in his hand,
Girdhari had a lathi and they alongwith Gopal and others, attacked
the deceased, therefore, their role in the present case is not
disputed.
4.2. Learned Public Prosecutor further submitted that the
applicant-appellant Gopal @ Ramgopal has undergone the actual
custody period of 5 years 6 months; applicant-appellant Girdhari
has undergone actual custody period of 8 months 25 days and;
applicant-appellant Rameshwar Lal undergone actual custody
period of 8 months 25 days.
4.3. Learned Public Prosecutor thus, submitted that it is apparent
on the face of record that the prosecution has been able to prove
[2025:RJ-JD:25153-DB] (6 of 8) [SOSA-1214/2024]
its case, beyond all reasonable doubts, before the learned Trial
Court, and thus, the instant application for suspension of sentence
deserves dismissal. Moreover, as per learned Public Prosecutor, the
gravity of the crime in question is quite high and the involvement
of the applicants-appellants in the said crime was duly proved
during the trial. Furthermore, looking into the grave nature of the
crime and period of custody undergone by the applicants-
appellants in this case, also do not call for grant of indulgence of
suspension of sentence to them.
5. Heard counsel for the parties as well as perused the record
of the case.
6. This Court finds that the applicant-appellants were convicted by
the learned Trial Court in connection with an incident, as a result
whereof one Bhanwar Lal died under treatment, and upon
conclusion of the trial, the learned Trial Court vide the impugned
judgment of conviction and order of sentenced the applicants-
appellants as mentioned above.
7. This Court further finds that the learned Trial Court after
examination of the material evidence on record, and the
testimonies of the witnesses, came to the conclusion, that the
case against the applicant-appellants has been proved beyond all
reasonable doubts and thereupon, passed the order of conviction.
8. This Court also finds that an application dated 26.05.2011
was preferred before the learned Trial Court, wherein it was
pleaded that Rameshwar and Girdhari should be added to face the
prosecution and the learned Trial Court vide order dated
18.10.2012 rejected the same. Against the order dated
[2025:RJ-JD:25153-DB] (7 of 8) [SOSA-1214/2024]
18.10.2012, an appeal was preferred before this Hon'ble Court,
wherein, this Court vide order dated 15.04.2014 directed the
learned Trial Court to re-examine and decide the application under
Section 319 Cr.P.C. as per the settled principles of law.
8.1. The learned Trial Court in pursuance of the direction of this
Hon'ble Court, vide order dated 10.10.2014, came to the
conclusion that in the present case, various documents and oral
testimonies were presented. One of the vital documents was
tehriri report given by Kishanaram (PW.8), on the basis of which
FIR was lodged, which clearly states that Rameshwar and Girdhari
alongwith the other co-accused persons were involved in the said
incident. Kishanaram (PW.8) in his testimony before the learned
Trial Court stated that Rameshwar hit the deceased on his head by
a Burchi and Girdhari also had a lathi. Furthermore, Hetram PW.2
(eye-witness) has also asserted the involvement of Rameshwar
and Girdhari. The said witness corroborated the testimony of PW.8
with respect to the weapons held by the respective applicant-
appellants. Further, Choturam PW.15 and Mohammad Jabbar PW.3
have also corroborated the testimony of the eye-witness PW.8.
8.2. Thus, the learned Trial Court came to the conclusion that the
name of Rameshwar and Girdhari were not only present in the FIR
but also appeared during the course of trial, thus, the application
under 319 Cr.P.C. was allowed. Furthermore, while allowing the
said application, the learned Trial Court placed reliance on the
judgment of the Hon'ble Supreme Court in the case of Hardeep
Singh vs State of Punjab, (2014) 3 SCC 92. Hence, this Court
finds that the application under Section 319 Cr.P.C. was decided in
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light of the settled principles of law and no perversity whatsoever
was committed by the learned Trial Court in passing the order
dated 10.10.2014.
9. This Court also finds that looking into the nature of crime in
question and the evidence on the basis of which, the impugned
judgment of conviction and order of sentence has been passed by
the learned Trial Court, the contentions raised on behalf of the
applicant-appellants do not induce confidence of this Court at this
stage, so as to grant indulgence of suspension of sentence to the
applicants-appellants.
10. This Court further finds that apart from the above, the
custody period of the applicants-appellants is not sufficient so as
suspend the sentence awarded to the applicants-appellants by the
learned Trial Court, at this stage.
11. Thus, taking into consideration the overall facts and
circumstances of the case, this Court is not inclined to suspend
the sentence awarded to the applicants-appellants in this case.
12. Consequently, the present application for suspension of
sentence is dismissed. However, it is made clear that any
observation made hereinabove, would not prejudice the case of
the applicants-appellants in the appeal, on merits.
(SUNIL BENIWAL),J (DR.PUSHPENDRA SINGH BHATI),J
SKant/-
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