Rajasthan High Court - Jodhpur
Mahipaal vs State Of Rajasthan on 22 September, 2022
Bench: Sandeep Mehta, Farjand Ali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 477/2022
Mahipaal S/o Sh. Baldevram, Aged About 22 Years, Dhingsara,
P.s. Sadar Nagaur, Dist. Nagaur, Raj. (Presently Lodged In
Central Jail, Jodhpur).
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Mr. Deepak Menaria, assisted by
Mr. V.K. Gaur & Mr. Mohammed
Rasheed
For Respondent(s) : Mr. B.R. Bishnoi, PP
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE FARJAND ALI Order 22/09/2022 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 28.02.2022 passed by learned Addl. Sessions Judge, Jaitaran, Pali in Sessions Case No.39/2018:
Offence Under Imprisonment Fine Sentence in Section default of fine 302 IPC Life imprisonment Rs.5,000/- 6 Months' SI 460 IPC Life Imprisonment Rs.5,000/- 6 Months' SI 120 B IPC Life Imprisonment Rs.5,000/- 6 Months' SI 148 IPC 3 Years' RI Rs.2,000/- 2 Months' SI All the sentences were ordered to run concurrently.(Downloaded on 23/09/2022 at 12:39:44 AM)
(2 of 5) [SOSA-477/2022] Learned Public Prosecutor has filed reply to the application for suspension of sentences.
By the very same judgment, the trial court convicted the co-accused Hanumanram, Ramnarayan, Smt. Sundari, Mamta and Sushila and sentenced them to life imprisonment as well.
The prosecution has come out with a case that the accused Sundari, Mamta and Sushila, wife and daughters respectively of Shri Babulal conspired with the remaining accused persons including the appellant herein to get Shri Babulal murdered. Acting in furtherance of the said conspiracy, certain unknown assailants entered into the house of Shri Babulal on the night of 18.06.2018. They were armed with sharp weapons. They assaulted and killed Babulal in the courtyard of his house. The FIR of this incident was lodged by Shri Ramlal, grandson of Shri Babulal. The appellant and the co-accused persons were arrested and based on certain incriminating recoveries and inference of conspiracy, charge-sheet came to be filed in the trial court for the offences punishable under Sections 147, 148, 302/114, 460/114, 120B and 182 IPC.
Shri Deepak Menaria, Advocate assisted by Shri V.K. Gaur and Shri Mohammed Rasheed representing the appellant, vehemently and fervently contended that there is no evidence worth the name on record of the case so as to connect the appellant with the crime. Stronger evidence was available against Ramnarayan, Hanumanram, Sundari, Sushila, Mamta who have since been enlarged on bail. He criticized the finding recorded by the trial court at para No.82 of the impugned judgment whereby, the trial court drew adverse inference against the accused persons on the basis of Section 106 of the Evidence Act. Shri Menaria also drew the Court's attention to the finding recorded by the trial (Downloaded on 23/09/2022 at 12:39:44 AM) (3 of 5) [SOSA-477/2022] court at Para No.79 of the impugned judgment wherein, the inference of culpability was drawn by the trial court on the basis of the call detail record. He submitted that the trial court observed at the said paragraph of the judgment that the accused Mamta was holding the mobile phone No.7414845669 whereas the accused Mahipal was holding the mobile phone No.8696234097 and that both talked to each other on numerous occasions on 18.06.2018 and location was also nearby the place of incident. Shri Menaria submitted that call detail record was never proved by the prosecution and as such this finding of the trial court is absolutely perfunctory and laconic. He submitted that the axe recovered at the instance of the accused appellant did not test positive for any blood group. Sharp weapons were also recovered on the basis of the informations provided by the accused Hanumanram and Ramnarayan who have since been enlarged on bail. He thus urged that the appellant too deserves indulgence of bail during pendency of the appeal.
Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the appellant's counsel. However, he too was candid in conceding that the call detail record was not exhibited at the trial and thus, the finding recorded by the trial court drawing inferences against the accused on the basis thereof is perfunctory and laconic. A perusal of the FSL report (Ex.P/70) would indicate that the axe recovered at the instance of the accused-appellant Mahipal was not conclusive regarding blood group.
In this background and having regard to the overall facts and circumstances as narrated above, we are of the opinion that the case of the accused appellant herein stands on better footing then (Downloaded on 23/09/2022 at 12:39:44 AM) (4 of 5) [SOSA-477/2022] that of the co-accused Ramnarayan and Hanumanram whose sentences have been suspended by this Court. The appellant is in custody for the last more than four years. Hearing of the appeal is likely to consume time.
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 Addl. Sessions Judge, Jaitaran, District Pali vide judgment dated 28.02.2022 in Sessions Case No.39/2018 against the appellant Mahipaal S/o Shri Baldevram 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 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 21.10.2022 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.
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 (Downloaded on 23/09/2022 at 12:39:44 AM) (5 of 5) [SOSA-477/2022] 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.
(FARJAND ALI),J (SANDEEP MEHTA),J
24-Sudhir Asopa/-
(Downloaded on 23/09/2022 at 12:39:44 AM)
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