[Cites 5, Cited by 0]

Rajasthan High Court - Jodhpur

Wasim Khan vs State Of Rajasthan ... on 8 April, 2026

Author: Vinit Kumar Mathur

Bench: Vinit Kumar Mathur

[2026:RJ-JD:16252-DB]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
 D.B. Criminal Misc Suspension Of Sentence Application (Appeal)
                                 No. 1789/2025

Wasim Khan S/o Niyamtullah Khan, Aged About 35 Years, R/o
Nagava Dist. Pratapgarh Raj. (At Present Lodged At Central Jail
Udaipur)
                                                                      ----Petitioner
                                       Versus
State Of Rajasthan, Through Pp
                                                                    ----Respondent


For Petitioner(s)            :     Mr. Dhirendra Singh, Senior Adv.
                                   assisted by Mr. Zeeshan Ali
                                   Mr. Aslam Khan
For Respondent(s)            :     Mr. Rajesh Bhati, PP



           HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

HON'BLE MR. JUSTICE CHANDRA SHEKHAR SHARMA

Order

08/04/2026

1. The present application has been filed by the applicant

under Section 389 of the Cr.P.C. (430 of BNSS, 2023) seeking

suspension of sentence awarded to him by the learned Sessions Judge,

Chittorgarh, District Chittorgarh (hereinafter referred to as 'trial Court')

vide judgment dated 27.07.2023 passed in Session Case No.34/2009,

whereby following sentences have been awarded against the accused-

applicant.

S.No Offence             Sentence                                    Fine
1.     120-B           Rigorous                  To pay a fine of Rs.20,000/-; in
       IPC          Imprisonment for             default thereof to further undergo
                          Life                   two years' simple imprisonment

2.     302 r/w         Rigorous                  To pay a fine of Rs.20,000/-; in
       120-B        Imprisonment for             default thereof to further undergo
       IPC                Life                   two years' simple imprisonment



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3.     460 r/w         Rigorous                    To pay a fine of Rs.20,000/-; in
       120-B        Imprisonment for               default thereof to further undergo
       IPC                Life                     two years' simple imprisonment



2.    The   learned      senior      counsel        for   the       applicant-appellant

submits that there is no credible evidence against the present

applicant-appellant, as the star witnesses of the prosecution PW-1

Vishal Salvi and PW-11 Rahul Kabadi have not identified the

present applicant-appellant. The learned senior counsel submits

that PW-1 Vishal Salvi and PW-11 Rahul Kabadi though were

present at the time of incident, but they have failed to identify the

present applicant-appellant. Despite the fact that police brought

before them the accused persons to which both the prosecution

witnesses have stated that the persons produced by the police do

not include the persons, who were the assailants in the matter.

The learned senior counsel submits that test identification parade

was not conducted and therefore, the two witnesses PW-1 Vishal

Salvi and PW-11 Rahul Kabadi have not pointedly identified the

present applicant-appellant. The learned senior counsel further

submits that the foot moulds taken by the investigating agency

cannot be a credible evidence as it has been stated in the

statements of PW-1 Vishal Salvi and PW-11 Rahul Kabadi that

immediately after the incident, number of persons gathered in

front of the office of the deceased and therefore, it cannot be said

with certainty that the foot moulds taken by the police are of the

present applicant-appellant only. The learned senior counsel

further submits that PW-27 Manohar Singh, who is a chance

witness, in his statements stated that while he was going from the

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nearby office of the deceased, he just waited for a few minutes in

front of the office of the deceased and he saw two persons passing

through the office of the deceased and one of them was Wasim.

Learned senior counsel submits that even as per the statements of

PW-27 Manohar Singh, it cannot be said that the present

applicant-appellant was the person, who has fired the gun-shot

upon the deceased-Giriraj Joshi. The learned senior counsel

further submits that the conviction of the present applicant-

appellant is under Section 120-B read with Section 302 and

Section 460 read with Section 120-B, and the application for

suspension of sentence of co-accused Saakir has been allowed by

the co-ordinate Bench of this Court vide order dated 13.12.2023

and therefore the case of the present applicant-appellant is almost

on the same footing. The learned senior counsel therefore,

submits that there is no credible evidence against the present

applicant-appellant in the present case and therefore, his

application for suspension of sentence may also be allowed.

3. Learned Public Prosecutor has opposed the bail application of

the applicant-appellant and submitted that there is credible

evidence against the present applicant-appellant in the shape of

eye witnesses and therefore his application for suspension of

sentence may be dismissed.

4. We have considered the submissions made before us and we

have gone through the relevant record of the case.

5. It is true that while the deceased, Giriraj Joshi was working

in his office, gun-shot were fired on him. The two star witnesses

PW-1 Vishal Salvi and PW-11 Rahul Kabadi were working in his

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office, who saw the incident and even followed the assailants.

However, despite the opportunity to identify the assailants were

given by the police personnel to the two prosecution witnesses i.e.

PW-1 and PW-11, they failed to identify the assailants, who fired

the gun shots upon the deceased Giriraj Joshi. Even no

identification parade was conducted for establishing the identity of

the person who fired the gun shot. Further, even in the trial Court,

the accused persons were not identified by the two witnesses i.e.

PW-1 Vishal Salvi and PW-11 Rahul Kabadi. As far as the

testimony of PW-27 Manohar Singh is concerned, he can be said

to be a chance witness as while passing through the office of

deceased Giriraj Joshi, he saw Wasim and one more person

passing through that area, but that cannot give rise to the

suspicion that the fire arm injury was inflicted by the present

applicant-appellant only.

6. We further note that as far as the credibility of the foot

moulds is concerned, they cannot be relied upon for the simple

reason that it has come in the testimony of the PW-1 Vishal Salvi

and PW-11 Rahul Kabadi that immediately after the incident, there

were number of persons present in front of the office of the

deceased and therefore, the conclusion of the foot moulds of the

applicant-appellant cannot be said to be worth and credible.

7. It is further noted that since the conviction of the present

applicant-appellant as well as co-convict is under Section 120-B

read with Section 302 and Section 460 read with Section 120-B

and the application for suspension of sentence of the co-convict

Saakir has been allowed by the co-ordinate Bench therefore the

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case of the present applicant cannot be distinguished from the

case of co-convict Saakir.

8. In totality, after examining the evidence brought on record,

we are convinced that the application for suspension of sentence

merits acceptance, the same is allowed.

9. Accordingly, the application for suspension of sentence filed

by the applicant-appellant is hereby allowed. It is ordered that the

sentence passed by the learned Sessions Judge, Chittorgarh,

District Chittorgarh vide judgment dated 27.07.2023 in Session

Case No.34/2009 against the applicant -Wasim Khan S/o

Niyamtullah Khan 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/- each with two

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

Judge for his appearance in this Court on 11.05.2026 and

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

conditions indicated below:-

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

(ii) 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.