Circumstantial evidence, motive, and timing of injuries are crucial factors in considering the suspension of sentences and granting bail during the appeal.

JUDGMENT

1. The instant application for suspension of sentences under Section 389 Cr.P.C. has been preferred by appellant-applicant who has been convicted and sentenced as below vide judgment dated 01.04.2022 passed by learned Special Judge, SC/ST (Prevention of Atrocities Cases), Barmer in Sessions Case No.127/2016 (30/2017):

2. Learned Public Prosecutor has filed reply to the application as per which, the appellant does not have any criminal incidents.

3. As per the story set out in the prosecution case, the appellant is the nephew (brother's son) of the deceased (hereinafter referred to as 'the victim') who was the estranged wife of Sanwalnath. The victim had started living in the Lord Krishna temple in the village Kerala and used to lead a life as a hermit. On 17.06.2016, it was reported that the victim was not seen in or around the temple on which, the family members got worried. The door of the room constructed near the temple was locked and foul smell was emanating therefrom. The villagers were called who looked inside the room from the window and saw the dead body of the victim lying partially concealed in a plastic drum. The police was informed. The room was opened and the dead body of the victim was recovered therefrom. Shri Asu Bharati, father of the victim lodged the FIR of the incident. The appellant was arrested on 21.06.2016 and at his instance, recoveries of his clothes (allegedly blood stained), certain coins, the key of the lock affixed on the door of the room and a spade, allegedly used in the incident were effected. After concluding investigation, charge-sheet came to be filed against the appellant for the offences punishable under Sections 376(1), 302 and 392 of the IPC. After trial, the appellant was acquitted from the charge punishable under Section 376 (1) IPC but he has been convicted and sentenced as above for the remaining two offences. The appellant who is in custody right from the date of his initial arrest i.e. 21.06.2016 has approached this Court through this application for suspension of sentences.

4. Shri Manish Patel, Advocate representing the appellant vehemently and fervently contended that there is no evidence on the record of the case to connect the appellant with the alleged crime. The links of circumstantial evidence on which the trial court relied upon are not convincing evidence so as to connect the appellant with the alleged murder. The appellant had no motive whatsoever to murder his own paternal aunt, the victim herein. The recoveries of the key and the spade on which, heavy reliance was placed by the trial court are fabricated. The Panch witnesses did not support the recovery documents. The appellant was a free- bird till 21.06.2016 and thus, there was no reason for him to have concealed and securely retained these two worthless incriminating articles so as to give an opportunity to the police of creating evidence against him. Shri Patel urged that the trial court relied upon the fact that the accused himself was found having numerous injuries on his body at the time of arrest and that these injuries must have been received in the struggle put up by the victim when she was being assaulted. However, Shri Patel referred to the statement of Dr. Jogesh Kumar (PW.21) who examined the appellant for his injuries and issued the medico legal report (Ex.P/46). Shri Patel submitted that the medical examination was carried out on 21.06.2016. The doctor opined that the injuries were 3-4 days old. However, the victim was allegedly assaulted and murdered 2-3 days before 17.06.2016 and thus, as per Shri Patel, the injuries do not co-relate with the incident. On these grounds, Shri Patel implored the Court to accept the instant application for suspension of sentences and direct enlargement of