Rajasthan High Court - Jaipur
Gajendra Singh Urf Gajju vs State Of Rajasthan Through P.P on 13 December, 2012
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. J U D G M E N T 1) D.B.CR.MISC.BAIL APPLICATION FOR SUSPENSION OF SENTENCE NO.801/2012. IN D.B. CRIMINAL APPEAL NO.574/2012. Gajendra Singh @ Gajju Vs. State of Rajasthan 2) D.B.CR.MISC.BAIL APPLICATION FOR SUSPENSION OF SENTENCE NO.752/2012. IN D.B. CRIMINAL APPEAL NO.637/2012. Shabbir Mohammed Vs. State of Rajasthan 3) D.B.CR.MISC.BAIL APPLICATION FOR SUSPENSION OF SENTENCE NO.997/2012. IN D.B. CRIMINAL APPEAL NO.555/2012. Nafis Ahmed @Jumma & Ors. Vs. State of Rajasthan Date of Judgment : December 13, 2012. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ HON'BLE DR.JUSTICE SMT.MEENA V.GOMBER Shri Pradeep Choudhary, Shri Vinay Pal Yadav and Shri Rajesh Mootha for the applicant-appellants. Shri J.R. Bijarnia, Public Prosecutor. ****** BY THE COURT:-
These matters comes up on applications filed by the accused-appellants seeking their suspension of sentence awarded to them vide judgment dated 5/6/2012 by learned Additional District & Session Judge, Kekdi, District Ajmer whereby, accused-appellants Gajendra Singh @ Gajju, Shabbir Mohammed, Nafis Ahmed @Jumma, Dhanraj and Ram Chandra were convicted for offence u/S.395 IPC and sentenced to life imprisonment. They have also been convicted for offence u/S.342 IPC. Appeal of co-accused Kailash Chand, who was also convicted only for offence u/S.4/25 of the Arms Act, is not before us.
Learned counsel for the accused-appellants have argued that complainant/informant Bhag Chand in his statement as PW3 has not supported the prosecution case inasmuch as, in examination-in-chief as well as in cross-examination, he has not named the accused even though in the first information report, the accused were named. In respect of one of the accused, Shabbir, who is shown to have been identified by him in identification parade, he has stated that police had shown his photograph in advance. Khallasi of the truck PW4 Nathulal has also not supported the prosecution case and turned hostile. PW5 Gopal and PW8 Jumma Mohammed, witnesses of all recoveries have also not supported the recovery of various arms and other articles and not supported the prosecution case. Learned trial court has recorded categorical finding at page 38 of the impugned judgment that swords and country made katta were not used in the instant case for the purpose of dacoity. On this, learned counsel for the appellants has referred to the definition of dacoity and that of robbery given respectively under Sections 395 and 390 of IPC to argue that extortion is robbery only if the offence at the time of committing the extortion, is in the presence of the person put in fear and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint, which in the submission of the learned counsel for the appellants could not be possible without the use of the deadly weapons, has not found proved by trial court. It is contended that while Exh.P.2 is the site plan of the place of incident, which was prepared in the morning at 10.45 by the investigating officer PW17 Gangaram and the same witness claims to have recovered the seven tractors with trolla approximately at 6.00 p.m. from the vicinity of the same place. In his statement, he does not give any satisfactory explanation why he did not notice the same in the morning. It is alleged that recovery of the trolla was made from the possession of all six accused vide Exh.P.6 and their arrest has also been shown from the same place, which could not be believed especially when all the recoveries have not been supported by independent witnesses. There is no distinction between the case of co-accused Kailash Chand, who has been acquitted of offence u/S.395 IPC from that of other co-accused, who have been convicted for that offence. All the accused appellants were on bail during trial except, accused Ramchandra because he did not apply for bail; in other words, it is sought to be canvassed that his bail application was not rejected either by the trial court or this Court, pending trial.
Learned Public Prosecutor has opposed the bail applications for suspension of sentence and submitted that conviction of the accused appellants has rightly been recorded by the learned trial court on the basis of recovery of various articles including arms and trolla along with tractors and the documents relating to those vehicles and the identification of accused Shabbir.
Taking into consideration all the facts especially the findings recorded by the learned trial court at page 38 and totality of the circumstances and considering that accused appellants were on bail pending trial except one of the accused, who did not apply for bail and also considering that the appeals are not likely to be heard in near future, we are persuaded to suspend the sentence awarded to the accused appellants.
In the result, all the three bail applications for suspension of sentence filed u/S.389 Cr.P.C. are allowed and it is directed that the sentence awarded to applicants-appellants - Gajendra Singh @ Gajju S/o Shri Mohabbat Singh, Shabbir Mohammed S/o Sulekhan, Nafis Ahmed @Jumma S/o Shri Abdul Wahid, Dhanraj S/o Shri Ratan Lal and Ram Chandra S/o Shri Bhagu Ram in Sessions Case No.23/2010 shall remain suspended during the pendency of their respective criminal appeal provided, each of them furnishes a personal bond in the sum of Rs.50,000/- with two sureties in the sum of Rs.25,000/- each to the satisfaction of the trial Court for their appearance before this Court on 15/1/2013 and on all dates of hearing unless otherwise directed.
(DR.MEENA V.GOMBER), J. (MOHAMMAD RAFIQ), J. Anil/18-20
All corrections made in the judgment/order have been incorporated in the judgment/order being e-mailed Anil Kumar Goyal Sr.P.A. Cum J