Shivshankar Gurjar vs The State Of Madhya Pradesh
2022 Latest Caselaw 6565 MP

                                                          1
                                   IN THE HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                        BEFORE
                                          HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                   ON THE 2nd OF MAY, 2022

                                      MISC. CRIMINAL CASE No. 12363 of 2022

                              Between:-
                              SHIVSHANKAR GURJAR S/O SHRI BHAIYALAL
                              GURJAR , AGED ABOUT 46 YEARS, OCCUPATION:
                              AGRICULTURIST R/O VILLAGE REHI, POLICE
                              STATION   JIYAWAN, DISTRICT    SINGRAULI,
                              (MADHYA PRADESH)

                                                                                         .....PETITIONER
                              (BY SHRI MANISH DATT, SR. ADVOCATE ASSISTED BY SHRI
                              SIDDHARTH BENDEL, ADVOCATE)

                              AND

                              THE STATE OF MADHYA PRADESH THROUGH
                              POLICE STATION JIYAWAN DISTRICT SINGRAULI
                              (MADHYA PRADESH)

                                                                                      .....RESPONDENTS
                              (BY SHRI CHANDRA PAL SINGH PARMAR, GOVT. ADVOCATE)

                            This first bail application has come up for hearing on admission on this
                      day, the court passed the following:
                                                             ORDER

This is first bail application filed under Section 439 of the Code of Criminal Procedure on behalf of applicant Shivshankar Gurjar, S/o Bhaiyalal Gurjar, who is in custody since 27/12/2021 in connection with Crime No723/2021 registered at Police Station Jiyawan, District- Singrauli (M.P.) for the offences punishable under Section 302 of IPC.

It is submitted that applicant is innocent. he is caretaker of a Sand Mines taken in auction by RKTC Company. It is submitted that incident took place on 22/12/2021 when deceased-Munendra Gurjar was called by present applicant over phone. Thereafter talks which took place between applicant-Shivshankar Gurjar and deceased-Munendra were heard by Akhilesh Gurjar. Thereafter Akhilesh was sent to loading point. When he returned at 2.00 a.m., then he found Munendra to be lying unconscious. When he covered him with a blanket and came home, took Signature SAN Not Verified his mother and returned to the camp. Thereafter he took his brother Munendra Digitally signed by TULSA SINGH Date: 2022.05.04 along with company employee Kamlendra Pandey to one Dr. Soni who asked 18:53:00 IST

them to take their brother to another place and he brought his brother home where he died on 24/12/2021 at 2.00 a.m. Reading statement of Akhilesh Gurjar, it is submitted that Akhilesh Gurjar has admitted that later on his brother -Shivendra informed that Munendra was

saying that applicant-Shivshankar Gurjar had pushed him with his hand, as a result, he had fallen down on the floor breaking his neck. It is submitted that this statement of Akhilesh and Shivendra clearly reveals that it is a case under Section 323 of IPC and not under Section 302 of IPC. Reliance is placed on a judgment of Hon'ble Supreme Court in the case of Jani Gulab Shaikh Vs. The State of Maharashtra, 1969 (2) UJ 598 SC wherein believing on the evidence of eye witnesses, it was found that deceased was abusing the accused in front of their shop under influence of liquor, then accused came from his shop and gave blows to the deceased and deceased fell down with his face towards the sky and became unconscious and his mouth and ear started bleeding, Hon'ble Supreme Court reached to the conclusion that because no grievous injury has been inflicted by the accused, case falls under Section 323, IPC.

Shri Chandra Pal Singh Parmar, learned Govt. Advocate, in his turn, submits that whole story of the prosecution is full of improbability. It is submitted that evidence of last seen is that of Akhilesh Gurjar. It was Akhilesh Gurjar who had seen deceased Munendra in the company of Shivshankar Gurjar. Thereafter Akhilesh had left for loading point. It was Akhilesh on return at 2.00 am found his brother to be unconscious, therefore, there was no occasion for Shivendra to report through the version of deceased-Munendra that Munendra informed him that Shivshankar on a dispute over quantum of salary had pushed him, as a result of which, he had fallen down and sustained fracture on neck. It is pointed out that it was Akhilesh who had taken Munendra to the doctor. According to Akhilesh, Munendra was unconscious. Akhilesh never deposed that Munendra ever gained consciousness before death. It is submitted that even Dr. Soni appears to be a part of a criminal conspiracy. There is no explanation that when Dr. Soni had expressed his inability to treat, why injured was not taken to another hospital. It is a case of circumstantial evidence. No direct inference can be drawn in light of law laid down

by Hon'ble Supreme Court in the case of Jani Gulab Shaikh (supra).

After hearing learned counsel for the parties and going through the record, it is evident that prima facie, there appears to be lack of credibility in the statements recorded under Section 161 of Cr.P.C. Admittedly, there is no date mentioned in the statement recorded by SHO, Police Station, Jiyawan. Statement of Akhilesh, complainant, Shivendra, brother of deceased and also brother of Akhilesh, Asha Gurjar, mother of deceased, Ramlakhan Gurjar, Daddu Gurjar, Amit Gurjar, Ashish Gurjar, Rupesh Singh, Laxman Pandey, Kamlendra Pandey are undated as are available on page 29 to 38 of the case diary. The biggest missing link is that

when Munendra was taken in unconscious condition, then there is no mention of the fact as to when he gained consciousness before death. Accordingly, for the present, this case being that of a circumstantial evidence, the doctor who conducted post-mortem has clearly mentioned in his post-mortem report that cause of death is Coma due to traumatic brain-stem injury following cervical spine fracture antemortem with homicidal nature, it is not a fit case to extend the benefit of bail to the applicant.

Accordingly, this M.Cr.C. fails and is hereby dismissed.

(VIVEK AGARWAL) JUDGE ts