Khursid vs State of Rajasthan

Mahesh Chandra Sharma, J.—The applicant Khurshid filed this third suspension bail application for suspending the sentence in S.B. Criminal Appeal No. 778 of 2009 filed by him along with other co-accused challenging the order of conviction and sentence dated 18.7.2009 of Addl. Sessions Judge (Fast Track No. 4) Bharatpur.

The accused applicant Khursid by the judgment of the Addl. Sessions Judge (Fast track No. 4) Bharatpur dated 18.7.2009 was convicted and sentenced as under:

Khursid son of Ayub was convicted u/s 399 IPC and sentenced to Five Years RI with fine of Rs. 3,000/- and in default to further suffer two months SI and further convicted u/s 402 IPC to suffer Three Years RI and fine of Rs. 2000 and in default of payment of fine to suffer two months SI. Accused Khursid was further convicted under Sections 3/25 of the Arms Act to suffer one year RI and fine of Rs. 1000/- and in default of payment of fine to suffer one year SI. All the sentences were ordered to run concurrently. For recovery of Rs. 7,85,000/- the trial court directed for further investigation.

Brief facts of the case are that on receiving information the police nabbed the accused persons and recovered from them Deshi Kattas and live cartridges and cash amounting to Rs. 7,85,000/-. The prosecution in support of its case recorded the statements of 10 witnesses and exhibited 18 documents. After concluding trial the accused applicant was convicted and sentenced by the trial court as mentioned above vide judgment dated 18.7.2009. Against the said judgment the accused Appellant preferred appeal along with other co-accused persons u/s 374 Code of Criminal Procedure and also filed application u/s 389 Code of Criminal Procedure for suspension of sentence. The application of suspension of sentence No. 829 of 2009 by the accused applicant and other co-accused persons was withdrawn and the same was rejected as withdrawn by this Court on 11.8.2009.

Thereafter the accused applicant Khursid moved 2nd application for suspension of sentence and by the order of this Court, his application was rejected on 31.8.2009. On 31.8.2009 this Court passed the following order:

It may be mentioned that against the order dated 31.8.2009 passed by this Court in the second suspension application No. 948/2009, the applicant Khursid filed SLP No. 21704 of 2010 and by the order dated 25.10.2010, the Hon''ble Apex Court dismissed the special leave Petitioner as withdrawn. However, the applicant was directed to move the High Court.

On 25.11.2010 the applicant Khursid filed this third application for suspension of sentence before this Court.

The learned Counsel for the applicant has submitted that in this case the maximum sentence awarded to the applicant is of 5 years RI and the accused Appellant is in jail since 18.7.2009. The accused Appellant was on bail during trial and he never misused the liberty of bail. It was further argued that in this case other co-accused persons namely Hazar and Farid son of Maamla have also filed Special Leave to Appeal before the Apex Court and the same was allowed and the sentence of the said co-accused persons was suspended vide order dated 15.11.2010. It was argued that the case of all the accused persons is identical. In such circumstances the counsel argued that the accused applicant may also be enlarged on bail while suspending his sentence during the pendency of the appeal.

On the other hand, the learned Public Prosecutor opposed the 3rd application for suspension of sentence by the accused applicant. The learned Public Prosecutor contended that the first application for suspension of sentence moved by the accused applicant was heard at length and after that the learned Counsel for the accused applicant withdrew the, application and on this the application was dismissed as withdrawn. In the second suspension application since the learned Counsel for the accused applicant has not submitted any fresh ground, which was not considered previously while deciding the earlier application for suspension of sentence, the second application for suspension of sentence was rejected. Against which the applicant filed SLP and the SLP was dismissed as withdrawn and the applicant was given liberty to move the High Court. The applicant in the third application for suspension of submitted that the other co-accused persons namely Hazar and Farid son of Maamla have also filed Special Leave to Appeal before the Apex Court and the same was allowed and the sentence of the said co-accused persons was suspended vide order dated 15.11.2010. The SLP submitted by the applicant was rejected on 25.10.2010 and by the subsequent order dated 15.11.2010 the co-accused persons have been released on bail and their sentences were suspended, is no ground for releasing the accused applicant in this case on his third application for suspension of sentence, The offence committed by the accused applicant is heinous and serious in nature and deshi kattas and huge amount in cash was recovered from him and other co-accused persons. Such types of crimes are increasing day by day and in the present scenario the trial court convicted and sentenced the accused applicant and other co-accused persons as mentioned above by the judgment dated 18.7.2009. This third application for suspension of sentence of the applicant should not be considered looking to the fact that his SLP was rejected and this Court while rejecting the second suspension application rejected the bail and directed that his appeal should be heard.

I have considered the arguments of the parties and also perused the judgment of conviction and the earlier orders of rejecting the application for suspension of sentence. No fresh ground has been raised by the accused applicant for suspending the sentence during the pendency of the appeal. It may also be mentioned that the accused Appellants Khurshid s/o Ayub and Farid son of Rah mat filed 2nd application for suspension of sentence No. 948/2009 and their 2nd application was rejected by this Court on August 31, 2009 by a detailed order. The SLP filed by the applicant was dismissed as withdrawn on 25.10.2010 and subsequently the SLP filed by the other co-accused persons was accepted by the order of the Apex Court dated 15.11.2010. In these circumstances, in my view in a case of heinous offence, the accused applicant, who''s SLP was rejected by the Apex Court, it is not fair for this Court to suspend his sentence and this application for suspension of sentence deserves to be rejected. As directed earlier while rejecting the second application for suspension of sentence, it is open for the applicant to move application for early listing of his appeal.

For these reasons, this third application for suspension of sentence moved by the applicant is rejected.