Madhya Pradesh High Court
Manoj vs State Of M.P. on 29 March, 2022
Author: Vivek Rusia
-1- CRA NO.610/2021
HIGH COURT OF MADHYA PRADESH, BENCH AT
INDORE
CRA NO.610/2021
(1)Manoj s/o Bachu Patharia Lodhi
Age 24 years, R/o Fakir Mohalla Pithampur
District Dhar, M.P
(2)Devisingh @ Devi Pahalvan s/o Ganesh Bhoi
Age 34 years R/o School Road Chouraha, Thana Road, Sagaur
Thana Sagaur, district Dhar, M.P
(3) Mahesh s/o Ganesh Bhoi, Age 34 years
R/o School Road Chouraha, Thana Road, Sagaur
Thana Sagaur, district Dhar M.P
(4)Kanha @ Kanhaiyalal s/o Ganesh Bhoi
Age 32 years, R/o School Road Chouraha, Thana Road, Sagaur
Thana Sagaur, district Dhar M.P
(5)Munna @ Kalpesh s/o Kishore Rawal
Caste Maratha, Age 24 years,
R/o Imlivan Mohalla, Sagaur,
Thana Sagaur, district Dhar M.P .....Appellants.
vs.
State of M.P through Thana Prabari,
PS Pithampur, district Dhar, M.P ......Respondent.
29.03.2022: (INDORE):
Shri L.N.Soni, learned senior counsel with Shri Manoj
Silawat for the appellant.
-2- CRA NO.610/2021
Shri Aditya Garg, learned GA for the respondent/State.
Shri M.I. Ansari, learned counsel for the
complainant/objector.
Heard on I.A. No.3400/2022, second repeat application u/s.
389 of the Cr.P.C. for suspension of custodial sentence filed on
behalf of appellant No.1 Manoj Lodhi.
The present appeal is 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 appellant stands convicted and
sentenced as under :
Conviction Sentence
Section Act Imprisonment Fine Imprisonme
nt in lieu of
fine
148 IPC 1 year SI - -
302/149 IPC Life imprisonment - -
323/149 IPC 3 months SI Rs.1000/ 6 months SI
342 IPC 3 months SI - -
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
-3- CRA NO.610/2021
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
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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, 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.
Learned counsel for the appellant 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
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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 was on bail during trial and he never misused the liberty.
He, therefore, prayed for grant of bail to this appellant.
On the other hand, learned Govt. Advocate appearing for the
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 appellant 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
application for suspension of custodial sentence of present
appellant is liable to be rejected.
-6- CRA NO.610/2021
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 accused Kanha @
Kanhaiyalal and Ravi Goud is that they came there along with
others. No overt act has been attributed to the appellant in the FIR.
Nothing has been recovered from the present appellant. In view of
the aforesaid, in the opinion of this Court, the jail sentence of
appellants is liable to be suspended.
Accordingly, the application filed by the appellant is
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) with separate solvent surety
in the like amount to the satisfaction of the trial Court for his
appearance before the Registry of this Court, the execution of
custodial part of the sentence of appellant Manoj shall remain
suspended till the final disposal of this appeal. The appellant after
being released on bail shall mark his presence before the Registry
of this Court on 20.09.2022 and on all such subsequent dates, as
may be fixed in this behalf by the Registry during the pendency of
this appeal. List the appeal for final hearing in due course.
C.c as per rules.
(VIVEK RUSIA) (AMAR NATH (KESHARWANI))
hk/ JUDGE JUDGE
Digitally signed by HARI KUMAR
C G NAIR
Date: 2022.03.31 11:32:09 +05'30'
