Madhya Pradesh High Court
Sheru @ Suresh vs State Of M.P. on 10 March, 2021
Author: Sujoy Paul
1
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
CRIMINAL APPEAL NO.4719 OF 2020
(Sheru @ Suresh vs The State of Madhya Pradesh)
Indore, Dated 10.03.2021
Mr. Ashish Gupta, learned counsel for the appellant.
Ms. Mamta Shandilya, learned counsel for the
respondent/State.
ORDER
Per Shailendra Shukla, J:
Heard on IA No.8095/2021 which is an application for urgent
hearing of the case. Keeping in view the reasons mentioned in the
application, the application for urgent hearing stands allowed.
Accordingly, IA No.8095/2021 stands disposed of.
Also heard on IA No.8094/2021 which is an application filed
under Section 389(1) of Code of Criminal Procedure, 1973 seeking
suspension of sentence of appellant - Sheru @ Suresh S/o
Kashiram Bhilala who has been convicted by Sessions Judge,
Barwani, in Session Trial No.103/2019 vide judgment dated
15.07.2020 and sentenced him as under:-
Conviction Sentence
Section & Act Imprisonment Fine Amount Imprisonment
in lieu of fine
302 IPC Life Rs.5,000/- Six Months RI
Imprisonment (Not Deposited)
201 IPC 03 years RI Rs.1,000/- Two Months RI
(Not Deposited)
The prosecution story in short was that appellant Sheru @
Suresh was nursing a grudge against the deceased Rahul, because
Rahul was having an affair with a girl who was related to appellant.
The appellant, in furtherance of his plan to eliminate Rahul, met him
in a village dinner organized by a villager and offered to escort Rahul,
who was under heavy influence of liquor, to his house. However, he
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
CRIMINAL APPEAL NO.4719 OF 2020
(Sheru @ Suresh vs The State of Madhya Pradesh)
instead took the deceased to a spot near a Well, bludgeoned him to
death with blows of stones and threw his body in a Well. The
prosecution story is based on two factors i.e. the last seen theory of
incident and the recovery of a shirt of appellant with human blood
stains. Accordingly case has been registered against him.
Learned counsel for the appellant has taken the Court through
the evidence and submits that there are lacunae with regard to last
seen theory and that there was no blood group matching to prove that
the blood on the shirt was that of the deceased. Further, learned
counsel has made submissions regarding inherent weakness of
prosecution story. He submits that after the recovery of dead body of
Rahul on 16.05.2019, the appellant was apprehended by Investigating
Officer without any primafacie evidence against him and questioned
him and recovered shirt from him and itwas only two weeks later
that the statements of witnesses pertaining to last seen theory was
recorded. He submits that Pyaresingh (PW/1) had although recorded
Dehati Nalishi report (Ex.P/1) on 16.05.2019, but he made no
mention regarding deceased last seen with appellant. He has invited
Court's attention to the evidence of Pyaresingh (PW/1) who has not
only stated that he had seen the deceased Rahul with appellant before
the deceased went on missing but he also states that he himself saw
Rahul being hit by stones by the appellant. Thus, Pyaresingh (PW/1)
claims to be an eyewitness also. However, he in his police statement
there are no statements regarding him being an eyewitness. Further,
the witnesses (PW/1) and (PW/2) have stated that the deceased was
under heavy influence of liquor, but no liquor has been found in the
post mortem examination of deceased. He further points out that
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
CRIMINAL APPEAL NO.4719 OF 2020
(Sheru @ Suresh vs The State of Madhya Pradesh)
PW/2 the brother of deceased stated that the deceased was escorted
by the appellant from the venue of village dinner, whereas mother of
deceased Ramkunwarbai (PW/3) has stated that her son Rahul had
come back from the village dinner and appellant Sheru @ Suresh
thereafter came to her house and took the deceased away. As against
the prosecution case of appellant who had nursed a grudge against
Rahul (deceased), the witness (PW/2) in para 12 has stated that there
was no enmity between Rahul and appellant Sheru @ Suresh, both
were friends and used to roam around together. The host of village
dinner, defence witness Mr. Pyaresingh (DW/1) has stated that the
appellant was serving the invitees along with witness till 9:00 pm and
thereafter appellant had taken dinner with the witness at 9:00 pm,
whereas deceased Rahul had already left the village at 6:00 pm after
taking dinner. Thus, the aforesaid lacunae has been pointed by the
learned counsel for the appellant.
Learned counsel for the respondent/State was also heard who
has vehemently opposed the application and in his written reply, he
has stated that there is no reason to disbelieve the witnesses.
It appears that there is substance in the submissions of learned
counsel for the appellant regarding discrepancies in the evidence
pertaining to last seen theory. As far as the submission pertaining to
the non-identification of blood group on the shirt of appellant, it
would be appropriate to refer to a citation of Balwant Singh vs State
of Chhattisgarh 2019 7 SCC 781 in which it has been held that if
other evidence is credible, the accused may be denied the benefit of
doubt when the blood group has not been identified. However, in the
present case, there is material available on record to show that other
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
CRIMINAL APPEAL NO.4719 OF 2020
(Sheru @ Suresh vs The State of Madhya Pradesh)
corroborating evidence is not creditworthy.
Submissions were heard and perused the record.
After duly considering the submissions and after perusing the
material available on record, a case is made out for allowing the
application for suspension of sentence. Accordingly, application-IA
No.8094/2021 is being allowed. The substantive jail sentence of
appellant - Sheru @ Suresh S/o Kashiram Bhilala is suspended
subject to his depositing the fine amount (if not already deposited)
and on furnishing a personal bond in the sum of Rs.50,000/-(Rupees
Fifty Thousand only) with one local solvent surety in the like
amount to the satisfaction of the trial Court for his appearance before
the Registry of this Court on 23.04.2021 and on all other subsequent
dates as may be fixed by the Registry in this behalf.
Accordingly, IA No.8094/2021 stands disposed of.
Record is available.
List the appeal for final hearing in due course.
Certified copy as per Rules.
(SUJOY PAUL) (SHAILENDRA SHUKLA)
JUDGE JUDGE
Arun/-
Digitally signed by ARUN
NAIR
Date: 2021.03.12 17:20:30
+05'30'
