Fula @ Fulchand vs State

The learned Public Prosecutor has chosen not to file reply to the application for suspension of sentences and proposes to argue the matter orally.

Heard learned counsel for the applicant-appellant as well as learned Public Prosecutor for the State and perused the material available on record.

Shri Naman Mohnot, learned counsel representing the applicant-appellant while pressing the application for suspension of sentences urges that the entire prosecution case as against the appellant is false and fabricated. The allegations levelled by the sole eye-witness Chatarlal (PW-4) that the accused-appellant inflicted a single lathi blow on the head of the deceased Amba Lal which proved fatal, is totally contradicted by the medical evidence as deposed by Dr. Vardi Chand PW-15. He urges that from the doctor's statement, it is apparent that large number of abrasions were noticed on various body parts of the deceased. As per admitted prosecution case, the deceased was sitting on a tractor when the incident took place. Thus, the possibility of injuries having been caused because of fall from a running tractor is more probable. He further submitted that injury found on the head of the deceased was not grievous in nature and the death occurred because of subdural hematoma. He further submits that if a lathi blow had launched on the head of the deceased, lacerated wound was bound to be noticed as an external injury and the total lack thereof rules out the prosecution theory that it is a case of death by blow of lathi. He thus, urges that the accused-appellant deserves to be granted indulgence of bail during pendency of appeal.

Learned Public Prosecutor vehemently and fervently opposed the submissions advanced by appellant's counsel. Nonetheless, he too is not in a position to dispute the fact that large number of abrasions and a subdural hematoma in the skull were noticed on the body of the deceased when postmortem was carried out but no external lacerated wound was observed on the dead body. Thus, there is merit in the contention of the appellant's counsel that there is a serious contradiction between the occular and the medical testimony.

Upon a consideration of the arguments advanced at bar and having regard to the facts and circumstances of the case, this Court is of the opinion that it is a fit case for suspending the sentences awarded to the accused appellant.

Accordingly, the application for suspension of sentence filed under Section 389 Cr.P.C. is allowed and it is ordered that the sentences passed by the learned Additional Sessions Judge No.5, Udaipur, vide judgment dated 14.08.2019 in Sessions Case No.148/2016 (CIS No.345/2016) against the appellant-applicant Fula @ Fulachand S/o Nanji Gameti 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.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 02.03.2020 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-

That he/she/they will appear before the trial Court in the month of January of every year till the appeal is decided.

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.

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 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.