Drugesh Singh vs The State Of Madhya Pradesh
2021 Latest Caselaw 6343 MP

                                   1                               CRA-9216-2019
        The High Court Of Madhya Pradesh
                   CRA-9216-2019
                  (DRUGESH SINGH Vs THE STATE OF MADHYA PRADESH)

9
Jabalpur, Dated : 04-10-2021
      Heard through Video Conferencing.
      Shri Alok Vagrecha and Shri R.S. Thakur, counsel for the appellant.
      Shri Amit Pandey, Panel Lawyer for the State.
      This appeal seems to be arguable, therefore, admitted for hearing.
      Heard on I.A. No. 1686/2021, which is second application for

suspension of sentence and grant of bail to the appellant. Earlier application
was dismissed as withdrawn on 24.7.2020.
      The appellant has been convicted by the trial Court under Sections
148, 302/149 of the IPC and Sections 25, 27 of the Arms Act and sentenced
to undergo R.I. for 3 years with fine of Rs. 3,000/-, life imprisonment with
fine of Rs. 5,000/-, R.I. for 1 year with fine of Rs. 2,000/- and R.I. for 3
years with fine of Rs. 2,000/- respectively with default stipulations. All the
sentences have been directed to run concurrently.
      Learned counsel for the appellant has submitted that the trial Court has

not properly appreciated the evidence available on record. No offence under
Section 149 of the IPC is made out against the appellant and other accused
persons for the simple reason that said provision can be attracted if five or
more persons were part of an unlawful assembly whereas in the instant case,
only four persons were there because one accused Ratan Singh admittedly
died during the course of trial.
      Learned counsel for the appellant urged that the person who has written
Dehati Nalishi was not identified. There is diametrically opposite deposition
of Anurag Singh (PW-5) and (PW-15) Investigating Officer. Anurag Singh
could not describe as to who had noted down the Dehati Nalishi whereas
Investigating Officer has stated that the complainant came with a written
complaint which was sent to Magistrate in due course. By placing reliance on
                                    2                             CRA-9216-2019
2007 Cr.L.J. 1247 , Mirthagai Ali Vs. State which is followed by this
Court in granting benefit of suspension of sentence in Cr.A.No.2744/2012 on
12.01.2016, Shri Vagrecha urged that the very foundation i.e. Dehati Nalishi
becomes doubtful. Reliance is placed on Ex.D/4 (MLC information) to
contend that incident is not reported in the Belkheda Police Station.
Criticizing the spot map, it is urged that there is no mention about any blood

stains whereas the case of the prosecution was that the deceased died
instantaneously on getting the bullet injury. He was bleeding profusely yet it is
strange that in the spot-map and in the clothes of eye witnesses, who allegedly
carried the deceased from Belkheda to Jabalpur, no blood stains were found
and recovered. Reliance is placed on 2005 Cr.L.J. (DB) 299 , Vijay Singh
Vs State of M.P. . In addition, 2003 (9) SCC 420, Khima Vikamshi Vs.
State of Gujarat is also relied upon for this purpose. It is further urged that
driver of the vehicle Manoj Singh (PW-2) deposed that police recovered the
seat cover of Safari in which deceased was taken to Jabalpur hospital whereas
(PW-15), Investigating Officer stated that no such seat cover was
recovered/seized.
      Learned counsel for the appellant submits that two weapons were
recovered from Durgesh, main accused and from Kamlesh. Only one weapon
of Kamlesh was sent for FSL. It was common defence of all the accused
persons before the Court below that it was Kamlesh's gun, which caused
injury to the deceased because of which he died. In absence of sending his
weapon for FSL test, the entire case of the prosecution lost its force. More
so, Armourer's report cannot be a reason to believe that the gun recovered
from Durgesh was used because the Arm was not sent for FSL to examine
whether it was in a running condition. Reliance is placed on 1995 Supp. (3)
SCC 217, Amarjit Singh Vs. State of Punjab.
      Lastly, it is submitted that while taking the deceased from Belkheda to
Jabalpur, eye witnesses had opportunity to lodge report in various police
stations, which were situated in between in the midway and admit him in a
                                    3                             CRA-9216-2019
nearby hospital. Having not done so, the prosecution case becomes
unbelievable in the teeth of 2003 (1) SCC 398, Raghunath Vs. State of
Haryana. Since (PW-13), the doctor categorically stated that no opinion was
sought from him by the police by showing him the weapon which is allegedly
used in commission of crime. It is urged that as per 1976 (4) SCC 356, Ilam
Singh and others Vs. State of U.P., the case of the prosecution must fail.
In nutshell, learned counsel for the appellant submits that the first version was
the lodging of "Dehati Nalsi" but its genuineness is in serious doubt. Learned
counsel for the appellant has submitted that on similar facts, a coordinate
Bench of this Court has suspended the jail sentence of co-accused Gopal
Singh vide order dated 5.8.2020 passed in Cr.A. No. 8659/2019. It is further

submitted that the appellant has served the jail sentence of more than 10
years. In view of the aforesaid, it is prayed that the jail sentence of appellant
be suspended and he be released on bail in the light of the law laid down by
the Supreme Court in the case of Babu Singh and others Vs. State of U.P.
reported in (1978) 1 SCC 579 and of this Court in Sant Ravindra Das
Guru Swaroopanand Vs. State of Madhya Pradesh reported in 2006 40
AIC 287 (MP).
      Per contra, learned Panel Lawyer for the respondent State placed

reliance on the statements of eye witnesses to support the impugned judgment. It is submitted that Court below in sufficient details considered the existence of motive, FSL report and the report of finger print expert. He opposed the application for suspension of sentence.

We have heard the learned counsel for the parties on this aspect at sufficient length. As per Dehati Nalsi and prosecution story, the appellant is the main accused, who caused injury to the deceased by using a double barrel gun as a result of which he sustained fatal injuries on his heart and lungs and ultimately succumbed to them. His fingers prints also tallied with the finger prints of the weapon which was used during commission of crime. There are evidence of eye witnesses which have been corroborated by the medical 4 CRA-9216-2019 evidence of commission of grievous offence like murder by the appellant by using gun. Merely due to some discrepancies or defaults in investigation, the appellant cannot be released on bail.

The case of co-accused Gopal is distinguishable from the appellant. The allegation against Gopal was that he instigated the appellant to kill the deceased, therefore, the appellant cannot claim parity with co-accused Gopal.

Learned counsel for the appellant has submitted that the appellant has served the jail sentence of more than 10 years, but looking to the evidence against the appellant and finding recorded by the trial Court, we are not inclined to suspend his jail sentence and to release him on bail.

Accordingly, the application is hereby dismissed.

      (SMT. ANJULI PALO)                  (RAJENDRA KUMAR SRIVASTAVA)
            JUDGE                                         JUDGE


 PB


Digitally signed by
PRADYUMNA BARVE
Date: 2021.10.05
12:48:17 +05'30'