Phulli Alias Rajendra Rayakwar vs The State Of Madhya Pradesh
2022 Latest Caselaw 10324 MP

                                   1
             IN THE HIGH COURT OF MADHYA PRADESH
                          AT GWALIOR
                           CRA No. 4572 of 2018
    (PHULLI ALIAS RAJENDRA RAYAKWAR AND OTHERS Vs THE STATE OF MADHYA PRADESH)

Dated : 29-07-2022
      Shri Sushil Goswami, Advocate for the appellant.

      Shri Pramod Pachori, Public Prosecutor for the respondent/State.

Heard on I.A.No.22541/2021, which is third application under Section 389(1) of Cr.P.C. for suspension of sentence moved on behalf of appellant no.1 Phulli alias Rajendra. The earlier applications were dismissed as withdrawn.

Appellant stands convicted under Section 302/34 of IPC and sentenced to life imprisonment with fine of Rs.3,000/- with default stipulation vide judgment o f conviction and order of sentence dated 25/04/2018 passed by Sessions Judge, Datia in Sessions Trial No.112/2017.

As per prosecution story, while deceased Kamlesh was sowing seeds of cabbage and brinjal at the rear side of his house along with his brother Manohar, Damodar and Hari Singh Kushwaha at about 8.30 AM on 12/8/2017, co- accused Balli alias Govind Kushwaha armed with a gun, Pathan Ahirwar and appellant Phulli came on a Motorcycle and due to past enmity started hurling

filthy abuses. Thereafter Balli Kushwaha fired a gunshot on the temple of Kamlesh, as a result of which he died on the spot. Thereafter all three of them fled away. Upon recording statements of witnesses and collection of incriminating material, Challan was filed before JMFC and the case was committed to the Sessions Court for trial.

The trial Court upon critical evaluation of the evidence placed on record convicted and sentenced the appellants as aforesaid.

Shri Sushil Goswami, learned counsel for the appellant, while taking exception to the impugned judgment, contends that the Sessions Court did not appreciate the evidence placed on record in right perspective. There is no evidence attributing any motive, act or overt act to appellant Phulli except that he had accompanied the main accused Balli alias Govind Singh Kushwah on the Motorcycle. That apart, enmity, if any of the deceased, was with Balli and not with the present applicant. In the FIR, as well as, statements under S.161, Cr.P.C. there is no allegation of exhortation except in the evidence of PW1 recorded during trial, which is a material improvement. Besides, the Motorcycle has also not been seized. As such, conviction with the aid of S.34 under S.302,

IPC is wholly unwarranted. Even otherwise, appellant having no criminal antecedents, has already suffered jail incarceration of over five years. He is the sole bread earner of the family. The family is in penury and on the verge of starvation due to long jail incarceration. Appeal is of the year 2018. There is no likelihood of early hearing of the appeal. With the aforesaid submissions, prayer for suspension of sentence is made.

Per contra, learned Public Prosecutor, while supporting the judgment impugned, submits that the complicity of appellant Phulli cannot be ruled out, regard being had to the fact that he along with main accused had gone to the place of incident and instigated and exhorted the main accused to fire the gun shot, as is evident from the deposition of PW1 to PW5. As such, it is contended that no case is made out for suspension of sentence.

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 the appellant has already suffered about five years of jail incarceration, he has no criminal antecedents and the

alleged overt act of firing gunshot is not attributed to him, the custodial sentence of the appellant deserves to be suspended.

Accordingly, it is directed that the jail sentence of appellant no.1 Phulli alias Rajendra Rayakwar shall remain suspended and he shall be released on bail subject to verification of the factum of depositing the fine amount and on his furnishing a personal bond in the sum of Rs.2,00,000/- (Rupees Two Lacs only) with one solvent surety in the like amount to the satisfaction of the trial Court. The appellant is directed to appear before the Registry of this Court first on 28/09/2022 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 appellant, his medical examination be conducted through the jail doctor and if it is prima facie found that he is having any symptoms of COVID-19, then the consequential follow up action or any further test required be undertaken immediately. If not, the appellant 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, the I.A. stands allowed.

Observations on facts, if any, are only for the purpose of deciding the

instant I.A. and shall have no bearing on the merits of the appeal.

Certified copy as per rules.

                                 (ROHIT ARYA)                              (RAJEEV KUMAR SHRIVASTAVA)
                                    JUDGE                                             JUDGE

                              (and)
ANAND SHRIVASTAVA
2022.07.29 17:25:55 +05'30'