Pidda @ Krishnakant vs The State Of Madhya Pradesh
2022 Latest Caselaw 3676 MP

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IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
                              BEFORE
               HON'BLE SHRI JUSTICE VIVEK RUSIA
                                 &
       HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
                     ON THE 15th of March, 2022

                        CRA No.7608/2021

  (PIDDA @ KRISHNAKANT AND 3 OTHERS VS. STATE OF MADHYA PRADESH)

                            ORDER

Shri Vivek Singh, learned counsel for the appellants. Shri K.K.Tiwari, learned counsel for the respondent State.

****** Heard on the question of admission.

Admit.

List the appeal for final hearing in due course. Heard on I.A. No.29732/2021 which is first application under Section 389(1) of Cr.P.C. for suspension of remaining jail sentence on behalf of appellant no.3 Vipin @ Appu.

The appellant has been convicted and sentenced as under:-

Conviction                       Sentence
Section       Imprisonment       Fine        Imprisonment in lieu
                                             of Fine
148 IPC       3 months RI        500/-       15 days Additiional RI
302/149       Life               500/-       3 months Additional RI
              imprisonment
323/149       3 moths RI         500/-       15 days Additional RI
324/149 IPC 6 months RI          500/-       1 month Additional RI

As per prosecution story, on 24.06.2012 near about 11.30 PM in the night Shyamlal Verma was sitting in front of his house.Accused Atul armed with knife came to his house and inflicted injuries on his stomach and nose. Thereafter Babbu Verma, Pidda @ Krishnakant Verma, Rakesh verma, Mahendra Verma, Vijay Verma and appellant

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no.3 Vipin @ Appu came there armed knifes and swords. They assaulted Dhannalal, Arjun, Balwant, Shubham, Anita and Sagar. Dhannalal(deceased) succumbed to the injuries. FIR bearing Crime No.513/2012 was registered against all these appellants. They were arrested. Prosecution has examined as many as 18 witnesses. Cross FIR has also been registered against the injured at the instance of these appellants.

Learned Trial Court in paragraph 108 & 114 of the judgment has held that there was free fight between both the parties and members of both the parties suffered the similar injuries. However, one of the injured succumbed to the injuries. All the accused have been convicted under sections 302 and 323,324 with the aid of 149 of IPC as well as under Section 148 of IPC.

Learned counsel for the appellants submits that so far as appellant no.3 Vipin @ Appu is concerned he said to have assaulted Arjun, Balwant, Shubam and Anitabai by means of stick for which he has been convicted under Section 323/149 of IPC. So far as causing fatal injuries to Dhannalal (deceased), who scummbed to the injuries, i.e, against Rakesh @ Babu and Vijay they were in custody in the trial and the appellant no. 3 was released on bail Learned counsel has placed reliance on a judgment passed by the Apex Court in Puran Vs. State of Rajasthan reported in (1976) 1 SCC 28 in which it has been held that in case of sudden free fight constructive liability cannot be imposed. Each accused can only be convicted for the injuries caused by his individual act. Section 149 of the IPC will not be attracted. In another judgment passed by the Apex Court in the case of Vishvas Aba Kurane Vs State of M.P. reported in (1978) 1 SCC 474 in which it has been held that in the case of free fight private defence is not available to either of the parties and each individual is responsible for his own acts. The appeal is likely to take sufficient long time, hence, prays for suspension of sentence of appellant no.3.

Learned Public Prosecutor has opposed the prayer of suspension

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of sentence by submitting that the accused party was aggressor and they came to the house of Shyamlal armed with deadly weapons, therefore, finding for free fight has wrongly been recorded. At the most injured have assaulted in order to save themselves.

We have heard the counsel for the parties and have perused the record.

Considering the submissions made by learned counsel both the parties, statements of the witnesses and material available on record, without commenting the merit of the case, we are of the considered opinion that the application for suspension of custodial sentence moved on behalf of the appellant no.3. deserves to be allowed.

Accordingly, I.A. No.29732/2021 is allowed and it is directed that subject to depositing fine amount and on furnishing personal bond by the appellant no.3 Vipin @ Appu in the sum of Rs.50,000/- (Rupees Fifty thousand only) with one solvent surety in the like amount to the satisfaction of the learned trial 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 no.3 after being enlarged on bail, shall mark his presence before concerned trial court on 26/09/2022 and on all such subsequent dates, which are fixed in this regard by Trial Court concerned.

IA.No.1472/2022 an application for urgent hearing stands disposed of.

Certified copy, as per rules.

      ( VIVEK RUSIA )                  ( AMAR NATH (KESHARWANI))
          JUDGE                                  JUDGE


das
                Digitally signed by
                REENA PARTHO SARKAR
                Date: 2022.03.15
                19:00:30 +05'30'