Shaitan Singh And Ors vs State Of Rajasthan

Heard on the application for suspension of sentence.

Learned counsel for the appellants submits that there was no eye witness and even witness of last seen. They were introduced by the prosecution. It is for the reason that statements were recorded after lapse of reasonable time and that remained unexplained by the prosecution. The prosecution even failed to prove the motive as money transaction has not been established.

It is also stated that wife of deceased made allegation against others while making a missing report of the deceased followed by the FIR. She has not named the present appellants thus there was no reason for the prosecution to make investigation, however, charge-sheet was filed against the appellants. In fact, it was a consequence of agitation made by the appellants against the Investigating Officer. No connecting evidence in a case of circumstantial evidence exist. Accordingly, appellants should have been acquitted of the offence. Taking into consideration the aforesaid, the application for suspension of sentence may be accepted. It is more so when the accused were on bail during trial.

It is also stated that so far as accused-Sethu Singh is concerned, no evidence exists against him to connect him with the crime and same is the position in regard to Prabhu Singh but appellants have been convicted with the aid of Section 34 IPC and even a case under Section 120-B IPC has been taken without showing any reason for conspiracy. The prayer is to accept the application.

Learned Public Prosecutor has contested the application. She submits that the prosecution could prove the case beyond doubt against the accused. The eye witness made statement against the accused. The accused caused occurrence and the statement of eye witness (PW-2- Banshi) is corroborated by the witness of last seen. The only ground to disbelieve their testimony is delay in recording of their statements under Section 161 Cr.P.C. so as under Section 164 Cr.P.C. The aforesaid is in ignorance of the fact that initially proceedings were taken under Section 174 Cr.P.C. and in the process, eye witness so as witness of last seen made statement though they were witnesses of the "panchnama" initially. In fact, they had disclosed all the facts. It is police which delayed recording of their statements thus cannot be to the benefit of the appellants.

It is also stated that the recovery of motorcycle was made at the instance of accused. The blood was found on the seat cover and sent to the FSL. It was found to be human blood. The motorcycle was used in the occurrence and having been recovered at the instance of appellants, the prosecution could connect them with the crime.

It is also stated that even the place of occurrence was identified by the accused. Exhibit-P-49 has been referred for the aforesaid. When police went to the place of occurrence, it was found that floor was prepared recently and when it was digged out, found wet. The stones taken out from the floor were having blood on it. It was sent to the FSL where human blood was found on it thus prosecution could bring another evidence to connect the accused with the crime.

The incidence was caused by the accused having motive for it thus they planned it properly. They tried to destroy every evidence possibly coming against them. The motive of occurrence was due to the money transaction. The deceased came to recover his due amount and at that time occurrence took place. A diary of the accused was recovered at the instance of the appellants and, for all such recoveries and evidences, no explanation has been given by the accused in their statements under Section 313 Cr.P.C., rather, according to the appellants, there is no need to explain any evidence produced by the prosecution to prove their case.

Learned Public Prosecutor has made even reference of the disclosures made by the appellants under Section 27 of the Indian Evidence Act followed by recovery memos signed by the accused. No explanation to the aforesaid has been given in the statements under Section 313 Cr.P.C. It is more so when, mobile of deceased was recovered from a well at the instance of the appellant to connect the accused with the crime. The last call on it was of deceased relative. There are many other evidences produced by the prosecution to connect the appellants with the crime, which would elaborately be discussed at the time of hearing of appeal. At this stage, a case is not made out to suspend the sentence of the accused.

We have considered rival submissions of the parties.

Learned counsel for the appellants has raised many issues to pray for suspension of sentence.

Learned Public Prosecutor has opposed the arguments of the appellant by referring the evidence. If we make any comment on the arguments, it may cause prejudice to either of the parties. We are thus refraining ourselves to make comments on the facts of the case but after going through the evidence led by prosecution, so as the defence apart from the finding recorded by the trial Court, we do not find ground for allowing the application for suspension of sentence. The application is, accordingly, dismissed.

Learned counsel for the appellants is directed to prepare and submit paper book at the earliest and, immediately thereupon, let the appeal be listed for hearing.