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Rajasthan High Court · body

2021 DIGILAW 2009 (RAJ)

Bhupendra v. State

2021-10-23

ANOOP KUMAR DHAND, ARUN BHANSALI

body2021
JUDGMENT 1. Both these applications for suspension of sentences filed on behalf of applicant-appellants Bhupendra, Kapil, Pradeep Kumar and Kirandeep are being heard and decided by this common order. 2. The instant applications for suspension of sentences under Section 389 CrPC have been preferred on behalf of the appellant-applicants Bhupendra, Kapil, Pradeep Kumar and Kirandeep, who have been convicted and sentenced for the offences under Sections 302, 201 and 120-B of the IPC vide the judgment dated 20.12.2019 passed by the learned Additional Sessions Judge, Sagwada, District Dungarpur in Sessions Case No.9/2019. They are convicted and sentenced as below:- Convicted under Sections Sentences and/or Fine In default 302 IPC Life Imprisonment along with fine of Rs.5,000/- each Six months' simple imprisonment 201 IPC 3 years' simple imprisonment with fine of Rs.1,000/- each 120B IPC Life Imprisonment with fine of Rs.5,000/- each 3. All the sentences were ordered to run concurrently. 4. As per the prosecution case set out in written report (Ex.P/1) lodged by Ms.Charulata (P.W.1) on 04.02.2019 at the Police Station Sabla, District Dungarpur against some unknown persons, upon which, FIR No.41/2019 had been registered for the offences under Sections 302, 201 and 120B IPC. It was stated in the said FIR that on 02.02.2019 at about 11:30 p.m., complainant's sister Smt. Richa @ Rinku W/o Parikshit Sharma went in her Swift Desire Car No. RJ-12 CE 4161 informing her daughter Hemshree @ Kuku (P.W. 15) that she would come to home within one hour but she did not return back. After that, an information was received that Smt.Richa's car met with an accident near Kandola and her dead body was taken to the Govt. Hospital, Sagwada. In the aforesaid report, a suspicion was raised that her sister Smt. Richa @ Rinku has not died due to said accident but was murdered and the story was concocted by giving it a shape of accident. 5. After registration of the FIR No.41/2019, a thorough investigation was undertaken by the police officials and thereafter, a charge sheet was filed against all the four accused appellants for the above offences. After trial, all the four accused-appellants have been convicted and sentenced as above. Hence, these applications for suspension of sentences. 6. 5. After registration of the FIR No.41/2019, a thorough investigation was undertaken by the police officials and thereafter, a charge sheet was filed against all the four accused appellants for the above offences. After trial, all the four accused-appellants have been convicted and sentenced as above. Hence, these applications for suspension of sentences. 6. Learned counsel for the appellants argued that the prosecution has miserably failed to prove the case against the accused-appellants beyond all reasonable doubts and the conviction of the appellants has been recorded purely on the basis of conjectures and surmises. It was further argued that the whole case of the prosecution is based on transcription (Ex.P/15), which is not admissible in evidence and the story created by the prosecution regarding the matter of transaction of money between the deceased and appellant-Bhupendra has not been proved on the face of the record. It was further argued that the witnesses Ms.Charulata (P.W. 1), Hemshree @ Kuku (P.W. 15) and Parikshit (P.W. 17) have nowhere stated in their statements that there was any matter of transaction of money between the accused-appellant Bhupendra and the deceased. It was further argued that appellants have been serving the sentences since 05.09.2019 and hearing of the appeal will take time, therefore their sentence may be suspended during the pendency of the appeal. 7. Per contra, learned GA-cum-AAG opposed the applications for suspension of sentences by arguing that the mobile phones have been recovered at the instances of the appellants and the transcription recorded in their mobile phones clearly indicate that a conspiracy for committing the murder of Smt. Richa @ Rinku was hatched and the motive behind this was not to return money to the deceased, which was borrowed from her. In pursuance of the conspiracy hatched by the accused, they committed the murder of deceased Smt. Richa and thereafter, they have tried to give it the shape of accident. It was further argued by the learned GA-cum-AAG that the prosecution has proved its case beyond reasonable doubt against the accused appellants and they have rightly been convicted and sentenced by the learned trial court for the above offences. 8. We have heard and considered the arguments advanced at Bar by counsel for the parties and have gone through the material available on record. 9. 8. We have heard and considered the arguments advanced at Bar by counsel for the parties and have gone through the material available on record. 9. Upon consideration of the evidence of the prosecution witnesses and more particularly, the findings recorded by learned trial Judge in Para No.48 of the impugned judgment that there is no eye-witness of the incident but conversation of accused-persons and deceased were found in the memory card of their mobile phones and thereafter, transcription of the said conversation was recorded by police constables, viz., Krishna Pratap Singh (P.W. 6) and Govind Singh (P.W. 16) without seeking permission from any higher official(s) or competent authority. Thereafter the statements of Investigating Officers Chakarvarti Singh (P.W.10) and Rameshwar Bhati (P.W. 11) were recorded. In their cross examination, they admitted that name of the deceased was not mentioned in the transcription (Ex.P/15). A voice test of the accused persons was also not conducted to corroborate their voices with the alleged transcription written in the document (Ex.P/15). The mobile phone of the deceased was not sent to the FSL for analysis. It has been further admitted by both these Investigating Officers in their cross examination that second sim of the mobile was carrying only nine digit numbers, which creates doubt on the admissibility of the whole prosecution case. So far as the motive of the accused-persons for committing the murder of Smt. Richa and the transaction of money between the accused Bhupendra and the deceased are concerned the same have not been prima facie proved as the witnesses Ms.Charulata (P.W.1), Hemshree (P.W.15) and Parikshit Sharma (P.W.17) as they had nowhere stated in their statements that there was any matter of transaction of money between the accused Bhupendra and the deceased. The appellants have an arguable case. 10. In this background and having regard to the entirety of the facts and circumstances of the case, this Court is of the view that the doubt is created on the transcripted conversation and since the appellants are behind the bars for last two and half years thus, it is considered to be a fit case for grant of indulgence of bail to the appellant-applicants by suspending their sentences awarded to them by the trial Court during the pendency of the appeal. 11. 11. Accordingly, both the applications for suspension of sentences filed under Section 389 Cr.P.C. are allowed and it is ordered that the sentences passed by learned Additional Sessions Judge, Sagwada, District Dungarpur vide judgment dated 20.12.2019 in Sessions Case No.09/2019 against appellant-applicants 1} Bhupendra S/o Sh. Badichand, 2} Kapil S/o Sh. Ramesh Chandra Danot 3} Pradeep Kumar S/o Heera Lal Purohit, and 4} Kirandeep S/o Rawa Shanker Vyas, shall remain suspended till final disposal of the aforesaid appeal and they shall be released on bail provided each of them executes a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/-each to the satisfaction of the learned trial Judge for their appearance in this Court on 23.11.2021 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:- 1. That 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 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. 12. 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 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 do not appear before the trial Court, the learned trial Judge shall report the matter to the High Court for cancellation of bail. 13. Let a copy of this order be placed in each file.