Mukesh Sonthaliya vs State of Rajasthan

This is application for suspension of sentence filed for second time by accused-applicant Mukesh Sonthaliya, who has been convicted for offence u/s 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 u/s 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.

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.

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.

Learned Public Prosecutor opposed the application for suspension of sentence.

Perusal of the impugned judgment especially the finding recorded by the learned trial court in para 150 reveals that the trial court has believed the testimony of Baldevaram (PW9) and Manoj Kumar (PW16), who have specifically named the accused-applicant on allegation of opening fire at the deceased. Ramchandra Sharma (PW10) has categorically given the background in which the incident in question had taken place in which Gopal Phogawat was liquidated. He has alleged that on 23/3/1996 when he was sitting in the wine shop of Arif, 2-3 D.I. jeeps and 2-3 Bollero jeeps came and stopped at the shop of present accused applicant Mukesh Sonthaliya. Accused Mukesh Sonthaliya, Mukesh Khund, Mahendra Barala, Rajesh Burdek, Hari Banuda, Nemichandra Mali and 10-15 persons elighted from the jeeps. As per his evidence, Mukesh Sonthaliya used to run the liquor shop there. His employee Sheeshram was murdered and on that day, his cremation had taken place. He heard Hari Banuda say that it was Raju Theth, who murdered Sheeshram and that Gopal Phogawat (deceased in the present case) was helping him. Mukesh Sonthaliya stated that Raju Theth had not just murdered Sheeshram but has in a way killed him. All the accused should give him support so that he can take on Gopal Phogawat are giving him support. He on hearing their conversation understood that the accused were hatching up a conspiracy to liquidate Gopal Phogawat.

Though the learned counsel for the accused-applicant has tried to discredit the witness Ramchandra (PW10) by referring to his admission that he was accused in number of cases in different police stations and was arrested several times and in fact, he was member of the gang of deceased-Gopal Phogawat but that by itself may not be a reason at this stage to completely discard his testimony when the trial court has recorded a finding of conviction also believing the testimony of Baldevaram (PW9) and Manoj Kumar (PW16). In fact, statement of Ramchandra (PW10) reveals that not only Sheeshram and Gopal Phogawat were murdered in two different incidents but as per statement of Baldevaram (PW9), Raju Theth had earlier also murdered Vijaypal, brother-in-law of accused Balvir Banuda. There was thus rivalry between these two gangs in Sikar district. Baldevaram (PW9) has also stated that when in 2006, Sheeshram, who was working at the wine shop of accused-applicant Mukesh Bajia, Sheeshram was murdered by the gang of Raju Theth, Mukesh Bajia was always saying that Gopal Phogawat was helping Raju Theth, owing to which, there was rivalry between the two gangs.

Learned counsel for the accused applicant has made criticism of findings recorded by the trial court on the question of recovery of mobile hand set as also the plea of alibi but we do not at this stage wish to deal with those arguments in detail.

Considering all these facts, therefore this court was not persuaded to suspend the sentence of the accused applicant.

We therefore do not find any reason to take a different view than the one expressed earlier. This second application for suspension of sentence u/S. 389 Cr.P.C. is accordingly rejected.