Madhya Pradesh High Court
Ashok vs The State Of Madhya Pradesh on 16 August, 2023
Author: Sushrut Arvind Dharmadhikari
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
CRA No. 4490 of 2022
(ASHOK Vs THE STATE OF MADHYA PRADESH)
Dated : 16-08-2023
Shri Avinash Sirpurkar, learned Senior Advocate with Shri Yogesh
Kumar Gupta, learned counsel for the appellant.
Shri K. K. Tiwari, learned Government Advocate for the State.
The matter is taken up for hearing, hence, I.A.No. 11071/2023,
application for urgent hearing stands disposed of.
2. Also heard on I.A.No.11070/2023, which is first application for
suspension of jail sentence of the appellant-Ashok Maratha 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 307 IPC - Life imprisonment - Fine of Rs. 1,000/-
Section 449 IPC - 10 years RI - Fine of Rs. 500/-
Section 333 IPC - 07 years RI - Fine of Rs. 500/-
Section 224 IPC - 01 year RI - Fine of Rs. 200/-
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 Hariprasad Sharma who was also present at the jail gate. Inside the
prison complex gate, one Vijay @ Nagar along with other co-accused persons
had come to meet the present appellant-Ashok Maratha who was a prisoner.
Signature Not Verified
Signed by: SREEVIDYA
Signing time: 8/17/2023
5:06:40 PM
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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, appellant 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 appellant (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 the present appellant was in
possession of pistol with which he fired gunshot on Guard Hariprasad and fled
away from the prison where he was detained. 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 Shah (PW-93) and the Ballistic
Signature Not Verified
Signed by: SREEVIDYA
Signing time: 8/17/2023
5:06:40 PM
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report (Exh.P/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. 11070/2023
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- Ashok Maratha shall remain
suspended till final disposal of the appeal and he shall be released on bail. He
Signature Not Verified
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
