Suspension of sentence is granted where the prosecution fails to establish a complete chain of circumstantial evidence, specifically when the application of Section 106 of the Evidence Act is unsupported by evidence of exclusive possession of the crime scene.

Order

The accused-applicants (for short, ‘the applicants’) have been convicted and sentenced by the learned Additional District & Sessions Judge No.2, Jaipur Metropolitan-I (for short, ‘learned trial Court’) vide judgment dated 08.01.2025 as under:

1. Under Section 302 IPC: Life imprisonment and fine of Rs. 25,000/- in default whereof, two months additional rigorous imprisonment.

Learned counsels for the applicants submit that although, the case is based on circumstantial evidence but, the learned trial Court convicted them without appreciating that the prosecution could not establish the complete chain of events leading to only conclusion of their guilt. They submit that from the evidence on record, it was established that in all, there were total 23 inmates in the Government Observation and Child Home, Sethi Colony, Jaipur and 12 inmates in the Bhagat Singh Kaksh-the scene of crime respectively whereas, the learned trial Court has held that only the deceased and the applicants were present in the Bhagat Singh Kaksh on the fateful night relying on the sole testimony of Shri Man Singh (PW-16)-one of the inmates. Learned counsels submit that reliance placed by the learned trial Court on the FSL report (Ex-P-111) was misconceived in as much as the iron pipe the alleged weapon of offence was already recovered much before their arrest and the recovery of their blood stained clothes is also doubtful. They further submit that from the FSL report, it is apparent that complete DNA profile from the blood-stained iron pipe could not be obtained. They asserted that in view of the overwhelming prosecution evidence that the deceased was a violent boy and used to quarrel with all other inmates of the child home, findings of the learned trial Court that on account of their previous quarrel with the deceased on 25.04.2022, the applicants had a motive to eliminate him. Lastly, they submit that the applicants are in custody for more than three and half years, hearing of the appeal is likely to take time and prays for suspension of their sentence.

Learned Public Prosecutor has vehemently opposed the prayer.

Heard. Considered.

A perusal of the judgment impugned reflects that three circumstances have been relied upon by the learned trial Court to record the applicants’ conviction; their presence with the deceased in the room-scene of crime, DNA report and motive.

So far as exclusive presence of the deceased in the company of the applicants in the subject room on the fateful night is concerned, as per the prosecution evidence, there were total 23 inmates in the child home and the subject room was allotted to 12 inmates. However, there is no evidence that at the relevant time, only the applicants and the deceased were sleeping in the subject room so as to invite application of Section 106 of the Evidence Act. We also find that the deceased was in the habit of picking quarrel with all other inmates of the child home and on 25.04.2022 also, his altercation took place not only with the applicants but with other inmates as well. The applicants were arrested on 24.05.2022 whereas, the iron pipe was recovered, vide Ex-P3, on 18.05.2022 and their blood-stained clothes on 25.05.2022, i.e., about a week after the date of incident from below a mattress in another room whereas, the evidence on record reflects that the child home was thoroughly searched soon after the incident. In view thereof, their recovery is rendered doubtful. The applicants are in custody for more than three and half years and hearing of the appeal is likely to take time.

In view thereof,, the suspension of sentence applications deserve to be allowed and are allowed accordingly. The substantive sentence awarded to the applicants by the learned trial Court vide judgment dated 08.01.2025 shall remain suspended during pendency of the appeals provided each of them furnishes bail bonds to the satisfact