Madhya Pradesh High Court
Danish vs The State Of Madhya Pradesh on 19 September, 2022
Author: Amar Nath (Kesharwani)
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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 19th OF SEPTEMBER, 2022
CRIMINAL APPEAL No.1812/2022
(DANISH Vs. STATE OF MADHYA PRADESH)
Shri Manu Maheshwari, learned counsel for the appellant.
Shri Kamal Kumar Tiwari, learned Govt. Advocate for the
respondent/State.
Shri Rohit Singh Solanki, learned counsel for the
respondent/objector.
The appellant has been convicted and sentenced vide judgment
dated 22/12/2021 in Session Trial No.29/2018 passed by Additional
Sessions Judge, Badnawar, District Dhar as below:-
Conviction Sentence
Section & Act Imprisonment Fine deposited Imprisonment
details in lieu of Fine
Sec.302 of IPC Rigorous Life Rs.10,000/- 3 months R.I
imprisonment
Sec.25(1-B)(a) 7 years R.I Rs.1,000/- 1 month R.I
r/w Sec.3/27 of
Arms Act
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The co-accused - Amjad S/o Maqmuddeen Khan has also been
convicted and sentenced by the same judgment as mentioned below:-
Conviction Sentence
Section & Act Imprisonment Fine deposited Imprisonment
details in lieu of Fine
Sec.25(1-B)(a) r/w 3 years R.I Rs.1,000/- 1 month R.I
Sec.3/27 of Arms
Act
Heard on I.A.No.2701/2022 which is the first application for
suspension of sentence filed under section 389(1) of the Cr.P.C. on behalf
of the sole appellant- Danish.
As per the prosecution story, on 10.03.2018 complainant Mukesh
(PW-1) lodged an FIR at police station Badnawar that "at about 08:50 P.M
he was at his house, and his elder brother Ashok (PW-2) came to his house
and told him that his son Mayur(deceased) was lying on the vacant plot
near Mubarik Chipa's plot in Mahavir Colony, Badnawar and was covered
in blood and that some unknown persons had fired a gun at deceased with
the intention to kill Mayur(deceased). The deceased was taken to the
hospital by the neighbours where he was declared dead. On the basis of
the said information, FIR(ExP-2) was registered at Crime No.138/2018
under Sections 302 IPC and Sections 25 and 27 of Arms Act, and Marg
intimation No.20/2018 (Ex.P-1) was also registered under Section 174 of
Cr.P.C. During the investigation, Panchnama of dead-body (ExP-38) was
prepared and the dead body was sent for postmortem which was carried
out by the Dr. M.M. Upasni (PW-7) and opined that the nature of death is
homicidal and was caused due to injuries on vital organ (Brain) by fire-
arm and prepared the autopsy report (ExP-8). Statements of witnesses
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were recorded and the Appellant and co-accused were arrested. Disclosure
statements of appellant and co-accused were recorded and fire-arm and
motorcycle which were used in the commission of offence were seized.
CD of CCTV footage was seized vide (ExP-13). After completion of the
investigation, a charge sheet was filed against the appellant and co-
accused under Section 302/34 of IPC and Sections 25 and 27 of the Arms
Act. The case was committed to Sessions Court, District- Dhar, and
thereafter the case was made over to Additional Sessions Judge, District
Dhar for trial. The trial Court framed the charges which the appellant and
co-accused denied and pleaded for trial. The trial Court after evaluating
the evidence on record convicted the appellant and co-accused for the
aforementioned offence. Hence, this appeal and application for suspension
of sentence of the appellant before this Court.
Learned counsel for the appellant submits that the impugned
judgment is contrary to law and facts on record and deserves to be set
aside. There are material omissions and contradictions in the statements of
prosecution witnesses which have been ignored by the trial court. The
trial Court has erred in not appreciating the fact that the CCTV footage
available on record and the statement of the witnesses who provided such
CCTV footage are not conclusive to prove the circumstantial evidence
against the appellant. It is submitted that the person following the
deceased in the CCTV footage is not clearly visible as his face is covered.
The trial Court has convicted the appellant only relying on CCTV footage
collected by the prosecution. Learned counsel for the appellant submitted
that the prosecution has failed to prove the motive behind the murder of
the deceased by the appellant and submits that the entire case of the
prosecution is based on circumstantial evidence, furthermore, the
prosecution has failed to prove the chain of circumstances and beyond a
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reasonable doubt. It is further submitted that co-accused Amjad has been
granted the benefit of suspension of sentence vide order dated 18.01.2022
passed in CRA.No.586/2022. The appellant has been in jail since the date
of his arrest i.e. 15.03.2018 thereby he is in jail for 4 years and 6 months.
This appeal is of the year 2022 and is not likely to come for the final
hearing in near future, hence, under these circumstances, learned counsel
prays for suspension of the jail sentence of the appellant.
Learned Gov. Advocate for the respondent/State as well as learned
counsel for the complainant/objector opposes the prayer and submits that
the trial court has passed the impugned judgment after proper appreciation
of evidence that came on record and the trial court has rightly held the
appellant guilty. Learned Gov. Advocate further submitted that the theory
of "last seen together" has been proved by the testimony of Vinod(PW-30)
and the electronic evidence(CCTV Footage CD Art. "A1") duly proved by
Sudeep Mehta(PW-14), and the involvement of the appellant in the crime
has also been proven by the Call Detail Report and Ballistic Report(ExP-
47), hence prays for rejection of the application for suspension of the
sentence.
We have heard the Learned Counsels for the parties and perused the
record.
The statement of Dr. M. M. Upasni(PW-7) who conducted the
autopsy and prepared the P.M. Report(ExP-8) opined that the nature of
death is homicidal and was caused due to injuries to the vital organ(Brain)
by fire-arm. As per the ballistic report (Ex.P-47), the bullet(Art.-"EB1")
was fired from the seized gun (Art.-A1) and as per P.M. Report(ExP-8)
and as per the statement of PW-7 the bullet(Art.-EB1) was found in the
body of the deceased. As per the disclosure statement of appellant Danish
(Ex.P-35), and co-accused Amjad Khan(ExP-43) a motorcycle was seized
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from the appellant, and one country-made pistol (Article A-1) was seized
from co-accused Amjad as per the seizure memo (Ex.P-44). As per
Balistic Report(ExP-47), bullet(Art.-EB1) was fired from the seized fire-
arm (Art."A1"). As per FSL Report (ExP-48), blood stains were found on
the jeans trouser(G-1) which was seized from the appellant as per the
seizure memo (Ex.P-34) and no explanation was given by the appellant in
that regard. Looking at the facts mentioned above and the circumstances
of the case, and statement of Ashok(PW-2), Mrs. Angurbala(PW-5),
Manish Sharma(PW-11), Sudeep Mehta(PW-14), Nitin(PW-19), and
Vinod(PW-30), it is apt to mention that the expression of any final
opinion at this stage with regard to the merit of the case is not desirable
because it may prejudice the case of either party. Suffice it to say, in the
considered opinion of this court that it is not a fit case for suspension of
the remaining jail sentence. The case of the present Appellant has no
similarity with the co-accused Amjad whose jail sentence was suspended
vide order dated 18.01.2022 passed in CRA.No.586/2022. Therefore, we
are not inclined to allow the application for suspension of the remaining
jail sentence. Accordingly, IA No.2701/2022 is rejected.
(VIVEK RUSIA ) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
N.R.
Digitally signed by
NARENDRA KUMAR
RAIPURIA
Date: 2022.09.21
18:42:21 +05'30'
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