Avdhesh @ Alkesh vs The State Of Madhya Pradesh
2022 Latest Caselaw 5903 MP

                                                  1                                      CRA No.5190/2017



            High Court of Madhya Pradesh, Jabalpur
                        Bench at Indore
            Criminal Appeal No.5190/2017
Indore, Dated 22.04.2022
       Shri Vivek Singh, learned counsel for appellant No.2 Deepak @
Anand s/o Ramcharan.
       Shri Amit Singh Sisodia, learned Government Advocate for the
respondent / State of Madhya Pradesh.
       Shri Brijendra Gupta, learned counsel for the objector.
Per Subodh Abhyankar, J.

Heard on IA No.5039/2022, first application under Section 389 (1) of the Code of Criminal Procedure, 1973 for suspension of jail sentence and grant of bail filed on behalf of the appellant.

The present appellan has been convicted and sentenced by learned 1st Additional Sessions Judge, Shujalpur, District Shajapur (MP) in Sessions Trial No.205/2015 vide judgment dated 7th November, 2017, as under: -

                Conviction                                 Sentence
     Section     Act             RI         Fine amount   Imprisonment in lieu of fine
    302 / 149    IPC             Life       Rs.5,000/-                1 year
                             Imprisonment
      148        IPC            2 year      Rs.1,000/-             3 month

Counsel for the appellant No.2 has submitted that the jail sentence awarded to appellants No.1 and 3, in the present case, has already been suspended by this Court and the case of the present appellant No.2 is no different from the case of the other appellants.

Counsel has also submitted that appellant No.3 Ramcharan S/o Mohanlal had also suffered a gun shot injury in the lower part of his

thigh and two incised wounds on his head; and thus, it is difficult to say as to who was the assailant in the case, as even according to the prosecution witnesses, a gun shot was fired, however, no gun shot injuries have been received by the deceased Manohar S/o Madanlal Patidar.

Counsel appearing for the objector, on the other hand, has opposed the prayer and it is submitted that the gun was actually brought by the appellant No.1 only and in the scuffle, the gun shot injury was suffered by appellant No.3 Ramcharan S/o Mohanlal. This fact has also been affirmed by the doctor PW-16 Dr. J.P. Dubey, who has also admitted in his deposition that if two parties are fighting with each other, and in one party, there is only one person and in the other, there are 6-7 persons, in such circumstances, if firearm is also used, it can also cause injury to the person of the same party.

Counsel for the respondent / State has also opposed the prayer. Heard learned counsel for the parties and perused the record. So far as the deposition of doctor PW-16 Dr. J.P. Dubey is concerned, this Court is of the opinion that the aforesaid question as referred to by the counsel for the objector is concerned, the same is hypothetical in nature and cannot be used to form an opinion that the injury was actually caused by the appellants only to appellant No.3. Apart from that, there is no explanation of the incised head injuries to appellant No.3 Ramcharan. In the absence of any other evidence available on record and the fact that the gun seized from appellant No.1 Avdhesh @ Alkesh S/o Ramcharan has not been forensically tested vis-a- vis the injury suffered by appellant No.3 Ramcharan, the case of the

present appellants is at parity with the other appellants. In view of the same, the application for suspension of custodial sentence deserves to be allowed.

Accordingly, without expressing any opinion on merits of the case, IA No.5039/2022 is allowed, subject to depositing the fine amount (if any) and it is directed that on furnishing a personal bond by the appellant in the sum of Rs.50,000/- (Rupees fifty thousand only) with a solvent surety in the like amount to the satisfaction of the learned trial Court, for his / her regular appearance before concerned trial Court, the execution of the remaining custodial part of the sentence imposed against the appellant shall remain suspended, till the final disposal of this appeal.

The appellant, after being enlarged on bail, shall mark his / her presence before the concerned trial Court on 06.07.2022 and on all such subsequent dates, as may be fixed by the concerned Court in this regard.

It is also observed that if the appellant (s) is found in any of the criminal activities, after his release on bail / suspension of sentence, then the present bail / suspension order shall stand cancelled without further reference to this Court; and the State / prosecution will be free to arrest the accused in the present case also.

C. c. as per rules.

                              (Subodh Abhyankar)                              (Pranay Verma)
                                   Judge                                          Judge
rcp




RAMESH CHANDRA PITHWE
2022.04.25 16:59:44 +05'30'