Madhya Pradesh High Court
Manoj vs State Of M.P. on 23 February, 2022
Author: Vivek Rusia
-: 1 :-
CRA. Nos. 610/2021
& 546/2021
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
[DIVISION BENCH: HON'BLE MR. JUSTICE VIVEK RUSIA
AND HON'BLE MR. JUSTICE AMAR NATH (KESHARWANI)]
CRA. No. 610/2021
(Manoj S/o. Bachchu Pathariya & 4 others. V/s. State of M.P.)
CRA. No. 546/2021
(Ravi S/o. Kalu Goud. V/s. State of M.P.)
Date : 23.02.2022 :
Shri Surendra Singh, learned Sr. Advocate with Shri Manish Sharma,
Advocate for the appellant No.4 - Kanha @ Kanhaiyalal in Cr. Appeal
No.610/2021.
Shri Akhilesh Kumar Saxena, learned counsel for the appellant - Ravi
Goud in Cr. Appeal No.546/2021.
Shri Kamal Kumar Tiwari, learned Govt. Advocate for the
respondent/State.
Shri Mohd. Ikram Ansaari, learned counsel for the objector.
Heard on I.A. No.29800/2021, first application u/s. 389 of the Cr.P.C.
for suspension of custodial sentence filed on behalf of appellant No.4 -
Kanha @ Kanhaiylal in Cr. Appeal No.610/2021 and I.A. No.19412/2021,
first application for suspension of custodial sentence filed on behalf of
appellant - Ravi Goud in Cr. Appeal No.546/2021.
The present appeals are filed against the judgment dated 31.12.2020
passed by Addl. Sessions Judge, Dhar in S.T. No.142/2015 whereby out of
10 accused, 6 have been convicted and sentenced. The present appellants
stand convicted and sentenced as under :
Conviction U/s. Imprisonment Fine In default of
Payment of fine.
148 of IPC. 1 year RI - -
302/149 of IPC. Life Imprisonment. 1,000/- 6 months RI.
323/149 of IPC 3 months RI - -
342 of IPC 3 months RI - -
25(1-B(a) of 1 year RI 500/- 3 months RI
Arms Act.
CRA. Nos. 610/2021
& 546/2021
27(3) of Arms Life Imprisonment. 1,000/- 6 months RI.
Act.
The prosecution story, in short, is as under :
On 15.10.2014 near about at 10.20 in the night the complainant
Mohan S/o. Radheshyam Raghuvanshi along with his friend Ravi was
discussing with Rammu Chowkidar in respect of sale-purchase of land and
at that time he received telephone call from Dinesh Raghuvanshi that an
accident took place with Bullet motorcycle at Eicher Square with another
motorcycle belonging to Prem of Sagour. Mohan and Ravi immediately
reached on the spot where they met with Dinesh Raghuvanshi and Kanha
Khati and the Honda motorcycle was also lying there. Dinesh demanded the
cost of damage caused to the motorcycle from Prem which he denied. Then,
the friends of Prem viz. Devi Pahalwan, Ravi, Mahesh, Munna, Manoj
Pathariya, Kanha Bhoi, etc. came there on motorcycle. Due to denial of
payment of expenditure, scuffle took place between all of them, then brother
of Mohan viz. Murli and Anurag came there in Swift Car and tried to
intervene in the matter, then the accused left the place. When Mohan and his
brother Murli, Anurag, Kanha Khati, Dinesh and Ravi were going to
Pithampur Police Station to lodge a report, at that time, Devi Pahalwan,
Munna Maratha, Mahesh Bhoi, Kanha @ Kanhaiyalal, Ravi Goud, Manoj
Pathriya, Prem Rajput, Ramesh Bhoi, Bablu Goud, Golu Goud came on 4-5
motorcycles overtake them and started abusing them by filthy language.
Thereafter, with a common intention to kill them, Devi Pahalwan gave a
blow by means of sword on the left hand of Dinesh Raghuvanshi. Dinesh
Raghuvanshi tried to run away, then Bablu, Golu, Ramesh chased him and
Bablu assaulted him by means of sword on his back. When Murli stepped
down from the car, accused Mahesh fired a gun shot on Murli on his left
abdomen and he fell down and bleeding started. When complainant Mohan,
Anurag and Ravi ran towards the Police Station, then Munna @ Kalpesh
Maratha fired the gun-shot. They took Murli and Dinesh to Madhya Bharat
Hospital where Murli died. The FIR was registered at Police Station
Pithampur at Crime No. 687/2014 for the offences u/s. 147, 148, 149, 294,
CRA. Nos. 610/2021
& 546/2021
342, 307 of the IPC and u/s. 25, 27 of the Arms Act. On the death of Murli,
offence u/s. 302 of the IPC was added. During investigation accused Manoj,
Devi Pahalwan, Munna Maratha, Mahesh Bhoi, Kanha @ Kanhaiyalal, Ravi
Goud, Prem Rajput, Ramesh Bhoi, Bablu Goud and Golu were arrested and
on their disclosure memo the articles used in commission of offence were
recovered. The charge-sheet was filed. The accused persons denied the
charges and pleaded for trial.
The prosecution has examined 26 witnesses and marked 86 documents
as exhibits. In defence, none of the accused examined any witness. After
appreciating the evidence came on record, learned Sessions Judge vide
impugned judgment convicted and sentenced the present appellants and
others as stated first. Hence, the present appeals before this Court.
Shri Surendra Singh, learned senior counsel appearing for appellant -
Kanha @ Kanhaiyalal has drawn attention of this Court to Para 2 of
statement of Mohan Raghuvanshi (P.W.4) to emphasise that name of present
appellant - Kanha has not been taken by him. He submits that although the
presence of appellant - Kanha has been shown near Eicher Square but the
incident took place near Sudarshan Complex where the presence of only
Devi, Mahesh, Munna, Manoj, Ravi and Prem Rajput has been shown. He
further submits that the main allegations are against Mahesh who fired the
gun shot on Murli and Devi who assaulted Dinesh by means of sword. He
submits that on the same set of evidence, four other accused persons have
been acquitted. He has also referred the statement of Dinesh (P.W.5) who
also took the name of Kanha Bhoi and Devi only. Therefore, the present
appellant has wrongly been convicted. The appellant - Kanha @
Kanhaiyalal was on bail during trial and he never misused the liberty. He,
therefore, prayed for grant of bail to this appellant.
Shri A.K. Saxena, learned counsel for the appellant - Ravi Goud also
submits that this appellant was on bail during trial and his presence has also
not been shown at the time of incident. No overt act has been attributed to
this appellant. He, therefore, prayed for grant of bail to this appellant.
On the other hand, learned Govt. Advocate appearing for the
CRA. Nos. 610/2021
& 546/2021
respondent/State opposes the prayer by submitting that all the accused had
formed the unlawful assembly and with a common intention they committed
murder of Murli, therefore, the individual act of each and every member of
the assembly is immaterial. All the accused have rightly been convicted and
their jail sentence is not liable to be suspended.
Shri M.I. Ansaari, learned counsel appearing for the objector also
opposes the prayer by submitting that the appellants have rightly been
convicted u/s. 302 of the IPC read with Section 148 and 149 of the IPC. The
presence of the present appellants has been established on the spot. The
police has recovered number of empty cartridges from the spot. The other
accused against whom there was no material have already been acquitted,
hence the applications for suspension of custodial sentence of present
appellants are liable to be rejected.
As per FIR, the allegation of causing injury to Dinesh by means of
sword is against Devi and Mahesh who fired the gun shot on Murli. The
allegations against the present appellants - Kanha @ Kanhaiyalal and Ravi
Goud is that they came there along with others. No overt act has been
attributed to these appellants in the FIR. Nothing has been recovered from
the present appellants. In view of the aforesaid, in the opinion of this Court,
the jail sentence of appellants - Kanha @ Kanhaiyalal and Ravi Goud is
liable to be suspended.
Accordingly, the application (I.A. No.29800/2021) filed in Cr. Appeal
No. 610/2021 and I.A. No.19412/2021 filed in Cr. Appeal No. 546/2021 are
allowed and it is directed that subject to deposit of fine amount in the trial
Court and upon furnishing personal bond in the sum of Rs.50,000/- (Rupees
Fifty Thousand) each with separate solvent sureties in the like amount to the
satisfaction of the trial Court for their appearance before the Registry of this
Court, the execution of custodial part of the sentence of appellants - Kanha
@ Kanhaiyalal (Cr. Appeal No.610/2021) and Ravi Goud (Cr. Appeal
No.546/2021) shall remain suspended till the final disposal of this appeal.
The appellants after being released on bail shall mark their presence before
the Registry of this Court on 20.09.2022 and on all such subsequent dates, as
CRA. Nos. 610/2021
& 546/2021
may be fixed in this behalf by the Registry during the pendency of this
appeal.
Before releasing the appellants from the custody, the Jail Authorities
are directed to medically examine them in order to rule out the possibility of
COVID-19 infection and shall comply with the direction given by the Apex
Court in Writ Petition No.01/2020.
List the appeal for final hearing in due course.
[ VIVEK RUSIA ] [AMAR NATH (KESHARWANI)]
JUDGE. JUDGE.
Alok/-
Digitally signed by ALOK GARGAV
Date: 2022.02.25 12:17:51 +05'30'
