Madhya Pradesh High Court
Vikas @ Vikram vs The State Of Madhya Pradesh on 23 August, 2021
Author: Rajendra Kumar Srivastava
1 CRA-5823-2017
The High Court Of Madhya Pradesh
CRA-5823-2017
(VIKAS @ VIKRAM AND OTHERS Vs THE STATE OF MADHYA PRADESH)
38
Jabalpur, Dated : 23-08-2021
Heard through Video Conferencing.
Shri R.N. Dwivedi, Advocate for the appellant.
Shri Amitabh Bharti, Panel lawyer for the respondent/ State.
Record of the court below is available on record.
Appeal is admitted for hearing.
Now, heard on I.A. No.7195/2021 which is second application for
suspension of sentence and grant of bail to the appellant. The first application
was dismissed as withdrawn with the liberty to file a fresh application after
completion of half of jail sentence of the appellant No.2-Shyam @ Shyam
Singh @ Sachin.
The appeal has been preferred under Section 374(2) of the
Cr.P.C.,1973 b y the appellant/accused against judgment dated
14.11.2017 passed by learned 3rd Addl. Sessions Judge, Burhanpur
(MP) in S.T. No. 59/2014, by which the appellant has been convicted
fo r offence punishable under Sections 324/34 of IPC and has been
sentenced to undergo R.I. for 1 year with fine of Rs.5000/-, Section
394/34 of IPC and has been sentenced to undergo R.I. for 10 years with
fine of Rs. 10,000/- & Section 460/34 of IPC and sentenced to undergo
R.I. for 10 years with a fine of Rs. 10,000/- with default stipulations
respectively.
Prosecution case, in short, is that on dated 05.05.2014, at about 3
A.M., when complainant-Vivek Agrawal and his family members were
sleeping in his house, three unknown persons trespassed the house then
the parents of complainant awakened and started shouting. Thereafter,
accused persons scuffled with the complainant side and assaulted them
2 CRA-5823-2017
by means of deadly weapons. Appellant No.1 was caught hold on the
spot and other co-accused persons fled away from the spot. During
investigation, it is found that the present appellant-accused ran away
from the spot.
Lear ned counsel for the appellant/accused submits that the
appellant No.2 is innocent and has been falsely implicated in this case
and also been wrongly convicted by the trial Court whereas the
prosecution is failed to prove its case beyond reasonable doubt. The
witnesses of the seizure memorandum have not supported the case of
prosecution. There are material contradiction and omission in the evidence of
the witnesses. He further submits that evidence of medical examiner indicates
that injuries sustained to complainant parties were not inflicted through seized
weapons as size of injuries are different than that of size of weapons. If it
presumed that the appellant No. 2 entered into the house with an intent to steal
some property, no offence more than Section 394 & 407 of IPC is made out
against him. He further submits that appellant No. 2 was not caught hold on
the spot and only on the basis of memorandum of co-accused, he has been
implicated in the case and subsequently convicted by the trial Court but
witness of memorandum has not supported the prosecution case. He is in jail
since 04.06.2014. So he has served 7 years of jail sentence out of 10 years.
The execution of jail sentence of the appellant Nos. 1 & 3 has already been
suspended by this Court and have been released on bail vide order dated
22.10.2020. There is every possibility to succeed in the case. This appeal is
of the year 2017. It is time of COVID-19 pandemic, due to this, final hearing
of this appeal will take time. Therefore, the application filed on behalf of the
appellant may be allowed and execution of his remaining jail sentence may be
suspended and he may be released on bail.
PL for the respondent/State has opposed the application.
Considering the submissions of both the parties as well as
circumstances of the case and the facts that the execution of jail sentence of
3 CRA-5823-2017
other co-accused has already been suspended by this Court and have been
released on bail also the fact, which is coupled with the sentence period
already suffered by the appellant No.2 and effect of COVID-19 pandemic in
conclusion of appeal, this Court is of the opinion that execution of jail
sentence in relation to appellant No.2 should be suspended, therefore, without
commenting anything on the merits of the case, the I.A. No.7195/2021 filed
by appellant No.2 is allowed. It is ordered that subject to payment of fine
amount, if not already deposited, the execution of jail sentence of the
appellant No.2-Shyam @ Shyam Singh @ Sachin hall remain suspended
during the pendency of this appeal and he be released on bail on his
furnishing a personal bond for a sum of Rs.50,000/-(Rupees Fifty
Thousand Only) with one solvent surety in the same like amount to the
satisfaction of the trial Court for their appearance before the trial court on
22.12.2021 and thereafter on all other such subsequent dates, as may be
fixed by the trial court in this regard.
In view of the outbreak of 'Corona Virus disease (COVID-19)' the
appellant shall also comply with the rules and norms of social distancing.
Further, in view of the order passed by the Hon'ble Supreme Court in
suo moto W.P.No.1/2020, it would be appropriate to issue the following
direction to the jail authority :-
1. The Jail Authority shall ensure the medical examination of the
appellant No.2 by the jail doctor before his release.
2 . The appellant No.2 shall not be released if he is suffering from
'Corona Virus disease'. For this purpose appropriate tests will be carried
out.
3 . If it is found that the appellant No.2 is suffering from 'Corona
Virus disease', necessary steps will be taken by the concerned authority
by placing him in appropriate quarantine facility.
List the matter for final hearing in due course.
C.C. as per rules.
4 CRA-5823-2017
(RAJENDRA KUMAR SRIVASTAVA)
JUDGE
Pallavi
PALLAVI SINHA
2021.08.24 17:43:48 +05'30'
