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2009 Supreme(Raj) 591
[Citation : 2009(4) RLW 3254 (Raj.)]
(Rajasthan High Court)
Jaipur Bench
Khemraj Vs. State of Rajasthan (Rathore, J.)
HON'BLE K.S. RATHORE, J.
HON'BLE BHANWAROO KHAN
Khemraj
Versus
State of Rajasthan
D.B. Criminal Misc. Application No. 784 of 2008, decided on 21.4.2009
Kamlakar Sharma, Advocate for accused-Appellant/Applicant;
Rekha Madnani, Public Prosecutor, for State;
Rajnish Gupta, Advocate for Complainant
Headnote:Penal Code, Secs. 147, 148, 323, 324, 326, 307, 302 read with Sec. 149 and 452 — Staying the operation of conviction order — Constable in RAC — Convicted and sentenced on 30.4.08 in a criminal case registered on 25.8.01 — Suspended from service vide order dated 21.6.08 with effect from 30.4.08 — Prayed to stay conviction order as his service career has been good and his family circumstances are very down trodden — In appeal the Division Bench vide order dated 11.8.08 suspended the sentence — Held — An order granting stay of conviction is not the rule but is an exception to be resorted to in rare cases depending upon the facts of a case — It is discretion of the Court — Not entitled to the desired relief. (Paras 22 to 29)
Application rejected.
n.M lafgrk] /kkjk 147] 148] 323] 324] 326] 307] 302 lifBr /kkjk 149 ,oa 452 & nks"kflf) ds vknsk ds izorZu ij jksd yxkuk & vkj,lh esa vkj{kh & 25-8-01 dks iaftd`r QkStnkjh izdj.k esa 30-4-08 dks nks"kfl) fd;k ,oa ltk nh & vknsk fnukad 21-6-08 ds }kjk lsok ls fuyfEcr fd;k ftls 30-4-08 ls izHkkoh fd;k & nks"kflf) ds vknsk dks bl vk/kkj ij jksdus dh izkFkZuk dh fd mldk lsok dky vPNk jgk gS vkSj mldh ikfjokfjd ifjfLFkfr;ka cM+h fodV gS & vihy esa [k.MihB }kjk vknsk fnukad 11-8-08 ls ltk fuyfEcr dh & vfHkfu/kkZfjr & nks"kflf) ij jksd yxkus dk vknsk dksbZ fu;e ugha gS cfYd ,d ,slk viokn gS ftldk voyEcu nqcZy ekeyksa esa fy;k tkuk pkfg;s tks ml ekeys ds rF;ksa ij fuHkZj djrk gS & ;g U;k;ky; dk foosdkf/kdkj gS & okafNr vuqrks"k dk ik= ughaA ¼in la[;k 22 ls 29½
vkosnu fujLr fd;kA
Hon'ble RATHORE, J.—The present misc. application under Section 389 read with Section 482 Cr.P.C. has been moved on behalf of accused-applicant Khemraj for staying the conviction order dated 30.4.2008 passed by the Additional District & Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 19/2005, whereby accused-applicant Khemraj has been convicted and sentenced as under:-
u/S. 147 IPC Rigorous imprisonment for three months with a fine of Rs. 500/-, in default of payment of fine to further undergo one month's rigorous imprisonment.
u/S. 148 IPC Rigorous imprisonment for one year with a fine of Rs. 1000/-, in default of payment of fine to further undergo two month's rigorous imprisonment.
u/S. 323/149 IPC Rigorous imprisonment for three months with a fine of Rs. 500/-, in default of payment of fine to further undergo one month's rigorous imprisonment.
u/S. 324/149 IPC Rigorous imprisonment for one year with a fine of Rs. 1,000/-, in default of payment of fine to further undergo two months rigorous imprisonment.
u/S. 326/149 IPC Rigorous imprisonment for three years with a fine of Rs. 2,000/-, in default of payment of fine to further undergo four months rigorous imprisonment.
u/S. 307/149 IPC Rigorous imprisonment for seven years with a fine of Rs. 3,000/-, in default of payment of fine to further undergo six months rigorous imprisonment.
u/S. 302/149 IPC Life imprisonment with a fine of Rs. 5,000/-, in default of payment of fine to further undergo one year's rigorous imprisonment.
u/S. 452 IPC Rigorous imprisonment for three years with a fine of Rs. 1,000/-, in default of payment of fine to further undergo two months rigorous imprisonment.
All the sentences wee ordered to run concurrently.
2. The accused-applicant was serving as Constable, RAC, 5th Battalion, Jaipur since 9.1.1997 and till the date of his suspension, the service record of the accused-applicant was excellent and throughout his service tenure he was never chargesheeted at any point of time.
3. The accused-applicant has also preferred a writ petition before this Court which was registered as S.B. Civil Writ Petition No. 4973/2002 challenging the departmental enquiry, but during pendency of the writ petition, the Commandant of 5th Battalion, RAC, Jaipur has issued an office order dated 21.6.2008 suspending the accused-applicant from service w.e.f. 30.4.2008. Later on. The aforesaid writ petition was dismissed as withdrawn by this Court vide order dated 12.8.2008 after passing of the judgment dated 30.4.2008 by the Court below.
4. As regards criminal case, on 25.8.2001 FIR No. 166/2001 came to be registered at Police Station Uchchain, District Bharatpur for the offence under Sections 147, 148, 149, 323, 341, 452, 307 and 302 IPC against the accused and after completion of the trial the Additional District & Sessions Judge (Fast Track) No. 2, Bharatpur vide its judgment dated 30.4.2008 convicted and sentenced the accused-applicant in the terms as indicated herein above.
5. The main contention of the learned counsel appearing for the accused-applicant is that the family circumstances of the applicant are very downtrodden and he is the sole earning member of his family and there are mother, father, wife and two children in the family of the accused-applicant and the applicant is having all responsibilities of his family members. The accused-applicant has to fulfill his social obligations and for the same it is necessary that he should not be deprived of his employment and in case the conviction order passed against the accused-applicant is not stayed, he is not likely to get job anywhere and in such circumstances, the same would cause prejudice and adverse affect to his entire family.
6. It is also contended that against the order of conviction and sentence dated 30.4.2008, the accused-applicant has preferred an appeal before this Court and vide order dated 11.8.2008, the sentence awarded to the accused-applicant has been suspended by the Division Bench of this
