Kallu @ Kaluram vs The State Of Madhya Pradesh
2022 Latest Caselaw 16800 MP

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              IN THE HIGH COURT OF MADHYA PRADESH
                           AT GWALIOR
                              CRA No. 5069 of 2019
              (KALLU @ KALURAM AND OTHERS Vs THE STATE OF MADHYA PRADESH)

Dated : 19-12-2022
         Ms. Ankita Sharma, learned counsel for appellants No.2 and 3.
         Shri Rajesh Shukla, learned Dy. Advocate General for the respondent-

State.

Heard on IA No. 13681/2022 and IA No. 20561/2021 , first application under Section 389(1) of CrPC for suspension of jail sentence and grant of bail to appellant [email protected] and appellant no. 3- Indar.

Appellants stand convicted for offences punishable under Sections 148, 323/149 (three counts) each, 302/149 of IPC and sentenced to two years RI each, six months RI each on each count, and life imprisonment with fine of Rs.1000/- each with default stipulation.

As per prosecution story, while Pramod Lodhi resident of village Sehod,

Police Station Gyaraspur, District Vidisha was going back to home on tractor from his field, several cattle were found tied on the side of road. As it was inconvenient to steer through the road because of cattle, Pramod Lodhi asked accused Kallu not to tie cattle on the road side otherwise they may get injured with projected spokes of cultivator. Accused Dayaram and Kallu had taken strong exception to such objection and started hurling filthy abuses. Upon hearing such noise, Manohar Lodhi, father of Pramod Lodhi, and deceased Rajkumar Lodhi and Bahadur Singh, cousin brothers of Pramod Lodhi reached

the spot. Accused Dayaram Lodhi is alleged to have caused head injury to deceased Rajkumar by axe. Kallu also caused injury by spade. Though remaining accused persons including the present appellants are alleged to have caused injuries by lathi to other members of the complainant party. However, during trial eye witnesses in their ocular evidence have stated that the present appellants also caused injuries to the deceased by Lathi. Thereafter, deceased Rajkumar was taken to District Hospital, Vidisha from where he was referred to Hamidia Hospital, Bhopal. On 02.07.2017 he passed away. Intimation in that behalf was sent under Section 174 of CrPC and merg was registered. After further enquiy crime case No. 64/2017 was registered for the offences

punishable under Sections 147, 148, 149, 302 of IPC.

Upon completion of the investigation, challan was filed and case was committed to the Sessions Court for trial.

Ms. Ankita Sharma while taking exception to the impugned judgment submits that in fact it is a case of free fight in two groups over a trivial issue. Cross-case was also registered against the complainant party as well discussed in para 52 of the impugned judgment, conclusion whereof is in para 53. Neither there was any premeditation of mind nor common intention of the present appellants with that of others. There is starkling omission as regards the allegation that the present appellants caused injuries by lathi to the deceased as deposed by the injured witnesses and in the Dehati Nalisi wherein no such allegation was made. In any case, there is no allegation that the injuries caused by the present appellants, if any, has resulted in homicidal death of the deceased. Instead, the deceased had died due to head injuries caused by main accused Dayaram. Instead, there is general allegation that present appellants along with other co-accused persons also started assaulting other members of

the complainant party with lathi.

Appellants Bablu @ Diwan and Indar have already suffered jail incarceration of approximately four years. They have no criminal antecedents. Even if the prosecution story is accepted on its face value, the sole allegation against the appellants is that of causing injuries on complainant party by lathi without specifying the person who suffered injuries at the hands of the appellants and on which part of the body. As such, the allegation is vogue in nature. Under such circumstances, learned counsel for the appellant prays for suspension of sentence and grant of bail.

P e r Contra, learned Public Prosecutor for the State opposes the application supporting the judgment impugned with further submission that deceased Rajkumar has suffered 12 injuries. The possibility cannot be ruled out that the injuries suffered by the deceased are also caused by present appellants. Under such circumstances, complicity of the appellants is well established. In any case, the appellants having been found armed with lathi has rightly been convicted under Section 302 read with Section 149 of IPC. Therefore, no exception can be taken to the judgment impugned which otherwise is based on critical evaluation of the evidence placed on record with impeccable finding and right conclusion of conviction.

Upon hearing learned counsel for the parties, though this Court refrains

from commenting upon the rival contentions touching the merits of the case, however, regard being had to the fact that its a case of free fight where both parties have suffered injuries and cross-case has been registered, besides there is no specific allegation against the appellants for causing injuries on the body of the deceased Rajkumar, who is said to have suffered homicidal death due to

the injury on the occipital region caused by axe by main accused Dayaram, albeit in MLC/Post Mortem report 12 injuries have been caused, under such circumstances the appellants Bablu @ Diwan and Indar are held entitled for suspension of his jail sentence.

Accordingly, it is directed that the jail sentence of appellant No.2-Bablu @ Diwan and appellant no. 3 Indar shall remain suspended and they shall be released on bail subject to verification of the factum of depositing the fine amount and on their furnishing a personal bond in the sum of Rs.2,00,000/- (Rupees Two Lacs only) each with one solvent surety each in the like amount to the satisfaction of the Trial Court. Appellants are directed to appear before the Registry of this Court first on 20/02/2023 and on other subsequent dates as may be fixed in this behalf with following further conditions:-

(i) the concerned jail authorities are directed that before releasing the appellants, their medical examination be conducted through the jail doctor and if it is prima facie found that they are having any symptoms of COVID-19, then the consequential follow up action or any further test required be undertaken immediately. If not, the appellants shall be released on bail in terms of the conditions imposed in this order;

(ii) in case of violation of conditions, State is free to apply for cancellation of bail.

Accordingly, IA No. 13681/2022 and 20561/2021 stand allowed.

Observations on facts, if any, are only for the purpose of deciding the instant I.As and shall have no bearing on the merits of the appeal.

Certified copy as per rules.

     (ROHIT ARYA)                                     (MILIND RAMESH PHADKE)
        JUDGE                                                  JUDGE

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ABDUR RAHMAN
2022.12.20
11:45:11 +05'30'