IN THE SUPREME COURT OF INDIA

(CRIMINAL APPELLATE JURISDICTION)

 SPECIAL LEAVE PETITION (CRL.) NO.   1234   OF 2014

(Under Article 136 of the Constitution of India)

                                            

                                       POSITION OF PARTIES

BETWEEN:

Mr. Kumar                                    Appellant No.2                Petitioner

Son of ________,

Sunari, P.S.: Suneel,

District Jhalawar, Rajasthan

AND

State of Rajasthan                                Respondent                Respondent

        

IN THE MATTER OF:

  PETITION FOR SPECIAL LEAVE TO APPEAL AGAINST THE

JUDGEMENT AND FINAL ORDER DATED ________ PASSED BY THE
HON’BLE HIGH COURT OF _______ IN CRIMINAL MISC. THIRD
APPLICATION NO. ____ OF ____ IN CRIMINAL APPEAL NO. ____ OF
_____

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To,

THE HON’BLE CHIEF JUSTICE OF INDIA

AND HIS COMPANION JUSTICES OF THE

HON’BLE SUPREME COURT OF INDIA.

THE HUMBLE PETITION OF THE PETITIONER ABOVENEMED

MOST RESPECTFULLY SHEWETH:

1.       The present Special Leave Petition is being filed under Article 136 of the
Constitution of India against the impugned final judgement and order dated
________ passed by the Hon’ble High Court of Rajasthan in Criminal Misc.
Third Application No. ____ of ____ in Criminal Appeal No. ___ of ____ whereby
the Hon’ble High Court dismissed the said application filed by the petitioner
herein summarily on the premise that in the facts and circumstances of the
present case there was no ground to suspend the sentence of the petitioner.   
A true copy of the said impugned order dated _________ is annexed hereto
and marked as ANNEXURE.

 2.       QUESTIONS OF LAW:

 The present Special Leave Petition raises the following substantial questions of
law of great public importance for consideration of this Hon’ble Court.

 3.       That briefly stated the facts giving rise to the present Special Leave
Petition are as follows: 

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3.1     That it is alleged that on 5/10/2010, the petitioner was time and again
blowing the horn of his motor cycle in front of the house of one X.
Thereafter on account of this a verbal altercation has ensued.

 3.2     That, it is further alleged inter alia, against the petitioner that on
6/10/2010, at about 10.00 a.m., the said X had gone to the river to take a
bath.  At or about the time when they had washed their clothes, the
petitioner along with certain other persons namely Y and Z (co-accused)
arrived there.

 3.3     That it is further alleged that the petitioner and Y were armed with
“talwars” while the others were armed with “kulharis” and “lathis”. All the
accused persons pulled out X from the water and started beating him.

 3.4     That the petitioner is further alleged to have struck the said X with a
“talwar” on his hand and which allegedly resulted in the said hand of X
being cut off from the elbow and Y is alleged to have inflicted injury on the
thigh of X with a “kulhari” and all other accused are also alleged to have
inflicted injuries with “lakdi”, “kulhari” and “talwar” and thereafter they are
alleged to have thrown X into the river and after which they ran away
towards the village.

 3.5     That it is the further case of the prosecution that thereafter A, alleged
to be relative of said X , removed the said X from the river where he had
been left by the accused persons and put him on a cot and brought him
home.

 3.7     That on 7/10/2010, a verbal complaint was lodged with the police by
the daughter of X aged 24 years, inter alia, against the petitioner. The said
daughter was at the instant time accompanied by one B.

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 3.8     That on the basis of above verbal complaint the police registered F.I.R.
No. 420 of 2010, under sections 299, 304 and others.  A true copy of the
said F.I.R. is annexed hereto and marked as ANNEXURE A.

 3.9     That after completion of investigation the police filed the Charge Sheet.

 3.10   That the Ld. Trial Court framed charges, inter alia, against the
Petitioner, under sections 299, 304 read with section 34 of the Indian
Penal Code 1860. During the course of the trial the prosecution has
examined 10 witnesses and after the surrender of co-accused Y and Z,
they were examined and P and Q were re-examined. The prosecution
tendered various documents in support of its case. The statements of the
accused including the petitioner were recorded under the provisions of
Cr.P.C.  and five witnesses were produced in defense and Exhibit ____ to
Exhibit ____ were also produced in defense.

 3.11   That the Ld. Trial Court has, vide its judgment and order dated
12/12/2012 convicted the accused persons including the petitioner for the
offence punishable under section 299, 304 of the Indian Penal code 1860.
A true copy of the said judgment and order dated 12/12/2012 passed by
the Ld. Trial Court is annexed hereto as ANNEXURE B

 3.12   That the accused persons including the Petitioner have preferred an
Appeal against their said conviction before the Hon’ble High Court of
Rajasthan in Criminal Appeal No. 123 of 2012.  A true copy of the said
Appeal filed by the petitioner is annexed hereto and marked as
ANNEXURE C.

The Appellants before the Hon’ble High Court including the petitioner herein
had, inter alia, also filed applications seeking the suspension of sentences

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 handed over to them by the Ld. Trial Court in the pendency of the said
appeal

 3.13   That the Hon’ble High Court has vide their order dated 15/2/2013 been
pleased to suspend the sentence of all the appellants before it except the
petitioner herein.  The petitioner craves leave to refer to and rely upon a
copy of the said order dated 15/2/2013 when produced.

 3.14   That subsequently, the petitioner preferred a further application before

the Hon’ble High Court seeking the suspension of his sentence however
the same has also been dismissed vide order dated 3/3/2013.  The
Petitioner craves leave to refer to and rely upon a copy of the said order
when produced.

 3.15   That a third application seeking the same relief of suspension of

sentence has also been dismissed summarily by the Hon’ble High Court
vide the impugned order.

 GROUNDS

 A.      Because the impugned order dated 3/3/2013 passed by the Hon’ble
High Court is patently illegal and erroneous and the same deserves to be
set-aside.

 B.      Because the Hon’ble High Court has failed to appreciate that the
conviction of the petitioner is based solely on the basis of the testimony of
highly interested and partisan witness and the conviction of the petitioner is
wholly unfounded. Accordingly the conviction of the petitioner under
sections 299 and 304 and the sentence awarded thereunder is wholly
illegal.

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 C.      Because the Hon’ble High Court has failed to appreciate that the
petitioner has an extremely good prima facie case and there is every
likelihood of the appeal filed by the petitioner against his conviction being
allowed.

 D.      Because the Hon’ble High Court ought to have considered the case of
the petitioner on parity with the other appellants before it.  Having
suspended the sentences of the other appellants based upon the same
facts as are applicable to the petitioner herein the Hon’ble High Court has
caused a miscarriage of justice.  The Hon’ble High Court was obliged to act
fairly and consider the facts of the case, which do not make any distinction
qua the role allegedly attributed to the petitioner.

 E.      Because the Hon’ble High Court ought to have considered the fact that
the Criminal Appeal No. ___ of ____ filed by the Petitioner and pending
hearing is not likely to reach hearing in the near future.  The weekly board
released by the High Court lends credence to this fact.  The petitioner ought
to have been given the benefit in this regard of the matter and especially in
view of the facts that there are several contradictions in the case of the
prosecution.

 F.      Because the Hon’ble High Court ought to have considered that the
___________ was not an eye witness at all.  It has come on record that she
was not even present at the time of the alleged incident.   Despite this fact
the Ld. Trial Court has proceeded to convict the appellants and the
judgment dated ____________is wholly illegal.

 G.      Because the Hon’ble High Court failed to appreciate that the Ld. Trial
Court has completely erred in disbelieving the statement of __________
and who has specifically stated that on the morning of the alleged incident
_____ was in fact present ____________.  There is no basis or credibility to

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 the fact that the said ______ was an eye witness to the alleged incident
upon whose sole testimony the conviction of the Petitioner is based.   A true
copy of the deposition of the said witness ____________l is annexed hereto
and marked as ANNEXURE

H. Because the Hon’ble High Court has failed to appreciate that the
Ld. Trial Court has misdirected in disbelieving the statement of
_____________ and has in fact proceeded to invent an altogether new
story, seeking to state that since co-accused persons who after being
released on bail had exercised their influence over ____________.  The
conviction of the Petitioner on the basis of this probability and conjuncture
and which is contrary to the facts as revealed during trial is wholly
unfounded.

 I.   Because the Hon’ble High Court ought to have appreciated that the
______________ on the record of the Trial Court being ____________and
indicating her presence ____________, on the date and time of the alleged
incident was credible and reliable and the conviction of the Petitioner
disregarding the glaring facts is wholly illegal.

 J.       Because it has been proved by witness that the petitioner was not
present at the place of incident at all.

 K.      Because the Hon’ble High Court failed to appreciate that the Ld. Trial
Court has proceeded to base the conviction of the petitioner on the solitary
testimony of _________ who is a highly partisan and interested witness.  In
the absence of any corroboration no credence should have been placed on
her testimony.  Moreover, credible motive has been attributed to the
Petitioner to have committed the said act and his implication in the present
case is wholly false and baseless.

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  L.      Because the Hon’ble High Court failed to appreciate that the Ld. Trial
Court has erred in not considering the testimony of _________________
who has stated that ___________ was called from ______________ only
after he and other persons had reached the riverside.  Despite this the Ld.
Trial Court has proceeded to convict the petitioner.  A true copy of the
deposition of the said witness ____________ is annexed hereto and
marked as ANNEXURE ___.

 M.     Because there are material contradictions and inconsistencies in the

version of prosecution witnesses despite which the Ld. Trial Court has erred
in placing reliance on the same and has wrongly convicted the Petitioner.

 N.      Because it is a matter of record that ______________ has stated that

deceased _____________ had not sustained injury on the vital parts of the
body. No bone injury was found in injury ____________. In injury
_________ which was amputation of right hand, vein had cut and excessive
bleeding resulted into Syncope. It has further been stated by Medical Officer
that if timely treatment could have been given to Raghunath, he could have
survived.  In these circumstances no case under-section 302 IPC can be
said to be made out and the conviction of Petitioner under-section 302 in
alternative 302/149 is wholly illegal.  A true copy of the deposition of the
said witness __________ is annexed hereto and marked as ANNEXURE
___.

 O.      Because no blood stains were found on the Kulhari, Talwar and Lathi
recovered at the instance of the accused Appellants and the conviction of
the Appellants is wholly illegal.

 PRAYER

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In the premises the Petitioner humbly prays that this Hon’ble Court may be
graciously pleased to:

 (a)     grant special leave to the Petitioner to appeal under Article 136 of the
Constitution of India against the final impugned order dated
____________passed by the Hon’ble High Court of __________ in Criminal
Appeal No. ____ of ____;

 (b)     pass such other or further order(s) as this Hon’ble Court may deem fit, just
and proper in the facts and circumstances of the case.

 FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY BOUND

SHALL EVER PRAY.

 Drawn by:

Settled by:  _____________, Advocate

                                                                                       Filed by:

ADVOCATE FOR THE PETITIONER

__________

DRAWN ON:

FILED ON