Balu Lal vs State Of Rajasthan

Accused appellant has led this third application under Section 389 Cr.P.C. for seeking suspension of sentence handed down by Additional Sessions Judge No.2, Bhilwara (for short "learned trial court") vide its judgment dated 23.02.2017.

The learned trial court by the impugned judgment indicted appellant for offence under Sections 364 read with 120-B, 302 read with 120-B and 201 read with 120-B IPC while acquitting for offence under Section 394 IPC. The first application for suspension of sentence was dismissed on 07.07.2017 as not pressed followed by second application on 12.03.2018 also as not pressed.

Arguing on third bail application for suspension of sentence, learned counsel for the appellant harped on prolonged custody of the appellant inasmuch as according to him the appellant was arrested on 14.12.2013 and since then, he is behind the bars. It is also contended by learned counsel that essentially the entire prosecution case is founded on circumstantial evidence and during trial, the prosecution has not been able to prove the complete chain so as to establish his culpability for the charged offence. It is also argued by the learned counsel that although the prosecution has tendered evidence of last seen witness but it has not be able to substantiate the recovery of purse of the deceased from the appellant.

It is also argued by the learned counsel that no recovery of any weapon of offence is being made from the appellant and the learned trial court while relying on circumstantial evidence has not at all cared to examine serious loopholes and pitfalls in the prosecution evidence for recording culpability of the appellant. Lastly, it is submitted by the learned counsel that essentially, the appellant is convicted for all these offences precisely by showing his nexus with the crime on the anvil of being one of the conspirator but the requisite ingredients for conspiracy were not discernible from the evidence tendered by the prosecution.

Per contra, learned Public Prosecutor has vehemently opposed the application for suspension of sentence. However, learned Public Prosecutor submits that the case is essentially edificed on circumstantial evidence and the evidence of last seen is very much available against the appellant.

We have bestowed my consideration to the arguments advanced at Bar. Taking into consideration the factum of prolonged custody of the appellant coupled with the alleged loopholes and pitfalls in the prosecution evidence to show establishment of guilt against the appellant as concluded by the learned trial court, we feel persuaded to suspend the sentence. Therefore, having regard to the facts and circumstances of the case while refraining to make any comment on the merits of the case at this stage, it would be just and proper to accept this third bail application for suspension of sentence.

Accordingly, the present application for suspension of sentence is allowed and it is ordered that the sentence passed by learned Additional Sessions Judge No.2, Bhilwara vide his judgment dated 23.02.2017 in Sessions Case No.4/2014 against the appellant Balu Lal son of Mohan Nayak shall remain suspended till the final disposal of the aforesaid criminal appeal provided he executes a personal bond in the sum of Rs.50,000/- along with two sureties in the like amount each to the satisfaction of the learned trial court for his appearance in this Court on 25.03.2019 and subsequently before the trial court on the following conditions:-

That he will appear before the trial court in the month of January every year till the appeal is decided.

That if the appellant changes the place of residence, he will give the changed address in writing to the trial court, High Court as well as to his counsel in the High Court.

Similarly if sureties change his address, they will give in writing his changed address to the trial court.

The learned trial court shall keep the record of attendance of the accused appellant in a separate file. Such file be registered as Criminal Misc. Case related to the Sessions Case in which the accused appellant was 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 appellant does not appear before the trial court, the learned trial judge shall report the matter to the High Court for cancellation of bail.