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2012 DIGILAW 608 (PNJ)

Narain Giri v. State of Haryana

2012-04-23

M.JEYAPAUL, S.S.SARON

body2012
JUDGMENT 1. Heard learned counsel for the parties. 2. The criminal miscellaneous application has been filed seeking suspension of sentence of imprisonment of the applicant/appellant No.2 – Lachhman Giri during the pendency of the appeal. 3. The FIR (Ex:P-9) in the case was registered regarding missing of Rajiv @ Raju on the statement (Ex: P-29) of complainant – Jai Ram (PW-9) made on 18.09.2005 before Inspector Ram Niwas, SHO, Police Station Jagadhari (PW-17). It is stated by complainant – Jai Ram that he was employed as driver with Rajiv Gupta @ Kaku (PW-10) resident of Kali Mandir, Jagadhari and he was known to all his relatives. The brother-in-law of Rajiv @ Kaku Gupta, namely, Rajiv Goel @ Raju was residing with his family near Kali Mandir, Jagadhri. On 17.09.2005 at about 11:15 pm, the complainant Jai Ram had gone to park the car in the garage. Rakesh Singla was accompanying the complainant. At that time Lachhman @ Rinku (applicant – appellant No. 2), Narain Giri @ Gochi (appellant No.1), Braham Giri @ Saddu (appellant No. 3) sons of Om Giri and Pardeep Sharma (appellant No. 4, son of the sister of the mother of appellants No. 1 to 3), Narender Singh @ Jhullu @ Rinku were standing with Rajiv @ Raju (the missing person). After some time, when the complainant and Rakesh Singla returned after parking the car in the garage, then all those five persons (appellants No. 1 to 4 and Narinder Singh @ Jhullu @ Rinku) with Rajiv @ Raju were going to the house of Lachhman @ Rinku (applicant/appellant No.2). The whereabouts of Rajiv @ Raju could not be known till then despite inquiries being made by his relatives. The complainant had a suspicion that the said five persons had kidnapped Rajiv @ Raju with the intention to kill him because there was a dispute between Rajiv @ Raju and Lachhman @ Rinku (applicant/appellant No. 2) in respect of a piece of land measuring 8 Bighas which was situated near Kali Mandir, Jagadhari. 4. Applicant/appellant No. 2 Lachhman @ Rinku was arrested on 19.09.2005. He has been convicted by learned trial court alongwith others for the offences punishable under Sections 364 and 302 read with section 34 IPC besides, section 201 IPC. 4. Applicant/appellant No. 2 Lachhman @ Rinku was arrested on 19.09.2005. He has been convicted by learned trial court alongwith others for the offences punishable under Sections 364 and 302 read with section 34 IPC besides, section 201 IPC. He has been sentenced to undergo imprisonment for life for committing the offence under Section 302 read with section 34 IPC, besides, pay fine of ‘5000/- and in default thereof, to further undergo rigorous imprisonment for a period of six months. He has also sentenced to undergo rigorous imprisonment for a period of 10 years, besides, pay fine of ‘3,000/- and in default thereof, to further undergo rigorous imprisonment for a period of five months for the offence punishable under Section 364 read with section 34 IPC. He has also been sentenced to undergo rigorous imprisonment for a period of three years, besides, pay fine of ‘2,000/- and in default thereof, to further undergo rigorous imprisonment for a period of four months for the offence punishable under Section 201 IPC. All the sentences have been ordered to run concurrently. 5. In terms of affidavit of Shri Rattan Singh, Superintendent Jail, District Jail Yamunanagar at Jagadhri, it is submitted that applicant/appellant No. 2 — Lachhman Giri has undergone actual imprisonment of six years, five months and 19 days as on 12.03.2012 which includes the period of four years, five months and 22 days after conviction. The case of the applicant/appellant – Lachhman Giri falls within the parameters laid down by a Division Bench of this Court in Dharam Pal vs. State of Haryana, 1999(4) RCR (Criminal) 600, wherein it has been held that the convicts who have been sentenced to imprisonment for life should be released on bail if they have undergone 5 years of imprisonment of which 3 years should be after conviction. The said guidelines have been met in the present case. According to learned counsel for the applicant/appellant No. 2— Lachhman Giri no independent witness was associated in the investigation of the case at any stage. Only relatives and interested witnesses were associated with the recoveries and disclosure statements. Therefore, their evidence is not liable to be taken into account. Besides the deposition of complainant — Jai Ram (PW-9) regarding last seen of Rajiv @ Raju is not believable. It is alleged that he came to know about the incident in the evening of 18.09.2005. Only relatives and interested witnesses were associated with the recoveries and disclosure statements. Therefore, their evidence is not liable to be taken into account. Besides the deposition of complainant — Jai Ram (PW-9) regarding last seen of Rajiv @ Raju is not believable. It is alleged that he came to know about the incident in the evening of 18.09.2005. However, despite him having a telephone conversation with Rajiv @ Kaku (PW-10) in the evening of 18.09.2005, he did not disclose anything about the occurrence. Had he seen the accused taking Rajiv @ Raju with him, he would have made a mention of the incident to Rajiv @ Kaku (PW-10). Infact Rajiv @ Kaku (PW-10) was informed about Rajiv @ Raju being missing by his wife on 18.09.2005. However, she was not examined. It is also submitted that there is inordinate delay in lodging the FIR, besides, at the time of postmortem examination on 19.09.2005 at 9:00 am rigor mortis was present, which would mean that the death had occurred about 19 to 20 hours before the postmortem examination. These and other contentions would require consideration at the time of final hearing of the appeal. Therefore, in the facts and circumstances of the case, it would be just and expedient that the sentence of imprisonment of the applicant/appellant No. 2 — Lachhman Giri, during the pendency of the appeal is suspended. 6. The criminal miscellaneous application is accordingly allowed and the sentence of imprisonment of the applicant/appellant No. 2 — Lachhman Giri during the pendency of the appeal shall remain suspended, subject to his furnishing personal bond and surety bond to the satisfaction of the learned Chief Judicial Magistrate,Yamuna Nagar at Jagadhri. ---------0.B.S.0------------