Hemchand vs State, Through P.P.

The instant application under Section 389 CrPC for suspension of sentences has been preferred on behalf of the appellant-applicant Hemchand, who has been convicted and sentenced vide judgment dated 31.10.2019 passed by the learned Sessions Judge, Dungarpur in Sessions Case No.206/2017 for the offences under Sections 302/34 and 341 IPC.

Heard learned counsel for the parties and perused the material available on record.

Learned counsel Mr. J.V.S. Deora, representing the appellant-applicant, submits that as per the admitted prosecution case revealed from the statements of the eye-witnesses Kawa (P.W.1), Narayan (P.W.5), Chetan (P.W.7) and Ejan (P.W.8), it is clear that the appellant herein was unarmed during the incident.

The specific allegation of the star prosecution witness Kawa (P.W.1) regarding the fatal blunt weapon injuries caused to the deceased is ascribed to Ramesh and Ratana. The appellant and the co-accused Rakesh (juvenile) were admittedly unarmed during the incident. He, thus, urges that the appellant herein, who was on bail during trial, deserves same indulgence during pendency of this appeal.

Per contra, learned Public Prosecutor though opposed the submissions advanced by Mr. Deora, but he too does not dispute the fact that as per the prosecution allegations set out in the evidence of the first informant Kawa and other material witnesses, the appellant-applicant Hemchand was unarmed during the incident. He is alleged to have inflicted kick blows to the deceased Harish. As per the evidence of the medical officer Dr. Rajesh Saraiya (P.W.14), the deceased was found having three lacerated wounds on his body, which were caused by blunt weapons.

In this view of the matter, we are of the opinion that the case of the appellant-applicant Hemchand is distinguishable from that of the co-accused Ramesh and Ratana and he deserves indulgence of suspension of sentences during pendency of the appeal.

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 Sessions Judge, Dungarpur vide judgment dated 31.10.2019 in Sessions Case No.206/2017 against the appellant-applicant Hemchand S/o Ramesh 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 28.02.2020 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-

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

That if the applicant changes the place of residence, he will give in writing his 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 in a separate file. Such file be registered as Criminal Misc. Case related 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 be taken into account for statistical purpose relating to pendency and disposal of cases in the trial court. In case the said accused applicant does not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of bail.