Banti @ Khagendra vs The State Of Madhya Pradesh Thr
2022 Latest Caselaw 5366 MP

                                    1
              IN THE HIGH COURT OF MADHYA PRADESH
                           AT GWALIOR
                              CRA No. 878 of 2018
          (BANTI @ KHAGENDRA AND OTHERS Vs THE STATE OF MADHYA PRADESH THR)

Dated : 12-04-2022
      Shri S.K.S. Jadon, learned counsel for the appellant.

      Shri Vijay Sundaram, learned Panel Lawyer for the respondent/State.

Heard o n IA.10842/2020, which is the second repeat application under Section 389(1) of Cr.P.C. filed on behalf of appellant No.2-Ram Kumar seeking suspension of sentence and grant of bail. His first application (I.A. No.9076/2019) was dismissed as withdrawn vide order dated 16.03.2020.

Appellant N o . 2 stood convicted under Sections 302/34 of IPC and sentenced to undergo imprisonment for life with a fine of Rs.5,000/- with default stipulations alongwith other co-appellant, namely, Banti @ Khagendra vide judgement of conviction and order of sentence dated 09.01.2018 passed by I Additional Sessions Judge, Dabra, District Gwalior (MP) in Sessions Trial No.47/2015.

Appellant No. 2 so far has undergone jail incarceration for one year and two months during trial and since the date of judgment i.e. 09.01.2018 as on date.

As per the prosecution story, an FIR was registered at Crime No.974/2014

for the offence punishable under Section 302 read with Sec.34 of IPC on 07.11.2014 at about 06:00 A.M. alleging that on previous day i..e. on 06.11.2014 while the complainant with his cousin i.e. deceased-Punjab Singh had gone to Dabra Mandi for selling of paddy by tractor trolley, they met with accused Banti @ Khagendra and present appellant-Ram Kumar. All three of them were sitting together and consumed liquor. On some trivial issue, heat exchange took place. Deceased-Punjab Singh is alleged to have assaulted appellant-Ram Kumar with the shoe. In retaliation, there was a fight between the two. The complainant and others tried to pacify and thereafter came back home. On the next day morning appellant- Ram Kumar and co-accused Banti @ Khagendra were seen in the village and the complainant expressed surprise as to how after leaving his trolley at Mandi, he must be seen in the village. It is alleged that appellant-Ram Kumar explained that after they dropped the complainant, the fight took a nasty turn and fight between

him and deceased Punjab Singh was further aggravated, therefore, he left the trolley in Mandi and came back to the village. No sooner did the same talk take place, the complainant came to know that the dead body of deceased-Punjab Singh was lying near the tractor trolley. On close proximity, he informed that his brother-deceased

Punjab Singh's face was completely smashed, as such, he suffered a homicidal death. Accordingly, an FIR has been lodged and thereafter upon completion of investigation final report was submitted and case was made over for trial. Accordingly, appellant stands convicted and sentenced.

Learned counsel for the appellant No.2 while taking exception to the impugned judgment for the purpose of instant application submits that the sole witness i.e. complainant has turned hostile and there is no eye witness. There is no such incriminating recovery which could be connected with the crime except key of the tractor. The seizure witnesses have also turned hostile. The impugned judgment suffers from perversity of approach. The conclusion drawn is based on conjecture and surmises. Relevant piece of evidence is not considered, hence judgment is vulnerable and cannot stand judicial scope in appeal. Even otherwise, appellant has no criminal antecedents and he has suffered jail incarceration for more than four years. He is a young person and if he further continued to be in jail, he will suffer mental as well as physical agony in the company of hardened criminals. The appellant shall abide by all such terms and conditions as this Court deems fit and proper, in case, this Court is inclined to suspend the sentence and grant bail to the appellant.

Per contra, Shri Vijay Sundaram, learned Panel Lawyer appearing for State, opposes the application and supporting the judgment impugned with submission that irrespective of complainant has turned hostile. The factum of recovery is sufficient to convict the appellant No.2.

Upon hearing learned counsel for the parties though this Court refrains from commenting upon rival contentions so advanced touching merits of the case but regard being had to the fact that appellant No.2-Ram Kumar has already suffered more than four years' RI with no criminal history, in the obtaining facts and circumstances discussed above, this Court is of the considered view that sentence awarded to appellant No.2-Ram Kumar may be suspended pending disposal of the

appeal.

Consequently, IA.10842/2020 deserves to be and is hereby allowed. Accordingly, it is directed that the jail sentence of appellant No.2-Ram Kumar shall remain suspended and he be released on bail on his furnishing a personal bond in the sum of Rs.2,50,000/- (Rupees Two Lacs and Fifty Thousand only) with one solvent surety in the like amount to the satisfaction of the trial Court. Appellant No.2- Ram Kumar i s directed to appear before the Registry of this Court on 21.06.2022 and on other subsequent dates as may be

fixed in this behalf with following further conditions:-

(i) Appellant No.2- Ram Kumar will abide by the terms and conditions of various circulars and orders issued by the Government of India and the State Government as well as the local administration from time to time in the matter of maintaining social distancing, physical distancing, hygiene, etc, to avoid proliferation of Novel Corona virus (COVID-19);

(ii) the concerned jail authorities are directed that before releasing Appellant No.2- Ram Kumar, the medical examination of the appellant be conducted through the jail doctor and if it is prima-facie found that he is having any symptoms of Covid-19, then the consequential follow up action or any further test required be undertaken immediately.

Learned State counsel is directed to send e-copy of this order to all the concerned including the concerned Station House Officer of the Police Station for information and necessary action.

IA.10842/2020 stands closed.

Certified copy as per rules.

   (ROHIT ARYA)                                           (MILIND RAMESH PHADKE)
      JUDGE                                                        JUDGE

(LJ*)
        LOKENDRA JAIN
        2022.04.12
        18:14:32 +05'30'