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2012 DIGILAW 2172 (RAJ)

Subhash v. State of Rajasthan

2012-11-05

NARENDRA KUMAR JAIN II

body2012
JUDGMENT 1. - Heard learned counsel for the accused-appellant, the learner Public Prosecutor as well as learned counsel for the complainant in the present application filed under Section 389 Criminal Procedure Code for suspension of sentence and gone through the judgment dated 8.8.2012 passed by learned Additional Sessions Judge (Fast Track), No. 2, Hanumangarh Camp at Nohar in Sessions Case No. 48/2008 (42/2008) whereby the accused-appellant Subhash S/o Birbal Das and Kanchan Kumar @ Kalu S/o Sohan Lal, along with other co-accused persons, have been convicted for offences under Sections 307/149, 323/149, 326/149, 447 and 148 Indian Penal Code, with rigorous imprisonment for two years with fine of Rs. 2000/-, in default to further undergo three months' simple imprisonment; for offence under Section 307/149 Indian Penal Code with rigorous imprisonment for seven years with fine of Rs. 3000/-, in default to further undergo six months simple imprisonment; for offence under Section 326/149 Indian Penal Code, with rigorous imprisonment for five years with fine of Rs. 72000/-, in default to further undergo four months simple imprisonment; for offence under Section 323/149 with rigorous imprisonment for three months and for offence under Section 447 Indian Penal Code with rigorous imprisonment for one months. All the substantive sentences were ordered to run concurrently. 2. Learned counsel for the accused-appellants vehemently submitted that this false case has been lodged against the accused-appellants and other persons and the learned Court below committed grave illegality' in passing the impugned judgment and order. It is also submitted that on the basis of evidence on the record, no case for offence of attempt to murder is made out against the accused-appellants. The learned Court below has erred in not believing the defence version. According to the First Information Report, eye-witnesses namely Ramswaroop along with Pat Ram, Manipal and Mana Ram were there but the prosecution has not examined above independent witnesses. So, the story of the prosecution is highly doubtful. There are contradictions in the statements of witnesses and the F.I.R. also. 3. It is also submitted that co-accused Ramswaroop S/o Radha Krishan, Sohan S/o Birbal Das and Jaipal S/o Radha Krishan have already been enlarged on bail by this Court vide order dated 21.9.2012 and case of the present accused-appellants is not distinguishable with the above co-accused-appellants. There are contradictions in the statements of witnesses and the F.I.R. also. 3. It is also submitted that co-accused Ramswaroop S/o Radha Krishan, Sohan S/o Birbal Das and Jaipal S/o Radha Krishan have already been enlarged on bail by this Court vide order dated 21.9.2012 and case of the present accused-appellants is not distinguishable with the above co-accused-appellants. Learned counsel further submitted that out of nine persons accused by' the prosecution, four persons have been acquitted by the learned trial Court and part story of the prosecution has been disbelieved and only five present accused-appellants have been convicted, without assigning any' cogent reason. He further stated that seven injuries were sustained by injured Ramswaroop one injury was by sharp edged weapon while other by blunt weapon and injury No. 6 on his left leg has been found to be grievous in nature while other injuries are simple in nature. The injured Lalchand has sustained eight injuries and all injuries to him are found simple in nature, as per PW-7 Dr. Hanuman Singh Nehra. 4. The learned counsel lastly contended that there is every likelihood of his appeal being allowed, co-accused persons have' already been granted suspension of their sentence, the decision of this appeal wile take time and the accused-appellants are ready to furnish bail bonds as per directions of this Court. 5. Per contra, learned Public Prosecutor supported the judgment of conviction and sentence and opposed the prayer of the accused-appellants for suspension of the sentence. 6. Having considered the facts and circumstances of the case, without expressing any opinion on merit of the case, I deem it proper to suspend the substantive sentence awarded against the accused-appellants. 7. Accordingly, the application for suspension of sentence moved by the accused-appellants under Section 389 Criminal Procedure Code is allowed and it is ordered that the sentence awarded by learned Additional Sessions Judge (Fast Track), No. 2, Hanumangarh Camp at Nohar in Sessions Case No. 48/2008 (43/2008) vide judgment dated 8.8.2012 against the accused-appellant 1 Subhash S/o Birbal Das, and 2) Kanchan Kumar @ Kalu S/o Sohan Lal shall remain suspended till final disposal of aforesaid appeal provided each of them executes a personal bond in the sum of Rs. 40,000/- (Rupees forty thousand only) along with two sureties in the sum of Rs. 40,000/- (Rupees forty thousand only) along with two sureties in the sum of Rs. 20,000/- (Rupees twenty thousand only) each, to the satisfaction of the trial Court for his appearance before this Court on 5.12.2012 and whenever called upon to do so; with the incorporation in their bail bond that as and when they shall shift from their place of residence, they shall intimate to this Court and their counsel about new place of their residence.Application allowed. *******