Rajasthan High Court - Jaipur
Ramavtar vs State Of Rajasthan Through Pp on 21 February, 2013
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. CR. MISC. SUSP. OF SENT. APP. NO.121/2013 IN D.B. CRIMINAL APPEAL NO.505/2012 Ramavtar Vs. State Date of order : 21/02/2013. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ HON'BLE MR.JUSTICE JAINENDRA KUMAR RANKA Shri A.K. Gupta for the accused-appellant. Smt. Rekha Madnani, PP for State. ******
This application for suspension of sentence has been filed by accused-appellant Ramavtar, who along with two other co-accused namely; Laxman and Devkishan, has been convicted for offence u/s.302 simplicitor and sentenced to life imprisonment. He has also been convicted under Section 201 and 404 IPC and sentenced separately for those offences.
Shri A.K. Gupta, learned counsel for the appellant has argued that while PW-3 Panchu and PW-4 Phoola Devi father and mother of the deceased respectively have stated that three persons came on two motorcycles and deceased accompanied them, but they have named only one accused Devkishan, who came inside their house. For other two, in their court statement, all that they have said is that one of them was a Gurjar by caste and another was Kumawat. In their police statement under Section 161 Cr.P.C., they named all three accused, however, in Court statement they have stated that they knew only Devkishan from before and they did not know the other two accused by name. Learned counsel argued that only two circumstances have been relied against the appellant by the learned trial Judge in convicting them; one is that of last seen evidence and other is recovery of ear ring, blood stained brick and shirt of deceased. Neither of two motbir witnesses namely; Kan Singh and Shub Karan, of recovery of ear rings vide Ex.P10, have been produced in evidence. The recovery of blood stained shirt is made vide Ex.P27 and blood stained brick is made vide Ex.P16. PW-8 Ganesh, the motbir witness to this recovery has stated that when recovery was made, he was the only one available at the given place and police had already brought one iron rod and two bricks whereas PW-9 Narayan has stated that police got his signatures on the papers with regard to memo of recovery etc. 3-4 days thereafter and it was at that time that another motbir witness Ganesh and accused Ramavtar were also made to sign those documents. The iron rod has been shown recovered at the instance of co-accused Dev Kishan vide Ex.P15 and not from the accused Ramavtar. Learned counsel has submitted that none of the aforesaid motbir witnesses have stated that recovered articles were sealed from the place of incident, nor the Investigation Officer PW-11 in his statement stated that they were sealed. PW-12 Ramjilal, the Malkhana Incharge has stated that he received and gave these articles to HC Kaluram for being sent to FSL in sealed condition. None of the articles, whether shirt or ear rings have been got identified from PW-3 Panchu, PW-4 Phula Devi and PW-5 Kana Ram to prove that they in fact belonged to the deceased. In fact, PW-3 Panchu in cross examination has stated that he did not remember what clothes the deceased was wearing when he left the house. It is argued that PW-3 Panchu and PW-4 Panchu Devi have also not identified either accused-appellant Ramavtar or co-accused Laxman even in court and all through out, they have been consistent only in regard to involvement of co-accused Dev Kishan.
It is contended that the chain of circumstances against accused-appellant cannot be said to be so complete as to rule out every other hypothesis that may be compitable with his innocence. In the facts like these, considering the fact that the appellant has already remained in jail for last more than three years and six months and hearing of the appeal is likely to take a long time, the sentence awarded to the accused-appellant deserves to be suspended.
Learned Public Prosecutor opposed the application for suspension of sentence and submitted that apart from the evidence of last seen, recovery of blood stained shirt and brick was made at the instance of the accused-appellant Ramavtar. Even in postmortem report Ex.P28, the deceased was shown having injuries on his both ears which proves that his ear rings were taken away by the accused. The test identification parade was not got conducted by the Investigating Officer because PW-3 Panchu and PW-4 Phoola Devi in their initial statement under Section 161 Cr.P.C. named all three accused. There was thus no necessity of conducting the same. Minor contradictions in the statements of the witnesses should be overlooked, particularly when recovery and circumstance of last seen have been conclusively proved against the appellant.
Taking into consideration all the facts and circumstances of the case and considering the fact that the case of the petitioner Ramavtar is distinguishable from that of co-accused Dev Kishan and also keeping in view the arguments advanced on behalf of accused-appellant as noted aforesaid and that there is no likelihood that the appeal will be heard in near future, but without expressing any opinion on the merits of the case, we are persuaded to suspend the sentence awarded to the accused appellant during pendency of the appeal.
Accordingly the application for suspension of sentence is allowed.
It is ordered that the sentence awarded by the learned trial court to the accused appellant Ramavtar S/o Surajmal in Sessions Case No.45/2009, shall remain suspended till the final disposal of the appeal; provided he executes a personal bond in the sum of Rs.50,000/- along with two sureties in the sum of Rs.25,000/- each to the satisfaction of the trial court for his appearance in this Court on 21.3.2013 and whenever called upon to do so.
RS/ (JAINENDRA KUMAR RANKA), J. (MOHAMMAD RAFIQ), J.
All corrections made in the judgement/order have been incorporated in the judgement/order being emailed. (Ravi Sharma,P.A.)