1 D.B. CRL. MISC. BAIL APPLICATION NO. 117/2008. IN D.B. CRIMINAL APPEAL NO. 95/2008. Bhanwar Singh Vs. State of Rajasthan ... Date of Order :: 3rd September 2008. HON'BLE MR. JUSTICE DINESH MAHESHWARI HON'BLE MR. JUSTICE KISHAN SWAROOP CHAUDHARI Mr. B.S. Rathore, for the applicant-appellant. Mr. J.P.S. Choudhary, PP for the State. Mr. H.M. Saraswat, for the complainant. ..... BY THE COURT: The appellant-petitioner Bhanwar Singh son of Mod Singh having been convicted by the judgment and order dated 10.01.2008 as passed by the Additional Sessions Judge (Fast Track) No.2, Jodhpur in Sessions Case No. 3/2006 for the offences under Section 302 read with Section 120-B of the Indian Penal Code and so also Sections 143 and 201 of the Indian Penal Code and having been sentenced for life imprisonment for the offences under Sections 302/120-B IPC with a fine in the sum of Rs. 1,000/- and to further undergo for simple imprisonment for three months for the offence under Section 143 IPC and for three years RI for the offence under Sections 201 IPC with a fine of Rs. 500/- alongwith the co-accused Smt. Hemlata and Narpat Choudhary has preferred Regular Criminal Appeal No. 95/2008 that was admitted for consideration on 12.02.2008. 2 The petitioner has filed this bail application with the prayer that the execution of the sentence awarded by the learned Trial Court be suspended during the pendency of the appeal. We have heard the detailed submissions as made by the learned counsel for the petitioner, the learned Public Prosecutor and the learned counsel appearing for the complainant and have gone through the material on record and so also the impugned judgment and order dated 10.01.2008. It has strenuously been contended by the learned counsel for the petitioner that the present one is practically a case of no evidence and the remote pieces of the material as placed on record by the prosecution do not in any manner connect the petitioner to the crime concerned and the conviction of the petitioner being based on surmises and assumptions is not likely to be sustained. Learned counsel has strenuously contended that in the case at hands, the petitioner was sought to be implicated with a remote reference to the facts that the petitioner had some dispute with PW-12 Sayari regarding certain land and that the victim Suresh Sharma, being a lawyer, used to extend all help and support to the said Smt. Sayari and because of such help by the victim, the dispute relating to the piece of land particularly that comprised in Khasra No. 24 was decided in favour of Smt. Sayari and the result was likely to fall upon the petitioner Bhanwar Singh in the manner that he was to lose the 3 said land and for this reason, the petitioner Bhanwar Singh was nursing a grudge against the victim Shri Suresh Sharma and acted in league with the other accused Hemlata and Narpat Choudhary and entered into the deal of contract killing and extended money for the purpose. However, according to the learned counsel, such story as put forward by the prosecution has not been substantiated by the relevant and material evidence. Learned counsel further submitted that even the call-details in relation to certain telephone numbers and mobile numbers are not at all connecting the petitioner in the matter inasmuch as the prosecution has even failed to establish that the alleged mobile numbers of 94149-14752 and 93147-04787 were at all in use of the petitioner. Learned counsel submitted that the conclusions as reached by the learned Additional Sessions Judge, particularly in paragraphs 232 and 235 are not of legal inferences and cannot in any case result in sustaining the conviction for the offence under Sections 302 and 120-B IPC. Learned counsel has also referred to the decision of the Hon'ble Supreme Court in the case of Aloke Nath Dutta & Ors. Vs. State of West Bengal : (2008) 2 SCC (Cri) 264 to submit that there had not been recovery of any incriminating article wherefor and whereby the conviction of the petitioner could be sustained. In opposition of this bail application, we were again taken through the substantial part of the material on record and learned Public Prosecutor appearing for the State and learned counsel 4 appearing for the complainant while referring to the statements of PW-12 Sayari submitted that she being an independent witness and having clearly pointed out that the petitioner had extended threats for killing the victim Suresh Sharma and then, other independent witness PW-9, Ramniwas having pointed out the petitioner keeping enmity with victim, the doubt as expressed by the victim's son on the petitioner's complicity in the matter was not without basis; and apart from the decision rendered in favour of Sayari to the detriment of the petitioner as placed on record, the substantial pieces of evidence as collected by the Investigating Agency against the other co-accused clearly established that the petitioner extended money that was used for payment to the contract killers. Learned counsel also referred thoroughly to the call-details of the involved mobile numbers and particularly submitted that the modus operandi of the petitioner had been that on the date of incident he shifted himself to village Chadi and was managing the entire show from that place and had been in contact with the other accused Hemlata on her Mobile Number 93147-06280 by putting calls from a STD Booth of PW-32 Bhanwar Singh having his telephone number 02923-255729. Learned counsel submitted that essentially it being a case of planned murder, the prosecution could have only collected circumstantial evidence and the pieces of evidence as collected and as got co-related by the prosecution by leading cogent evidence, it is but apparent that the petitioner was the chief manager of the entire 5 conspiracy and it cannot be said that there is no evidence against the petitioner for which he could not be convicted; and the learned Trial court has not committed any error in convicting the petitioner and such conviction is likely to be maintained in this appeal and the appeal is likely to fail. Learned counsel has also referred to the copies of the sale deeds as produced before the Investigating Agency by Magh Singh son of Sohan Singh under the memo Ex. P- 32 and submitted that the amount received by sale of land under the said sale deeds was utilised for the purpose of payment to the killers. Learned counsel contended that so far the mobiles are concerned, in relation to the mobile number 93147-04787, its ownership of the petitioner is amply established by the document Ex. P-53 and then, the fact remains that despite all the aspects relating to the said mobile numbers and their co-relation with the other co- accused having been established and the said mobile numbers having been connected with the petitioner, the petitioner did not lead any positive evidence to show if the said mobile number belonged to anybody else nor could dare deny positively the fact that said mobile numbers belonged to himself. We have given a thoughtful consideration to the rival submissions and have also scanned through the material available on record and have examined the impugned judgment and order as passed by the learned Additional Sessions Judge (Fast Track) No.2, Jodhpur. 6 As the matter is being considered on the application for suspension of the execution of the sentence, this Court would refrain from making any expression that may have any bearing on the merits of the case but having regard to the overall facts and circumstances of the case, the kind of accusation against the petitioner, and the kind of evidence as placed on record and as sought to be placed into service to suggest his connectivity with the crime in question, and the denial of the petitioner in his statements under Section 313 Cr.P.C., particularly on the question Nos. 150 and 151, and the suggestions as made regarding motive with the petitioner, we are of the considered opinion that the present one is a fit case where execution of the substantive sentence be suspended during the pendency of the appeal. However, we have noticed a fact that investigation remains pending in relation to some other persons said to be involved in the matter namely, Dhanesh s/o Kailash Chand, Badal s/o Dhanesh Soni, resident of Bus Stand, Fatehpur Sikri, Agra and Satish Kumar s/o Kirtar Singh Jat, resident of Baseri, Tehsil Kirawali, Agra and Javed and, therefore, we are of the view that during the pendency of the appeal, the petitioner should not leave during the pendency of the appeal the territorial limits of revenue Division of Jodhpur without specific orders of this Court. Accordingly, this bail application under Section 389 Cr.P.C. is allowed; and the execution of substantive sentence of imprisonment is ordered to remain suspended during the pendency of the appeal 7 subject, of course, to the condition that the petitioner shall furnish a solvent security in the sum of Rs. 50,000/- with two sureties in the sum of Rs. 25,000/- to the satisfaction of the learned Trial Court for his appearance before this Court on 13.10.2008 and on the subsequent dates whenever called upon to do so; and subject to further condition that the petitioner shall not leave the territorial limits of the Revenue Division Jodhpur without specific orders from the Court. (KISHAN SWAROOP CHAUDHARI), J. (DINESH MAHESHWARI), J. Mohan/