Vishal Agnihotri vs The State Of Madhya Pradesh
2022 Latest Caselaw 4682 MP

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       IN THE HIGH COURT OF MADHYA PRADESH
                                AT INDORE
                                    BEFORE
                 HON'BLE SHRI JUSTICE VIVEK RUSIA
                                       &
                 HON'BLE SHRI JUSTICE ANIL VERMA

                 CRIMINAL APPEAL No.846 of 2021

                    (Vishal Agnihotri Vs. State of M.P)
                                    ORDER

Indore:-01.04.2022 Shri Vivek Singh, learned counsel for the appellant. Shri Kamal Kumar Tiwari, learned Govt. Advocate for the respondent/State.

Heard on I.A No.3871/2022 which is repeat third application under Section 389 of Cr.P.C.,1973 on behalf of appellant-Vishal.

The appellant/Vishal has been convicted and sentenced as under:-

Offence U/s         Sentence             Fine      amount In default   of
                    Awarded              (Rs.)            fine
302/149 of IPC      R.I. for life        5,000/-     One          year
                                                     additional R.I.

Learned counsel for the appellant contended that judgment of the learned lower court is contrary to law and facts on record. It is neither legal, nor proper or correct. No offence under Section 302/149 of IPC would be made out. There is material contradictions and omissions in Dehati Nalishi (Ex.P-1) and Ex.D-22, i.e. 161 of Cr.P.C. statement as well as Ex. D-23 i.e. 164 Cr.P.C. statement of Pawan Awasthi, therefore, the story regarding excoriation becomes doubtful. Dehati Nalishi was not in existence on 4.6.2014 at 15:00 hours. Appellant was not present at the place of occurrence and he has been falsely implicated by the

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complainant. The trial court was wrong in believing prosecution witnesses and discarding defense version and in drawing unwarranted inferences. Under these circumstances learned counsel prays for suspension of execution of remaining part of jail sentence and grant of bail to the appellant.

Per contra, learned PL for State has strongly opposed the IA for suspension of custodial sentence and referred to the reply filed by him by contending that sufficient evidence is available on record to establish the guilt of present appellant in the alleged offence and that the accused persons were present at the time of occurrence and accused persons were found to be involved in the incident, therefore, on the basis of cogent and reliable evidence the appellant was rightly convicted and sentenced by the trial court, therefore, present appellant does not deserve for suspension of jail sentence.

Learned counsel for the appellant has placed reliance upon judgments of the Hon'ble Apex court in the matter of Sukadev Giri Vs. State of Orissa reported in 2003(I) MPWN 59 and contended that there was no pre-concert or premeditation or meeting of mind therefore mere presence on the place of occurrence will not make liable the appellant for the offence under Section 34 of the Indian Penal Code. He also placed reliance upon judgment of the Hon'ble Supreme court in the matter of State of Madhya Pradesh Vs. Killu @ Kailash and others reported in 2019(Suppl.) Cr.L.R (SC) 427 and contended that occurrence not took place in a public place therefore, Section 149 of IPC is not attracted.

After considering the submissions made by learned counsel for the parties it is revealed that eye witness Pawan Awasthi (PW-1) has specifically deposed in his statement that at the time of incident accused

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persons Umesh and Lucky Khan caught hold the hand of deceased. Then Arjun Tyagi took out a Desi Katta from his pocket and fired upon deceased. Other witnesses i.e. Anchal (PW-2), Santosh (PW-3), Manoj (PW-4), Rupesh (PW-5) also deposed in the similar version.

From perusal of the statements of all these witnesses, it appears that present appellant did not give any blow to the deceased and his role attributed in said offence is very limited and not actively participated in the incident. Thus, the present appellant is not the main accused in this matter and no deadly weapon has been recovered from his possession. The appellant has no criminal background. The incident has taken place all of a sudden.

Keeping in view the evidence available on record, this Court is of the considered view that it will be appropriate to allow the application of appellant.

Accordingly, I.A No.3871/2022 is allowed. The execution of jail sentence of the appellant-Vishal is hereby suspended and it is ordered that the appellant-Vishal be released on bail subject to depositing fine amount, if already not deposited, and on his furnishing a personal bond of sum of Rs.1,00,000/- (Rs. One Lakh) with one solvent surety of the like amount to the satisfaction of the trial Court with a further direction to appear before the Registry of this Court on 25.04.2022 and also on such other dates, as may be fixed by the Registry of this Court in this regard during the pendency of this appeal.

Certified copy, as per rules.

         (VIVEK RUSIA )                                                                     (ANIL VERMA)
            JUDGE                                                                              JUDGE

Ajit/-

                        Digitally signed by AJIT KAMALASANAN

DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH

AJIT INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE, postalCode=452001, st=Madhya Pradesh, 2.5.4.20=156c9cedca1b74d671db9f220a5e3ed6cba241effad89 2107d95ef0a1afc55b4,

KAMALASANAN pseudonym=CFDFD9C36711CA738F527A5D61A1EE901C09EF2 9, serialNumber=7F0BEE2D78BD57DA058F3247441C87E7E0817F B61F5E2ABCAEE63CAAA7B3B9FF, cn=AJIT KAMALASANAN Date: 2022.04.01 18:47:03 +05'30'