Shivraj vs State Of Rajasthan

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

Heard learned counsel Shri Sodha representing the applicant appellant through video conferencing and the learned Public Prosecutor. Perused the impugned judgment and the material available on record.

The appellant applicant herein stands convicted and sentenced as below vide judgment dated 02.03.2020 passed by the learned Special Judge, SC/ST Act Cases, Bhilwara in Sessions Case No.59/2017:

Offences

Sentences

Fine

Fine    Default sentences

Section 302/34 IPC

Life Imprisonment

Rs.1,000/-

6 Months' S.I.

Section 201/34 IPC

7 Years' R.I.

Rs.1,000/-

6 Months' S.I.

Section    3(2)(V) the Of SC/ST Act

Life Imprisonment

Rs.1,000/-

Rs.1,000/-

The incident involving homicidal death of Radhakishan took place in the night intervening 16/17.05.2017. The deadbody of Radhakishan was found by the police on the highway. Shri Nandlal (PW-1), father of Radhakishan, was informed who lodged a written report (Ex.P/1) to the Circle Inspector Shri Gajendra Singh alleging that his son, who was a plumber by profession, had left the house at 02.00 pm. on 16.05.2017. Thereafter, in the night at about 12 O' Clock, information was received regarding his deadbody having been found by the Pur Police on the highway. The informant categorically mentioned in his report that some unknown people had murdered his son and had thrown the deadbody on the highway in order to destroy the evidence. Later on, the prosecution changed the tenor of its story and alleged that the deceased had been murdered by the appellant herein and the co-accused Ramlal Gadri and Satyanarayan (since acquitted) because of a suspicion that he was possessing the stolen mobile of the appellant herein. In order to prove its case, the prosecution examined Smt. Anop Devi (PW-9), being mother of the deceased, for purported evidence of last seen. She alleged that on 16.05.2017 at about 11 O' Clock, Shivlal, Ramlal Gadri and Satyanarayan Keer came to Suwana. Shivlal took Radhakishan with him on a motorcycle and Satyanarayan and Ramlal followed them and thereafter, Radhakishan was found murdered.

We are duly satisfied with the contention of learned counsel Shri Sodha that if at all, Smt. Anop Devi, mother of Radhakishan, had seen Shivlal, the appellant herein, taking away Radhakishan on 16.05.2017, then this fact would definitely have been mentioned in the FIR (Ex.P/27). That apart, there is a grave discrepancy regarding the time at which, Radhakishan left his house. As per the written report (Ex.P/1), the time of his voluntary departure from the house is mentioned as 2 O' Clock but to the contrary, as per the admission made by Smt. Anop Devi (PW-9) in her cross-examination, she saw Radhakishan being taken away by Shivlal on his motorcycle at about 11 O' Clock in the morning. Nandlal (PW-1), being the father of the deceased, affirmed the version as set out in the written report (Ex.P/1) that his son left the house in the afternoon of 16.05.2017 stating that he was going to do his plumbing job. Apparently thus, there is a grave doubt on the veracity of the evidence of last seen as deposed by Smt. Anop Devi. Two other witnesses of the circumstance of last seen viz. Kanaram (PW-13) and Raghvendra Singh (PW-14) did not support the prosecution case and were declared hostile. In addition thereto, the prosecution also relied upon certain recoveries so as to implicate the accused. However, no FSL report pertaining to the recoveries alleged made at the instance of the accused was exhibited during the trial so as to establish their incriminating nature.

In this background, we have reasons to believe that the appellant has strong grounds so as to assail the impugned judgment of conviction. Hearing of the appeal is likely to consume time.

In this view of the matter and, having regard to the facts and circumstance as available on record, it is considered just and proper to suspend the sentences awarded to the appellant, during pendency of the 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 the Special Judge, SC/ST Act Cases, Bhilwara, vide judgment dated 02.03.2020 in Sessions Case No.59/2017 against the appellant-applicant Shivraj S/o Shri Kashi Ram, 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 08.09.2020 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 (5 of 5) [SOSA-615/2020] 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.