Identification of accused by eye witnesses and nature of injuries considered for suspension of sentence application.

JUDGMENT

1. This third application seeking suspension of sentence is filed by the applicant-Bhawani Singh, who has been convicted for offences under Sections 307/149, 148, 323/149, 326/149, 353/149 & 333/149 IPC and sentenced to suffer life imprisonment vide judgment dated 20.9.19 passed by the Additional Sessions Judge No.4, Jodhpur Metropolitan in Session Case No.222/12 (75/05).

2. First application seeking suspension of sentence filed by the applicant was dismissed by this Court vide order dated 20.1.20, as not pressed. On second application seeking suspension of sentence filed by the applicant, the suspension of sentence as prayed for was declined by this Court vide order dated 19.10.20,however, the sentence was temporarily suspended for a period of three months.

3. After availing the temporary release on medical ground, the applicant surrendered before the Superintending Jail, Jodhpur. Now, as per the medical report submitted by the learned Public Prosecutor, the applicant is presently undergoing the treatment of COVID Management Committee in Mahatama Gandhi Hospital, Jodhpur. Confronted with medical report, the learned counsel appearing for the applicant submits that the applicant is not pressing for release on medical ground. It is submitted that applications earlier preferred by the applicant were not decided on merits and therefore, present application seeking suspension of sentence deserves to be considered by this Court on merits. Accordingly, the application preferred by the applicant is being considered by the Court on merits and not on medical ground.

4. Learned counsel appearing for the applicant contended that co-accused Raju Singh, Jabbar Singh, Prema Ram, Rupa Ram and Lala Ram have already been enlarged on bail by this Court and the case of the present applicant is not distinguishable from the co-accused Raju Singh. Learned counsel submitted that the prosecution story rest upon the testimony of eye witnesses PW 1-Narendra Singh, PW2- Ganga Singh, PW3- Mool Singh, PW4-Karan Singh & PW5-Akhey Singh. Drawing the attention of the Court to the statements of eye witnesses, learned counsel submitted that the trial court has completely misread and misconstrued the testimony of these witnesses on the count of identification of inter alia the applicant. It is submitted that though in examination-in-chief, the eye witnesses have indicated the involvement of the applicant in the commission of crime but in the cross examination, they have categorically stated that they had no occasion to meet the accused persons prior to the incident and they were not aware about their names and physical appearance and thus, the witnesses having failed to identify the applicant, the case of the prosecution cannot be said to be proved beyond reasonable doubt against the applicant. Learned counsel submitted that as per the injury report (Ex.P/56) and the X-ray report (Ex.P/55), the injury suffered by the victims except injury no.2 & 3, are simple in nature and thus, on the basis of the evidence on record, in no manner it can be inferred that the accused persons had intention to cause death or to cause the injuries of the nature dangerous to life. Learned counsel submitted that the offence against the applicant on the basis of the evidence on record cannot travel beyond Sections 324 or 325 IPC and thus, the substantive sentence awarded to the applicant by the trial court deserves to be suspended.

5. On the other hand, the learned Public Prosecutor submits that as many as 17 criminal cases were pending against the applicant out of which in one case he has been convicted and 2 cases were settled in terms of compromise arrived at between the parties; and 14 cases are still pending trial. Learned Public Prosecutor submitted that the injured eye witnesses have duly identified the applicant. That apart, the injuries caused are specifically attributed to the applicant and the co-accused Shrawan Singh. Learned PP submitted that the applicant alongwith ot