Sanjay Tiwari vs State Of Chhattisgarh
2022 Latest Caselaw 1117 Chatt

                   HIGH COURT OF CHHATTISGARH, BILASPUR
                                    CRA No. 591 of 2016
   Sanjay Tiwari S/o Gaya Prasad Tiwari, Aged About 29 Years, R/o Tala, Post Office and
    Police Station Majhauli, District Sidhi, Madhya Pradesh. Present R/o Housing Board
    Colony, Saddu, Sector 8, Post Office Raipur, Police Station Pandri, Raipur, District
    Raipur, Chhattisgarh., Chhattisgarh
                                                                                  ---- Appellant
                                           Versus
   State Of Chhattisgarh through the District Magistrate Raipur, District Raipur,
    Chhattisgarh., Chhattisgarh
                                                                               ---- Respondent

02/03/2022 Mr. Aman Pandey, Advocate for the appellant.

Ms. Shivali Dubey, Panel Lawyer for the State/respondent. Heard on I.A.No.1, application for suspension of sentence and grant of bail to the appellant.

The appellant has been convicted and sentenced by the judgment of conviction and order of sentence dated 04-03-2016 passed in Sessions Trial No.295/2013 by the 8th Additional Sessions Judge, Raipur, District Raipur, Chhattisgarh, in the following manner :-

             Conviction                        Sentence
             U/s 302 of the IPC                Life Imprisonment and fine of Rs.5,000/-, in
                                               default of payment of fine amount additional
                                               R.I. for five years.

It is submitted by learned counsel for the appellant that this is repeat application for suspension of sentence and grant of bail filed by the appellant in this appeal, his earlier application for suspension of sentence and grant of bail was dismissed as withdrawn on 20-11-2017. It is submitted that conviction against the appellant under Section 302 of the IPC is totally erroneous and bad in law without there being any evidence of prosecution beyond reasonable doubt. According to the testimony of Doctor S.K. Bagh (PW-13) he has clearly reported that death of deceased was due to asphyxia which had resulted due to hanging and the doctor had not given or expressed any opinion as to whether death was homicidal or suicidal. There is no other evidence present in the case to show that the appellant had in any manner caused death of the deceased. Brijnandan Prasad Mishra (PW-

3) has stated in his deposition that children of the deceased were present in the house when the incident occurred, but those children were neither made witnesses nor examined in the Court. The appellant had also established his alibi in the trial by making statement in his examination under Section 313 of the Cr.P.C. The other witnesses, Rajeshwari Mishra (PW-2) and Brijnandan Prasad Mishra (PW-3) are not the witnesses of the spot of the incident. Therefore, conviction under Section 302 of the IPC is not at all made out. If testimony of Rajeshwari Mishra (PW-2) and Brtijnandan Prasad Mishra (PW-3) is to be believed that the appellant used to torture the deceased then at the most the offence, if made out, that would be under Section 306 of the IPC. The appellant has already undergone about 8 years in jail and there is likelihood of delay in final hearing of this case. Therefore, it is prayed that the appellant be granted bail during pendency of this appeal.

Learned State counsel opposes the application and submits that although the doctor has not given clear opinion regarding homicidal death of the deceased, but learned trial Court has in the impugned judgment held on the basis of the analysis made that it was a case of homicidal death. Further, Rajeshwari Mishra (PW-2) has made statement before the Court that it was the appellant alone who was present in the house at the time when the incident occurred. Therefore, the story of alibi is clearly not established in this case. Hence, the case against the appellant has been clearly proved and there is no ground to interfere with the finding of the trial Court in this appeal. Therefore, the application may be rejected.

Heard learned counsel for the parties and perused the record of the trial Court.

Considered on these submissions. After perusal of the record of the case we are of the view that Doctor S.K. Bagh (PW-13) has not given very clear opinion regarding homicidal death and apart from that, the doctor has been firm on this point that cause of death was asphyxia alone, although there are some injuries on the body of the deceased regarding which the appellant has given explanation. After considering these facts and also looking to the long detention of the appellant, we are of the view that the application should be allowed.

Accordingly, I.A.No.1, application for suspension of sentence and grant of bail is allowed.

It is directed that the jail sentence imposed upon the appellant shall remain suspended during the pendency of this appeal and he shall be released on bail on his furnishing a personal bond in the sum of Rs.25,000/- with one surety in like sum to the satisfaction of the trial Court for his appearance before the Registry of this Court on 15th of June, 2022. He shall thereafter appear before the trial Court on a date to be given by the Registry of this Court and shall continue to appear there on all such subsequent dates as are given to him by the said Court, till disposal of this appeal.

                      Sd/-                                       Sd/-
               (R.C.S. Samant)                        (Arvind Singh Chandel)
                  Judge                                        Judge




Aadil