HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 1037/2025 In D.B. Criminal Appeal No.231/2025 1. Smt. Sayra Bano Alias Guddi Wife Of Mumtaz Khan, Aged About 30 Years, R/o Miyan Ki Dhani Police Station Ranoli District Sikar (Raj) (At Present Lodged In Mahila Karagar Central Jail Jaipur) 2. Subhash Chand Son Of Rameshwarlal, Aged About 23 Years, Resident Of Bajiya Ki Dhani, Tan Ladhana Police Station Ranoli District Sikar (At Present Lodged In Central Jail Bikaner) ----Petitioners Versus State Of Rajasthan, Through The Public Prosecutor ----Respondent Connected With D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 1571/2025 In D.B. Criminal Appeal No.231/2025 Mohammad Hanif @ Idu S/o Shri Azam Khan, Aged About 43 Years, R/o Village Miyan-Ki-Dhani, Police Station, Ranoli, District Sikar. (Presently Lodged In Central Jail At Bikaner) ----Petitioner Versus State Of Rajasthan, Through Public Prosecutor. ----Respondent D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 2099/2025 In D.B. Criminal Appeal No.231/2025 Mumtaz Khan Son Of Shri Azam Khan, Aged About 72 Years, Resident Of Miyan-Ki-Dhani, Police Station, Ranoli, District Sikar, (Raj.) (Presently Lodged In Central Jail At Bikaner) ----Petitioner Versus State Of Rajasthan, Through Public Prosecutor. ----Respondent For Petitioner(s) : Mr. Swadeep Singh Hora For Respondent(s) : Mr. Vivek Sharma, PP (2 of 6) [SOSA-1037/2025] Mr. V.R. Bajwa, Sr. Adv. assisted by Mr. Amar Kumar, Mr. Ved Prakash Bishnoi & Ms. Savita Nathawat HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL HON'BLE MR. JUSTICE CHANDRA PRAKASH SHRIMALI Order 09/01/2026 The accused-applicants (for short, ‘the applicants’) have been convicted and sentenced by the learned Additional Sessions Judge No.4, Sikar (for short, ‘trial Court’) vide judgment dated 29.04.2025 as under: 1. Under Section 148 IPC: One year simple imprisonment and fine of Rs. 1,000/- in default thereof, seven days additional imprisonment. 2. Under Section 341 IPC: One year simple imprisonment and fine of Rs. 500/- in default thereof, five days additional imprisonment. 3. Under Section 323/149 IPC: Six months simple imprisonment and fine of Rs. 1,000/- in default thereof, seven days additional imprisonment. 4. Under Section 325/149 IPC: Four years simple imprisonment and fine of Rs. 5,000/- in default thereof, one month additional imprisonment. 5. Under Section 302/149 IPC: Life imprisonment and fine of Rs. 20,000/- in default thereof, six months additional imprisonment. Sentences to run concurrently. Learned counsel for the applicants-Mr. Swadeep Singh Hora submits that the allegation of assaulting the deceased is against a large number of persons whereas, he has received only three injuries out of which, two are simple in nature. He further submits (3 of 6) [SOSA-1037/2025] that post-mortem report of the body of the deceased Yakub (Ex-P- 33) reflects three injuries out of which, injury on his head was found to be fatal as per the statement of Dr. Ram Lakhan Meena (PW-18) who conducted the autopsy. He submits that without recording any finding that the common object of the unlawful assembly comprising of the applications, was to cause death of Mukarab Khan or any of his family member, learned trial Court convicted them under Section under Section 302 read with Section 149 IPC although, in the same breath, while acquitting them under Section 307/149 IPC, it was held that the prosecution has failed to establish common object of the unlawful assembly to cause death of the injured persons. Learned counsel submits that even otherwise, from the prosecution evidence, it is reflected that deceased Yakub happened to be present at the place of incident by chance and therefore, it could not be presumed that the applicants intended his death in furtherance of their common object. Relying upon the observations made by their Lordships in the case of Kuldip Yadav & Ors. vs. State of Bihar: (2011) 5 SCC 324, learned counsel contends that it was imperative for the learned trial Court, before recording their conviction under Section 302 with the aid of Section 149, to record a clear finding regarding the common object of the assembly as also analysis of the evidence reflecting not only the nature of the common object; but also, that the object was unlawful. Learned counsel-Mr. Swadeep Singh Hora submits that before recording the conviction under Section 149 IPC, the essential ingredients of Section 149 IPC must be established. (4 of 6) [SOSA-1037/2025] Mr. Hora submits that initially, after investigation, charge sheet was filed only against Shafiq Ahmed and later on, supplementary charge sheet was filed against the co-accused- Sharif Ahmed including the applicants-Hanif @ Idu and Subhash Chand. He contends that the applicants Sayra @ Guddi and Mumtaz Khan were added as accused under Section 319 Cr.P.C. Lastly, he submits that all the applicants were on bail during trial with no allegation of misuse of their liberty. Learned counsel submits that hearing of the appeal is likely to take time and prays for suspension of their sentence during its pendency. Per contra, learned Public Prosecutor, assisted by learned Senior Counsel for the complainant, vehemently opposed the applications. He submits that it was a cold blooded murder carried out in furtherance of common object of the unlawful assembly wherein, an overt act has been attributed to each of the applicants. He submits that in this case, the investigation has been defective and the applicants should not be extended its benefit. He, therefore, prays for dismissal of the applications. Heard. Considered. A perusal of the judgment impugned reflects that while acquitting the applicants along with co-accused persons of the charge under Section 307/149 IPC, it was observed by the learned trial Court that had the common object of the unlawful assembly been to cause death of the injured person, they would not have received either simple injuries or grievous injuries on non vital part of the body. However, while convicting them under Section 302/149 IPC, no such finding has been recorded with regard to (5 of 6) [SOSA-1037/2025] their common object to cause death; either of deceased Yakub or any member of the complainant side. In the case of Kuldip Yadav (supra) it was held as under: “36. In order to understand the rival claim, it is useful to refer to Section 149 which reads as follows: "149. Every member of unlawful assembly guilty of offence committed in prosecution of common object If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence." The above provision makes it clear that before convicting the accused with the aid of Section 149 IPC, the Court must give clear finding regarding nature of common object and that the object was unlawful. In the absence of such finding as also any overt act on the part of the accused persons, mere fact that they were armed would not be sufficient to prove common object. Section 149 creates a specific offence and deals with punishment of that offence. Whenever the court convicts any person or persons of an offence with the aid of Section 149, a clear finding regarding the common object of the assembly must be given and the evidence discussed must show not only the nature of the common object but also that the object was unlawful. Before recording a conviction under Section 149 IPC, the essential ingredients of Section 141 IPC must be established. The above principles have been reiterated in Bhudeo Mandal v. State of Bihar.” Further, in view of the nature of injuries received by the deceased, the nature of the weapon allegedly used by the applicants, they being on bail during trial, absence of allegation of misuse of the liberty and the possibility of hearing of the appeal taking time, we deem it just and proper to allow the applications. Accordingly, the suspension of sentence applications are allowed. The substantive sentence awarded to the applicants by (6 of 6) [SOSA-1037/2025] the learned trial Court vide judgment dated 29.04.2025 shall remain suspended during pendency of the appeals provided each of them furnishes bail bonds to the satisfaction of the learned trial Court to the effect that they shall appear before this Court on or before 10.02.2026 and as and when called upon to do so till disposal of the appeal and subject to following conditions: 1. That they will appear before the learned trial court in the month of January of every year till the appeal is decided. 2. That if the applicants change the place of residence, they will give in writing their changed address to the learned trial Court as well as to counsel in the High Court who shall, in turn, inform their learned Court. 3. Similarly, if the sureties change their address(s), they will give in writing their changed address to the learned trial Court. The learned trial Court shall keep the record of attendance of the accused-applicants in a separate file. Such file be registered as Criminal Misc. Case relating to original case in which the accused- applicants were tried and convicted. A copy of this order shall also be placed in that file for ready reference. Criminal Misc. file shall not been taken into account for statistical purpose relating to pendency and disposal of the cases in the trial Court. In case, the said accused-applicants do not appear before the learned trial Court, learned trial Judge shall report the matter to the High Court for cancellation of benefit extended by this order. (CHANDRA PRAKASH SHRIMALI),J (MAHENDAR KUMAR GOYAL),J GAURAV SHARMA /19-21