Rakesh vs The State Of Madhya Pradesh
2022 Latest Caselaw 1498 MP

                                   - : 1 :-



        THE HIGH COURT OF MADHYA PRADESH
                   BENCH AT INDORE
(D.B.: HON'BLE Mr. JUSTICE VIVEK RUSIA AND HON'BLE
       Mr. JUSTICE RAJENDRA KUMAR (VERMA) JJ.)
                   Criminal Appeal No.5050/2017
                 (Rakesh and others V/s State of M.P.)
Indore, Date: 02.02.2022:
      Shri Sunil Gupta, learned counsel for the appellant no.3.
      Shri   Sudhanshu    Vyas,     learned   Govt.      Advocate    for    the
respondent/State.

Heard on I.A. No.28452/2021 repeat third application for suspension of sentence under section 389(1) of the Cr.P.C. filed on behalf of the appellant no.3-Shailesh who have been convicted vide judgment dated 15/09/2017 passed in Sessions Trial No.421/2011 by the Special and Additional Sessions Judge, Dhar as below:-

Conviction                    Sentence
Section        Act            Imprisonment Fine               Imprisonment
                                                              in Lieu of fine
302            IPC            Life            Rs.1,000/-      R.I. for 3 years
                              Imprisonment                    month R.I.
364            IPC            10 years R.I.   Rs.1,000/-      R.I. for 2 years
201            IPC            7 years R.I.    Rs.500/-        R.I. for 1 year

As per prosecution story, According to the prosecution case, on 25.04.2011, at about 8.00 in the morning, deceased Santosh left his house by cycle for duty in Rosy Blue Company but did not return home. His family members searched him but could not find his whereabouts, then they intimated the police and a missing person case was registered. His shoes and cycle were found on the road near Gatiman Company. During inquiry Dilip Sharma revealed the police that some unknown miscreants forcefully pushed a person in the Maruti Car, abducted him and took him towards Mhow. The abducted person was screaming for help. On this information police registered Crime No.321/2015 under Section 364 of IPC and investigated the case. The deceased was having credit card of IDBI Bank and mobile phone bearing No.9009428455 and a wallet when he left the home in the morning.

Learned counsel for the appellant no.3 submits that earlier two

- : 2 :-

applications for suspension of sentence has been dismissed on merit but individual act of the present appellant has not been examined. Although the appellant was tried under section 302 and 34 of the IPC but vide judgment dated 15/09/2017 he has been convicted under section 302 of the IPC. So far the sentence awarded under section 364 of the IPC and 10 years of sentence is concerned he has already undergone. He has also undergone 7 years of jail sentence for section 201 of the IPC. So far the jail sentence for section 302 of the IPC is concerned as per the memo of Mahendra the recovery of knife, the murder was committed by Mahendra by cutting the throat of the deceased Santosh. The allegations of harassment to the wife of Santosh is against Mahendra. Since there is no conviction under section 34 of the IPC therefore, appellant has wrongly been convicted. Even otherwise he has already been undergone more than 10 years of incarceration and this appeal is of year 2017 and is not likely to come for hearing in the near future. Hence the jail sentence of the appellant may kindly be suspended.

Learned Govt. Advocate for the respondent/State opposes the prayer for suspension of sentence of the appellant by submitting that although there is no conviction under section 302/34 of the IPC but finding recorded by the court that they have committed the offence with common intention but fact remains that the appellant has completed more than 10 years of jail sentence and the appeal is not going to be heard finally in the near future.

In similar facts and circumstances Division Bench of this Court in Criminal Appeal No.520/2012 vide order dated 17.01.2020 by pressing reliance on the judgment passed by the Apex Court that on completion of 50% of jail sentence suspended the jail sentence, we deem it proper to suspend the remaining jail sentence of this appellant.

Accordingly, I.A. No.28452/2021 is allowed. Execution of jail sentence of the appellant is hereby suspended and it is ordered that the appellant No.3- Shailesh be released on bail on his furnishing a personal bond for a sum of Rs.50,000/- (Rupees Fifty Thousand Only) with separate sureties in the like amount to the satisfaction of the learned trial

- : 3 :-

Court for his appearance before the Court, the execution of custodial part of the sentence shall remain suspended, till the final disposal of this appeal.

The appellant shall mark his presence before the registry of this Court on 26/09/2022 and on all such subsequent dates, which are fixed in this regard by the Registry.

I.A. No.28452/2021 stands disposed of.

List the appeal for final hearing in due course. Certified copy as per rules.

    (VIVEK RUSIA )                                            RAJENDRA KUMAR (VERMA))
      JUDGE                                                            JUDGE

 Ajit


AJIT
              Digitally signed by AJIT KAMALASANAN
              DN: c=IN, o=HIGH COURT OF MADHYA PRADESH
              BENCH INDORE, ou=HIGH COURT OF MADHYA

PRADESH BENCH INDORE, postalCode=452001,

KAMALAS st=Madhya Pradesh, 2.5.4.20=156c9cedca1b74d671db9f220a5e3ed6cba 241effad892107d95ef0a1afc55b4, pseudonym=CFDFD9C36711CA738F527A5D61A1E E901C09EF29,

ANAN serialNumber=7F0BEE2D78BD57DA058F3247441C 87E7E0817FB61F5E2ABCAEE63CAAA7B3B9FF, cn=AJIT KAMALASANAN Date: 2022.02.02 18:23:03 +05'30'