Chetan Rathore vs The State Of Madhya Pradesh
2021 Latest Caselaw 7501 MP

                                                                     1                              CRA-4944-2021
                                         The High Court Of Madhya Pradesh
                                                  CRA No. 4944 of 2021
                                              (CHETAN RATHORE AND OTHERS Vs THE STATE OF MADHYA PRADESH)

                                5
                                Indore, Dated : 17-11-2021
                                        Mr Surendra Singh, Sr. Counsel with Mr Manish Sharma, learned
                                counsel for the appellants No. 8, 4, 5 and 10.
                                        Mr Sudhanshu Vyas, learned Panel Lawyer for the respondents State.

Mr M.I. Khan, learned counsel for the Objector. 0 1 . IA No.25938/2021 and IA No. 27143/2021 are taken up,

which is first application filed under section 389 (1) of the Cr.P.C for suspension of sentence of appellant No.8 Kishore (IA No.25938/2021), appellant No. 4 Gorav, appellant No.5 Ravi and appellant No. 10 Manoj (IA No. 27143/2021), who have been convicted under sections 147, 302/149 and 323/149 of the I.P.C and sentenced to undergo one year R.I, life imprisonment, six months R.I each with fine of Rs. 500/- each with default stipulation vide judgment dated 17-08-2021 passed by First Additional Sessions Judge, District Badwani.

02. Learned Senior Counsel by taking this court to the prosecution

story submits that as per prosecution story the deceased Suresh was President of "Teji." community and on 04-10-2018 when main accused Chetan was passing in front of the house of the deceased Suresh the deceased Suresh pointed out that Chetan has not deposited certain utensils to the "Dharamshala" of the community. Because of this Chetan got annoyed. He allegedly abused the deceased Suresh, but after sometime he came back with ten persons including the present appellants. As per prosecution story Chetan, his brother Rahul and Golu used force on the deceased Suresh. Chetan assaulted the deceased by using a stone on his head. Lateron, Suresh died.

03. Learned Senior Counsel for these appellants by taking this

Signature Not Verified SAN Court to the findings in paragraph-34 of the judgment submits that as per

Digitally signed by RASHMI PRASHANT Date: 2021.11.17 18:07:19 IST 2 CRA-4944-2021 this finding it is clear like noon day that there was a free fight between the parties. There was a cross First Information Report (F.I.R) lodged by appellant party. Ultimately, the certain injured witnesses PW-1, 2 and 4 were also convicted by the Courts below. By placing reliance on AIR 1976 SC 912 in the case of Puran Vs. State of Rajasthan learned Senior Counsel urged that in a case of this nature, where there was a free fight between the

parties, Section 149 of IPC are not attracted. At best, the accused persons can be punished limited to their overt act in the incident. It is urged that there is no such act on the part of present appellants. They, by no stretch of imagination, could have assumed that suddenly Chetan will use a stone to assault the deceased. The appellants came empty handed. They were on bail before the Court below and did not misuse the liberty.

04. Prayer is opposed by both the counsel for State and Objector. They urged that there are five injured witnesses who have deposed against the appellants. Mr M.I. Khan, learned counsel for the objector placed reliance on the judgment of Supreme Court in Criminal Appeal No. 876/2021, Shakuntala Shukla Vs. State of Uttar Pradesh decided on 07-09- 2021. By taking assistance of this judgment it is urged that Section 149 is clearly attracted.

05. We have heard the parties at length. The relevant portion of the judgment delivered by Supreme Court in the case of Puran Vs. State of Rajasthan reported in (1976) 1 SCC 28 reads as under :-

"4. First, this was a case of sudden mutual fight between the parties and there could, therefore, be no question of invoking the aid of Section 149 for the purpose of imposing constructive criminal liability on the appellant. The appellant could be convicted only for the injuries caused by him by his individual acts."

06. As per the Doctor (PW-22), one injury which became reason of death is found to be on the occipital region of the deceased. In view of the free fight between the parties and the single injury which is allegedly caused Signature Not Verified SAN

Digitally signed by RASHMI PRASHANT Date: 2021.11.17 18:07:19 IST 3 CRA-4944-2021 by main accused Chetan we deem it proper to suspend the remaining jail sentences of appellants. Consequently, IA No.25938/2021 and IA No. 27143/2021 are allowed. The execution of jail sentences of the appellants are hereby suspended and it is ordered that the appellants be released on bail on their furnishing a personal bond for a sum of Rs.50,000/- (Rs. Fifty Thousand) each with one solvent surety each of the like amount to the satisfaction of the trial Court with a further direction to appear before the Trial Court, Badwani, District Badwani on 22.12.2021 and also on such other dates, as may be fixed by the trial Court, Badwani, District Badwani in this regard during the pendency of this appeal.

                                   (SUJOY PAUL)                                             (PRANAY VERMA)
                                      JUDGE                                                        JUDGE


                                rashmi




Signature Not Verified
 SAN



Digitally signed by RASHMI
PRASHANT
Date: 2021.11.17 18:07:19 IST