Madhya Pradesh High Court
Nemichand vs The State Of Madhya Pradesh on 1 April, 2022
Author: Satyendra Kumar Singh
1 Cr.A.No.649/2021
(Nemichand Vs. State of M.P.)
Indore : Dated 1.4.2022
Shri Yogesh Gupta, learned counsel for the appellant.
Ms. Mamta Shandilya, learned Govt.Advocate for the
respondent/State.
Heard on I.A.No.3471/2022, first application for grant of
suspension of sentence filed on behalf of appellant No.2 Suraj Singh.
The trial Court has convicted the appellant under Section 304 Part
I of IPC and sentenced to undergo ten years' RI with fine of Rs.2,000/-
and under Section 367 of IPC and sentenced to undergo five years' RI
with fine of Rs.1,000/- with default stipulation, vide judgment of
conviction and order of sentence dated 22.12.2020 passed by
Addl.Sessions Judge, Bhanpura, District Mandsaur in Special ST
No.201/2016.
Prosecution story, in brief, is that on 21.5.2016 at about 10.30 PM
appellant alongwith other co-accused persons Chetan @ Babua, Ishwar
Balai, Suraj, Kalu Joshi, Sonu Meena and Ritesh Rajput in furtherance of
their common object to commit murder of deceased Hemant @ Billu took
him on the roof of house of Ashok Meena assaulted him with deadly
weapons iron pipe and Mogri on head and other vital parts of his body
and caused grievous injuries to him, due to which he died.
Learned counsel for the appellant submits that as per prosecution
case incident happened in the night of 21.5.2016 at about 10.30 PM and
matter was reported to the Police on 27.5.2016. Prosecution has
examined Jayantibai (PW-2) and Pinky (PW-4) as eye-witnesses and
both of them have deposed that appellant took the deceased in front of
(Nemichand Vs. State of M.P.)
them and they also saw appellant assaulting him. Both of the above
witnesses are close relatives of complainant i.e. deceased's father and
they admitted that they apprised about the incident to complainant as well
as other members of his family, but why the matter was not reported to
the Police prior to 27.5.2016 i.e. after about six days of the incident, has
not been explained by the prosecution. During treatment of deceased
Hemant it was stated by his brother that he got the injuries due to falling
down from the roof. Statements of Jayantibai (PW-2) and Pinky (PW-4)
are not consistent on material point. Prosecution story is doubtful.
Learned trial Court has committed error in holding the appellant guilty
for the aforesaid offences. The applicant was in custody during trial since
13.6.2016 to 27.10.2018 and from the date of judgment i.e. 22.12.2020
till today. He has suffered three years and seven months incarceration out
of total period of sentence awarded to him. There is no likelihood of
hearing of appeal in near future. In view of aforesaid, learned counsel for
the appellant prays for suspension of remaining jail sentence and grant of
the bail to the appellant.
Learned counsel appearing for the respondent/State has opposed
the prayer and submits that prosecution has proved its case beyond
reasonable doubt. Eye-witnesses Jayantibai (PW-2) and Pinky (PW-4)
have supported the prosecution case and there is no reason to disbelieve
their statements. Offences alleged against the appellant are of very
serious in nature, therefore, he is not entitled for bail.
Heard learned counsel for the parties and perused the record.
(Nemichand Vs. State of M.P.)
This case is based on direct evidence and prosecution has
examined Jayantibai (PW-2) and Pinky (PW-4) as eye-witnesses. Both of
them have supported the prosecution story that appellant took the
deceased in front of them and assaulted by deadly weapon on vital part of
his body, but complainant (PW-1), who is brother of Jayantibai and uncle
of Pinky has nowhere explained as to why he did not report the matte till
27.5.2016 i.e. after about six days of the incident. In the aforesaid
circumstances considering overall material produced on record and also
the period of incarceration suffered by the appellant, there is no
likelihood of hearing of appeal in near future, without expressing any
opinion on merits of the matter I.A.No.3471/2022 is allowed and jail
sentence of the appellant No.2 Suraj shall remain suspended.
It is directed that subject to depositing the fine amount, if already
not deposited, he shall be released on bail, on furnishing personal bond in
the sum of Rs.50,000/- (Rupees Fifty Thousand Only) along with
solvent surety in the like amount to the satisfaction of trial Court, for
their appearance before the Registry of this Court firstly on 13.06.2022,
and on such other dates, as may be fixed by the Registry in this regard,
till final disposal of this appeal.
I.A.No.3471/2022 is allowed.
List in due course.
C.C. as per rules.
(Satyendra Kumar Singh)
Judge
Patil
Digitally signed by
SHAILESH PATIL
Date: 2022.04.01
18:06:50 +05'30'
