Mohanlal And Ors vs State, Through P.p.

The instant application has been filed on behalf of accused-appellants under Section 389 Cr.P.C. seeking suspension of the sentences awarded to them by the learned trial Court.

Heard learned counsel for the appellants, learned Additional Advocate General as well as learned counsel for the complainant and perused the material available on record.

Shri Vineet Jain, learned counsel for the accused-appellants vehemently and fervently urges that even if the highest allegations of the prosecution as set out in the Parchabayan (Exh.P/11) of injured-Mohan Lal (PW-4) and in the sworn testimony of the material witnesses are evaluated, it is clear that the appellants herein were already present at the field in question with the co-accused persons. The members of the complainant party went to the field in the dead of night at about 11:15 PM under a pretext that they wanted to cultivate the same. Thereupon, a fight ensued wherein the co-accused Suresh and Gopi Ram allegedly assaulted and caused the fatal injuries to deceased-Kamlesh. He urges that the complainant party was the aggressor and hence even if the accused took to arms while resisting the illegal attempt of the complainant party in trying to cultivate their field then the accused-appellants exercised their right to private defence. Shri Jain, thus, urges that ex-facie invocation of Section 149 of IPC for convicting the appellants was totally uncalled for and unjustified. He, thus urges that the appellants, who were on bail during the course of trial and did not misuse the liberty so granted to them, deserve indulgence of bail during pendency of the appeal.

Learned Public Prosecutor for respondent-State and learned Senior Advocate, Shri J.S. Choudhary, assisted by Ms. Hemlata Choudhary, representing the complainant, vehemently and fervently opposed the submissions advanced by appellants' counsel. However, they too are not in a position to dispute the fact that accused-appellants were already present in the field in question where the incident took place in the dead of night at 11:30 PM. Indisputably, members of the complainant party went to the field under the pretext that they wanted to cultivate the same when the fight took place. In this background, the contention of Shri Jain that the accused had a right of private defence of property does hold without merit. Be that as it may, the prosecution witnesses have not attributed any specific blow inflicted to the deceased-Kamlesh.

In this background, we are of the opinion that the appellants deserve indulgence of bail during pendency of this appeal.

Accordingly, the application for suspension of sentence filed under Section 389 Cr.P.C. is allowed and it is ordered that the sentences passed by learned Additional Sessions Judge, Bhinmal, District Jalore, vide judgment dated 21.11.2019 in Sessions Case No.65/2015 (CIS No.363/2015) against the appellant-applicants (1) Mohanlal S/o Sh. Ramaram, and (2) Smt. Bhagwati W/o Sh. Goparam, shall remain suspended till final disposal of the aforesaid appeal and they shall be released on bail, provided they execute a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for their appearance in this Court on 24.02.2020 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-

That he/she/they will appear before the trial Court in the month of January of every year till the appeal is decided.

That if the applicant(s) changes the place of residence, he/she/they will give in writing his/her/their changed address to the trial Court as well as to the counsel in the High Court.

Similarly, if the sureties change their address(s), they will give in writing their changed address to the trial Court.

The learned trial Court shall keep the record of attendance of the accused-applicant(s) in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused-applicant(s) was/were tried and convicted. A copy of this order shall also be placed in that file for ready reference. Criminal Misc. file shall not be taken into account for statistical purpose relating to pendency and disposal of cases in the trial court. In case the said accused applicant(s) does not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of bail.