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2022 DIGILAW 499 (RAJ)

Prakash v. State

2022-02-14

SANDEEP MEHTA, VINOD KUMAR BHARWANI

body2022
JUDGMENT 1. The instant application for suspension of sentences has been preferred on behalf of the appellant applicant under Section 389 Cr.P.C. who has been convicted and sentenced as below vide judgment dated 04.09.2021 passed by the learned additional Sessions Judge, No.6, Jodhpur Metropolitan in Sessions Case No.74/2017: Offences Sentences Fine Section 302 IPC Life Imprisonment. Rs.10,000/- in default of which to further undergo 6 Months' additional Imprisonment Section 364 IPC 10 Years' R.I. Rs.10,000/- in default of which to further undergo 6 Months' additional Imprisonment 2. Learned Public Prosecutor has filed reply to the application for suspension of sentences. 3. We have heard and considered the submissions advanced at bar and have gone through the record. 4. Learned counsel Shri acharya representing the appellant vehemently and fervently contended that there is no evidence to connect the appellant with the crime. The case set up by the prosecution regarding the alleged murder of Bhagwan Ram is based purely on circumstantial evidence. The trial court placed reliance on the Rojnamcha entry (Ex.P/22) wherein, it is recorded that the appellant himself appeared at the Police Station Soorsagar and confessed to have murdered his cousin brother Bhagwan Ram by strangulating him. Shri acharya drew the Court's attention to the statement of the SHO Nitin Dave (PW-25), who was not made to prove the said Rojnamcha Entry in his examination-in-chief. The SHO admitted in his cross-examination that the original Rojnamcha entry was not available on the record. He did not include the same with the file and that copy (Ex.P/22) did not bear his signatures. The witness rather admitted that he could not say as to when document (Ex.P/22) was proved. Shri acharya also drew the Court's attention to the other investigating officer Krishan Chandra (PW-24) who admitted in his statement that the Rojnamcha entry (Ex.P/22) was taken on record on 18.02.2017 whereas the incident took place on 18.12.2016. Shri acharya submitted that the evidence of the witnesses of last seen is not reliable. The recoveries of rope and chain effected from the appellant is of no avail because these articles were not sent for serological examination. He thus urges that the appellant has available to him strong grounds for assailing the impugned judgment. The appellant is in custody from 19.12.2016. Hearing of the appeal is likely to consume time. The recoveries of rope and chain effected from the appellant is of no avail because these articles were not sent for serological examination. He thus urges that the appellant has available to him strong grounds for assailing the impugned judgment. The appellant is in custody from 19.12.2016. Hearing of the appeal is likely to consume time. On these submissions, Shri acharya sought acceptance of the application for suspension of sentences craving bail for the appellant during pendency of the appeal. 5. On the other hand, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the appellant's counsel. However, he too is not in a position to dispute the fact that the Rojnamcha Entry (Ex.P/22) on which, the trial court placed heavy reliance for convicting the appellant was not proved as per law. The document which is available on record is simply a hand-written one with no endorsement of it being a certified copy. The SHO Nitin Dave (PW-25) admitted in his cross-examination that he did not sign the document. The document does bear the signatures of the accused as well. Even if the original had been proved, the defence would have been well within its right to claim that the document (Ex.P/22) is nothing but a confession of the accused recorded by the police officials. There are significant contradictions in the statements of the witnesses of last seen PW-1 Hanuman, PW-2 Kailash, etc. Few other witnesses of last seen namely Babulal (PW-7), Pushpa (PW-8), Manju (PW-9), ashok (PW-10) did not support the prosecution case and were declared hostile. The articles (rope and chain) recovered at the instance of the appellant were not sent for forensic/serological examination. 6. Having considered the entirety of the circumstances as available on record, we are of the opinion that the appellant has available to him strong and plausible grounds so as to assail the impugned judgment. Hearing of the appeal is unlikely in the near future. The appellant is in custody since December, 2016. 7. Thus, having regard to the overall facts and circumstances available on record and, we are inclined to enlarge the appellant on bail while suspending the sentences awarded to him by the trial court, during pendency of the appeal. 8. Hearing of the appeal is unlikely in the near future. The appellant is in custody since December, 2016. 7. Thus, having regard to the overall facts and circumstances available on record and, we are inclined to enlarge the appellant on bail while suspending the sentences awarded to him by the trial court, during pendency of the appeal. 8. 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 additional Sessions Judge, No.6, Jodhpur Metropolitan, vide judgment dated 04.09.2021 in Sessions Case No.74/2017 against the appellant- applicant Prakash, 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 14.03.2022 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:- 9. 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. 9. 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.