VINIT KUMAR MATHUR, J. - (1.) The instant application for suspension of sentence has been preferred on behalf of appellants-applicants Padmaram, Laduram @ Ladhuram and Smt. Asudevi who stand convicted and sentenced vide judgment dated 05.01.2019 passed by learned Sessions Judge, Jodhpur District in sessions Case No.152/2017.
(2.) Mr. M.S.Shekhawat, learned counsel representing the appellants-applicants vehemently and fervently contended that there is hardly any evidence worth the name on the record so as to justify the conviction of the appellants as recorded by the trial court. He urged that the deceased Smt. Mamta was married to the appellant Padmaram on 24.02.2016. She was living happily in the matrimonial home. During her marriage with Padmaram, she conceived and gave birth to a child just a few days before her unfortunate death by drowning in a water tank. The child died because it was suffering from various ailments. The deceased became perturbed and depressed by this unfortunate event. She was herself suffering from epilepsy like illness. He urged that the first informant PW-2 Champa Ram, being the father of the girl stated that the fact regarding demand of dowry was conveyed by the deceased to his wife Smt. Premi Devi PW-4 during a mobile talk on 26.04.2017. The fervent plea of Shri Shekhawat was that no corresponding call details so as to corroborate this assertion were collected during investigation and rather the Investigating Officer PW-11 Devendra Singh admitted in his cross examination that neither the deceased nor her mother had access to mobile phones on the date of the incident. He further contended that other than this communication exchanged between the deceased and her paternal family members, there is no allegation whatsoever in the entire prosecution evidence that the deceased was ever harassed or humiliated in the matrimonial home on account of demand of dowry. He further submitted that the allegation of demand of dowry is belied from the candid admission appearing in the testimony of prosecution witnesses that the accused got the delivery of Smt. Mamta carried out at a private hospital named Rathi Hospital at Jodhpur and bore the entire expenses thereof. He urged that had there been any truth in the allegation that the accused were of greedy nature, they would not have undertaken the significant expenses of getting the delivery of the deceased undertaken in a private hospital. He further drew the court's attention to the statement of first informant PW-2 Champa Ram wherein an admission was elicited that he drafted an oral FIR and that the police officers got it typed and that there was a significant variance in the written report and the typed report. He thus, urged that the entire prosecution case is false and fabricated and that the accused-appellants who are in custody for the approximately 1 1/2 years, deserve to be enlarged on bail during the pendency of the appeal by suspending the sentences awarded to them by the trial court.
(3.) Learned Public Prosecutor, on the other hand vehemently and fervently opposed the submissions advanced by the learned defence counsel. However, he too is not in a position to controvert the fact that the foundation of the prosecution case is based on an allegation that the deceased Smt. Mamta conveyed to her mother during a mobile call on 26.04.2017 that she was being harassed and humiliated in the matrimonial home on account of demand of dowry. Admittedly no record of call details was collected during investigation by the Investigating Officer PW-11 Devendra Singh so as to lend credence to this allegation. Further more, the Investigating Officer PW-11 Devendra Singh admitted in his cross examination that he did not carry out any investigation regarding the sim or mobile phones from any witness. We cannot lose sight of the fact that Smt. Premi Devi PW-4 mother of the deceased, could not state about the mobile numbers of either herself or of the deceased. Neither she, nor the first informant Champa Ram PW-2, could elaborate upon the mobile number mentioned in the First Information Report.;