The court established that a lack of direct evidence and prolonged custody can justify the suspension of a sentence under Section 389 of the Cr.P.C.

ORDER

1. Heard learned counsel for the parties on suspension of sentence application (SOSA No.70/2017).

2. Learned counsel for the appellant has submitted that the Additional Sessions Judge No.3, Alwar (hereinafter to be referred as 'the trial court') has grossly erred in convicting and sentencing the appellant vide impugned judgment dated 15.09.2016. It is submitted that in the present case, the complaint was filed after around 15 days from the date of incident. It is argued that the prosecution has failed to produce cogent and reliable evidence to connect the appellant with the commission of crime. It is further submitted that there is no eye witness or direct evidence available on record, however, the trial court has placed reliance on so called circumstantial evidence produced on behalf of the prosecution, which is very weak and chain of events have not been connected by the prosecution. Learned counsel for the appellant has submitted that the sentence of co-accused Kumari Sanjana @ Ashu has already been suspended by a Coordinate Division Bench of this Court. It is also submitted that the accused appellant is in custody from last more than 10 years and as such he has undergone 10 years of sentence, whereas the appeal filed by the appellant is not likely to be heard in near future. It is, therefore, prayed that the suspension of sentence application may kindly be allowed and the sentence of the appellant may kindly be suspended.

3. Learned Public Prosecutor as well as learned counsel for the complainant have vehemently opposed the prayer made on behalf of the appellant for suspension of his sentence and argued that the prosecution has proved the case against the accused appellant beyond doubt. Learned counsel for the complainant has submitted that from the evidence of the PW-4, PW-5 and PW-8, it is clear that it was the appellant who disposed of the dead body of his wife. It is argued that from the above piece of evidence the guilt of the appellant is very well proved, therefore, the sentence awarded to him by the trial court is not liable to be suspended.

4. Having considered the totality of facts and circumstances of the case, taking into consideration the fact that there is no direct evidence available on record, however, the trial court has convicted the appellant on the basis of so called circumstantial evidence and taking into consideration the custody of the appellant, we consider it just and proper to suspend the substantive sentence awarded to the accused appellant.

5. Accordingly, suspension of sentence application (SOSA No.70/2017) filed under Sec.389 Cr.P.C. is allowed and it is ordered that the substantive sentence passed by the trial court vide judgment dated 15.09.2016 in Session Case No.27/2014 against appellant - Sonu @ Naveen Dudani S/o Arjun Dev Sindhi shall remain suspended till final disposal of the aforesaid appeal, provided he executes 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 his appearance in this court on 10.11.2021 and whenever ordered to do so, till the disposal of the appeal on the conditions indicated below:-

1. That he will appear before the trial Court in the month of January of every year till the appeal is decided.

2. That if the appellant changes the place of residence, he will give in writing his changed address to the trial Court as well as to the counsel in the High Court.

3. Similarly, if the sureties change their address, they will give in writing their changed address to the trial Court.

6. The learned trial Court shall keep the record of attendance of the accused-appellant in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused-appellant was 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 c