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2022 DIGILAW 1205 (RAJ)

Durg Singh v. State Of Rajasthan

2022-04-18

SANDEEP MEHTA, VINOD KUMAR BHARWANI

body2022
JUDGMENT 1. The instant application for suspension of sentences under Section 389 Cr.P.C. has been preferred by appellants-applicants who have been convicted and sentenced as below vide judgment dated 11.03.2022 passed by learned Sessions Judge, Jodhpur in Sessions Case No.120/2013: Offence Under Section Imprisonment Fine Sentence in default of fine 302 IPC Life Imprisonment Rs.20,000/- 2 Months' SI 201 R.W.S 34 IPC 5 Years' SI Rs.5,000/- 1 Month's SI Both the sentences were ordered to run concurrently. 2. Learned Public Prosecutor has filed reply to the application for suspension of sentences. 3. We have heard and considered the submissions advanced by Shri Jain, learned senior counsel, assisted by Shri Rajeev Bishnoi, representing the appellants and learned Public Prosecutor and have gone through the impugned judgment. 4. The prosecution case emanates from the written report dated 17.04.2013 submitted by complainant Ladu Ram (PW.11) alleging inter alia that his nephew Kishore Singh went away from his home on the night of 13.04.2013 after receiving a call on his mobile. a missing person report was lodged at the Police Station Khedapa on 14.04.2013. On 16.04.2013, the dead body of Kishore Singh was recovered in a well in the village Puniyo Ki Basni. The informant raised a suspicion on Pappu Singh and his associates who had threatened Kishore Singh of dire consequences over the issue of a girl. On the basis of this report, FIR No.39/2013 was registered at the Police Station Khedapa for the offence punishable under Section 302 IPC. after investigation, chargesheet was filed against the appellants herein in the regular Court whereas two juveniles Bhawani Singh and Ganpat Singh were charge-sheeted before Juvenile Justice Board. These two juveniles have reportedly been acquitted after inquiry. 5. Shri Jain urged that there is no evidence worth the name on the record of the case to connect the appellants with the alleged crime. The incident took place on the night intervening 13 and 14 april, 2013. The Investigating Officer Kishan Lal (PW.23), arrested the accused persons without there being any evidence to connect them with the alleged crime. Incriminating recoveries of knife and shirt (from the accused Durg Singh) and a mobile and shirt (from the accused Bhom Singh) were shown to have been effected. The Investigating Officer Kishan Lal (PW.23), arrested the accused persons without there being any evidence to connect them with the alleged crime. Incriminating recoveries of knife and shirt (from the accused Durg Singh) and a mobile and shirt (from the accused Bhom Singh) were shown to have been effected. Shri Jain pointed out that the prosecution claimed that the knife and the clothes recovered from both the accused persons tested positive for presence of 'B' Group blood when examined at the FSL. However, he referred to the statement of the Malkhana In-charge Shri Kumbhgiri (PW.20) and pointed out that the witness stated that the Malkhana articles were forwarded to the FSL Jodhpur with Constable Harendra Singh on 26.06.2013. However, in cross-examination, he admitted that prior thereto, the Malkhana articles had been sent to the FSL on 24.06.2013 and were returned with objections. However, the nature of objections was not explained by the prosecution. The witness also admitted that there was no entry in the Malkhana Register (Ex.D4a) regarding transmission of the Malkhana articles to the FSL. Thus, as per Shri Jain, the link evidence is breached and consequently, the FSL report is rendered worthless. The appellants were on bail during pendency of the trial and they did not misuse the liberty so granted to them. He further urged that from the sole circumstance of recovery of blood stained articles, no inference of guilt can be drawn against the appellants and hence also, they deserve indulgence of bail during pendency of the appeal. With these submissions, learned counsel Shri Jain implored the Court to accept the instant application for suspension of sentences and direct enlargement of the appellants on bail during pendency of the appeal. 6. Per contra, learned Public Prosecutor, vehemently and fervently opposed the submissions advanced by the appellants' counsel. However, he too was not in a position to dispute the fact that other than the circumstance of recoveries of the blood stained knife and clothes, there is nothing on record which can connect the appellants with the murder of Kishore Singh. It is not in dispute that the incident took place night intervening 13 and 14 april, 2013 and the recoveries were effected after 7-8 days. The IO arrested the accused appellants without there being any plausible material to connect them with the alleged crime. It is not in dispute that the incident took place night intervening 13 and 14 april, 2013 and the recoveries were effected after 7-8 days. The IO arrested the accused appellants without there being any plausible material to connect them with the alleged crime. There is a grave lacuna in the prosecution case regarding the link evidence mandatorily required to prove the safekeeping of the Malkhana articles in the self-same condition as has been discussed above. There is also a serious question mark as to whether, sole circumstance of recovery of blood stained articles can be considered sufficient to bring home the charge of murder in absence of any substantive evidence to link the accused with the crime. The appellants were on bail during the pendency of trial. They did not misuse the liberty so granted to them. Hearing of the appeal is unlikely in near future. as per the reply, the appellants do not have any criminal antecedents. 7. accordingly, the instant application for suspension of sentences filed under Section 389 Cr.P.C. is allowed and it is ordered that the sentences passed by learned Sessions Judge, Jodhpur vide judgment dated 11.03.2022 in Sessions Case No.120/2013 against the appellants-applicants (1) Durg Singh S/o Shri Deep Singh and (2) Bhom Singh S/o Shri Narayan Singh shall remain suspended till final disposal of the aforesaid appeal and they shall be released on bail subject to the condition that each of them shall furnish 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 his appearance in this court on 18.05.2022 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 applicant(s) 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(s), they will give in writing their changed address to the trial Court. 8. The learned trial Court shall keep the record of attendance of the accused-applicant(s) in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused-applicant(s) was/were tried and convicted. 3. Similarly, if the sureties change their address(s), they will give in writing their changed address to the trial Court. 8. The learned trial Court shall keep the record of attendance of the accused-applicant(s) in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused-applicant(s) 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 applicant(s) does not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of bail.