Arun vs The State Of Madhya Pradesh
2022 Latest Caselaw 2143 MP

                                                                       1.
                                                            cra.no.6350.2019

              HIGH COURT OF MADHYA PRADESH
                     BENCH AT INDORE
DIVISION BENCH :
                          Hon'ble Shri Justice Vivek Rusia &
                          Hon'ble Shri Justice Rajendra Kumar (Verma)

                      Criminal Appeal No.6350/2019

                                   Arun
                                     vs
                       The State of Madhya Pradesh

Indore dated 16.2.2022

      Shri S.K. Vyas, learned Senior Counsel along with Ms. Neha Yadav,
counsel for the appellants.
      Shir Sudhanshy Vyas, learned counsel for the respondent/State.

Heard on IA No.16587/2021 which is an application for urgent hearing of the case. Keeping in view the reasons mentioned in the application, the application for urgent hearing stands allowed.

Accordingly, IA No.16587/2021 stands disposed of. Also heard on IA No.16588/2021 which is an application filed under Section 389 of Code of Criminal Procedure, 1973 seeking suspension of sentence of appellant no.2 - Lakhan S/o Shri Narayan who has been convicted by Second Additional Sessions Judge, Khargone in Session Trial No.83/2017 vide judgment dated 15.07.2019 and sentenced him as under:-

Conviction                              Sentence
Section and Act     Imprisonment        Fine Amount        Imprisonment     in
                                                           lieu of fine
302/34 IPC          Life                                   One month SI
                    Imprisonment        Rs.5000

                                                             cra.no.6350.2019

The prosecution story in short was that co-accused Arun is married to Gyarsibai and Gyarsibai had called her brother Shyam telling him that co- accused is assaulting her. Hence Shyam, along with complainant Dilip and others came to the village of co-accused Arun and was taking Gyarsibai back. At that point of time, the co-accused Arun along with his brother Lakhan appellant his father Narayan, mother Champabai and Sister Raveena rushed after them. Thereafter co-accused Arun along with appellant Lakhan assaulted Shyam with iron rods and others also assaulted Shyam with other weapons resultant to which Shyam succumbed to his injuries.

Learned Senior Counsel for the appellants has stated that other co- accused persons such as Narayan,Champabai and Raveena have been acquitted from murder charges, that as against the prosecution story supported by witnesses that co-accused Arun had dealt rod blow on the head of Shyam, no injury has been found on the skull of Shyam and the only injury which has been found was one on the chest of Shyam (deceased) due to which his heart had ruptured, resulting in death and the aforesaid injury as per prosecution story has been caused by coaccused Lakhan. On these grounds, suspension has been sought.

Learned senior counsel has referred to the postmortem report Exhibit P- 27 in which only an impression of an injury was found. The doctor has opined that the deceased died due to rupture of heart. He has been extensively cross examined. He has admitted that he is not a cardiologist.

Learned senior counsel has further submitted that even otherwise the story is taken to be true, the offence would not travel more than Section 325 of the I.P.C. as there was no intention to kill. The altercation has converted into assault due to sudden provocation. The appellant is in jail since 2017 and this appeal is not likely to be heard in near future. On a same set of evidence , the sentence of co-accused Arun has been suspended vide order dated 8.3.2021.

Learned counsel for the respondent/State was also heard who submits that against the acquittal of the other co-accused persons the State has filed

cra.no.6350.2019

MCRC.No.46524/2019. The main allegation is against the appellant who has caused injury by iron pipe due to which the heart was ruptured and the deceased died.

Submissions were considered and original record was perused. The post-mortem report supports the submissions of learned Senior Counsel for the appellants that no injury has been found on the head of Shyam (as against the evidence of prosecution witnesses).

Further, no FSL report showing the presence of blood on the iron rod seized from the appellant and co-accused has been received. Under these circumstances, a case is made out for allowing the application for suspension of sentence. Accordingly, application-IA No.16588/2021 is being allowed. The substantive jail sentence of appellant - Lakhan S/o Shri Narayan is suspended subject to his depositing the fine amount (if not already deposited) and on furnishing a personal bond in the sum of Rs.50,000/-(Rupees Fifty Thousand only) with one local solvent surety in the like amount to the satisfaction of the trial Court for his appearance before the Registry of this Court on 20.4.2022 and on all other subsequent dates as may be fixed by the Registry in this behalf.

Accordingly, IA No.16588/2021 stands disposed of. Record has been received.

List the appeal for final hearing in due course.

Certified copy as per Rules.

 (Vivek Rusia)                                             (Rajendra Kumar (Verma))
      Judge                                                        Judge
                       Digitally signed by REENA PARTHO



        REENA
                       SARKAR
                       DN: c=IN, o=HIGH COURT OF MADHYA
                       PRADESH BENCH INDORE,
                       ou=JUDICIAL, postalCode=452001,
                       st=Madhya Pradesh,



        PARTHO
                       2.5.4.20=14e70a287a42438a98dcd444
                       9c9a456209ff4272bed8d6bac1452f3fb
                       432e6d0,
                       pseudonym=4D262EA10E4754EBA7A5
                       EF1D45A35E25EA8D4708,


        SARKAR
                       serialNumber=58C860AFE3BD7B9233B
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                       SARKAR
                       Date: 2022.02.17 10:39:26 +05'30'
              4.
      cra.no.6350.2019

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