1 S.B.CR.SUSPENSION OF SENTENCE NO.420/2009 in SB Cr.Appeal No.318/2009 (Phool chand and ors. Vs. State) Date of order : 09-10-2009 Hon'ble Mr.Guman Singh,J. Mr.Madhav Mitra , for the appellants. Mr.Paresh Choudhary, Public Prosecutor. An application on behalf of applicants Phool Chand @ Phoolya, Mukesh Choudhary, Harlal and Lalaram under Section 389 Cr.P.C. has been moved for grant of suspension of sentence against the judgment and order dated 18.3.2009 passed by learned Addl. Sessions Judge (Fast Track) No.1, Jaipur in sessions case no.102/2008 whereby applicants have been convicted for the offence under Secs.304 Part-II, 458, 427 and 323/34 IPC and sentenced to maximum period of seven years' rigorous imprisonment along with fine. Learned counsel for the accused- appellants submits that accused-Phool Chand was charge-sheeted under Sec.302 IPC while the rest of the accused-applicants were charge-sheeted under Sec.302/34 IPC and the 2 trial court after trial, has convicted accused-Phool chand under Sec.304 part II IPC along with other accused-applicants. It is also submitted that there was no previous enmity between accused-persons and deceased Panchu Ram. IN fact deceased Panchu Ram was a shop-keeper and an altercation took place between them on the pretext that inspite of purchase of 'Namkeen' of Rs.5/-, change of Rs.100/- was not made. It is also submitted that in view of scuffle, trial court has not attributed any intention to commit offence at the part of accused persons and has convicted by attributing knowledge on the part of applicant-Phool Chand. It is also submitted that injuries sustained at the body of deceased Panchu Ram are simple in nature but the injury on the head was found to be grievous on post mortem and the doctor has not opined that the same was caused by an iron rod as no outer sign of any injury was seen on the head. It is further submitted that injury could be caused due to fall on the ground. It is also submitted that accused-Phool Chand is in custody from the date he was arrested i.e. 28.3.08. Thus, looking to the nature of offence and quantum 3 of sentence, they deserve to be granted benefit of grant of bail for suspension of sentence. Learned Public Prosecutor opposed the bail application. Heard learned counsel for the applicants, learned Public Prosecutor for the State and perused the relevant material placed before me. Taking into consideration the entire facts and circumstances of the case, it is revealed that scuffle took place between two parties and both the parties have sustained injuries as the injuries are also found to have been sustained on the part of accused persons i.e. Phool Chand, Mukesh and Harlal while deceased Panchu Ram succumbed injury on his head and other two persons of the complainant party Ram Chandra and Shravan have also received injuries in scuffle. After arguing little while, learned counsel for the applicants submits that he wants to withdraw the bail application on 4 behalf of accused-Phool Chand at this stage. He is allowed to withdraw the same. Regarding rest of the accused- applicants, it has been argued that they were on bail during trial and even no role has been assigned to them as the injuries alleged to have been caused by iron rod by accused Phool Chand, and it is not proper that the same was caused in pursuance of common intention as it could not be proved that as to how and when iron rod was picked up by accused Phool Chand and inflicted the fatal injury in the head. In view of submissions advanced and on perusing the judgment of the trial court and the evidence adduced during trial, and without expressing any opinion on the merits of the case, I am inclined to suspend the sentence awarded to the accused-applicants Mukesh Choudhary, Harlal and Lalaram, named above. Accordingly, the bail application for suspension of sentene of accused Phool chand is dismissed as withdrawn, while the bail 5 application for suspension of sentence of accused-applicants Mukesh Choudhary, Harlal and Lalaram is allowed and it is ordered that the sentence passed by learned trial court against the applicants Mukesh Choudhary, Harlal and Lalaram in sessions case no.102/2008 shall remain suspended till the final disposal of aforesaid criminal appeal provided they furnish 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 court for their appearance in this court on 10.11.2009 and whenever called upon to do so. (Guman Singh),J. Sandeep/- Item No.56