MUKESH SONTHALIYA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is application for suspension of sentence filed for second time by accused -applicant Mukesh Sonthaliya, who has been convicted for offence under Section 302 read with 120B IPC and sentenced to life imprisonment. His first application for suspension of sentence was dismissed by this Court on 15/4/2013 on consideration of the statements of Baldevaram (PW9), Ramchandra Sharma (PW10), Manoj Kumar (PW16), Dr. Devendra Sharma (PW40) and Rakesh Goyal (PW41) and other evidence on record observing that his case is not better than that of Rajesh Kumar Burdak, Kishore Kumar Nehra, Govind Ram and Nema Mali, whose applications for suspension of sentence have already been declined by this Court earlier. Shri Abhinav Sharma, learned counsel for the accused -applicant submitted that the accused -applicant moved a special leave to appeal before the Supreme Court against the aforementioned rejection order. He was however, permitted to withdraw the same with liberty to file fresh application for suspension of sentence before this Court. In that view of the matter, we heard him again on merits of the application for suspension of sentence. His emphasis has been that accused applicant and co -accused Hari Banuda were in fact present at Baran, 500 kms. away from Sikar, where incident had taken place. They both were arrested at Baran by the police under Section 151 Cr.P.C. on that day at the toll booth, run by his father in Baran. This clearly proves his plea of alibi. Ramchandra Sharma (PW10) is a planted witness, which is evident from the fact that his statement was recorded two months and twenty one days after the incident, much after arrest of the accused -applicant. In fact, Ramchandra Sharma (PW10) himself was a member of the gang of Gopal Phogawat, who has been murdered in the present case.

(2.) LEARNED counsel for the accused applicant has taken the court through the statements of Baldevaram (PW9), Ramchandra Sharma (PW10), Manoj Kumar (PW16) and Rakesh Goyal (PW41). He argued that the trial court has acquitted co -accused Jai Singh of the charge of offence u/Ss. 120B, 119 and 302 read with Section 120B IPC. Two cell phones, which were allegedly used by accused -applicant Mukesh Sonthaliya to contact the other co -accused at Sikar, who actually committed the murder, were recovered from co -accused Jai Singh. The trial court did not believe that aspect. Learned counsel disputed correctness of the prosecution case on this aspect that accused applicant used the alleged cell phones to contact the other co -accused at Sikar.

(3.) LEARNED counsel for the accused -applicant further submitted that Baldevaram (PW9) and Manoj Kumar (PW16) have wrongly alleged that accused applicant was present at the scene of occurrence.