Nathu Ram vs State

Learned Public Prosecutor Shri Anil Joshi has chosen not to file reply to the instant application for suspension of sentences.

Heard learned counsel for the applicant-appellant and learned Public Prosecutor and perused the impugned judgment as well as the record.

Shri Devendra Mahalana, learned counsel representing the applicant-appellant urged that there is hardly any evidence worth the name on record of the case so as to connect the appellant with the crime. He urged that the entire prosecution case which is based on circumstantial evidence is unbelievable and unworthy of credence. The IO tried to implicate the accused-applicant on the basis of recoveries of his own blood stained clothes; weapon of offence i.e., Kassi, mobile and purse allegedly belonging to the deceased Omprakash. He submitted that purse and mobile phone were not identified to be those of the deceased by any prosecution witness. The accused who was arrested at 4 O' clock, was not wearing the blood stained clothes when he was arrested and in the intervening time, he had ample opportunity to destroy the blood stained clothes. As per him, it is unbelievable that the accused would retain these worthless articles with him so as to create evidence against himself. He further urged that the accused-appellant is in custody for the last three and half years. He thus, craves acceptance of the instant application for suspension of sentences.

Learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the learned counsel representing the accused appellant. He contended that the accused had a strong motive to kill the deceased Omprakash as he was suspecting that the deceased used to talk his wife. He further contended that the accused has not explained the recoveries made at his instance which was stained with the blood group of the deceased. Hence, he does not deserve indulgence of bail during the pendency of the appeal.

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

Ex-facie, since no allegation of motive was set out in the written report (Ex.P/29), the prosecution theory regarding the accused having a motive to kill the deceased comes under a scanner of doubt. Whether or not the evidence of recoveries referred to supra would be sufficient to uphold the conviction of accused appellant would be for this Court to decide when the appeal is finally heard. However, significant it is to note that the mobile phone and the purse recovered at the instance of the accused were not identified by any prosecution witness to be those belonging to the deceased.

In this background, we are of the view that the appellant has available to him, strong grounds for assailing the impugned judgment of conviction. Hearing of the apeal is likely to consume time. Thus, we are inclined to suspend the sentences awarded to the accused-appellant by the trial court, during pendency of appeal.

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 learned Addl. Sessions Judge, Sojat, District Pali vide judgment dated 04.11.2016 in Sessions Case No.03/2016 against the appellant-applicant Nathuram S/o Kaluram shall remain suspended till final disposal of the aforesaid appeal and he shall be released on bail, provided he executes 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 05.09.2019 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.