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2006 DIGILAW 2013 (RAJ)

KALIYA @ KALU v. STATE OF RAJASTHAN

2006-06-02

H.R.PANWAR

body2006
Judgment ( 1 ) THIS is third bail application seeking suspension of sentence awarded to applicant-appellant Kaliya @ Kalu by judgment and order dated 23. 1. 2006 passed by Additional sessions Judge (Fast Track) No. 1, Jodhpur (for short the trial court hereinafter), whereby the trial court convicted the appellant-applicant for the offences under Sections 341 and 307 ipc and sentenced him to undergo seven years simple imprisonment and a fine of Rs. 5000/-, in default of payment of fine, further to undergo one year imprisonment for the offence under Section 307 IPC and one months simple imprisonment for the offence u/s 341 IPC. ( 2 ) THE applicant-appellant earlier filed a bail application seeking suspension of sentence which came to be dismissed on 01. 02. 2006 as it was not pressed by the counsel for the applicant-appellant though at the relevant time, the record of the trial court was available. The office report dated 28. 1. 2006 shows that the record has been received. After dismissal of the first bail application, within a month the applicant- appellant filed a second bail application seeking suspension of sentence on 24. 2. 2006 which came to be dismissed by elaborate order dated 08. 03. 2006. ( 3 ) I have heard learned counsel for the applicantappellant and public prosecutor for the State and carefully gone through the judgment and order impugned as also record of the trial court. ( 4 ) IT is contended by the learned counsel for the applicant-appellant that the earlier bail application was dismissed without examining the record as at that relevant time the record was not received. This contention is contrary to the record. From the order dated 08. 03. 2006, it is more than clear that this court perused the judgment and order impugned as also the record of the trial court. Hence, this contention merit rejection. ( 5 ) IT is also contended by the learned counsel for the applicant-appellant that the judgment and order impugned is not in conformity with the provisions of Section 354 Cr. P. C. On careful perusal of the judgment and order impugned, primafacie, it cannot be said that the judgment and order impugned is contrary to the provisions of Section 354 Cr. P. C. On careful perusal of the judgment and order impugned, primafacie, it cannot be said that the judgment and order impugned is contrary to the provisions of Section 354 Cr. P. C. ( 6 ) LEARNED counsel for the applicant-appellant further contended that all the pages of the judgment and order impugned have not been properly signed by the trial Judge. I have carefully gone through all the pages of the judgment and order impugned, it bears the signature of the Presiding Officer of the Court on all the pages. ( 7 ) LEARNED counsel also contended that the trial court i. e. Fast Track Court, has not conducted the case in accordance with law, more particularly in accordance with Section 332 cr. P. C. I do not find any merit in this submission. There is no infirmity in the trial of the case. There does not appear to be any violation of any mandatory provision of law while conducting the trial. ( 8 ) LASTLY, it was contended by learned counsel for the applicant-appellant that injuries suffered by the injured are simple in nature and therefore, the offence under Section 307 ipc is not made out. ( 9 ) I have carefully gone through the injury report of injured PW-9 Dinesh, Ex. P-17. The injured has suffered as many as eight injuries. The injury No. 1 was examined by the radiologist vide Ex. P-14. In the opinion of PW-2 Dr. S. P. Sharma, the Radiologist, there is fracture of right parietal bone of the skull of injured Dinesh. The injury and treatment record of the injured was examined by the medical board comprising of three doctors vide Ex. P-13. In the opinion of the medical board, the injury No. 1 which is on the skull of injured resulting in fracture of right parietal bone, was found to be dangerous to life. From the record, it appears that soon after the injury suffered by the injured, he was taken to the hospital, remained in hospital and underwent the operation of his skull. ( 10 ) I have also gone through the statement of injured pw-9 Dinesh who stated that the head injury was inflicted by the applicant-appellant by an iron rod (Lagiya ). Thus, the injury no. 1 suffered by injured on his skull resulting in fracture of right parietal bone has specifically been assigned to the present applicant-appellant. ( 10 ) I have also gone through the statement of injured pw-9 Dinesh who stated that the head injury was inflicted by the applicant-appellant by an iron rod (Lagiya ). Thus, the injury no. 1 suffered by injured on his skull resulting in fracture of right parietal bone has specifically been assigned to the present applicant-appellant. The statement of injured PW-9 finds support from the statement of eye witness PW-1 Devilal who clearly stated that the applicant-appellant inflicted a injury on the head of PW-9 Dinesh by iron rod (Lagiya ). Thus, the injury assigned to the applicant-appellant is on vital part of the body of the injured. PW-3 Sumer Singh Bhati stated that an iron rod was recovered at the instance of applicant-appellant in pursuance of the information furnished by him under Section 27 of the Evidence Act. The injuries appears to have been proved by the statement of PW-7 Dr. V. K. Malhotra. Thus, all material facts were considered at the time of dismissal of the earlier successive bail applications filed by the applicant-appellant. ( 11 ) KEEPING in view, the decisions of Honble Supreme Court in Sarju prasad Vs. State of Bihar, air 1965 SC 843 , State of Maharashtra vs. Balram Bama Patil and Ors. , (1983) 2 SCC 28 , Girja Shankar vs. State of U. P. , JT 2004 (2) SC 140, Bappa alias Bapu Vs. State of Maharashtra, AIR 2004 SC 4119 , Vasant Vithu Jadhav vs. State of Maharashtra (2004) 9 SCC 31 and R. Prakash Vs. State of Karnataka (2004) 9 SCC 27 , prima-facie there is strong evidence against the applicant-appellant for the offence under section 307 IPC, on the basis of which, the trial court convicted and sentenced the applicant-appellant. Keeping in view, the gravity of offence and also that after rejecting the earlier successive applications seeking suspension of sentence, there being no change in the circumstances of the case, I do not find any ground to suspend the sentence and release the applicantappellant on bail. ( 12 ) THE third bail application seeking suspension of sentence is, therefore, dismissed. Since the record of the trial court has already been received, list the appeal for hearing.