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2020 DIGILAW 380 (RAJ)

Mukesh S/o Sh. Gopalram v. State, Through PP

2020-02-17

PUSHPENDRA SINGH BHATI, SANDEEP MEHTA

body2020
ORDER : 1. The instant application for suspension of sentences has been preferred by the appellant Mukesh seeking suspension of his sentences recorded by the learned Additional Sessions Judge, No.1, Hanumangarh in Sessions Case No.1/2016 whereby the appellant was convicted and sentenced as below: For offence under Section 449 I.P.C. 10 years’ R.I. & fine of Rs.10,000/-, in default of payment of fine, 6 months’ S.I. For offence under Section 302 I.P.C. Life Imprisonment & fine of Rs.40,000/-, in default of payment of fine, 1 year’s S.I. For offence under Section 307 I.P.C. 10 years’ R.I. & fine of Rs.30,000/-, in default of payment of fine, 1 year’s S.I. For offence under Section 326 I.P.C. 10 years’ R.I. & fine of Rs.20,000/-, in default of payment of fine, 8 months’ S.I. For offence under Section 325 I.P.C. 5 years’ R.I. & fine of Rs.10,000/-, in default of payment of fine, 6 months’ S.I. The sentences recorded for offences under Sections 302 and 307 IPC were ordered to run concurrently whereas, the sentences recorded for offences under Sections 449, 307, 326 & 325 IPC were ordered to run concurrently. 2. We have heard and considered the submissions advanced by Shri Vineet Jain, learned counsel representing the appellant, learned AAG and learned Public Prosecutor and have gone through the impugned judgment and the record. 3. Learned counsel Shri Jain urges that the incident took place on 14.4.2015. The F.I.R. was lodged by Devi Lal on the very same day in which five persons viz. Surjit, Vedprakash, Rajendra, Dilip and Sahab Ram were named to be the assailants and there was a specific allegation in the F.I.R. that Rajendra inflicted the Gandasi blow on the head of the deceased Subhash. It was also alleged in the F.I.R. that these assailants had been convicted on the basis of evidence of Subhash and that the assault was perpetrated by way of vengeance. Shri Jain submits that the case took a turn after more than three months of the incident when the Investigating Officer claims to have recorded the statement of the injured child witness Poonam daughter of Subhash wherein, the accused appellants were implicated as the two assailants. Shri Jain urges that as a matter of fact, after the F.I.R. had been lodged, bargain was stuck against the named accused and the complainant. Shri Jain urges that as a matter of fact, after the F.I.R. had been lodged, bargain was stuck against the named accused and the complainant. The accused appellants are the close relatives of the deceased Subhash and had no motive to murder him. They opposed this compromise and thus, the complainant and the accused conspired together to shift the blame and frame the appellant in this case. He urges that the Investigating Officer claims to have recorded the statement of the child witness Poonam on 19.8.2015 whereas, the opinion expressed by the Medical Board on the application of the Police (Ex.D4) dated 24.8.2015 indicates that the girl was not in a position even on that day to give a composed statement and could only communicate with gestures. Shri Jain submits that even while deposing in the court, the child who was examined as P.W.1 admitted in her cross-examination that she could started performing her daily ablutions in the month of January 2016 and before that, she was depending for these mundane jobs totally on her family members viz. mother etc. She even had to make gestures to request for food, water etc. during this period. Shri Jain submits that surprisingly, even the wife of the deceased Subhash, even though her presence at the scene of occurrence was imperative, was not examined in evidence. Likewise, Prithviraj (brother of the deceased) who was named as an eye-witness in the F.I.R. was also not examined in the prosecution evidence without any reason being shown. The Police filed a negative Final Report qua the appellant Mukesh and the Court summoned him to face trial by exercising powers under Section 319 Cr.P.C. As per him, the appellant had no motive to kill the deceased Subhash and manifestly, he has been framed in the case to save the true assailants who were named in the F.I.R. He thus urges that the appellant has strong grounds for assailing the impugned judgment. Hearing of the appeal is likely to consume time. On these grounds, Shri Jain implored the Court to accept the application for suspension of sentences filed on behalf of the appellant Mukesh. 4. Per contra, learned Additional Advocate General and learned Public Prosecutor vehemently and fervently opposed the submissions advanced by Shri Jain. 5. Hearing of the appeal is likely to consume time. On these grounds, Shri Jain implored the Court to accept the application for suspension of sentences filed on behalf of the appellant Mukesh. 4. Per contra, learned Additional Advocate General and learned Public Prosecutor vehemently and fervently opposed the submissions advanced by Shri Jain. 5. Nonetheless they too are not in a position to dispute the fact that the assailants named by Devi Lal in the F.I.R. were not charge-sheeted by the investigating agency. The accused appellant Mukesh was also not charge-sheeted after investigation and he was summoned as an additional accused by taking recourse to the power under Section 319 Cr.P.C. There are manifest loopholes in the prosecution case regarding the recording of the statement of the child witness Poonam P.W.1 during investigation because the very fact regarding her being in a fit position to give such statements (Ex.P1 dated 19.8.2015) under Section 161 Cr.P.C. and (Ex.P1 dated 1.9.2015) under Section 164 Cr.P.C. is under a grave cloud of doubt if the Medical Board’s opinion (Ex.P4A) is considered. The Investigating Officer filed the application to seek opinion regarding the girl being in a fit state to give the statement on 24.8.2015. The Board expressed its reservations regarding her fitness to give the statement. Therefore, it is apparent that the reliability of the evidence of the star prosecution witness P.W.1 is seriously questionable. The appellant thus has strong grounds to challenge the impugned judgment. Hearing of the appeal is likely to consume time. Consequently, this Court is of the opinion that it is a fit case for suspending the sentences awarded to the accused appellant. 6. Accordingly, the application for suspension of sentences filed under Section 389 Cr.P.C. is allowed and it is ordered that the sentences passed by the learned Additional Sessions Judge No.1, Hanumangarh vide judgment dated 5.11.2019 in Sessions Case No.1/2016 against the appellant-applicant Mukesh S/o Gopalram shall remain suspended till final disposal of the aforesaid appeal and he shall be released on bail, provided he executes a personal bond in the sum of Rs.80,000/- with two sureties of Rs.40,000/- each to the satisfaction of the learned trial Judge for his appearance in this court on 17.3.2020 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:- 1. That he/she/they will appear before the trial Court in the month of January of every year till the appeal is decided. 2. That if the applicants changes the place of residence, he/she/they will give in writing his/her/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, they will give in writing their changed address to the trial Court. 7. The learned trial Court shall keep the record of attendance of the accused-applicants in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused-applicants was/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 purpose relating to pendency and disposal of cases in the trial court. In case the said accused applicants does not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of bail.