[2025:RJ-JD:37030-DB]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Criminal Misc Suspension Of Sentence Application (Appeal)

No. 807/2023 In D.B. Criminal Appeal No. 117/2023 Sandeep Kumar S/o Sh. Banshilal, Aged About 36 Years, Khairampur, P.s. Aadampur, Dist. Hisar (Haryana).

(Presently Lodged In Dist. Jail, Hanumangarh).

----Petitioner Versus State Of Rajasthan, Through Pp ----Respondent For Petitioner(s) : Mr. Vineet Jain, Sr. Advocate assisted by Mr. Harshvardhan Singh For Respondent(s) : Mr. C. S. Ojha, Public Prosecutor HON'BLE MR. JUSTICE DINESH MEHTA HON'BLE MRS. JUSTICE SANGEETA SHARMA

Order

19/08/2025

1. The present application has been filed by the applicant under section 389 Of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.')(Now Section 430 (2) of the Bhartiya Nagrik Suraksha Sanhita, 2023 (hereinafter referred to as ‘B.N.S.S.’) seeking suspension of the following sentences awarded to him by the learned Additional Sessions Judge, Bhadra, District Hanumangarh (hereinafter referred to as ’trial Court’) vide order dated 13.06.2023 passed in Session Case No.21/2020 (CIS No.21/2020):-

Sr. No. Offence Sentence Fine

1. 302 IPC Life Rs.5000/- and in imprisonment default of which to further undergo two years’ additional S.I.

2. 302/120-B IPC Life Rs.5,000/- and in imprisonment default of which to further undergo two years’ additional S.I.

3. 201 IPC Three years’ Rs.1,000/- and in rigorous default of which to Imprisonment further undergo one month additional S.I.

2. Mr. Vineet Jain, learned Senior Counsel submitted that the Investigating Officer had filed a charge-sheet against co-accused Gita and the applicant on the basis of suspicion. He contended that there was no connecting evidence, except for the record from the toll plaza showing his vehicle bearing registration number HR 20 AR 9285 crossing from 'Dhadhar' toll plaza at 2:56 pm and 8:19 pm, and recovery of the applicant’s clothes pursuant to the information furnished by co-accused Gita from her residence.

3. Learned Senior Counsel argued that the trial court held the offence proved against the applicant solely on the basis of the so- called last seen evidence, viz recording of the CCTV footage as indicated above and the photograph, which was placed by the Investigating Officer as Exhibit P/81 and the recovery of the clothes purportedly belonging to the applicant, which too were not found stained with blood.

4. Learned Senior counsel argued that the documents—Exhibit P/78, Exhibit P/79, Exhibit P/80, and Exhibit P/81—cannot be said to be as circumstance of “last seen” simply because his vehicle was found crossing the toll plaza on 05.03.2020 - the date when the deceased was found dead.

5. Learned Senior Counsel argued that even if it is presumed that such evidence can be treated as 'last seen' evidence, there is no other incriminating evidence against him on the basis of which the applicant could have been convicted for the offence of murdering the deceased.

6. While disputing that the applicant had any illicit relationship with the co-accused Gita, learned Senior counsel submitted that even if the best case of prosecution is taken in light of the call details and the testimonies of PW/9 - Maina (Mother) and PW/12 - Sarojbala (Sister), at best, it can be said that the motive to murder the deceased is proved. But this solitary evidence is not sufficient to sustain conviction of the applicant.

7. Learned Public Prosecutor vehemently opposed the application for suspension of sentence and submitted that the testimony of Maina (PW-9) and Sarojbala (PW-12) so also call details of the applicant and co-accused Gita have established that the applicant had an illicit relationship with the co-accused Gita, who was wife of the deceased.

8. Learned Public Prosecutor also submitted that it cannot be a mere coincidence that the vehicle of the applicant - accused (HR 20 AR 9285) had crossed the toll plaza at 'Dhadhar' on the fateful day of 05.03.2020, when the