Madhya Pradesh High Court
Sonu Kabadi vs The State Of Madhya Pradesh on 29 October, 2021
Author: Rohit Arya
1 Cr.A. No.3322/2018
The High Court of Madhya Pradesh
Cr.A. No.3322/2018
(Sonu Kabadi Vs. State of M.P.)
Gwalior dated 29.10.2021
Shri Pawan Vijaywargiya, learned counsel for appellant.
Shri Lokendra Shrivastava, learned Public Prosecutor for respondent-State.
Heard on I.A. No.28844/2021, 2nd application seeking suspension of sentence under
Section 389 (1) of Cr.P.C on behalf of appellant-Sonu Kabadi.
Appellant alongwith two accused, namely, Bharat and Akash have been convicted
under Section 302/34 of IPC and sentenced to suffer life imprisonment with fine of Rs.500/-
and under Section 201 of IPC and sentenced to suffer seven years R.I. with fine of Rs.500/-
with default clause respectively vide judgment dated 02.02.2018 passed in Sessions Trial
No.61/2017 by Second Additional Sessions Judge Vidisha (M.P.).
As per prosecution story, an FIR was lodged against unknown persons on 02.01.2017
and the case was registered as Crime No.2/2017 at Police Station GRP Vidisha (M.P.).
In brief, facts of the case are that the railways trackmen/patrolmen Mahendra and
Deepak, during patrolling in the intervening night of 30-31.12.2016 at about 01:05 am, found
a dead body on the site of railways track. Mahendra informed to sub-station Manager R.K.
Singh and through memo, information was sent to GRP Vidisha at about 1:50 am. Thereafter,
ASI S.K.Ahirwar, Police Station GRP and Constable Rajkumar were sent for investigation
but in the midnight, Panchnama could not be prepared. On the morning of next day at about
7:30 am, Panchnama was prepared by the police personnel of GRP and having seized sample
of simple soil and blood-stained soil from the spot, seizure memos were prepared. Blood-
stained slipper, a quarter of country-made liquor and sickle were recovered near the dead
body. Spot map was also prepared. The dead body was identified by the brothers-in-law
(lkyk) Surendra and (thtk) Mathru of the deceased as Rajkumar S/o Karodilal Ahirwar. On
merg intimation under Section 174 CrPC, merg was registered at Crime Case No.54/2016.
The post-mortem was conducted on the body of deceased whereby it has been opined that the
deceased Rajkumar suffered following injuries :-
pksV Ø0-1 ,d LVsc oqUM rhu xq.kk ,d xq.kk vkB Lks0eh0 lhus ij Lkkeus isV ds mij o
ilyh ds uhps ij lh/kk ?kko FkkA
pksV Ø0-2 ,d LVsc oqUM nks xq.kk ,d xq.kk ikap Lks0eh0 ck;sa fuiy ds vkB ls-eh- uhps]
frjNk ekStwn FkkA
pksV Ø0-3 ,d LVsc oqUM rhu xq.kk nks xq.kk ikap Lks0eh0 ck;sa fuiy ds lkr ls-eh- uhps ,oa
ckgjh rjQ frjNk ekStwn FkkA
pksV Ø0-4 ,d LVsc oqUM pkj xq.kk nks xq.kk ikap Lks0eh0 nkfguh tka?k ij ?kqVus ls ikap ls-
eh- mij ,oa ihNs dh rjQ ekStwn Fkk] lHkh pksVksa dh Hkqtk;sa lkekU; gksdj [kwu vkywnk FkhA
On 02.01.2017, the FIR was registered as Crime Case No. 2/17 under Section 302 of
IPC. During investigation, statements of witnesses, namely, Mahendra, Deepak and Mangal
were recorded on the same day and that of Archana, Toran, Babu Khan and Raju on
03.01.2017. Babu Khan and Raju who are stated to be eye-witnesses had disclosed the names
of accused Bharat, Akash and Sonu in their statements recorded under Section 161 CrPC
alleging that all three of them caused knife injuries to the deceased resulting into his death.
Thereafter, appellants Sonu, Akash and Bharat were arrested. Based upon disclosure of facts
of appellants under Section 27 of Evidence Act, following recoveries have been made:-
tIr OkLrq dk fooj.k fdldh gS o fdlls tIr Mhå,uå,å izksQkbZy fjiksVZ dk fu"d"kZ
1-diMk vkfVZdy&b e`rd jktdqekj dh&pIiy o fxV~Vh lHkh dk Mhå,uå,å izksQkbZy leku gS
2-[kuw vkywnk tIr ?kVukLFky ls o diMk ihå,eå vFkkZr
pIiy vkfVZdy&, i'pkr~ MkDVj }kjk nsus ij tIr gqbZ lHkh ij e`rd jktdqekj dk gh
3- [kwu vkywnk fxV~Vh jDr gS
vkfVZdy&lh
1- pkdw vkfVZdy&,Q vkjksih Hkkjr dh fu'kkunsgh ij tIr lHkh ij izkIr Mhå,uå,å izksQkbZy ij
2- [kwu vkywnk gq;s e`rd jktdqekj dk Mhå,uå,å
[email protected] izksQkbZy
vkfVZdy&th ¼vkfVZ&b okyk½ ik;k x;k
3- eksVjlkbZfdy lhV dk diMk vFkkZr
vkfVZdy&,p bu ij e`rd dk jDr Fkk
1- pkdw vkfVZdy&vkbZ vkjksih lksuw dh fu'kkunsgh ij tIr 1- pkdw ij izkIr Mhå,uå,å izksQkbZy
gq;s ij e`rd jktdqekj dk Mhå,uå,å
2- [kwu vkywnk [email protected] izksQkbZy ¼vkfVZ&b okyk½ ik;k x;k
vkfVZdy&ts vFkkZr
bl ij e`rd dk jDr Fkk
2- bl ij Multiple mixed non
inferable DNA dh mifLFkfr ikbZ
xbZ
[kwu vkywnk isaV '[email protected] vkjksih vkdk'k dh fu'kkunsgh ij tIr bu ij izkIr Mhå,uå,å izksQkbZy ij
vkfVZdy&ds gq;s e`rd jktdqekj dh Mhå,uå,å
izksQkbZy ¼vkfVZ&b okyk½ ik;k x;k
vFkkZr
bu ij e`rd dk jDr Fkk
During trial, eye-witnesses Babu Khan and Raju turned hostile. The trial Court
thereafter relying upon circumstantial evidence as well discussed in Para 19, 21 and 33 of
the judgment impugned herein concluded beyond reasonable doubt that the appellants
have committed offence of murder and convicted the appellants u/S. 302 r/w 34, 201 of
IPC and 25 (1) (B-B) of Arms Act.
Learned counsel for the appellant prays for suspension of sentence primarily on the
ground of parity with co-accused Akash in whose case the co-ordinate Bench has
suspended the sentence vide order dated 17.09.2021 in CrA No. 1724/2018 inter alia
contending that the accusation against appellant is same as against co-accused Akash.
Besides, there is no direct evidence against the appellant. Conviction is based on
circumstantial evidence. The chain of circumstances is not complete. The trial Court
committed grave illegality in convicting the appellant and sentencing for life
imprisonment.
Per contra, learned counsel for State contends that appellant's case is
distinguishable from that of Akash in the matter of suspension of sentence on three
counts:-
(i) Two knifes which were found to have been used to cause injuries to the
deceased and which were stained with human blood, were seized from the
present appellant and co-accused Bharat. As per DNA report, blood stains found
on these knives were found to be that of deceased Rajkumar. No knife was
recovered from Akash.
(ii) The contention that seizure of knife has not been proved by the witnesses
can not detain this Court for long in view of judgment of Hon'ble Supreme
Court in the case of Karamjit Singh Vs. State (Delhi Administration)
reported in AIR 2003 SC 1311, wherein it has been held that testimony of a
police personnel does not require corroboration and therefore, cannot be
doubted. There is a presumption that police personnel also acts honestly as other
persons unless there is a suspicion with good grounds. In this case, the seizure
has been proved by the police personnel. This aspect has been well considered
by the trial Court in Para 21 of the judgment.
(iii) the DNA report and seizures of knife do not appear to have been placed
before the Court.
With the aforesaid submissions, learned counsel prays for rejection of instant
application for suspension of sentence.
Upon hearing learned counsel for parties and careful perusal of impugned
judgment and material available on record though this Court refrains from commenting
upon merits of the judgment but regard being had to the contentions advanced and
documents referred and relied upon, prima facie this Court is of the view that appellant's
case is different and distinguishable from that of co-accused Akash.
Consequently, looking to the gravity of offence and degree of involvement of
appellant in commission of the alleged offence, this Court accepts the contentions
advanced by learned counsel for State.
Accordingly, IA 28844/2021 is dismissed on merits.
(Rohit Arya) (Anand Pathak)
Judge Judge
ojha
YOGENDR
A OJHA
2021.10.30
14:05:32
+05'30'
