Bhimnath vs The State Of Madhya Pradesh
2022 Latest Caselaw 13330 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 11th of October, 2022

                    CRIMINAL APPEAL No.1586/2016
         (BHIMNATH Vs. STATE OF MADHYA PRADESH)
       Ms. Sharmila Sharma, learned counsel for the appellant -
BHIMNATH.
       Shri K.K.Tiwari, learned Govt.Advocate for the respondent/State.

The sole appellant- BHIMNATH has been convicted and sentenced vide judgment dated 23.09.2016 in Session Trial No.100371/2014 passed by Sessions Judge, District Dhar.

   Conviction                                      Sentence
Section     Act     Imprisonment            Fine deposited details Imprisonment in
                                                                   lieu of Fine
302         IPC     Life imprisonment               Rs.1,000/-        SIX MONTHS

Heard on I.A.No.11176/2022 which is first application for suspension of sentence filed under section 389(1) of the Cr.P.C. on behalf of sole appellant- BHIMNATH.

As per prosecution story, the present appellant was married with Soni Bai (deceased) in the year 2006. On 27.07.2014, the neighbors Bherunath (PW-3), Singhnath (PW-5) and Rachna (PW-6) heard a screaming voice coming from the house of the appellant and thereafter they saw the deceased lying in a unconscious position. She was taken

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to the hospital where she was declared dead. The police reached to the spot. Dead body was sent for post mortem. As per post mortem report (Ex-P-8) deceased died due to strangulation. The witnesses noticed ligature mark of a rope and as per doctor Dr. Ashish Damor (PW-7) opinion she died due to strangulation as well as minor injuries on the cheek. The police collected the skin particles found in the nails of the deceased and as per FSL (Ex-P-17) the skin particles belong to the deceased. The appellant was arrested and put to trial.

Learned counsel for the appellant submits that the appellant has wrongly been convicted. She has drawn our attention to the cross examination of Dr. Ashish Damor (PW-7) who has admitted that the rope which was recovered on the disclosure memo under Section 27 of the appellant is different, from the rope from which strangulation said to have been done. It is further submitted that the appellant is convicted only because he has failed to give any explanation of the ligature marks found on the neck of his wife. She further submits that the burden was on the prosecution to establish the charges by cogent evidence and the defence failure cannot be basis for conviction as held by the Apex Court in number of cases.

Learned counsel for the appellant further submits that the appellant has completed more than 8 years of jail sentence and there is no criminal record pending against the present appellant. As this appeal is of the year 2016 and it is not likely to come for final hearing in near future; hence, in these circumstances, learned counsel prays for suspension of jail sentence of appellant.

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

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Looking to the period of custody and that the appeal is of 2016 and 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.11176/2022 is allowed. Execution of jail sentence of the appellant- BHIMNATH is hereby suspended and it is ordered that the appellant be released on bail on his furnishing a personal bond for a sum of Rs.50,000/- (Rupees Fifty Thousand Only) with one 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- BHIMNATH shall mark his presence before the Registry of this Court on 05/12/2022 and on all such subsequent and on all such subsequent dates, which are fixed in this regard by the Registry.

I.A.No.11176/2022 stand disposed of.

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


               Digitally signed
               by REENA
               PARTHO SARKAR
               Date: 2022.10.12
               14:17:26 +05'30'