MUKESH Vs. STATE

JUDGEMENT

(1.) The instant application for suspension of sentences has been preferred by the appellant Mukesh seeking suspension of his sentences recorded by the learned Additional Sessions Judge, No.1, Hanumangarh in Sessions Case No.1/2016 whereby the appellant was convicted and sentenced as below:

(2.) We have heard and considered the submissions advanced by Shri Vineet Jain, learned counsel representing the appellant, learned AAG and learned Public Prosecutor and have gone through the impugned judgment and the record.

(3.) Learned counsel Shri Jain urges that the incident took place on 14.4.2015. The F.I.R. was lodged by Devi Lal on the very same day in which five persons viz. Surjit, Vedprakash, Rajendra, Dilip and Sahab Ram were named to be the assailants and there was a specific allegation in the F.I.R. that Rajendra inflicted the Gandasi blow on the head of the deceased Subhash. It was also alleged in the F.I.R. that these assailants had been convicted on the basis of evidence of Subhash and that the assault was perpetrated by way of vengeance. Shri Jain submits that the case took a turn after more than three months of the incident when the Investigating Officer claims to have recorded the statement of the injured child witness Poonam daughter of Subhash wherein, the accused appellants were implicated as the two assailants. Shri Jain urges that as a matter of fact, after the F.I.R. had been lodged, bargain was stuck against the named accused and the complainant. The accused appellants are the close relatives of the deceased Subhash and had no motive to murder him. They opposed this compromise and thus, the complainant and the accused conspired together to shift the blame and frame the appellant in this case. He urges that the Investigating Officer claims to have recorded the statement of the child witness Poonam on 19.8.2015 whereas, the opinion expressed by the Medical Board on the application of the Police (Ex.D4) dated 24.8.2015 indicates that the girl was not in a position even on that day to give a composed statement and could only communicate with gestures. Shri Jain submits that even while deposing in the court, the child who was examined as P.W.1 admitted in her cross-examination that she could started performing her daily ablutions in the month of January 2016 and before that, she was depending for these mundane jobs totally on her family members viz. mother etc. She even had to make gestures to request for food, water etc. during this period. Shri Jain submits that surprisingly, even the wife of the deceased Subhash, even though her presence at the scene of occurrence was imperative, was not examined in evidence. Likewise, Prithviraj (brother of the deceased) who was named as an eye-witness in the F.I.R. was also not examined in the prosecution evidence without any reason being shown. The Police filed a negative Final Report qua the appellant Mukesh and the Court summoned him to face trial by exercising powers under Section 319 Cr.P.C. As per him, the appellant had no motive to kill the deceased Subhash and manifestly, he has been framed in the case to save the true assailants who were named in the F.I.R. He thus urges that the appellant has strong grounds for assailing the impugned judgment. Hearing of the appeal is likely to consume time. On these grounds, Shri Jain implored the Court to accept the application for suspension of sentences filed on behalf of the appellant Mukesh.