Ved Prakash Tiwari vs The State Of Madhya Pradesh
2023 Latest Caselaw 1525 MP

                                    1
             IN THE HIGH COURT OF MADHYA PRADESH
                          AT JABALPUR
                            CRA No. 6544 of 2021
                 (VED PRAKASH TIWARI Vs THE STATE OF MADHYA PRADESH)

Dated : 27-01-2023
      Shri Radheshyam Mourya - Advocate for appellant.

      Shri    Pramod      Kuman      Pandey     -   Government         Advocate   for
respondent/State.

Shri D.P.S. Parihar - Advocate for objector.

I.A. No.23408/2022, third repeat application u/S.389(1) Cr.P.C. for

suspension of jail sentence and grant of bail moved by appellant - Ved Prakash Tiwari is taken up and considered.

This criminal appeal assails the judgment dated 26.10.2021 passed in ST No.36/2018 by IInd Additional Sessions Judge Devsar, District Singrauli whereby appellant has been convicted under Section 120-B (for Ramraj, Radha and Laxmi), Section 302 read with Section 34 (for Ramraj and Radha) and Section 307 read with Section 34 (for Laxmi) of IPC and sentenced to life imprisonment with fine of Rs.500/- with default stipulation under each offence and all the sentences to run concurrently.

Earlier two applications u/S.389(1) Cr.P.C. were dismissed vide order dated 18.02.2022 and 29.04.2022 respectively as withdrawn after arguing for a while. The period suffered by appellant is about one year & seven month as against life sentence.

The prosecution story found to be true by the learned Trial Judge is to t h e effect that on 09.05.2017 complainant Babulal Yadav gave the first information that on 08.05.2017 at 11 p.m. both the deceased Radha Rastogi and Ramraj Rastogi along with Laxmi and complainant Babulal Yadav went to sleep

on two wooden beds (Takhat) placed together. At about 2.00 a.m. in the morning on 09.05.2017, the complainant was woken up on experiencing extreme heat. On waking up the complainant saw that deceased Ramraj and both his daughter Radha and Laxmi were ablaze. On raising hue and cry, he was joined by Mishrilal Halwai, Kanhaiyalal, Leelamati and Deeksha Rastogi (wife of deceased Ramraj) who altogether started to extinguish the fire. Deceased Ramraj Rastogi, Radha Rastogi and Laxmi Rastogi were admitted to the hospital. Ramraj Rastogi in a few hours succumbed to burn injuries at

8.a.m. on 09.05.2017 whereas deceased Radha Rastogi succumbed to burn injuries on 10.05.2017. In the background of aforesaid allegation and in support

o f 33 PWs, the prosecution projected a case that the appellant had illicit relationship with Deeksha Rastogi (wife of deceased Ramraj Rastogi), and to legitimize their illegitimate relationship, deceased Ramraj was put to death by the appellant and co-convicted person.

It is pointed out that the FIR was registered against unknown person. Shri Anil Khare, learned senior counsel for appellant submits that three eye-witnesses produced by the prosecution i.e. Babulal, Mishrilal and Laxmi, in fact, do not qualify to be eye-witnesses not only because they did not see the appellant on the spot but also that their evidence is writ large with omissions and contradictions while compared to their earlier version given to the police during investigation. It is further submitted that Laxmi Rastogi (PW-12) rendered herself to be unreliable as she has clearly averred that her court statement is tutored. It is submitted that Laxmi Rastogi (PW-12) has also categorically disclosed that appellant and co-convicted person had not visited the village where the incident took place. Shri Khare, learned senior counsel has also pointed out another gaping lacuna in the prosecution story by submitting

that father of deceased Ramraj for reasons best known to him disposed of the dead body of Radha in river Ganga thereby preventing the prosecution from conducting any postmortem.

It is also pointed out that the implication of appellant is based on the discovery statement u/S.27 of the Evidence Act of co-convicted person Sonu Rastogi.

It is also further pointed out that the statement of Laxmi Rastogi (PW-12) u/S. 161 as well as 164 of Cr.P.C. does not name the appellant.

In this background, learned senior counsel for appellant submits by relying upon the judgments of Apex Court in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 (para 153 and 179) and V.K. Mishra v. State of Uttarakhand, (2015) 9 SCC 588, that the circumstantial evidence collected is replete with several broken links which are disjointed from each other and, therefore, the conviction based solely on circumstantial circumstances is unsustainable.

Per contra, learned counsel for the State by referring to para 22, 27 and 46 and the statement of Babulal (PW-4) and Manohar Yadav (PW-6) submits that both these witnesses have made statements in the court of having seen the appellant and co-convicted person running away from the scene of crime. It is further submitted that the motive in the given facts and circumstances to

commit murder is palpable. Even in the absence of direct evidence, the chain of circumstantial evidence is complete to sustain the impugned judgment.

After having heard learned counsel for rival parties, what prima facie comes out is that the case is based predominantly on circumstantial evidence. The only direct evidence which has been brought on record by the prosecution

is in shape of statement of Manohar Yadav (PW-6) that he had seen the appellant and co-convicted person running away on motorcycle. In this regard, it has also come on record that the incident took place during night time with deficient light. The witnesses have stated they saw two persons going away on a motorcycle but they could not recognize those two persons. Thus prima facie it appears that evidence of said PWs seeing the appellant and co-convicted person running away from the scene of crime is not reliable and good enough to sustain a conviction solely on the strength of circumstantial evidence.

In view of above and without commenting upon merits, we are inclined to grant bail to appellant by way of suspension of sentence. Hence, I.A. No.23408/2022 is allowed.

It is directed that jail sentence of appellant-Ved Prakash Tiwari will remain under suspension subject to deposit of fine amount, if not already deposited, and on furnishing bail bond of Rs.50,000/- (Rupees Fifty Thousand Only) with two solvent sureties of the like amount to the satisfaction of Trial Court for his appearance before concerned CJM on 15.03.2023 and on such further dates as may be fixed in this regard which shall be of frequency not less than once a year.

In case, appellant is found absent on any date fixed by the concerned CJM, then concerned CJM shall be free to issue and execute warrant of arrest for securing his presence without first referring the matter to this Court, provided the Registry of this Court is kept informed.

Learned concerned CJM and the prosecution are directed to ensure following of Covid-19 precautionary protocol prescribed from time to time by the Supreme Court, the Central Govt. as well as the State Govt. during release, travel and residence of the appellant during period of suspension of sentence

as a consequence of this order.

It is also directed that the appellant shall mark his presence in the local Police Station having jurisdiction over the area of his residence once in a month and the local police station shall send report in that regard to the Registry, which shall be kept in the file.

A copy of this order be sent to the trial Court concerned for compliance. C.c. as per rules.

     (SHEEL NAGU)                                      (DWARKA DHISH BANSAL)
         JUDGE                                                JUDGE

DV

Digitally signed by
DINESH VERMA
Date: 2023.01.30
11:41:22 +05'30'