Nandu @ Nand Kishore vs State Of Rajasthan

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

Learned Public Prosecutor was given sufficient opportunity for filing reply to the application for suspension of sentences, but he has chosen not to do so and proposes to argue the matter orally.

The appellant-applicant has been convicted and sentenced vide judgment dated 31.10.2020 passed by the Additional Sessions Judge, Banswara in Sessions Case No. 464/2014, as below:

Section 302       r/w        Section 120-B of IPC Life Imprisonment with fine ofRs.10,000/- and in default Of payment of fine further 6 months' additional S.I.

Section 201       r/w        Section 7 120-B of IPC 7 years' rigorous imprisonmentand Rs.5,000/- of fine and in default of payment of fine, three months' additional S.I.

Both the sentences were ordered to run concurrently. Learned counsel Shri Mehra urges that the entire prosecution case involving the alleged of murder of one Pradeep Soni is based on circumstantial evidence which is totally flimsy and unbelievable, so far as the appellant is concerned. He contented that the dead body was found near a canal on the Udaipur road on 11.08.2013. The appellant herein and the co-accused persons were arrested and three witnesses namely Rakesh, Aarif Khan and Yusuf Khan gave evidence to the Investigating Officer divulging that the accused persons, i.e. Prateek Bhandari and Gopal Gwala, were lastly seen together with the deceased Pradeep Soni. He points out that so far as Gopal Gwala is concerned, the trial Court has acquitted him from charge under Section 302 IPC and instead he was convicted for the offence under Section 201 IPC read with Section 120-B of IPC and was awarded seven years' rigorous imprisonment. He further submits that the witnesses Rakesh (PW-5), Aarif (PW-6) and Yusuf Khan (PW-7) referred to supra, when examined on oath, did not support the prosecution story and were declared hostile. He further points out that the trial Court did not rely upon the call detail records because neither the certificate under Section 65-B was procured by the IO nor was any other evidence collected to affirm that the sims in question were issued in the name of accused. He urges that the sole witness on whose testimony, the trial Court has concluded the circumstance of last seen against the appellant namely Lokendra (PW-11) has given totally flimsy and unbelievable evidence. The version of Lokendra that the accused and the deceased were seen together on fateful night is primarily based on the information given to him by the witness Rakesh, who did not support the prosecution case and thus, the evidence of Lokendra is purely hearsay. He submits that the appellant was on bail during trial and he did not misuse the liberty so granted to him. As per Shri Mehra, the appellant has available strong grounds so as to challenge the impugned judgment and the hearing of the appeal is likely to consume time, therefore, the appellant deserves indulgence of bail during pendency of the appeal.

Per contra, learned Public Prosecutor and the learned counsel for the complainant have vehemently and fervently opposed the averments advanced by the appellant's counsel. Learned counsel for the complainant contended that from the testimony of Lokendra (PW-11), it is clear that the deceased was lastly seen in the company of Prateek Bhandari, Gopal Gwala and the appellant herein. However, the appellant did not offer any explanation as to how, under what circumstances, Pradeep Soni was found dead with marks of violence. Thus, he seeks dismissal of the application for suspension of sentences.

We have given our thougtful consideration to the impugned judgment and the record. Suffice it to say that upon going through the entire judgment of the trial Court, it is clear that the only significant circumstance on the basis of which, the appellant has been convicted in this case, is that of last seen. PW-11 Lokendra is the only witness who made semblance of an allegation regarding the appellant having been seen in the company of the deceased with the co-accused persons. However, Lokendra himself categorically stated in his testimony that this information was provided to him by the witness Rakesh, who did not support the prosecution case and was declared hostile. The assertion made by the witness that he himself saw the accused and the victim together becomes questionable when his cross-examination is seen.

In this background, we are inclined to suspend the sentences awarded to the appellant-applicant by the learned trial court.

Accordingly, the instant application for suspension of sentences filed under Section 389 Cr.P.C. is allowed and it is ordered that the sentences passed by the Additional Sessions Judge, Banswara in Sessions Case No. 464/2014 (CIS No.464/2014) against the appellant-applicant Nandu @ Nand Kishore S/o Mohan Lal Phulwali, 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 06.04.2021 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(s) 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.