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2019 DIGILAW 953 (RAJ)

Soda Ram v. State of Rajasthan

2019-04-01

MANOJ KUMAR GARG, PRATAP KRISHNA LOHRA

body2019
ORDER : 1. These three applications for suspension of sentence (for short, 'SOS') by applicants-life convicts are arising out of common judgment, therefore, are heard together and disposed of by this common order. 2. The applicants are convicted by Addl. Sessions Judge, Phalodi for offences punishable under Sections 148, 364 and 302/149 IPC. 3. Application for Suspension Sentence No. 1270/2017 on behalf of the applicants was earlier allowed by a Coordinate Bench on 26th of April, 2018 but when the said order is assailed before the Apex Court, the order is set aside on 18th of September, 2018 and the matter is remitted back to this Court for consideration of application afresh. It so happened that out of over-enthusiasm, the applicants therein i.e. SOS No. 1270/2017 laid second application for suspension of sentence and the same is registered as SOS No. 1092/2018. Anyway our concern is to decide the previous application for suspension sentence afresh as per directions of the Apex Court and simultaneously pass appropriate orders for disposal of second application. 4. The other application for suspension of sentence bearing SOS No. 532/2018 is laid on behalf of other convicts by the same impugned judgment. 5. In the applications for suspension of sentence, convict-applicants have set out their grounds and also made endeavour to address arguments touching merits of the finding recorded by learned trial Court. 6. Learned Public Prosecutor has submitted reply to the applications for suspension of sentence in both the matters and same is tagged in the files of SOS Nos. 1092/2018 and 532/2018 respectively. Resisting the prayer for suspension of sentence, learned Public Prosecutor has essentially laid emphasis on previous criminal antecedents of applicants, Sodharam, Satpal, Jagmalram and Radhakishan. Besides that, gravity of the offence, for which all the applicants are convicted and sentenced by the learned trial Court, is also cited as a reason to thwart their plea for suspension of sentence. An attempt is also made to non-suit the applicants by citing the reason that in the event of suspension of their sentence, there is every likelihood that they would misuse their liberty. In order to substantiate this allegation, complaint filed by one ocular witness P.W. 6 Birdharam against the applicants on 13th of July, 2018 under Sections 107 and 116(3) Cr.P.C. is also highlighted in the return. In order to substantiate this allegation, complaint filed by one ocular witness P.W. 6 Birdharam against the applicants on 13th of July, 2018 under Sections 107 and 116(3) Cr.P.C. is also highlighted in the return. Apart from dilating on all these aspects, learned Public Prosecutor in the reply has also made endeavour to clarify distinction between application for grant of bail and application for suspension of sentence by urging that an accused convicted for an offence cannot be treated at par with an under trial. 7. Mr. Anand Purohit, learned Senior Counsel, appearing on behalf of applicants Sodharam and others has by and large reiterated the same arguments, which were canvassed at the time of passing of earlier order dated 26th of April, 2018. Learned Senior Counsel while taking a dig at the testimony of three ocular witnesses, P.W. 5 Punaram, P.W. 6 Birdharam and P.W. 7 Jagdish has urged that their testimony is full of inconsistencies and contradictions. Learned Senior Counsel, therefore, submits that these three witnesses are not genuine eye-witnesses rather planted and by relying on their testimony, learned trial Court has erroneously concluded that the charges against applicants are proved beyond reasonable doubts. Learned Senior Counsel has further contended that if testimony of any witness is not of sterling worth, it is expected of the Court to take utmost care in relying on such evidence. It is also urged by learned Senior Counsel that even as per version of the eye-witnesses, applicants have inflicted injuries to the deceased by use of blunt weapons, i.e., hockey, lathi and iron rod etc., but their version is not at all corroborated by the autopsy report (Ex. P/21). Learned Senior Counsel for substantiating his argument referred to Ex. P/21 showing no injury on the person of deceased as a result of lacerated wounds. Learned Senior Counsel, in this behalf, has also romped in P.W. 7 Dr. Manoj Garg, who during his deposition has very specifically denied that injuries found on the person of the deceased were caused by blunt weapon. Relying on the autopsy report, learned Senior Counsel has also contended that three grievous injuries reported on the person of deceased in the postmortem report are incised wounds, which obviously could only be caused by sharp-edged weapon. He, therefore, urged that these grievous injuries cannot be attributed to the applicants. Relying on the autopsy report, learned Senior Counsel has also contended that three grievous injuries reported on the person of deceased in the postmortem report are incised wounds, which obviously could only be caused by sharp-edged weapon. He, therefore, urged that these grievous injuries cannot be attributed to the applicants. It is also contended by learned Senior Counsel that all the applicants were on bail during trial. Learned Senior Counsel while joining issue with the learned Public Prosecutor highlighting their previous antecedents has argued that mere pendency of cases cannot be a ground to decline a plea for suspension of sentence inasmuch as there is no proof about previous indictment of the applicants for grave and serious offence. 8. Mr. N.K. Bohra, learned counsel for the applicants in SOS No. 532/2018, has adopted the arguments of learned Senior Counsel. While referring to recovery memos of applicants Radhakishan and Satpal (Ex. P/11, P/12, and P/13), learned counsel submits that recovery of alleged weapon of offence from them is lathis, and therefore, it is not possible to attribute them incised wounds, which were found on the person of the deceased. Mr. Bohra has also referred to Ex. P/14 to P/16, according to which also, recovery from these two applicants is lathi. Learned counsel for the applicants has also relied on testimony of P.W. 27 Dr. Manoj Garg, wherein during cross-examination, he has very candidly admitted that there was no lacerated wound on the person of the deceased, besides clarifying doubts that Injury No. 2 (an incised wound) cannot be caused by a blunt weapon. Mr. Bohra, learned counsel has also contended that regarding Injury No. 2, the witness has also unearthed during cross-examination that the same can be caused due to falling of someone on a sharp object. In substance, learned counsel for the applicants has argued that indictment of the applicants for the charged offences by the learned trial Court is not based on sound appreciation of evidence, and therefore, the conclusion about their guilt beyond all reasonable doubts is a finding which is per se vulnerable. Mr. Bohra would urge that applicants are in custody since last more than five years, and therefore, in the backdrop of serious contradictions in the statement of the ocular witnesses and testimony of expert witness P.W. 27 Dr. Manoj Garg sentences handed down to all applicants are liable to be suspended. 9. Mr. Bohra would urge that applicants are in custody since last more than five years, and therefore, in the backdrop of serious contradictions in the statement of the ocular witnesses and testimony of expert witness P.W. 27 Dr. Manoj Garg sentences handed down to all applicants are liable to be suspended. 9. Per contra, learned Public Prosecutor has vehemently opposed the applications for suspensions of sentence. Learned Public Prosecutor, Mr. Gaurav Singh has argued that statements of ocular witnesses are duly corroborated by medical evidence, and therefore, both these applications merit rejection. Learned Public Prosecutor has also contended that minor contradictions in the statements of P.W. 5 and P.W. 7 cannot be given an undue credence so as to discredit their testimony. While referring to the autopsy report (Ex. P/21), learned Public Prosecutor submits that there are multiple injuries on the person of the deceased, and therefore, in the backdrop of proven serious criminal delinquencies of the applicants, they are not entitled for suspension of sentence. 10. Learned Senior Counsel, Mr. M.R. Singhvi appearing for the complainant has also vehemently opposed both the applications for suspension of sentence. Mr. Singhvi, learned Senior Counsel has also argued that indictment and conviction of the applicants by the learned trial Judge is founded on sound appreciation of evidence and the finding of guilt recorded by learned trial Judge on the strength of ocular evidence, therefore, cannot be faulted for want of its corroboration by medical evidence. Mr. Singhvi would contend that ocular evidence deserves precedence over the medical evidence. Mr. Singhvi has also argued that where injuries on forehead of the deceased caused by iron rod, the skin just above a hard surface can break by a severe blow and give appearance of incised wound. 11. We have considered the submissions made by the rival parties and also made endeavour to peruse the impugned judgment and the record of case. 12. Upon examining the available material, we feel that prima facie contentions raised on behalf of the applicants are substantial requiring consideration even at this stage. 13. Well it is true that if a case is founded on ocular evidence and there is dichotomy between ocular evidence and medical evidence, it may not be safe to completely brush aside ocular evidence but then we do feel that medical evidence too cannot be completely discredited/discarded. 14. 13. Well it is true that if a case is founded on ocular evidence and there is dichotomy between ocular evidence and medical evidence, it may not be safe to completely brush aside ocular evidence but then we do feel that medical evidence too cannot be completely discredited/discarded. 14. The argument of learned counsel for the complainant that even injuries on the forehead of the deceased caused by iron rod may give appearance of incised wound appears to be quite alluring but not of substance because giving appearance of a wound as an incised wound and an incised wound is clearly identifiable. Moreover, on the strength of testimony of P.W. 27 Dr. Manoj Garg, it is not discernible that there were injuries on the forehead of the deceased giving appearance of incised wounds. 15. Therefore, having regard to the facts and circumstances of the case, while refraining to make any comment on merits of the case, we consider it just and appropriate to suspend substantive sentence awarded to the accused-applicants. 16. In view thereof, Suspension of Sentence Application Nos. 1270/2017 and 532/2018 filed under Section 389 Cr.P.C. are allowed and it is ordered that the sentences passed by learned Addl. Sessions Judge, Pahlodi, vide judgment dated 27.10.2017, in Sessions Case No. 6/2014, against accused-applicants, (1) Soda Ram @ Sodha Ram S/o. Faglu Ram, (2) Ugarsen S/o. Sodha Ram, (3) Manohar Ram @ Manohar Lal S/o. Faglu Ram, (4) Satpal S/o. Soda Ram, (5) Radhakishan S/o. Birbal Ram and (6) Jagmal Ram S/o. Faglu Ram, shall remain suspended till final disposal of the main appeals and they shall be released on bail subject to the condition that each one of them execute a personal bond in a sum of Rs. 1,00,000/- with two sureties of Rs. 50,000/- each to the satisfaction of the learned trial Judge for their appearance in this Court on 06.05.2019 and whenever ordered to do so till disposal of the appeal, on the conditions indicated below:- 1. That they will appear before the trial Court in the month of January every year till the appeal is decided. 2. That if the applicants change the place of residence, they will give in writing their changed address to the trial Court as well as to the counsel in the High Court. 3. That they will appear before the trial Court in the month of January every year till the appeal is decided. 2. That if the applicants change the place of residence, they will give in writing their changed address to the trial Court as well as to the counsel in the High Court. 3. Similarly, if the sureties change their address(s), they will give in writing their changed address to the trial Court. 17. The learned trial Court shall keep the record of attendance of accused-applicants in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused-applicants were tried and convicted. A copy of this order shall also be placed in that file for ready reference. Criminal Misc. file shall not be taken into account for statistical purposes relating to pendency and disposal of cases in the trial Court. In case the said accused-applicants do not appear before the trial Court, the learned trial Judge shall report the matter to the High Court for cancellation of bail. 18. This order also disposes Suspension of Sentence Application No. 1092/2018.