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2022 DIGILAW 2763 (RAJ)

Kishan Singh v. State Of Rajasthan

2022-11-16

KULDEEP MATHUR, SANDEEP MEHTA

body2022
JUDGMENT 1. The instant application for suspension of sentences under Section 389 Cr.P.C. has been preferred by appellant-applicant who has been convicted and sentenced as below vide judgment dated 08.08.2022 passed by learned Special Judge, SC/ST (Prevention of Atrocities Cases), Udaipur in Special Sessions Case No.26/2015:- Offence U/s Sentence Fine Sentence (in default of fine) 363, IPC 5 years' R.I. 10,000/- 2 months' addl. S.I. 376(2) IPC R/w Section 5/6 POCSO ACT L.I. 1,00,000/- 1 year's addl. S.I. 2. Learned Public Prosecutor has filed reply to the application for suspension of sentences. 3. The prosecution has come out with a case that the deceased was involved in a love affair with the co-accused Sugan Kanwar, daughter of the appellant herein. A further case is projected by the prosecution that the family members were annoyed by this relationship and thus, while Tinu had come to the house of the appellant, all the three accused i.e., the appellant herein and Smt. Dariyav Kanwar and Sugan Kanwar, being the wife and daughter of the accused appellant (since acquitted by the trial court) with the common intention of eliminating Tinu, throttled him and abandoned his dead body in a field. The circumstantial evidence as presented by the prosecution to bring home the charge of murder of Tinu as against the appellant and the two co-accused persons is verbatim same and is more or less based upon an inference. The trial court, concluded that the investigation of the case had been conducted in an absolutely lackadaisical manner. This finding was recorded at para No.63 of the impugned judgment. At para No.64 of the impugned judgment, it was held that there is no ostensible evidence to show that Sugan Kanwar had participated in the murder of Tinu. It was also observed that participation of Smt. Dariyao Kanwar in the crime was also not established. At Para No.66 of the impugned judgment, the trial court recorded conjectural findings to the effect that Kishan Singh is a 63 years old man and thus, it would not have been possible for him to single-handedly strangulate the deceased, who was aged about 22 years and then to dispose of his dead body on the motorcycle after travelling to a distance of about five kilometers. 4. Rather, the trial court held that the accused Kishan Singh did not even know how to drive a motorcycle. 4. Rather, the trial court held that the accused Kishan Singh did not even know how to drive a motorcycle. As the IO did not conduct any investigation regarding the role of Gopal @ Prahlad, son of the appellant in the crime, the investigation of the case was held to be tainted. Another conjectural finding was recorded by the trial court at para No.68 of the impugned judgment that Kishan Singh either singly or with the assistance of some other person strangulated Tinu and then disposed of his body in the field. Accordingly, the appellant was convicted as above. 5. Learned Public Prosecutor drew the Court's attention to the evidence of PW.8 Naresh Kumar and urged that this witness has given evidence of last seen against the accused. However, from bare perusal of the statement of the said witness, it becomes clear that he only stated that he saw Tinu proceeding towards the house of Sugan Kanwar. However, he did not state that he actually saw the deceased entering the house of the accused persons. Thus, the evidence of this witness is of no avail to the prosecution. 6. No other plausible/tangible evidence direct or circumstantial was led by the prosecution to bring home the charges. The findings of guilt recorded by the trial court in the impugned judgment are absolutely conjectural. The accused was on bail during the pendency of the appeal. 7. In view of the discussion made hereinabove, we are inclined to suspend the sentences awarded to the appellant by the trial court during pendency of the appeal. 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 Special Judge, SC/ST (Prevention of Atrocities Cases), Udaipur vide judgment dated 08.08.2022 in Sessions Case No.26/2015 against the appellant-applicant Kishan Singh S/o Shri Shiv Singh Rajput shall remain suspended till final disposal of the aforesaid appeal and he shall be released on bail subject to the condition that he shall furnish 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 15.12.2022 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. 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.