Madhya Pradesh High Court
Dharmendra Choube vs The State Of Madhya Pradesh on 5 January, 2023
Author: Sujoy Paul
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 669 of 2022
(DHARMENDRA CHOUBE AND OTHERS Vs THE STATE OF MADHYA PRADESH)
Dated : 05-01-2023
Shri Ghanshyam Pandey - Advocate for the appellants.
Shri Arvind Singh - Govt. Advocate for the respondent / State.
Shri Ramlala Shukla - Advocate for the objector.
Heard on I.A.No.15018 of 2022 an application under Section 389(1) of
the Cr.P.C for suspension of sentence and grant of bail to appellants namely
Dharmendra Choube, Gayatri Tiwari and Ashok Tiwari arising out of
judgment dated 07.01.2022 delivered in S.T. No.606/2018 by the learned
Additional Sessions Judge, Special Court No.8 (Electricity Act), Jabalpur.
The appellants have been convicted under Section 302 / 34 of IPC and
sentenced to undergo R.I. for life with fine of Rs. 5000/- each, under Section
201 IPC sentenced to undergo R.I. for 2 years with fine of Rs. 500/- each and
under Section 120-B of IPC sentenced to undergo R.I. for 2 years with fine of
Rs. 500/- with default stipulations.
Learned counsel for the appellants submits that appellants have been
falsely arraigned in the matter. As per prosecution story, on 21.07.2018, a burnt
body of unknown person was found on the forest land near Mother Teresa
School. Later on, body was identified by the brother of deceased. The
postmortem report shows that the death is caused because of head injury and
not because of burning. Learned counsel for the appellants drew attention of
this Court to the statement of I.O. Satish Jhariya (PW-13) and urged that a bare
perusal of cross-examination portion of this statement makes it clear that there
was no eyewitness of the incident. The witness candidly admitted that there is
Signature Not Verified
Signed by: PARITOSH
KUMAR
Signing time: 1/6/2023
10:38:12 AM
no 'last seen' evidence. No incriminating material belonged to the deceased
were recovered from the appellant. The case of the prosecution is that the
deceased was assaulted by means of a wooden 'Batta' and blood was found on
the said 'Batta'. In addition, blood was found in the room of the house of
appellants. This incriminating material i.e. 'Batta' and the blood stains were sent
to FSL. However, by taking this Court to the FSL report, it is submitted there is
no finding relating to availability of blood stains on 'Batta' and about blood
which is allegedly recovered from the wall of house of appellants. It is
submitted that next evidence is a Black Passion Motorcycle which is recovered
from railway station. The Investigating Officer, in no uncertain terms made it
clear that the CCTV footage is not sufficient for the purpose of identification of
present appellants. He also admitted that there was no iota of material collected
by the prosecution to establish any illicit relation between Gayatri Tiwari and
deceased. No family member of Gayatri lodged any report in this regard before
appropriate forum. In answer to question 24 in the cross-examination he
deposed that in spot map (Ex.P-27), he had not mentioned about any blood
stain. If blood stains would have been there, he would have mentioned about
availability of the same in the spot map. Similarly, no blood stains were found
on the motorcycle. It is further urged that in the clothes of appellants no blood
stains were available. One hair which was recovered from scene of crime was
sent for DNA report but the report is inconclusive and the said evidence also
does not connect the appellants with commission of crime. The only alleged
evidence is that appellants and the deceased had conversation on mobile
phones and the tower location shows that the appellants were in Ranjhi on the
date of incident. It is said that the said evidence is also weak and it could not be
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established with necessary clarity that mobiles so recovered from the deceased
Signed by: PARITOSH
KUMAR
Signing time: 1/6/2023
10:38:12 AM
was his mobile. Even otherwise, submits learned counsel for the appellants that
aforesaid evidence relating to tower location is a weak piece of evidence and on
the strength of said evidence, conviction of appellants cannot get stamp of
approval. In this view of the matter, it is prayed that the appellants are in
custody for quite some time and since final hearing of this appeal is not
possible is near future, remaining jail sentence of the appellants may be
suspended.
Shri Arvind Singh, learned Government Advocate and Shri Ramlala
Shukla, learned counsel for the objector opposed the prayer.
On a specific query from the Bench learned counsel for the State and
objector fairly admitted that the FSL report does not throw any light regarding
blood stains on wooden 'Batta' and other blood stains allegedly recovered from
the house of appellants.
We have heard the parties at length and perused the record.
Considering the aforesaid and without expressing any conclusive opinion
on the merits of the case, we deem it proper to suspend the remaining jail
sentence of appellants.
Accordingly, I.A.No. 15018 of 2022 is allowed.
Subject to depositing the fine amount (if not already deposited), the
remaining jail sentence of the appellants is hereby suspended and it is directed
that on furnishing a personal bond for a sum of Rs.30,000/- (Rupees Thirty
Thousand Only) each along with one surety in the like amount each to the
satisfaction of the trial Court, the appellants Dharmendra Choube, Smt.
Gayatri Tiwari and Ashok Tiwari be released on bail with a further direction
to remain present before the Trial Court, Jabalpur on 10/04/2023 and on
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Signed by: PARITOSH
KUMAR
Signing time: 1/6/2023
10:38:12 AM
such other dates as may be fixed by the trial Court in this regard during the
pendency of this appeal.
Certified copy as per rules.
(SUJOY PAUL) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
PK
Signature Not Verified
Signed by: PARITOSH
KUMAR
Signing time: 1/6/2023
10:38:12 AM
