Jitendra And Anr. vs The State Of Madhya Pradesh
2022 Latest Caselaw 7058 MP

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          IN THE HIGH COURT OF MADHYA PRADESH
                        AT INDORE
                           CRA No. 759 of 2012
          (JITENDRA AND ANR. AND OTHERS Vs THE STATE OF MADHYA PRADESH)



Dated : 10-05-2022
      Shri Akhilesh Kumar Saxena, learned counsel for the appellants.
      Shri Kamal Kumar Tiwari, learned Govt.Advocate for the
respondent/State.

Heard on I.A. No.1419/2020 which is repeat fourth application for suspension of sentence filed under section 389(1) of the Cr.P.C. on behalf of appellant no.2 Prakash.

The first application for suspension of appellant no.2 was dismissed as withdrawn vide order dated 28.07.2014, second application for suspension of sentence filed on behalf of appellant no.2 was dismissed on merits vide order dated 15.06.2015 and the third application for temporary suspension was rejected vide order dated 05.02.2018.

The appellant no.2 Prakash has been convicted vide judgment dated 02/05/2012 in Session Trial No.1202/2009 passed by the Seventh Additional Sessions Judge, District Indore as below:-

  Conviction                                   Sentence
Section      Act Imprisonment              Fine deposited Imprisonment
                                           details        in lieu of Fine
302          IPC Life imprisonment              Rs.20,000/-       1 year R.I
25(1-A)   Arm Life imprisonment          Rs.20,000/-       1 year R.I
(A)

As per prosecution story, on 30.07.2019, at about 11.35 AM, Police Station MIG, Indore received information by a phone operator of M.Y hospital, that one Santu has been brought dead to the said hospital, who has sustained a gunshot injury. Dehati Nalshi was recorded. Complainant Pankaj informed that he is driver of vehicle No.MP-09-HC-4473

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belonging to Thakur travels on 30.07.2009 at about 1.00 PM. As there was no prior booking to the said vehicle therefore he did not go for work on the said date. Complainant Pankaj along with one Suresh on the said date at about 10.30 AM went to Chooti Gwaltoli, Indore to purchase some accessories for his vehicle on the way they met Montu, Santosh and Lalu. Santosh insisted the Complainant and Suresh to have some tea so they stayed back. At about 11.00 AM appellant no.1 and appellant no.2 came on a red colour passion motorcycle where Panchu Kumar's Chall was situated, the said vehicle was driven by appellant no.1 Jitendra and the other co-accused Govinda was driving another blue coloured motorcyle. It is further alleged that appellant no.2 after alighting from the said vehicle took out a pistol from his waist side and fired a gun shot on the chest of Santosh (deceased) as a result of which he fell down and all the accused persons fled away from the place of incident on the motorcycle. At that juncture, a black colour Scorpio car, which was present on the spot also took off. Police registered the case against the appellants. Charge sheet was filed against the appellants for the offence punishable under Section 302,34 of IPC and 25/27 of the Arms Act and vide judgment dated 02/05/2012 in Session Trial No.1202/2009 passed by the Seventh Additional Sessions Judge, District Indore they have been convicted for the aforementioned sections.

Learned counsel for the appellants submits that the appellant no.2 is in jail since last more than 12 years. This appeal is of 2012 and there is no likelihood of final hearing in near future of this appeal. Co-accused Appellant no.1 Jitendra has already been enlarged on bail by this Court on 05.11.2012. Counsel for the appellant no.2 has drawn our attention to the ballistic report EXP-25, which does not confirm that bullet found in the body of the deceased was fired from the gun recovered from the present

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appellant no.2. As per report, neither shell nor a bullet was found to be fired from the country made pistol. He further submits that as per prosecution story the appellant no.2 Prakash said to have fired gun shot but as per doctor's opinion it was fired from 15 to 20 feet range. No investigation has been carried out in respect of presence of Scorpio Car on the spot, hence prays for suspension of sentence of appellant no.2.

Learned Govt. Advocate for the respondent/State opposes the prayer for suspension of sentence.

Considering the facts and circumstances of the case, the period of custody and that there is no likelihood of final hearing of this criminal appeal in near future, without commenting on the merits of the case the application for suspension of sentence I.A. No.1419/2020 is allowed. Execution of jail sentence of the appellant no.2 is hereby suspended and it is ordered that the appellant no.2 Prakash be released on bail on his furnishing a personal bond for a 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.2 shall mark his presence before the registry of this Court on 26/09/2022 and on all such subsequent dates, which are fixed in this regard by the Registry.

I.A. No.4916/2020 also stands disposed of.

Certified copy as per rules.

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

das
                  Digitally signed by
                  REENA PARTHO
                  SARKAR
                  Date: 2022.05.10
                  19:14:37 +05'30'