Madhya Pradesh High Court
Avinash @ Bhaiyu vs The State Of Madhya Pradesh on 22 September, 2021
Author: Sujoy Paul
The High Court Of Madhya Pradesh
CRA-527-2016
(AVINASH @ BHAIYU Vs THE STATE OF MADHYA PRADESH)
Indore, Dated : 22-09-2021
Heard through Video Conferencing.
Shri Vivek Singh learned counsel for the appellant.
Smt. Vinita Phaye, GA for the respondent/State.
Heard on IA No. 21048/2021, which is third application filed
under section 389 of the Cr.P.C for grant of bail and suspension of
execution of remaining jail sentence of appellant Avinash @ Bhaiya.
The appellant is in custody because of his conviction under section
307 of IPC and sentence to undergo life rigorous imprisonment with fine
of Rs. 2,000/-, in default of payment of fine, three months additional
rigorous imprisonment.
Learned counsel for the appellant submits that it is a third
application of the appellant filed under section 389 of Cr.P,.C. Earlier two
applications were dismissed as withdrawn. Judgment of the trial Court is
contrary to the law and facts on record. It is neither legal, nor proper or
correct. Offence under section 307 of IPC would not apply. As per the
doctor's opinion, injury nos 2 and 3 are grievous in nature and at the
most, offence under section 326 of IPC would be made out. Appellant is
in custody since 02/10/2013. It is not proved that the appellant was
possessing the weapon faliya, therefore, the appellant cannot be
convicted under section 307 of IPC. The awarded sentence of rigorous
imprisonment for life under section 307 of IPC is very harsh. There is no
eye-witness and the FIR was lodged against unknown person. No
independent witness has been examined by the prosecution. In view of
serious omission and infirmity, the prosecution has failed to prove its
case beyond reasonable doubts. Under these circumstances, learned
counsel prays for grant of bail and suspension of execution of remaining
jail sentence of the appellant.
Per-contra, learned GA for the respondent/State opposes the
application and prays for its rejection. Return/ reply has also been filed
on behalf of the respondent/State.
From perusal of the impugned judgment and the evidence
available on record, it appears that as per the judgment of the trial
Court, the appellant has been acquitted from the charge under section
25(1-B) of the Arms Act and the trial Court held that recovery of weapon
faliya used in the incident is not established by the prosecution.
After considering submissions made by learned counsel for the
appellant and looking to the facts and circumstances of the case and the
period of custody of the appellant as also the fact that present appeal is
pending since the year 2016 and final disposal of the appeal is likely to
take sufficient time, we deem it proper to suspend the remaining jail
sentence of the appellant.
Accordingly, I.A. no. 21048/2021 is allowed and execution of
remaining jail sentence of the appellant is hereby suspended and it is
ordered that appellant Avinash @ Bhaiyu be released on bail on
his depositing the fine amount and on furnishing a personal bond in
the um of Rs.1,00,000/- (Rs. One Lac) with one solvent surety of
the like amount to the satisfaction of the trial Court with a further
direction to appear before the trial Court, Alirajpur on 22.12.2021
and also on such other dates, as may be fixed by the trial Court
concerned in this regard during pendency of the appeal.
C C as per rules.
(SUJOY PAUL ) ( ANIL VERMA)
JUDGE JUDGE
Digitally signed by
AMOL N MAHANAG
Date: 2021.09.23
12:00:59 +05'30'
