Circumstantial evidence must be conclusive to support a conviction; absence of direct evidence warrants suspension of sentence.

JUDGMENT

Goverdhan Bardhar, J. - Heard learned counsel for the applicant and the learned Public Prosecutor upon application for suspension of sentence.

2. Learned counsel for the applicant has submitted that the trial Court has grossly erred in convicting and sentencing the accused ? applicant vide impugned judgment. It is argued that the prosecution has failed to produce any direct evidence against the accused ? applicant to prove his involvement in the commission of crime and the trial Court has grossly erred in relying on so called circumstantial evidence produced by the prosecution. It is submitted that the said circumstantial evidence is also not conclusive to prove the guilt of the accused ? applicant. Learned counsel submitted that the dead body of the deceased was recovered on 9.10.2015 whereas the accused -applicant was arrested on 18.10.2015 and his clothes were recovered on 19.10.2015. It is submitted that it is difficult to comprehend that after committing the murder of the deceased, the accused ? applicant was wearing the same clothes for ten days. Learned counsel has invited our attention toward the statement of PW-24 Investigating Officer, who in his evidence has specifically admitted that at the time of arrest of the accused ? applicant, he was wearing the clothes which seems to be washed many times but some spots, like of blood, were still there. It is submitted that the said evidence clearly proves that there was no blood stain on the clothes of the accused ? applicant.

3. Leaned counsel has also submitted that the recovery of the knife at the instance of the accused ? applicant is also doubtful. Learned counsel has further submitted that the trial Court has placed much reliance on the call details produced by the prosecution to assert that the accused ? applicant was in regular touch with the deceased but that itself is not sufficient to prove the guilt of the accused - applicant.

4. Leaned counsel has also submitted that as per the trial Court, motive of the accused ? applicant to kill the deceased was some financial transaction between them but it has also come on record that the deceased was lending money to many persons and it was not only the accused ? applicant who took loan from the deceased.

5. Learned counsel has also submitted that the accused ? applicant is in custody since 18.10.2015 and as such he has undergone more than five years of sentence and there is no possibility of hearing of the appeal of the accused ? applicant in near future, therefore, application filed by the accused ? applicant for suspension of sentence be allowed.

6. On the other hand, learned Public Prosecutor opposed the application for suspension of sentence. Taking into consideration the fact that the accused ? applicant was arrested after ten days of the incident and no direct evidence is available on record to connect him with commission of crime but without making any observation on the merits of the case, we are inclined to suspend the sentence of the applicant.

7. Accordingly, this application for suspension of sentence is allowed and it is ordered that the sentence passed by the learned Special Judge, SC/ST (POA) Cases, Kota, in Sessions Case No.95/2015 CIS No.44/2016 vide judgment dated 31.01.2019 against the applicant ? Narendra Suman S/o Shri Raghunath Mali shall remain suspended till final disposal of the aforesaid criminal appeal provided he executes a personal bond in the sum of Rs.50,000/- along with two sureties in the sum of Rs.25,000/- each to the satisfaction of the learned trial court for their appearance in this Court on 08.11.2021 and subsequently before the trial court on the following conditions:-

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

2. That if the appellant(s) change the place of residence, he/she/they will give the changed address in writing to the trial court, High Court as well as to his/her/their counsel in the High Court.

3. Si