Phularam vs State Of Rajasthan

The first application for suspension of sentence filed on behalf of the applicant-appellant Phularam was rejected on 29.09.2016 more than two years have passed thereafter but the appeal has not been listed yet for hearing.

Learned Public Prosecutor has chosen not to file reply despite opportunity and proposes to argue the matter orally.

Learned counsel Shri Shah submits that as per the highest case set up by the prosecution in the statements of the eye-witnesses viz., PW-6 Gala Bhai, PW-8 Khema @ Kheema, PW-9 Jora, PW-14 Jhuma Ram and PW-15 Kheema Ram, the co-accused Shanka Ram inflicted a knife injury to the deceased Joga whereas, the appellant is alleged to have assaulted to him by a stone.

Learned counsel Shri Shah drew the court's attention to the post mortem report Ex.P-7 and urged that not a single blunt weapon injury was noticed by the doctor who conducted post mortem upon the body of the deceased and rather the cause of death has been noted as spindle shaped sharp weapon wounds found on the skull area of the deceased which damaged the brain tissue. He thus, urges that it is clearly a case where the co-accused Shanka Ram acted under the influence of liquor and assaulted the deceased by a sharp weapon and the applicant-appellant has wrongly been convicted with the aid of Section 34 of the IPC and rather he has been falsely implicated in this case. He thus craves indulgence of this court and carves suspension of sentences awarded to the applicant-appellant by the trial court.

Learned Public Prosecutor has vehemently opposed the submissions advanced by the applicant-appellant's counsel and urges that no change in circumstances has occasioned after rejection of the first application for suspension of sentence filed on behalf of appellant and thus, no ground is made out so as to suspend the sentence awarded to him by the Trial Court. However, it is not disputed that the specific case of the prosecution as against the appellant is that he was armed with a stone and he inflicted stone blows upon the deceased. Admittedly, not a single injury by a blunt weapon was found by the doctor who conducted post mortem upon the body of the deceased and rather the cause of death as specifically opined by him in the post mortem report Ex.P-7 was because of were sharp weapon injuries.

In view of these facts, we are of the opinion that the appellant has remained in custody, for more than two years after rejection of the first application for suspension of sentence, he has strong grounds to challenge his conviction. Hearing of the appeal is not likely in the near future. Therefore, we are inclined to suspend the sentences awarded to the appellant and release him on bail during pendency of the appeal.

Accordingly, the second application for suspension of sentences filed under Section 389 Cr.P.C. is allowed and it is ordered that the sentences passed by the learned Additional Sessions Judge No.1, Abu Road District Sirohi, vide judgment dated 20.07.2016 in Sessions Case No.35/2014 against the appellant-applicant Phularam S/o Sh. Pannaram 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.80,000/- with two sureties of Rs.40,000/- each to the satisfaction of the learned trial Judge for his appearance in this court on 08.01.2019 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.