Madhya Pradesh High Court
Narmada Prasad Ahirwar vs The State Of Madhya Pradesh on 12 September, 2022
Author: Rohit Arya
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 9663 of 2019
(NARMADA PRASAD AHIRWAR Vs THE STATE OF MADHYA PRADESH)
Dated : 12-09-2022
Shri D.S. Tomar, Advocate for the appellant.
Shri Naval Kishor Gupta, Public Prosecutor for the respondent/ State.
Heard o n I.A.No.9509 of 2022, second application under Section
389(1) of Cr.P.C filed on behalf of appellant- Narmada Prasad Ahirwar seeking
suspension of sentence and grant of bail. Earlier application was dismissed on
merits by Co-ordinate Bench of this Court on 27.04.2021.
Appellant stands convicted under Sections 302 r/w Section 120, 392 r/w
Section 120-B of IPC and sentenced to undergo Life imprisonment along with
fine of Rs.5,000/-, ten years RI along with fine of Rs.5,000/- with default
stipulations, vide judgment dated 01.11.2019 passed in ST No.200135 of 2014
by Additional Judge to the Court of First Additional Sessions Judge, Guna
(M.P.).
As per prosecution story, an information was received at about 08:15 am
on 09/04/2013 by complainant Mohammad Sakir, who is the Kotwar of
Ganeshpura Maksoodangarh that while he was having tea in a hotel with Yashi
Kotwar, they heard a news that a dead body was lying near the agricultural land
of Ghanshyam Bairagi on bypass road, behind Agarwal petrol pump and his
neck was tied with a rope. Police was intimated. On such information a merg
was registered at 003/2013. During the course of investigation/enquiry, it
surfaced that complainant Rambabu had lodged a missing report against two
unknown persons at Police Station Lateri in relation to death of deceased driver
Dhanraj. Thereafter, further investigation was conducted by Police Station
having jurisdiction. During the course of investigation, the police collected
tower location of mobile number of Rambabu and of mobile number in phone
memory through the call details report (CDR). Upon scrutiny thereof, it was
found that one call was made to Mobile No.8103539180 belonging to one
Meghraj Sharma, R/o Nehru Nagar, Bhopal. On being contacted, he informed
that Mobile No.8359078827 (also in memory of phone) is that of present
appellant Narmada Prasad Ahirwar. Thereafter, an FIR was lodged against
Narmada, Vishnu and Halke. During investigation, it transpired that the appellant
had taken the tractor on hire from Rambabu, the owner thereof. Deceased
Dhanraj was the driver of the said tractor. Thereafter, further incriminating
material in support of aforesaid sequence of facts was collected as discussed in
para 2 of the impugned judgment. The tractor was seized from the place
disclosed by the present appellant in his memo under Section 27 of Evidence
Act.
In other words, as per allegations in the FIR, the present appellant under
the pretext of hiring of tractor of ownership of Rambabu, had caused homicidal
death of deceased driver Dhanraj and had kept tractor in hiding. Under the
circumstances, complainant- Rambabu is the person, who had last seen
appellant along-with deceased with the tractor. After completion of
investigation, challan was filed. The case was committed to the Sessions Court
for trial. The Sessions Court upon evaluating evidence placed on record,
convicted and sentenced the appellant as aforesaid.
Learned counsel for the appellant submits that the appellant stands
convicted only on the basis of identification of appellant by Rambabu and
seizure of tractor, referring to para 25 of the judgment. According to him, the
impugned judgment suffers from patent illegality and rests upon surmises and
conjectures. Conviction of appellant is wholly unwarranted for want of eye
witness account and connectivity of appellant with the crime. More so, the
witnesses to the seizure of tractor have turned hostile. Even otherwise, the
appellant has suffered incarceration of three and half years. Therefore, it is
prayed that appellant may be given benefit of suspension of sentence and
granted of bail.
Per contra, Shri Naval Kishor Gupta, Public Prosecutor while supporting
the impugned judgment submits that this is the case of not only ''last seen
together'' by Rambabu (PW-1), but also deceased- Dhanraj was the driver of
Rambabu who used to drive the tractor found in the hidden place and
recovered at the instance of appellant. That apart, the Investigating Agency
reached the appellant upon examination of the call details of Meghraj Sharma
having Mobile No.8103539180 at Bhopal, who had disclosed that the call made
on Mobile No.8359078827 is that of present appellant-Narmada Prasad
Ahirwar. That apart, appellant was also identified in the TIP, as discussed in
paragraphs 13 and 21 of the impugned judgment.
In response, learned counsel for the appellant tried to submit that the TIP
was not conducted legally.
Upon hearing counsel for the parties, this Court refrains from
commenting upon the submissions advanced, touching merits of the case.
However, regard being had to the fact that the deceased Dhanraj (driver) was
last seen with the appellant as testified by Rambabu (PW-3), the owner of
tractor, Rambabu identified him in the test identification parade (Ex.P-6)
conducted by Suryakant Tripathi, Tehsildar-cum-Executive Magistrate (PW-
14), who has proved the test identification parade as well as signatures of the
attesting witnesses to the recovery of tractor and trolley at the instance of the
appellant, prima facie, complicity of appellant, at this stage cannot be doubted
as the disclosure of the fact of last seen was within 24 hours of the death of
deceased. Hence, we are not inclined to grant suspension of sentence to the
appellant.
I.A.No.9509 of 2022 accordingly stands dismissed on merits.
The observations, if any, on facts are only for the purpose of disposal of
the instant application for suspension of sentence and shall have no bearing on
the merits of the case.
(ROHIT ARYA) (MILIND RAMESH PHADKE)
JUDGE JUDGE
Monika
MONIKA
SHARMA
2022.09.13
17:09:18 +05'30'
