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2014 DIGILAW 415 (RAJ)

Shakila Bano v. State of Rajasthan Thro’ P. P.

2014-02-07

AJAY RASTOGI, J.K.RANKA

body2014
JUDGMENT 1. 1. Instant application for suspension of sentence has been filed by the accused appellants Shakila Bano W/o Liyakat Ali and Abid Ali S/o Ummed Khan. 2. We have heard Counsel for the accused appellants, Public Prosecutor and Counsel for the complainant. 3. Counsel for accused appellants submits that on a written complaint (Ex.P-3) dated 15.1.2010 made at 8.00 A.M., F.I.R. (Ex.P-71) was registered on the same day at 2.30 P.M. at the behest of real brother of deceased Banwari Lal, whose statement was recorded as PW-3 and who alone was considered to be the star witness of alleged incident. According to the case of prosecution, the deceased Jai Singh was called on mobile by Liyakat Ali along with Shaukat Ali and he accompanied him on their request, and came to their residential house to have some discussions with regard to ensuing panchayat elections and accused appellants were present at their own residence and leaving deceased, he left for his home. However, recovery of slippers and mobile of the deceased has been shown to be recovered from accused appellant Shakila Bano and sword from accused appellant Abid Ali and even as per the case of prosecution, PW-3 Banwari Lal left deceased Jai Singh at their residence and was not the eyewitness of the alleged incident except the fact that deceased along with PW-3 Banwari Lal came to their house at the request of Liyakat Ali and accused appellant Shaukat Ali. Counsel submits that as regards presence of accused appellants at their residence that was obvious and natural and it is not the case of prosecution that any conspiracy was hatched to which present accused appellants are members when the deceased was called at their house and as regards recovery is concerned, Counsel submits that since there were no other members named by PW-3 Banwari Lal at the residence, recovery has been shown from each of them but there is no eye witness of the alleged incident and injuries from the sword on the body of deceased, even from the F.S.L. report, it could not be attributed to the accused appellant Abid Ali and to connect him with the commission of crime except his presence which was noticed by PW-3 Banwari Lal at his own residence, no material came on record. 4. 4. We further noticed, after the parties being heard, that the allegation has come on record against accused appellants Shaukat Ali and Liyakat Ali and Shaukat Ali has been convicted for offence under Section 302 I.P.C. and investigation against Liyakat Ali is still pending under Section 173(8) Cr.P.C. reason best known to the prosecution. 5. Counsel for accused appellants submits that the prosecution has failed to connect both the two accused appellants with the commission of crime and the additional feature is that they were on bail during trial as well and in these facts and circumstances, at least both of them deserve indulgence from this Court for suspension of sentence, pending hearing of appeal. 6. The Public Prosecutor and Counsel for complainant have vehemently opposed the application filed by accused appellants seeking suspension of sentence and submit that their presence even if considered to be obvious, the recovery of sword from accused appellant Abid Ali corroborated from the Post Mortem Report (Ex.P-27), is sufficient evidence to show that he was equally involved in commission of crime and as regards accused appellant Shakila Bano is concerned, Counsel submits that when the mobile of deceased and slippers are recovered from her, certainly her presence and involvement in the commission of crime cannot be doubted. 7. It is true that if the accused appellants are on bail during trial, it certainly may not be a consideration to enlarge them on bail during pendency of appeal but on the basis of evidence on record if the appellants have been able to justify in regard to their connection with the commission of crime and if they were on bail during trial, it can be one of the consideration which can be taken note of by this Court. 8. 8. After hearing Counsel for the parties and taking note of the submissions made but without expressing any opinion on merits of the case, we are of the view that present accused appellants deserve indulgence and the sentence of the accused appellants Shakila Bano and Abid Ali deserves to be suspended, awarded by the learned Additional Sessions Judge No. 2, Jhunjhunu vide judgment dated 31.10.2013 in Sessions Case No. 65/2012 (37/2010).Accordingly, it is ordered that the sentence of the accused appellant (1) Shakila Bano W/o Liyakat Ali; and (2) Abid Ali S/o Ummed Khan shall remain suspended during pendency of appeal and they shall be released on bail, provided each of them furnishes a personal bond in the sum of Rs. 50,000/- with two sureties in the sum of Rs. 25,000/- each to the satisfaction of the Trial Court to the effect that they shall appear before this Court on 10.3.2014 and as and when called upon to do so.Application allowed. *******