Rajasthan High Court - Jodhpur
Rakesh Kumar vs The State Of Rajasthan ... on 17 January, 2024
Bench: Arun Bhansali, Yogendra Kumar Purohit
[2024:RJ-JD:2773-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 1497/2023
Rakesh Kumar S/o Umaram, Aged About 28 Years, R/o Bana,
Police Station Shri Dungargarh, District Bikaner. (At Present
Lodged In Central Jail, Bikaner)
----Petitioner
Versus
The State Of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Mr. H.S.S.Kharlia, Sr. Advocate with
Ms. Kinjal Purohit &
Mr. Rajendra Kachhawa.
For Respondent(s) : Mr. B.R.Bishnoi, P.P.
Mr. J.S.Choudhary, Sr. Advocate with
Mr. Pradeep Choudhary &
Mr. Amardeep Lamba.
HON'BLE MR. JUSTICE ARUN BHANSALI
HON'BLE MR. JUSTICE YOGENDRA KUMAR PUROHIT Order 17/01/2024
1. The appellant herein has been convicted and sentenced as below vide judgment dated 21/8/2023 passed by the learned Additional Sessions Judge, Sri Dungargarh District Bikaner, in Session Case No.3/2016 (CIS No. 48/2016):
Offences Sentence Fine 302/34 IPC Life Imprisonment Rs.20,000/- and in default of which to further undergo one month's simple imprisonment 397/34 IPC Seven years' R.I. 201/34 IPC Seven years' R.I. Rs.10,000/- and in default of which to further undergo one month's simple imprisonment (Downloaded on 28/01/2024 at 08:30:45 PM) [2024:RJ-JD:2773-DB] (2 of 6) [SOSA-1497/2023]
2. The appellant-applicant has preferred the application for suspension of sentence under Section 389 Cr.P.C. for being released on bail during the pendency of the appeal.
3. It is submitted by learned counsel for the applicant that the applicant is in custody now for over 08 years. The judgment of the trial court is against law and facts of the case.
4. Submissions have been made that the alleged confession made by the co-accused Shanker Lal is an extra judicial confession, which is inadmissible in evidence under Sections 25 & 26 of the Indian Evidence Act, 1872 and cannot be used against the applicant.
5. Further submissions have been made that the entire story of the confession made by Shanker Lal before Bhanwar Lal - father of the deceased, Poonam Chand and Om Prakash is belied based on statement of P.W.11, SHO of Police Station, Jalupura. Further submissions have been made that there is no evidence available on record connecting the applicant to the murder of Ram Niwas, as none of the circumstance found against the applicant connects him to the murder.
6. Further submissions have been made that the entire case has been foisted against the applicant based on the footprints mould taken from near the dead body, however, none of the safeguards, as laid down by various courts have been followed while taking the footprints and proving the same before the court.
7. It was submitted that the CCTV footage relied on also nowhere connects the applicant to the allegations made.
8. It was submitted that at best the case against the applicant does not travel beyond Section 201 IPC, where the maximum (Downloaded on 28/01/2024 at 08:30:45 PM) [2024:RJ-JD:2773-DB] (3 of 6) [SOSA-1497/2023] sentence is 07 years and as the applicant has already suffered 08 years imprisonment, looking to his age and the fact that hearing of the appeal is likely to take sufficiently long time, he may be enlarged on bail.
9. Learned Public Prosecutor and counsel appearing for the complainant vehemently opposed the submissions.
10. It was submitted that the plea raised by the applicant has no basis, the confession made by Shanker Lal before Bhanwar Lal - father of the deceased, Poonam Chand and Om Prakash is very much admissible in evidence as said Shanker Lal was not in custody.
11. Further submissions have been made that statement of P.W. 16 clearly indicates that the applicant, who was driving Bolero Pickup, had come to Rajaldesar from where the deceased went with Shanker Lal, Ram Niwas and applicant and was ultimately found dead by strangulation and, therefore, the plea of innocence sought to be projected by the applicant has no substance.
12. Further submissions have been made that the evidence of footprints mould from near the dead body have been found by the FSL as pertaining to the applicant, which clearly shows his presence near the dead body.
13. Submissions were made that looking to the nature of offence committed, the application be rejected.
14. We have considered the submissions made by learned counsel for the parties and have perused the material available along with record of the case.
15. The allegations in the FIR lodged by the brother of the deceased indicates that Shanker Lal, co-accused, inter alia (Downloaded on 28/01/2024 at 08:30:45 PM) [2024:RJ-JD:2773-DB] (4 of 6) [SOSA-1497/2023] confessed having committed the murder of Ram Niwas, his brother, to Bhanwar Lal - his father, along with Poonam Chand and Om Prakash and specifically indicated that the applicant Rakesh was called and he along with Rakesh and another Ram Niwas murdered his son and the body was thrown near 'Khaki Dhora'.
16. The sequence of events indicated are that the deceased Ram Niwas started from Jaipur with Shanker Lal and Ram Niwas and near Rajalsdesar they had called applicant - Rakesh, who came there with Bolero pickup and three of them travelled with deceased Ram Niwas and committed his murder and threw the body. For introducing applicant Rakesh, reliance has been placed on statement of P.W.16 - Madan Ram, who is having a 'Dhaba' near Rajaldesar, wherein, he indicated that three persons were travelling in Maruti vehicle and about after an hour, a Bolaro pickup came and said Maruti was towed by the said Bolaro pickup and the same went towards Dungargarh. Madan Ram in his statement has only referred to Bolaro coming to his 'Dhaba', he has neither named Rakesh nor identified him. Further, even the CCTV Footage of the Toll Plaza produced does not indicate presence of Rakesh.
16. On going through the material available, as the case essentially is based on circumstantial evidence, as to whether even when Rakesh allegedly came on the scene, whether Ram Niwas was already dead or he died after Rakesh came on the scene is not very clear/specific as the prosecution has failed to indicate the spot where the murder actually took place and has recovered the dead body from near 'Khaki Dhora'. The fact that footprints moulds, which were taken from near the dead body had (Downloaded on 28/01/2024 at 08:30:45 PM) [2024:RJ-JD:2773-DB] (5 of 6) [SOSA-1497/2023] matched with that of the applicant by itself cannot prove his involvement in murder of the deceased. The plea raised by counsel for the applicant that the case against the applicant, at best, does not travel beyond Section 201 IPC and that the applicant has already undergone the maximum sentence provided for such offence, gains credence.
17. Having considered the totality of the facts and circumstances of the case and after carefully scrutinizing the record of the case, without making any observations on merits of the case, we are inclined to suspend the substantive sentence of the appellant- applicant - Rakesh Kumar s/o Umaram during the pendency of the appeal.
18. Accordingly, the instant application for suspension of sentence filed under Section 389 Cr.P.C. is allowed and it is ordered that substantive sentence passed by the Additional Sessions Judge, Sri Dungargarh, District Bikaner, in Session Case No.3/2016 (CIS No. 48/2016) against the appellant-applicant- Rakesh Kumar s/o Umaram 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.1,00,000/- with two sureties of Rs.50,000/- each to the satisfaction of learned trial Judge for his appearance in this court on 19/2/2024 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:
1. That he will appear before the trial court in the month of January of every year till the appeal is decided.
2. That if the applicant changes the place of residence, he will give in writing his changed address to (Downloaded on 28/01/2024 at 08:30:45 PM) [2024:RJ-JD:2773-DB] (6 of 6) [SOSA-1497/2023] 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.
19. The learned trial court shall keep the record of attendance of the accused-applicant in a separate file. Such file be registered as Criminal Misc. Case relating to original case in which the accused- applicant was tried and convicted. A copy of this order shall also be placed in that file for ready reference. Criminal Misc. file shall not been taken into account for statistical purpose relating to pendency and disposal of the cases in the trial court. In case the said accused-applicant does not appear before the trial court, learned trial Judge shall report the matter to the High Court for cancellation of bail.
(YOGENDRA KUMAR PUROHIT),J (ARUN BHANSALI),J 87-baweja/-
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