Rajasthan High Court - Jodhpur
Salim Khan vs State Of Rajasthan ... on 6 May, 2025
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2025:RJ-JD:21657-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 798/2025
Salim Khan S/o Ali Mohammad, Aged About 29 Years, R/o
Khokha, P.s. Bagoda, Dist. Jalore,raj. (Lodged In Central Jail,
Jodhpur )
----Appellant
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. KL Thakur with
Mr. Mool Singh Panwar
For Respondent(s) : Mr. CS Ojha, PP
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE SUNIL BENIWAL
Order
06/05/2025
1. The appellant-applicant herein has been convicted and
sentenced as below vide judgment dated 10.12.2024 passed by
the learned Additional District & Sessions Judge, Balotra in
Sessions Case No.21/2016 (Old No.51/2016):
Offence Sentence Fine
447 IPC 03 months' R.I. Rs.5,00/- and in default of
which to further undergo 15
days' R.I.
302 IPC Imprisonment for Rs.20,000/- and in default of
life which to further undergo one
year's R.I.
2. The appellant-applicant has preferred the application for
suspension of sentence under Section 389 Cr.P.C. (corresponding
to new Section 430 of BNSS) for suspension of sentences during
the pendency of the appeal and for release on bail.
3. The brief facts of the case are that it was reported on
11.05.2016 at about 3:00 PM about the incident, which occurred
in the mid night of 10.05.2016 that there was a commotion in the
house of the Gautamram (deceased) upon which his wife came
[2025:RJ-JD:21657-DB] (2 of 4) [SOSA-798/2025]
out and saw that Gautamram was lying with deep wounds and
when she started shouting, other people also came out.
4. Learned counsel for the appellant-applicant submits that on
examination of PW-1 Bhimaram (complainant), he deposed that
Gautamram was lying in a pool a blood but he did not say
anything about seeing the accused committing the crime. He
further submits that in the original FIR (Ex.P/1), nobody's name
was mentioned. He submits that PW-2 Jagmalram, PW-3 Chelaram
& PW-4 Maghsingh are of no consequence as far as the identifying
and attributing to the crime of the accused is concerned.
4.1. Learned counsel has taken this Court to the statement of
PW-5 Sukhi Devi (wife of the deceased), who also deposed that at
about 12 O' clock, when she heard commotion, she went out and
saw that Gautamram was not in his senses and was lying in a pool
of blood upon which she screamed and then her mother-in-law
(Anchi Devi), sister-in-law (Mohro Devi), brother-in-law
(Likhmaram) and complainant (Bhima Ram) came out, but this
itself proves that non of the witnesses could directly connect the
accused with the crime in question. He submits that merely
because an assumption has been drawn that Salim Khan had an
affair with the sister-in-law of the deceased, who did not want to
commit her Atta-Satta arrangement, does not seem to be a
plausible motive, which is being given by the prosecution. He
further submits that the recovery of the axe was made from an
open field, which do not belong to the present accused, hence the
same could not connect the accused with the crime.
4.2. Learned counsel submits that FSL report also does not
indicate any connection between the crime and the accused. He
[2025:RJ-JD:21657-DB] (3 of 4) [SOSA-798/2025]
further submits that in the impugned order, there is not even a
single line of any kind of circumstantial evidence or any other
evidence, which could strictly connect the accused with the crime.
So much so that the sole of the shoe, which has been said to be of
the same size, is also vitiated because a shoe sole size cannot
connect a person accused with the crime, as hundreds of people
may have common shoe size in a particular human
conglomeration.
5. Learned Public Prosecutor opposes the application for
suspension of sentence but is unable to refute the facts that there
are no eye-witnesses of the incident, there is no circumstantial
evidence available with absolute credibility, axe was recovered
from an open public field, the FSL report does not attribute any
particular act of the present accused, the motive itself is the only
plausible theory which is being drawn but does not bring the
accused within four corners of an absolute crime having been
proved beyond reasonable doubt.
6. This Court, on a conjoint consideration of the facts and
circumstances of the case, which includes Ex.P/1, the statement of
the crucial witnesses including the wife of the deceased, FSL
report, recovery of the axe from an open field, the motive theory
floated, deems it appropriate to suspend the substantive sentence
of the appellant-applicant during the pendency of the appeal.
7. Accordingly, the instant application for suspension of
sentence filed under Section 389 Cr.P.C. (new Section 430 of
BNSS) is allowed and it is ordered that substantive sentence
passed by learned Additional District & Sessions Judge, Balotra in
Sessions Case No.21/2016 (Old No.51/2016), against the
[2025:RJ-JD:21657-DB] (4 of 4) [SOSA-798/2025]
appellant-applicant - Salim Khan S/o Ali Mohammad, 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.50,000/- with two sureties of Rs.25,000/- to the
satisfaction of learned trial Judge for his appearance in this court
on 08.07.2025 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 change 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.
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-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 does not appear before the trial court,
learned trial Judge shall report the matter to the High Court for
cancellation of bail.
(SUNIL BENIWAL),J (DR.PUSHPENDRA SINGH BHATI),J
27-nirmala/-
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