Madhya Pradesh High Court
Shivam Kushwaha vs The State Of Madhya Pradesh on 15 December, 2022
Author: Sujoy Paul
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 9280 of 2022
(SHIVAM KUSHWAHA Vs THE STATE OF MADHYA PRADESH)
Dated : 15-12-2022
Shri Ayur Jain - Advocate for the appellant.
Shri Yogesh Dhande - Government Advocate for the respondent/State.
I.A.No. 19358 of 2022, an application for suspension of sentence and
grant of bail to appellant -Shivam Kushwaha is taken up.
The appellant has been convicted and sentenced under Section 302 r/w
Section 34 of of IPC and sentenced to undergo RI for Life and fine of
Rs.1,000/- with default stipulation.
Learned counsel for the appellant submits that as per prosecution story,
on 18.09.2020, a dead body of one year old girl child was recovered from
Upper lake of Bhopal. Indisputably, the girl child namely Sanvi is daughter of
co-accused Sonam Chourasiya. Husband of Sonam Chourasiya identified the
daughter. The allegation against the present appellant is that he had illicit relation
with co-accused Sonam Chourasiya and it is a vicarious liability of both of them
to murder the girl child.
Shri Ayur Jain, Advocate submits that the entire findings against present
appellant is mentioned in Para-74 of the impugned judgment. A plain reading of
that paragraph shows that Faizullah (PW-2) on 17.09.2020 found co-accused
Sonam on the bank of the said lake. She was weeping. Because of doubt,
Faizullah a fire brigade employee inquired from her why she is weeping. He
further used the phone of co-accused Sonam Chourasiya in order to call her
Signature
SAN Not
Verified husband. Sonam Chourasiya allegedly informed Faizullah (PW-2) that Shivam
Digitally signed by
VAISHALI (appellant) is her husband. After sometime, Shivam reached the place of
AGRAWAL
Date: 2022.12.16
10:22:24 IST
incident and took co-accused Sonam with her.
Shri Ayur Jain, Advocate submits that the entire thing is recorded in
video by Faizullah (PW-2). If his statement is accepted as such, it shows that
when Faizullah found Sonam, she was alone and there was no child with her.
Thus, child must have been disposed of before the said incident. Admittedly, at
that point of time, when Sonam was found weeping by Faizullah, the appellant
was not there. He was called later-on. Thus, 'last seen theory' cannot be pressed
into service. A blanket of deceased was recovered at the instance of Sonam
Chourasiya. There is no recovery from the appellant. Merely because call details
show that there were some conversation between this appellant and Sonam
Chourasiya, on the basis of said details alone appellant cannot be held guilty.
Suspicion, however strong it can be, cannot take the place of proof. The final
hearing of this appeal will take time. In absence of any legal evidence against
the present appellant, his remaining jail sentence may be suspended.
Shri Yogesh Dhande, learned Government Advocate oppose the same
by placing reliance on same para-74.
Considering the aforesaid factual backdrop and without expressing any
conclusive opinion on the merits of the case, we deem it proper to suspend the
remaining jail sentence of the appellant.
Accordingly, I.A.No.19358 of 2022 is allowed.
Subject to depositing the fine amount (if not already deposited), the
remaining jail sentence of the appellant is hereby suspended. It is directed that
appellant-Shivam Kushwaha be released on bail on his furnishing a personal
bond for a sum of Rs.30,000/- (Rupees thirty thousand only) with one
solvent surety of the like amount to the satisfaction of the trial Court with a
further direction to appear before the trial Court, Bhopal on 08.03.2023 and
also on such other dates, as may be fixed by the trial Court in this regard during
the pendency of this appeal.
C.C. as per rules.
(SUJOY PAUL) (PRAKASH CHANDRA GUPTA)
JUDGE JUDGE
vai
