Madhya Pradesh High Court
Vinod @ Vicky vs The State Of Madhya Pradesh on 16 August, 2023
Author: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
CRA No. 4468 of 2022
(VINOD @ VICKY Vs THE STATE OF MADHYA PRADESH)
Dated : 16-08-2023
Shri Vivek Singh, learned counsel for the appellant.
Shri K. K. Tiwari, learned Government Advocate for the
respondent/State.
The matter is taken up for hearing, hence, I.A.No. 11062/2023,
application for urgent hearing stands disposed of.
2. Also heard on I.A.No.11061/2023, which is first application for
suspension of jail sentence of the appellant-Vinod @ Vicky Jawkar who
stands convicted vide judgment dated 25.04.2022 passed by the 28th Additional
Sessions Judge, Indore in Sessions Trial No. 393/2007 and sentenced as under :
Section 302 IPC - Life imprisonment - Fine of Rs. 1,000/-
Section 449 IPC - 10 years RI - Fine of Rs. 500/-
Section 25 (1B)(A) - 03 years RI - Fine of Rs. 500/-
Arms Act
Section 27 Arms Act - 05 years RI - Fine of Rs. 500/-
(along with default stipulations)
3 . The prosecution case found to be proved is that on 23.06.2007 at
about 11:00 hours, the complainant Shailendra Singh Chandel was on duty of
guard at the main entrance of the jail. It is stated that from 6:00 hours to 10:00
hours, Guard Kailash Girwar was on duty at the gate and he took over charge
from Guard Hari Prasad Sharma who was also present at the jail gate. Inside
the prison complex gate, one Vijay @ Nagar along with the present appellant
Signature Not Verified
Signed by: SREEVIDYA
Signing time: 8/17/2023
5:06:40 PM
and other co-accused persons had come to meet prisoner Ashok Maratha. One
Jeetu Thakur was detained in jail prison since three years and usually stayed in
the guard room whole day. He had also built a temple in the guard room where
he used to worship and meet his visitors. Jeetu Thakur was also meeting with
his visitors on the date of incident. After the meeting was over, Guard
Hariprasad opened the jail gate for some visitor to go out, at that time with the
purpose of fleeing away from jail, Ashok Maratha and Vijay Nagar took out the
revolver and started firing due to which Guard Hariprasad sustained injury on
the right side of the rib. They entered the guard room, fired gun shot on visitors
Rajesh (PW-4) and Ajay (PW-1) who got injured and also fired gunshot on the
head of Jeetu Thakur as a result of which he died. There was chaos on the spot
and alarm was raised but the attackers fled away from the spot along with
prisoner Ashok Maratha.
4. Learned counsel for the appellant submits that appellant has been
falsely implicated and convicted in the case. In the present case, there were six
accused persons based on the same set of evidence. Out of six only two were
convicted on the ground differentiating that present appellant Vinod fired the
gunshot which was recovered from the body of the deceased. Other three
persons namely Hariprasad (PW-48), Rajesh (PW-4) and Ajay (PW-1) were
injured. All of them have turned hostile. Even the Test Identification Parade
(TIP) failed. The two seizure witnesses Pawan (PW-8) and Suraj (PW-9)
also turned hostile. The bullets were sent to the FSL / Ballistic after a delay
of more than two months. Neither any entry was made in the Malkhana
Register nor the same was produced in the trial, therefore, doubt is raised with
regard to the sample having been tampered with. The conviction has been
made only on the basis of the statement of Investigation Officer Dhananjay
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Signed by: SREEVIDYA
Signing time: 8/17/2023
5:06:40 PM
Shah (PW-93) and the Ballistic report (ExhP/ 136). In support of his
contention, learned counsel for the appellant has relied upon the judgment of the
Apex Court in the case of Rahul v/s State of Delhi, Ministry of Home Affairs
& Anr., 2023 1 SCC 83 to contend that the DNA profile methodology is a
complicated process and the same was not followed properly which raises
suspicion. He also relied on the judgment of the Gujarat High Court in case of
The State of Gujarat vs. Adam Fateh Mohmed Umatiya & Ors., 1971 SCC
(Cri.) 381 to contend that the Ballistic report cannot be relied upon since there
was no clear finding whether the cartridges fired from the pistol were same. The
appeal is of the year 2022 and the final disposal will take considerable time.
Therefore, learned counsel for the appellant prays that the jail sentence of the
appellant be suspended and he be released on bail.
5. Learned counsel for the respondent/State opposes the prayer for
suspension of jail sentence and prays for its rejection. However, he fairly stated
that the trial Court, while convicting the appellant and co-accused persons had
directed to conduct an enquiry against the prosecution witnesses who were
posted on Guard duty on the date of incident and serving in the Police
Department, had turned hostile.
6. On due consideration of the facts and circumstances of the case,
without expressing any opinion on the merits of the case, I.A.No. 11061/2023
is allowed and it is directed that upon depositing the fine amount (if not already
deposited) and on furnishing a personal bond in the sum of Rs. 50,000/- with
one solvent surety in the like amount to the satisfaction of the trial court, the
substantive jail sentence of the appellant-Vinod @ Vicky Jawkar shall remain
suspended till final disposal of the appeal and he shall be released on bail. He
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Signed by: SREEVIDYA
Signing time: 8/17/2023
5:06:40 PM
shall appear before the concerned trial Court firstly on 14.12.2023 and on all
other subsequent dates, as may be fixed in this behalf by that Court.
Certified copy as per rules.
(S. A. DHARMADHIKARI) (PRANAY VERMA)
JUDGE JUDGE
vidya
Signature Not Verified
Signed by: SREEVIDYA
Signing time: 8/17/2023
5:06:40 PM
