Partly allowed

Dinesh Kumar v. State of Rajasthan

Rajasthan HC27 Sept 2022SOSA/510/2022

Case brief

AI extract

What is this about?

High Court disposed of two applications for suspension of sentence under Section 389 CrPC. Bail was allowed to Dinesh Kumar due to lack of direct identification and age of imprisonment, but denied to Salim Kha who was identified by an eyewitness.

What did the court decide?

Application No.510/2022 allowed; sentences suspended and accused released on personal bond of Rs.50,000 with sureties. Application No.626/2022 dismissed.

Dinesh Kumar Vs State of Rajasthan — Bail and Remand | Rajasthan HC (2022)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

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JODHPUR

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D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 626/2022

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Salim Kha S/o Askar Kha, Aged About 34 Years, B/c Musalman, R/o Malkosani Road Bera Nimbadiya, Bilara, Dist. Jodhpur. (Presently Lodged At Central Jail, Jodhpur).

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----Petitioner

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Versus

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State Of Rajasthan, Through Pp

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----Respondent

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Connected With

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D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 510/2022

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Dinesh Kumar S/o Shri Jagdish Prasad, Aged About 32 Years, B/c Mali, R/o Masjid Ke Pass, Bar , Dist. Pali (Raj.) (Presently Lodged At Central Jail, Jodhpur)

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----Petitioner

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Versus

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State Of Rajasthan, Through Pp

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----Respondent

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For Petitioner(s) : Mr. Girish Choudhary Mr. Sanjay Bishnoi For Respondent(s) : Mr. R.R. Chhaparwal, P.P.

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HON'BLE MR. JUSTICE SANDEEP MEHTA HON'BLE MR. JUSTICE KULDEEP MATHUR

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Order

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27/09/2022

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The appellant-applicants have been convicted and sentenced as below vide the judgment dated 21.02.2022 passed by the learned Additional Sessions Judge, Bilara in Sessions Case No.96/2020 :-

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(2 of 7) [SOSA-626/2022]

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Offence	s	Sentences Fine	Fine Default Sentences
Section	450 IPC	10 Years’ R.I. Rs.2,000/-	2 Month’s Additional Imprisonment
Section	459 IPC	10 Years’ R.I. Rs.2,000/-	2 Month’s Additional Imprisonment
Section	460 IPC	10 Years’ R.I. Rs.2,000/-	2 Month’s Additional Imprisonment
Section	394 IPC	10 Years’ R.I. Rs.2,000/-	2 Month’s Additional Imprisonment
Section	397 IPC	7 Years’ Imprisonment
Section IPC	323/34	1 Year’s R.I. Rs.500/-	15 Days’ Additional Imprisonment
Section IPC	324/34	3 Years’ R.I. Rs.1,000/-	1 Month’s Additional Imprisonment
Section IPC	325/34	7 Years’ R.I. Rs.1500/-	45 Days’ Additional Imprisonment
Section IPC	307/34	10 Years’ R.I. Rs.2,000/-	2 Month’s Additional Imprisonment
Section IPC	302/34	Life Imprisonment Rs.5,000/-	6 Month’s Additional Imprisonment

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All the substantive sentences were ordered to run concurrently.

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They have filed these applications under Section 389 CrPC seeking suspension of sentences awarded by the trial court.

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Learned Public Prosecutor has filed reply to both the applications for suspension of sentences.

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Two more criminal cases in addition to the one at hand have been registered against the appellant Saleem Kha, whereas a

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(3 of 7)

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[SOSA-626/2022]

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total of 11 cases are registered against the appellant Dinesh Kumar, of which 5 pertain to jail offences.

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Learned counsel Mr. Girish Choudhary and Mr. Sanjay

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Bishnoi, representing the appellant-applicants, vehemently and fervently urged that the case of the appellant Dinesh Kumar stands on an identical footing with that of co-accused Ghewarram, whose application for suspension of sentence No.327/2022 has been accepted by this court vide order dated 24.05.2022. The only evidence which has been portrayed by the prosecution to connect the said appellant with the crime is in the form of recoveries of clothes and sandals of that appellant. He urged that the material prosecution witnesses Dhagli Devi and Dariyav Devi did not identify the appellant Dinesh Kumar. They submitted that though the witness Dariyav Devi identified the accused Saleem Kha in her evidence, but this identification was made for the first time during the sworn testimony of the witness, thus, the same is of no consequence. The appellants have remained in custody for a period in excess of 10 years and the hearing of the appeal is unlikely in near future. Learned counsel for the appellantapplicants have placed reliance on the order passed by the Hon’ble Supreme Court in the case of Suleman Vs. State of Uttar Pradesh [Misc. Application No.764/2022 in Criminal Appeal No.491/2022 decided on 15.09.2022 with SMW (Crl) No.4/2021] and urged that the appellant-applicants deserve indulgence of bail in this matter.

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The learned Public Prosecutor on the other hand vehemently and fervently opposed the submissions advanced by Mr. Choudhary and Mr. Bishnoi and submitted that the case involves gruesome charges of dacoity with triple murder. The

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(4 of 7)

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[SOSA-626/2022]

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prosecution has given cogent and convincing evidence to connect the appellants with the heinous crime. Hence, he implored the court to dismiss the applications for suspension of sentences.

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We have given our thoughtful consideration to the submissions advanced at bar and have gone through the material available on record. At the outset, we may note that in the case of Suleman (supra) relied upon by the learned counsel for the appellants, no absolute proposition has been laid down that all life convicts, whose appeals are pending in the High Courts and who are in custody for more than 10 years, must unexceptionally be released on bail. We may note here that the present is case with gruesome allegations of dacoity associated with triple murder and thus, this court would be circumspect while considering the matter even at the stage of bail during pendency of the appeal. So far as the appellant-applicant Dinesh Kumar is concerned, this case appears to be in no manner distinguishable from that of the coaccused Ghewarram, whose application for suspension of sentence has been accepted by this court with the following observations and thus, we feel that the accused Dinesh Kumar deserves indulgence of bail during pendency of the appeal :-

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“As per the prosecution allegations, three unknown assailants committed house breaking by the night in the house of Mangla Ram in the night of 14.01.2012 with the intention of committing dacoity and during this process, they assaulted the inmates Smt. Dhagli, Dakhu Devi, Dariyav Devi, Ratna Ram and Sangeeta and looted the valuable articles, ornaments, etc. and a Tavera Car No.RJ-19-UA-5033. Dakhu, Ratna Ram and Sangeeta expired as a result of the injuries received in the assault whereas Dhagli Devi and Dariyav Devi were

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(5 of 7)

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[SOSA-626/2022]

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injured. The prosecution has tried to portray that the faces of the assailants were covered by clothes. However, during the assault, the cloth covering the face of one of the assailants slipped and the deceased Sangeeta identified him to be Salim who blurted out the names of the two other assailants. However, the witness Dariyav (PW-17) could only identify the accused Salim in her evidence whereas Dhagli Devi (PW-18) could not identify any of the assailants.

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The case of the prosecution as against the appellant is thus based totally on recovery of the blood stained shirt and the number plate of the Tavera Vehicle. Whether or not, these recoveries would be finally considered constituting proper evidence so as to affirm the conviction of the appellant applicant Ghewar Ram, would be for the Court to contemplate when the appeal is being finally decided. However, for the present, we are duly satisfied that the appellant has significant grounds to assault the impugned Judgment. He has suffered more than 10 years imprisonment without there being any possibility of an early hearing of the appeal. The appellant does not have any criminal antecedent as per the reply filed by the learned Public Prosecutor.

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In this view of the matter and, having regard to the facts and circumstance as available on record, we deem it just and proper to suspend the sentences awarded to the appellant applicant, during pendency of the appeal.”

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However, so far as the appellant Saleem Kha is concerned, he was identified by eye-witness Dariyav Devi during her sworn testimony. Thus, looking to the nature and gravity of the allegations attributed to the said appellant, he does not deserve indulgence of bail. Needless to say that as the appellant

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(6 of 7)

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[SOSA-626/2022]

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is in custody for last more than 10 years, the appeal itself shall be listed for hearing on topmost priority.

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Accordingly, D.B. Criminal Misc. Suspension of Sentence

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Application No.626/2022 filed on behalf of appellant-applicant Salim Kha is dismissed and D.B. Criminal Misc. Suspension of Sentence Application No.510/2022 filed on behalf of appellantapplicant Dinesh Kumar is allowed and it is ordered that the sentences passed by the Additional Sessions Judge, Bilara, District Jodhpur, vide judgment dated 21.02.2022 in Sessions Case No.96/2020 against the appellant-applicant Dinesh Kumar S/o Jagdish Prasad , 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 31.10.2022 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-

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That he/she/they will appear before the trial Court in the month of January of every year till the appeal is decided.

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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.

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Similarly, if the sureties change their address(s), they will give in writing their changed address to the trial Court.

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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

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(7 of 7)

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[SOSA-626/2022]

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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.

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(KULDEEP MATHUR),J

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(SANDEEP MEHTA),J

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210-Pramod/-

Dinesh Kumar v. State of Rajasthan

Case brief

What is this about?

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Dinesh Kumar v. State of Rajasthan

Case brief

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