The High Court of Rajasthan allowed an application for suspension of sentence under Section 389 Cr.P.C. for appellants convicted under Section 308 IPC, directing their release on bail pending appeal.
Sentence suspended; accused released on bail on execution of personal bond and two sureties.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 57/2024
IN
S.B. Criminal Appeal No.80/2024
----Accused-Appellants
Versus
State of Rajasthan, through PP
----Respondent
| For Petitioner(s) | : Mr. |
Pawan Kumar Verma |
|---|---|---|
| For Respondent(s) | : Mr. |
Imran Khan, PP |
HON'BLE MR. JUSTICE PRAVEER BHATNAGAR
Order
05/02/2024
The accused-appellants herein have been convicted and sentenced vide judgment dated 18.12.2023 passed by the learned Court of Sessions Judge, Kota in Sessions Case No.64/2017 as
under:-
| Offence Under Section |
Imprisonment | Fine | Sentence in default of payment |
|---|---|---|---|
| 308/34 I.P.C. | Four years’ R.I. | Rs.5,000/- each |
Three months’ S.I. |
| 325/34 I.P.C. | Two years’ R.I. | Rs.1,000/- each |
Three months’ S.I. |
| 341/34 I.P.C. | Fifteen days’ S.I. | Rs.100/- | Three days’ S.I. |
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(2 of 5)
| each | |||
|---|---|---|---|
| 323/34 I.P.C. | Three months’ R.I. | Rs.500/- each |
Five days’ S.I. |
Learned counsel for the accused-appellants submits that accused-appellants have been wrongly convicted under Section 308 of I.P.C. He further submits that PW-1 Dr. Brijesh Tatwal examined PW-2 injured Gaurav Mehra and found ten injuries on his body. There is no specific opinion of PW-1 Dr. Brijesh Tatwal that injuries were dangerous to life.
Learned counsel for the accused-appellants further submits that as per statement of PW-1 Dr. Brijesh Tatwal, injury Nos.2, 6, 7 and 9 were found to be grievous in nature. Injury Nos.2, 6, 7 and 9 were caused on left knee, elbow of right hand and on the palm of the right hand. These injuries were not on the vital part. He further submits that PW-2 injured Gaurav Mehra did not turn up in the Court, therefore, accused could not cross-examine the witness.
Learned counsel for the accused-appellants further submits that PW-3 Devendra Mehra is a hearsay witness. PW-10 Omprakash and PW-15 Tejkaran in their statements have named Mukesh @ Makku as an accused, whereas, PW-2 injured Gaurav Mehra in his examination in chief has stated that Mukesh @ Makku was not present and he did not cause any injury to him. He further submits that learned trial court has not assigned cogent reason regarding convicting the accused-appellants under Section 308 I.P.C. The accused-appellants are in custody since 18.12.2023 and during trial accused-appellants were on bail, so also the decision of the appeal may take considerable, therefore, sentence awarded to
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(3 of 5)
the accused-appellants may be suspended during the pendency of the appeal.
Learned Public Prosecutor vehemently opposes the suspension of sentence application and submits that PW-10 Omprakash and PW-15 Tejkaran in their statements recorded before the Court have specifically stated that accused-appellants along with other co-accused Rahul assaulted the injured Gaurav Mehra with iron rods and caused several injuries on his body. He further submits that PW-1 Dr. Brijesh Tatwal, who examined injured Gaurav Mehra, in his statement before the Court, has proved the injuries caused to injured Gaurav Mehra and as many as ten injuries were found at various body parts of the injured.
Learned Public Prosecutor further submits that injury Nos.2, 6, 7 and 9 were found to be grievous in nature, therefore, the learned trial court vide impugned order has rightly convicted the accused-appellants under Sections 308, 325, 341 and 323/34 of I.P.C. He further submits that accused-appellants are having criminal antecedents, therefore, the application for suspending the sentence of accused-appellants may be dismissed.
Heard learned counsel for the accused-appellants as well as learned Public Prosecutor on the application for suspension of sentence and perused the material available on record.
PW-1 Dr. Brijesh Tatwal, who examined PW-2 injured Gaurav Mehra, in his statement has corroborated the injuries sustained to injured Gaurav Mehra. He has stated that ten injuries were found at various body parts of injured Gaurav Mehra, specifying the injuries. He has deposed that injury Nos.2, 6, 7 and 9 were grievous in nature. PW-2 injured Gaurav Mehra could not be cross-
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examine as after examination in chief, despite several efforts by the learned trial court, he did not turn up. PW-10 Omprakash and PW-15 Tejkaran are other eye-witnesses to the incident. In their statements, they have deposed that accuse-appellants along with other co-accused Mukesh @ Makku and Rahul assaulted the injured causing various injuries to PW-2 injured Gaurav Mehra. The learned trial court acquitted the accused Mukesh @ Makku under Sections 323, 341, 325 and 308/34 I.P.C. as PW-2 Gaurav Singh has not stated his name and despite the cross-examination by the learned Public Prosecutor, the witness has denied the presence of Mukesh @ Makku. The learned trial court at para No.20 of its judgment has convicted the accused-appellants under Sections 308, 325, 341 and 323/34 I.P.C. The learned trial court has not assigned any cogent reason regarding convicting the accusedappellants under Section 308 I.P.C. Though, at this juncture, it is not desirable to comment upon the merit of the case, whether the offence under Section 308 I.P.C. is made out or not but after considering the nature of injuries sustained to PW-2 Gaurav Mehra and more particularly to the fact that no injuries were found to be on the vital part & no injuries were on the vital part and dangerous to life, I deem it proper to allow the application of accusedappellants for suspending the sentence awarded to accusedappellants during pendency of the instant appeal.
Accordingly, the application for suspension of sentence filed under Section 389 Cr.P.C. is allowed and it is ordered that the sentences passed by the learned Court of Sessions Judge, Kota in Sessions Case No.64/2017 vide judgment dated 18.12.2023 against the appellants-applicants (1) Shakti Son Of Shri Suresh
(5 of 5)
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@ Seeti and (2) Sawan @ Anil Son Of Shri Surender , shall remain suspended till final disposal of the aforesaid appeal and they shall be released on bail, provided each of them execute 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 their appearance in this court on 07.03.2024 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-
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.
(PRAVEER BHATNAGAR),J
152-SURAJ KUMAR
1 issue framed by the court
Whether the application for suspension of sentence under Section 389 Cr.P.C. during the pendency of the appeal should be allowed given the nature of injuries.
2 provisions across 2 enactments
Shakti Son Of Shri Suresh @ Seeti
Sawan @ Anil Son Of Shri Surender
State of Rajasthan
Praveer Bhatnagar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
