Madhya Pradesh High Court
Irfan vs The State Of Madhya Pradesh on 27 February, 2023
Author: Prakash Chandra Gupta
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
CRA No. 5627 of 2022
(YUNUS AND ANOTHER Vs THE STATE OF MADHYA PRADESH)
CRA No. 5628 of 2022
(AKRAM AND OTHERS Vs THE STATE OF MADHYA PRADESH)
CRA No. 1070 of 2023
(IRFAN AND ANOTHER Vs THE STATE OF MADHYA PRADESH)
Dated : 27-02-2023
Shri Avinash Sirpurkar Senior Advocate with Shri Abhishek Rathore,
learned counsel for the appellant in CRA No. 5627/2022.
Shri Ashutosh Surana, learned counsel for the appellant in CRA No.
1070/2023.
Shri Irshad Akhter, learned counsel for the appellant in CRA No.
5628/2022.
Shri K. K. Tiwari, learned G.A. For respondent/State in all appeals.
ORDER
Heard on I.A. No. 11261/2022 (CRA No. 5627/2022), which is first
application filed under Section 389(1) for suspension of sentence and grant
of bail on behalf of appellant Shehzad. Counsel for the appellant has stated
that this is appellant's first bail application but it has wrongly been mentioned
as appellant's third bail application for suspension of sentence.
Also, heard on I.A. No 881/2023 (CRA No. 1070/2023) filed on behalf
of appellant Irfan s/o Channd Khan and Nisaar Khan s/o Chaand Khan and
I.A. No. 11262/2022 (CRA No. 5628/2022) filed on behalf of Akram s/o
Hussain Khan, first applications filed under Section 389(1) for suspension of
sentence and grant of bail.
The learned Trial Court convicted and sentenced each of the appellant
vide its judgment dated 10.06.2022 passed by the Third Additional Sessions
Judge, Ratlam (M.P.) in S.T. No. 49/2019 as follows:-
Conviction under Section Sentence Fine Additional
imprisonment
in default of
payment of fine.
Appellant-Shehzad and Akram
302/149 of IPC Life 100/- 15 days
Imprisonment
302/149 of IPC Life 100/- 15 days
imprisonment
324/149 of IPC R.I. for 3 years. 100/- 15 days
324/149 of IPC R.I. for 3 years. 100/- 15 days
148 of IPC R.I. for 3 years. 100/- 15 days
25(1-B)(B) of Arms Act R.I for two 100/- 15 days
years
Appellant- Irfan s/o Chand Khan and Nisar Khan
302/149 of IPC Life 100/- 15 days
Imprisonment
302/149 of IPC Life 100/- 15 days
imprisonment
324/149 of IPC R.I. for 3 years. 100/- 15 days
324/149 of IPC R.I. for 3 years. 100/- 15 days
148 of IPC R.I. for 3 years. 100/- 15 days
25(1-B)(A) of Arms Act R.I for three 100/- 15 days
years
As per prosecution case, on 13.04.2012 at about 6:30 pm, the
appellants and co-accused persons came with weapons, appellants Nisar
Khan and Irfan Khan had country made Katta and other co-accused persons
had swords and knifes. Co-accused Yunus Khan assaulted deceased Mubarik
Khan by sword on his neck, appellant Shahzad Khan assaulted Shahrukh
Khan on his neck by means of sword, co-accused persons Irfan Khan, Bhuru
Khan, Yunus Khan, Akram Khan and Arif Khan assaulted deceased Shahrukh
Khan and injured Sikandar Ali (PW-2) by means of sword. Appellants Irfan
Khan and Nisar Khan fired katta on the deceased persons, after the incident
the appellants and co-accused persons fled away from the place of the
incident. Due to injuries Mubarik Khan and Shahrukh Khan died. Dehati
Nalishi (Ex. P-1) was lodged at Police Station-Tal on the basis of information
given by Meharban Ali (PW-1) against the appellants and co-accused
persons.
Learned counsel for the appellants submits that co-accused persons
Yusuf, Khan, Irfan Khan s/o Bhuru Khan, Zubair and Shahzad have died
during trial of the case. The appellants have not committed any offence and
they have falsely been implicated in the case. There are no eye-witnesses in
the case. Meharban Ali (PW-1) and Sikandar Ali (PW-2) are chance
witnesses. Co-accused persons Akram, Guru Khan, Shahzad, Wasim, Zubair
and Irfan were not present on the spot at the time of incident. They were
arrested in another offence by Rajasthan police. There are material
contradictions and omissions in the statements of eye-witnesses Meharban
Ali (PW-1) and Sikandar Ali (PW-2). The learned Trial Court has committed
error in not believing the statements of defence witnesses. As per FSL
Report, it is not established that empty cartridges recovered from the spot
and fired bullet recovered from the body of the deceased persons were fired
from the Kattas recovered from Nisar Khan and Irfan Khan. Therefore,
prosecution case is doubtful.
Learned counsel for the appellants has further submitted that appellants
are in custody for more than ten years. Final hearing of this appeal is not
possible in near future. Therefore, it is prayed that remaining jail sentence of
the appellants may be suspended and appellants may be released on bail.
Learned counsel for the appellants relied on the case of Sonadhar vs.
State of Chhattisgarh Special Leave to Appeal (Crl.) No. 529/2021 order
dated 15.09.2022 and Rakesh vs. State of M.P. CRA No. 1438/2017 order
dated 10.02.2023.
Learned G.A for respondent/State has objected the prayer of the
appellants and submits that the case depends on statements of injured and
eye-witnesses Meharban Ali (PW-1) and Sikandar Ali (PW-2). Learned Trial
Court has rightly relied upon their statements. In paragraph 81 to 89, the
Trial Court has considered in detail the alibi of accused persons and found
proved that at the time of incident, the accused persons were present at the
spot. This case is related with murder of two persons, therefore, the
appellants cannot be released on bail on the basis of custody period for more
than ten years. Hence, it is prayed that the applications for suspension of jail
sentence and grant of bail to the appellants is liable to be rejected.
We have heard learned counsel for both the parties and perused the
record.
In the case of Sonadhar (Supra), the Apex Court has observed as
under:-
"It is pointed out that in the State of Bihar, there are 363 convicts
who have completed more than 14 years of custody. The norm for
premature release is stated to be 14 years actual custody and 20
years with remission. There are also some convicts who may not
be entitled to premature release. There are stated to be now 268
convicts whose cases are being considered for premature release.
We consider appropriate to issue directions in terms of the
aforesaid suggestions to the Patna High Court and on a pari
materia basis to even the other High Courts. However, in order
to carry out this exercise, the data would have to be compiled of
such of the persons who have been in custody for more than 10
years and more than 14 years, with these persons being
considered for grant of bail pending appeal, if there is no chance
of hearing of the appeal in the near future, unless there are
reasons for denial of bail. We can understand if any of the
parties is delaying the appeal itself but short of that, we are of
the view that all persons who have completed 10 years of
sentence and appeal is not in proximity of hearing with no
extenuating circumstances should be enlarged on bail. "
In the case of Rakesh (Supra), Co-ordinate Bench of this Court has
released the concerned appellant on bail after considering the period of
custody for more than ten years.
Looking to the facts and circumstances of the case and also
considering the statements of Meharban Ali (PW-1), Sikandar Ali (PW-2)
and Badrilal (PW-5), this case is related to murder of two persons. Therefore,
we are not inclined to grant suspension of jail sentence to the appellants and
accordingly, I.A. No. 11261/2022 (CRA No. 5627/2022), I.A. No 881/2023
(CRA No. 1070/2023) and I.A. No. 11262/2022 (CRA No. 5628/2022) are
rejected.
( S.A. DHARMADHIKARI) (PRAKASH CHANDRA GUPTA)
JUDGE JUDGE
Vatan
VATAN Digitally signed by VATAN SHRIVASTAVA
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH
SHRIVA
BENCH INDORE, ou=HIGH COURT OF MADHYA
PRADESH BENCH INDORE,
2.5.4.20=e5a27191a941cea36e4886069f86a2938
5642cf471b13ec5937167a213134aaf,
postalCode=452001, st=Madhya Pradesh,
serialNumber=9D9855F2478546B3489381A815E
C6BD949D956FED6548EF946F05B86581E37D0,
STAVA
cn=VATAN SHRIVASTAVA
Date: 2023.03.01 17:14:56 +05'30'
