Kokiya vs State Of Rajasthan

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

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

Shri Shambhoo Singh, learned counsel while pressing the application for suspension of sentences on behalf of the accused-applicant-Kokiya urges that

as many as 21 assailants were named in the FIR (EX.P-1) lodged by Roopa brother of deceased Megha. He submits that neither in the FIR nor in the

evidence of eye-witnesses, there exists any allegation that the accused-appellant inflicted any blow to the deceased Megha. He further submits that in

the FIR as well as in the evidence of eye witnesses, it is alleged that applicant appellant inflicted a sword blow on the neck of Lala. As per him, this

allegation is totally contradicted by the operation note (Ex.P-20) and the evidence of medical jurist Dr. Anupam Johari (P.W.18) and the surgeon Dr.

Vinay (P.W.19). He submits that as per the operation note and the evidence of the doctors, the injury on the neck of the injured Lala was caused by

an arrow head which was recovered embedded inside the wound when the surgical procedure was carried out. He submits that ten accused were

charge-sheeted by the police of which, seven have been acquitted. The medical evidence does not support the allegation against the applicant-

appellant herein, as the role attributed to the accused-appellant by the prosecution witnesses is totally contradicted by the evidence of the doctors

referred to supra. The applicant appellant was on bail during trial and thus, he deserves the same indulgence during pendency of the appeal.

Per contra, learned Public Prosecutor has vehemently and fervently opposed the submissions advanced by the counsel for the applicant-appellant. He

urges that the eye-witnesses as well as the injured Lala himself have clearly alleged that the accused-appellant inflicted the sword blow on the neck of

Lala which was life endangering. He urges that Lala’s life could only be saved by timely surgical intervention. He thus implored the Court to

reject the application for suspension of sentences filed on behalf of accused-appellant.

We have given our thoughtful consideration to the arguments advanced at bar and have gone through the material available on record.

It is not in dispute that as many as 20 assailants were named in the FIR of which, ten including the appellant-applicant were charge-sheeted. The

prosecution witnesses including the injured Lala himself attributed a specific role to the appellant-applicant alleging that he inflicted a sword blow on

the neck of Lala. However, when Lala was medically examined and subjected to surgery by Dr. Vinay Nathani (P.W. 19), it was found that the neck

injury caused to him was a result of the blow by an arrow head which was recovered from inside the wound.

In this background and, considering these significant discrepancies in the prosecution evidence, we feel that the appellant-applicant deserves

indulgence of bail during the pendency of the appeal.

Accordingly, the application for suspension of sentences filed on behalf of appellant-applicant Kokiya is accepted and it is ordered that the sentences

passed by the learned Addl. Sessions Judge No.5, Udaipur vide judgment dated 25.02.2019 in Sessions Case No.130/2016 (CIS No.311/2018) against

the appellant-applicant Kokiya S/o Kheta Garasiya, 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 09.08.2019 and whenever ordered to do so till the final 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(s) does not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of

bail.