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2019 Supreme(Raj) 1133
IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)
KANWALJIT SINGH AHLUWALIA, GOVERDHAN BARDHAR, JJ.
Roshan Koli – Appellant
Versus
State of Rajasthan – Respondent
D.B. Criminal Appeal No. 401 of 2018
Decided On : 09-05-2019
Advocate Appeared:
For the Appellant :Sushil Pujari, Advocate
For the Respondents: Javed Choudhary, P.P.
Headnote:
Criminal Procedure – Section 357-A – Applicant-appellant, has submitted that all witnesses have turned hostile to prosecution and except recovery of darat weapon of offence from applicant-appellant, which has surfaced in evidence of Constable - Indal and production of blood stained bed-sheet byPW-2 father of deceased - Krishna to Investigating Officer, there is no other evidence available with prosecution to connect applicant-appellant with crime alleged –Held, We direct trial Court to release appellant forthwith, in case he is not required in any other case. Keeping, however, in view provisions of Section 437-A of Code of Criminal Procedure, appellant, is directed to forthwith furnish personal bond in sum of Rs. 20,000/- and a surety bond in like amount, before the trial Court bonds, so furnished shall be effective for a period of six months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellant, on receipt of notice thereof, shall appear before the Supreme Court, as prosecution has failed to prove on record any legally admissible evidence, we find that legal heirs of deceased - Krishna, who was aged 23 years, are entitled to compensation, as per Victims Compensation Scheme formulated by State of Rajasthan under Section 357-A – Appeal dismissed. (Para 18, 19)
Facts of the case:
Applicant-appellant, has submitted that all witnesses have turned hostile to prosecution and except recovery of darat weapon of offence from applicant-appellant, which has surfaced in evidence of Constable - Indal and production of blood stained bed-sheet byPW-2 father of deceased - Krishna to Investigating Officer, there is no other evidence available with prosecution to connect applicant-appellant with crime alleged.
Findings of the court:
We direct trial Court to release appellant forthwith, in case he is not required in any other case. Keeping, however, in view provisions of Section 437-A of Code of Criminal Procedure, appellant, is directed to forthwith furnish personal bond in sum of Rs. 20,000/- and a surety bond in like amount, before the trial Court bonds, so furnished shall be effective for a period of six months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellant, on receipt of notice thereof, shall appear before the Supreme Court, as prosecution has failed to prove on record any legally admissible evidence, we find that legal heirs of deceased - Krishna, who was aged 23 years, are entitled to compensation, as per Victims Compensation Scheme formulated by State of Rajasthan under Section 357-A.
Result: Appeal dismissed.
JUDGMENT :
Kanwaljit Singh Ahluwalia, J.
1. D.B. Criminal Miscellaneous (Suspension of Sentence) Application No. 602 of 2019.
2. D.B. Criminal Miscellaneous (Suspension of Sentence) Application No. 602 of 2019 has been listed before us for suspension of sentence of Roshan, applicant-appellant herein.
3. During the course of arguments, ld. counsel appearing for the applicant-appellant, has submitted that all the witnesses have turned hostile to the prosecution and except recovery of darat (sickle) weapon of offence from the applicant-appellant, which has surfaced in the evidence of Constable - Indal (PW-8) and the production of blood stained bed-sheet by Hoti Lal (PW-2), father of deceased - Krishna to the Investigating Officer, there is no other evidence available with the prosecution to connect the applicant-appellant with the crime alleged.
4. The record has already been received by this Court from the trial Court.
5. Mr. Javed Choudhary, ld. Public Prosecutor appearing for the State, is unable to meet our observation that as to how the ld. Court below convicted the applicant-appellant when all the witnesses have turned hostile to the prosecution. State Counsel has very candidly prayed that since the record is available, the appeal itself may be decided instead of suspending the sentence of the applicant-appellant. Mr. Choudhary, ld. Public Prosecutor has submitted that if the sentence is suspended, the applicant appellant shall abscond and will not be available, as on today the appeal is listed for hearing after a long delay of seven to ten years.
6. Mr. Sushil Pujari, ld. counsel appearing for the accused appellant, has submitted that he is also ready and willing to argue the appeal itself.
7. On the joint request made in the present application for suspension of sentence, we take D.B. Criminal Appeal No. 401 of 2018, titled as Roshan vs. State of Rajasthan, on the Board for decision.
8. The accused-appellant - Roshan, along with his brother - Chhagan was tried by the Court of Additional District & Sessions Judge, No. 3, Bharatpur, in Sessions Case No. 40.2015. The said Court, vide its impugned judgment dated 13.08.2018, acquitted-Chhagan, brother of accused-appellant - Roshan, by extending the benefit of doubt. However, the trial Judge convicted the present appellant - Roshan son of Harikishan by caste Koli for commission of offence punishable under Section 302 of the Indian Penal Code.
9. Having convicted the accused-appellant for the above said offence, the trial Judge, vide a separate order of even date, sentenced the appellant to undergo life imprisonment and to pay a fine of Rs. 5000/- and in default of payment of fine to further undergo six months rigorous imprisonment.
10. Aggrieved against his conviction and sentence, the appellant has filed D.B. Criminal Appeal No. 401 of 2018 before this Court.
11. The criminal proceedings, in the present case, were set into motion on the basis of written-report (Exhibit-P/7) submitted by Hotilal (PW-2) before Mukesh Choudhary (PW-12), who was then posted as S.H.O. Police Station Kotawali Bharatpur.
12. The said written-report (Exhibit-P/7), when translated into English reads as under:-
"To,
The Station House Officer Sahib,
Police Station Kotwali Bharatpur
Subject : Regarding lodging of the report.
Sir,
It is submitted that my son - Krishna, aged 23 years yesterday night on 07.09.2015 at around 11:00 P.M. was found lying on the verge of the road in front of our house. The above occurrence had taken place at Kalighat, which was first seen by Vijay and Ganesh. They found him lying in the pool of blood. Vijay and Ganesh came to my house and relayed the above said information. Upon receipt of said information, I came at the spot and saw that due to injury caused, blood was oozing out of the wounds. My son was in an unconscious condition. He was taken to R.B.M. Hospital in an auto-rickshaw and was got admitted. During course of treatment, at about 11:45 P.M. my son expired. Doctors have declared him as
