Madhya Pradesh High Court
Bhura @ Satendra vs The State Of Madhya Pradesh on 7 December, 2022
Author: Rohit Arya
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 254 of 2022
(BHURA @ SATENDRA Vs THE STATE OF MADHYA PRADESH)
Dated : 07-12-2022
Shri Ankur Maheshwari, learned counsel for the appellant.
Shri R.K. Shukla, learned Deputy Advocate General for the
respondent/State.
Heard on I.A. No.5310/2022, first application under Section 389 (1) of
the Cr.P.C., seeking suspension of sentence and grant of bail filed on behalf of
appellant-Bhura @ Satendra.
Present appellant has been convicted vide judgment dated 03.12.2021
passed by Special Judge (Dacoity), Bhind in S.S.T. No.33/2011 for the offence
punishable under Section 302/34 of IPC r/w Section 11,13 of MPDVPK Act,
Section 397 of IPC r/w Section 11/13 of MPDVPK Act, Section 398 r/w
Section 11, 13 of MPDVPK Act, Section 25(1-b)(a) of Arms Act and Section
27 of Arms Act and sentenced to suffer Life Imprisonment with fine of
Rs.3000/-, 07 years' RI, 07 years' RI, 01 year's RI with fine of Rs.1000/- and 03
years' RI with fine of Rs.1000/- respectively with default stipulation.
As per prosecution story, on 25.04.2011 at about 11:30 in the night an
FIR was lodged by complainant Veer Singh Kushwah at Police Station
Amayan, District Bhind to the effect that he was traveling alongwith his uncle
Chhote (deceased), one Ahirwan Kushwah, his father Bhagwan Singh, younger
brother Narendra and villager Atar Singh Kushwah, Sonu Kushwah, Devendra
Rajput and Satish Rathore in a truck No.UP82-F-9685 loaded with chaff
(Bhusa). The truck was driven by the deceased-Chhote. No sooner the truck
reached Lahar Road past Adokhar Ruhera crossing, a person armed with a
mouser gun came from the left side of the bushes and on gunpoint stopped the
truck. As his uncle, the deceased-Chhote slowed down the truck, the miscreant
fired a gunshot hitting on the occipital region of the deceased-Chhote. He
suffered deep wound and blood started oozing out. As a result, he fell from
driver seat on the bonnet. By that time, another miscreant armed with mouser
gun came from bushes on other side of the road and entered inside the truck
from the cleaner side. On gunpoint, threatened them with dire consequences, if
they did not spare money and mobile phones in their possession. The miscreant
took away Rs.8500/-, one Nokia company mobile phone of his younger
brother-Narendra bearing model No.1280 bearing of idea Sim No.997779316
and one another mobile G-5 model of black colour having Sim No.9617781098
besides mobile phone of Satish having Sim No.9713865034. The complainant
also explained that one of the miscreants was tall with fair colour and wore red
half T-Shirt and other one was short with wheatish complexion. On such FIR,
case was taken up for investigation. During course of investigation, statement of
witnesses including eye witnesses under Section 161 of Cr.P.C. were recorded
and recoveries were made. Accused-Vinod and Bhura were arrested on
09.05.2011. In their memo under Section 27 of Evidence Act, they disclosed
name of appellant as well as their participation in the alleged crime. During
further investigation, Nokia mobile of 1208 model with Sim No.9977793316 and
a motorcycle, which is alleged to have been used by the miscreants in
commission of the crime, have been recovered from the appellant as Ex. Nos.
P/30 and P/31 respectively. On completion of investigation, challan was filed
and the case was committed to Sessions Court for trial. The Sessions Court
upon critical evaluation of the evidence placed on record convicted the
appellant alongwith other accused persons for the offences as aforesaid.
Shri Ankur Maheshwari, learned counsel for the appellant while taking
exception to the impugned judgment submits that name of the appellant is not
mentioned in the FIR and also he was not identified in Test Identification
Parade. Mere recovery of mobile phone and motorcycle is of no consequence.
The conviction of the appellant, therefore, is wholly on irrelevant
considerations. Hence, prima facie case is made out in favour of the appellant
in the matter of suspension of sentence.
Per contra, Shri R.K. Shukla, learned Deputy Advocate General for the
State supported the impugned judgment and submits that besides the fact that
the appellant has been named by the co-accused persons in their memo under
Section 27 of Evidence Act, other incriminating evidence including recovery of
mobile phone and motorcycle coupled with the ocular evidence of the
complainant-Veer Singh (PW/1), Bhagwan Singh (PW/2) and Atar Singh
(PW/3), who were also traveling in the truck and were present at the time of the
incident have consistently supported the story of the prosecution besides
identifying the appellant. Appellant in-fact is also resident of nearby village of
miscreants and has identified by Veer Singh (PW/1), Bhagwan Singh (PW/2),
Atar Singh (PW/3). Their testimony has withstood cross examination. The trial
Court has discussed the evidence placed on record in that context particularly
in para 19, 23 and 27 of the judgment. Besides, the appellant has criminal
antecedents of 31 cases. Hence, no exception can be taken in the matter of
suspension of sentence.
Upon hearing learned counsel for the parties though this Court refrains
from commenting upon rival contentions touching merits of the case, regard
being had to the fact that incriminating material found in possession of the
appellant i.e. Idea mobile phone and motorcycle after disclosure of appellant's
name in the memo under Section 27 of Evidence Act of other accused persons
and his identification by Veer Singh (PW/1), Bhagwan Singh (PW/2), Atar
Singh (PW/3), who were present at the time of incident and were witnesses to
the alleged crime coupled with fact that appellant has criminal antecedents of 31
cases as disclosed, we are of the view that prima facie no case is made out to
extend the benefit of suspension of sentence to the appellant at this stage.
Accordingly, I.A. No.5310/2022 is dismissed.
Observation if any, on facts are only for the purpose of deciding the
instant application for suspension of sentence and shall have no bearing on the
merits of the case.
(ROHIT ARYA) (MILIND RAMESH PHADKE)
JUDGE JUDGE
neetu
NEETU
SHASHANK
2022.12.07
18:40:17
+05'30'
