Dharmendra vs The State Of Madhya Pradesh
2023 Latest Caselaw 6815 MP

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                                        IN THE HIGH COURT OF MADHYA PRADESH
                                                     AT GWALIOR
                                                     CRA No. 485 of 2018
                                            (DHARMENDRA Vs THE STATE OF MADHYA PRADESH)

                          Dated : 26-04-2023
                                Shri A.K. Jain - Advocate for the appellant.

                                Shri Rajesh Shukla - Additional Advocate General for respondent/State.

Heard on I.A. No.2725/2020, which is second repeat application under Section 389(1) Cr. P.C. filed on behalf of sole appellant, namely, Dharmendra seeking suspension of sentence and grant of bail. His first application I.A.

No.1855/2020 was dismissed as withdrawn vide order dated 29/02/2020.

Appellant stands convicted under Section 302 of IPC and sentenced to undergo life imprisonment with a fine of Rs.10,000/- with default stipulations vide judgment of conviction and order of sentence dated 14/11/2017 passed by Fifth Additional Sessions Judge, Guna (M.P.), in Sessions Trial No.26/2017.

Appellant so far has undergone jail incarceration for almost six years and six months.

As per prosecution story, FIR was lodged by the complainant Kalyan Singh (PW-1) to the effect that on 24/11/2016, he was informed about 9-10

p.m. by one Kallu Kushwaha (PW-2) that his brother Bhoora has been assaulted by Dharmendra Kushwaha by lathi causing grievous injury on his head. On such information, when he along with Kallu went to the spot, he found that deceased Bhoora was in the pool of blood due to grievous injury on his head and has died. On such information, Marg was registered at No.0/16 vide Ex.P/1 and thereafter, Dehati Nalishi was recorded vide Ex.P/17 on oral report under Section 302 of IPC based whereupon FIR was registered vide Ex.P/16 at Crime Case No.696/2016 under Section 302 of IPC. On completion Signature Not Verified Signed by: SUNEEL DUBEY Signing time: 4/26/2023 6:16:21 PM

of investigation, challan was filed and the case was committed to the Sessions Court for trial. The Sessions Court upon critical evaluation of the evidence placed on record convicted and sentenced the appellant as aforesaid.

Shri Jain, learned counsel for the appellant while referring to solitary eyewitness Kallu Kushwaha (P.W.-2) submits that in Para-1 of his deposition, he has clearly stated to have not been present on spot at the time when the deceased suffered grievous injury on his head. That apart, his testimony suffers from contradictions and omissions with statement under Section 161 Cr.P.C. Under such circumstances, the benefit of doubt ought to have been given to appellant as there was no direct much less reliable evidence connecting the

appellant with the alleged crime. Even otherwise, appellant who is an agriculturist has already suffered more than 6 years and 6 months of jail incarceration. On such grounds, learned counsel prays for suspension of sentence and grant of bail to the appellant.

Per contra, Shri Shukla, learned Additional Advocate General appearing on behalf of the State, while opposing the application supporting the judgment impugned submits that as if the evidence of eyewitness Kallu Kushwaha (PW-2) is read in entirety, the complicity of the appellant is at writ large. He further submits that even if in ocular evidence he has denied to have seen the appellant but the same runs contrary to statement recorded under Section 164 Cr.P.C. Therefore, no exception can be taken in the matter of suspension of sentence and grant of bail to the appellant.

Upon hearing learned counsel for the parties, though this Court refrains from commenting upon rival contentions touching merits of the case but regard being had to the fact that the appellant has already suffered six years and six

Signature Not Verified months of jail sentence coupled with the fact that appeal is of the year 2018 and Signed by: SUNEEL DUBEY Signing time: 4/26/2023 6:16:21 PM

there is no likelihood of early hearing in near future and therefore, looking to the entirety of facts and circumstances, we hereby extended the benefit of suspension of sentence and grant of bail to sole appellant-Dharmendra.

Accordingly, I.A. No.2725/2020 stands allowed and it is directed that the jail sentence of sole appellant-Dharmendra shall remain suspended and he shall be released on bail, subject to verification of amount of fine being deposited and on his furnishing a personal bond in the sum of Rs.2,00,000/- (Rupees Two Lacs only) with one solvent surety in the like amount to the satisfaction of the Trial Court. Appellant-Dharmendra is directed to appear before the Registry of this Court first on 27.06.2023 and on other subsequent dates as may be fixed by Office in this behalf.

Observations on facts, if any, are only for the purpose of disposal of the application for suspension of sentence and shall have no hearing on the merits of the appeal.

Certified copy as per rules.

                             (ROHIT ARYA)                                   (SATYENDRA KUMAR SINGH)
                                JUDGE                                                JUDGE

                          (Dubey)




Signature Not Verified
Signed by: SUNEEL DUBEY
Signing time: 4/26/2023
6:16:21 PM