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2022 DIGILAW 1997 (RAJ)

Banshi Giri @ Banti v. State of Rajasthan

2022-07-12

KULDEEP MATHUR, SANDEEP MEHTA

body2022
JUDGMENT : 1. The appellant-applicant herein has been convicted and sentenced as below vide judgment dated 01.10.2021 passed by the learned Special Judge, SC/ST (Prevention of Atrocities Cases), Chittorgarh in Sessions Case No.122/2019 (51/2018): Offences Sentences Fine Fine Default sentences Section 302 IPC Life Imprisonment Rs.20,000/- 1 Year's R.I. Section 3 (2)(v) of the SC/ST Act Life Imprisonment Rs.20,000/- 1 Year's R.I. (Both the sentences were ordered to run concurrently) 2. He has preferred the instant application for SOS with the prayer to be released on bail during pendency of the appeal. Notice of the appeal as well as application for SOS has been served on the complainant/respondent No.2 but no one has put appearance on her behalf. 3. Learned Public Prosecutor has filed reply to the application for SOS which indicates that the appellant does not have any criminal antecedents. He has suffered custodial period of nearly five years by now. 4. Shri D.S. Rathore, learned counsel representing the appellant urged that there is no plausible evidence to connect the appellant with the alleged murder of the victim Arun. The only semblance of evidence which the prosecution gave against the appellant was by virtue of statements of Deepak (PW.4) and Nepal Singh (PW.13) regarding the circumstance of last seen. However, the evidence of both these witnesses is flimsy and unreliable. No other incriminating circumstance was proved by the prosecution so as to bring home the guilt of the accused. He thus, urged that the appellant deserves indulgence of bail during pendency of the appeal. 5. Learned Public Prosecutor, on the other hand, vehemently and fervently opposed the submissions advanced by the appellant's counsel. He submitted that the evidence of the witnesses Deepak (PW.4) and Babulal (PW.6) who gave testimony proving the circumstance of last seen against the appellant is reliable. The appellant did not give any explanation as to how Arun was found dead by mechanical asphyxia soon after being in his (accused's company). Thus, learned Public Prosecutor urged that the appellant does not deserve indulgence of bail in this case. 6. We have given our thoughtful consideration to the submissions advanced at bar and have gone through the material available on record. 7. Thus, learned Public Prosecutor urged that the appellant does not deserve indulgence of bail in this case. 6. We have given our thoughtful consideration to the submissions advanced at bar and have gone through the material available on record. 7. On a wholesome perusal of the evidence led by the prosecution, we are of the view that it being a case of circumstantial evidence plain and simple, the only circumstance which the prosecution proved against the accused was in form of last seen. No plausible evidence of motive was given by the prosecution against the accused. Any comment on the reliability or veracity of the evidence of Deepak (PW.4) and Babulal (PW.6) who purportedly gave the evidence of last seen circumstance against the appellant shall be premature and might prejudice the outcome of the appeal. 8. However, regard to the overall facts and circumstances as available on record and considering the pertinent fact that the appellant had no motive whatsoever so as to commit murder of the deceased Arun, we are inclined to suspend the sentences awarded to the appellant by the trial court and release him on bail during pendency of the appeal. 9. 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 the learned Special Judge, SC/ST (Prevention of Atrocities Cases), Chittorgarh vide judgment dated 01.10.2021 in Sessions Case No.122/2019 against the appellant-applicant Banshi Giri @ Banti S/o Late Shri Mohan Giri Goswami 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.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 16.08.2022 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:- 1. That he will appear before the trial Court in the month of January of every year till the appeal is decided. 2. That if the applicant changes the place of residence, he will give in writing his 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. 10. 2. That if the applicant changes the place of residence, he will give in writing his 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. 10. The learned trial Court shall keep the record of attendance of the accused-applicant in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused-applicant was 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 does not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of bail.