Madhya Pradesh High Court
Nati Bhaiya @ Dhanraj vs The State Of Madhya Pradesh on 11 February, 2022
Author: Sheel Nagu
The High Court of Madhya Pradesh
Cr.A. No. 602 / 2022
(Nati Bhaiya and Others vs. The State of M.P.)
Jabalpur Dated 11.02.2022
Heard through Video Conferencing.
Shri R.N. Chaturvedi, learned counsel for appellant.
Shri Devendra Gangrade, learned Panel Lawyer for the
respondent-State.
Learned counsel for the rival parties are heard.
Record of the trial Court is received and the same is perused.
I.A. No. 1735/2022, first application for suspension of sentence
moved on behalf of appellant No.2 Kamlesh @ Devendra Guzar
u/Sec. 389(1) Cr.P.C. is taken up and considered along with the reply of
the State.
This criminal appeal assails the judgment dated 29.12.2021
passed in Sessions Trial No.30/2011 by IInd Sessions Judge, Pipariya,
District Hoshangabad (M.P.), whereby appellant has been convicted as
under :-
Section Imprisonment Fine Default Sentence
U/s 302 r/w 149 Life Imprisonment Rs.3,000/- RI for 6 months
IPC
The prosecution case in brief is that on 21/07/2010 informant
Shivnarayan Guzar (deceased/victim) lodged an FIR at Police Station
Pipariya stating therein that at about 12:00 noon he was going on his
motorcycle along with his son Ajay-(PW-18) and one Nati Bhaiya, S/o.
Mishri Lal, (PW-3). When he reached in front of Hathwas Durga
Mandir, at that time co-accused Rahees Gujar came from behind on a
motorcycle along with two other persons, whom the complainant did
not recognize. They all were having iron rods in their hand. Co-accused
Rahees stopped his motorcycle and on account of previous enmity with
the complainant, started assaulting him. The complainant left his
motorcycle and when he tried to flee, the other assailants stopped him
and started assaulting him with rods.
Upon the aforesaid report, a case was registered against the
appellants and co-accused at Crime No.321/2010 by Police Station,
Aarakshi Kendra Pipariya, District Hoshangabad against the appellants.
However during the treatment complainant died.
Learned counsel for the appellant submits that the appellant is
innocent and has been falsely implicated. It is argued that the name of
the present applicant/appellant No.2 is not mentioned in the FIR, as
well as in the statement of deceased recorded before his death. He
further submitted that the prosecution has not conducted the Test
Identification Parade and not a single prosecution witness has identified
the present applicant/appellant No.2 as one of the assailants. It is
further submitted that the appellant No.2 was on bail during trial,
therefore, prayer is made to suspend the jail sentence of the appellant
and enlarge him on bail.
On the contrary, learned counsel for the respondent/State has
opposed the bail application and prays for its dismissal.
Heard learned counsel for the parties and perused the record.
On perusal of record it reveals that the name of the appellant
No.2/accused is not mentioned in the FIR, as well as the statement of
the deceased recorded before his death and that no TIP was conducted
to ascertain the identity of the appellant No.2. Eye-witnesses have also
not identified the applicant/appellant No.2 as one of the assailants in
their court statements.
Considering the overall facts and circumstances of the case in
their entirety and the facts as pointed out by learned counsel for the
appellant, but without expressing any opinion on the merits of the case,
I.A.No.1735/2022 is allowed.
Accordingly, it is directed that the jail sentence of appellant No.2
Kamlesh @ Devendra Guzar will remain under suspension subject to
verification that the amount of fine has been deposited, on the appellant
furnishing bail bond of Rs.1,00,000/- (Rupees One Lac Only) with
two solvent sureties of the like amount to the satisfaction of concerned
available Magistrate for his appearance before the concerned available
Magistrate on 13/04/2022 and on such further dates as may be fixed
which shall be of frequency not less than once a year.
In case, appellant is found absent on any date fixed by the
concerned Magistrate then the said Magistrate shall be free to issue and
execute warrant of arrest for securing his presence without first
referring the matter to this Court, provided the Registry of this Court is
kept informed. The learned concerned Magistrate and the prosecution is
directed to ensure following of Covid-19 precautionary protocol
prescribed from time to time by the Supreme Court, the Central Govt.
and as well as the State Govt during release, travel and residence of the
appellant during period of suspension of
sentence as a consequence of this order.
List for final hearing in due course.
A copy of this order be sent to the concerned Court for
information.
Certified copy as per rules.
(SHEEL NAGU) (SUNITA YADAV)
JUDGE JUDGE
ss /-
SWETA SAHU
2022.02.17 15:25:22 +05'30'
