Madhya Pradesh High Court
Gaurav Yadav vs The State Of Madhya Pradesh on 13 January, 2023
Author: Rohit Arya
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 5917 of 2022
(GAURAV YADAV Vs THE STATE OF MADHYA PRADESH)
Dated : 13-01-2023
Shri R.K. Sharma, learned senior counsel alongwith Shri V.K. Agarwal,
learned counsel for the appellant.
Shri A.K. Nirankari, learned Public Prosecutor for the respondent-State.
Heard on I.A. No.15142/2022, which is first application under Section
389(1) of Cr.P.C. moved on behalf of appellant .
Appellant stands convicted under Section 302 of IPC and sentenced to
undergo life imprisonment with fine of Rs.1,000/- in default to suffer additional
imprisonment for six months, vide judgment dated 27/06/2022 passed by
Additional Judge to the Court of First Additional Sessions Judge, Gohad,
District Bhind (M.P.) in Sessions Trial No. 169/2016.
As per prosecution story, eight years ago deceased Kanhaiyalal had
married the aunt of present appellant and lived together at Kanpur. They were
blessed with two children. Kanhaiyalal was a truck driver. For this reason, father
of the appellant and the appellant were envious of Kanhaiyalal. It is alleged that
on the fateful day i.e. on 13/01/2016 while Kanhaiyalal was driving Truck No.
BR01/GB5443, the present appellant allegedly entered in his truck alongwith
two others. As such, he was seen last alongwith the deceased. On the following
day i.e. 14/01/2016 at about 12.00 am. another truck driver Balsharan (P.W.3)
on telephone informed complainant Mohan Yadav (P.W.2) that dead body of
Kanhaiyalal was lying on the road side and a sharp edged Baka with blood
stains and a tyre liver were also lying nearby. On such information, Mohan
Yadav (P.W.2) filed Dehati Nalishi, based whereupon FIR was lodged and
investigation commenced. Upon completion of investigation, Challan was filed
and case was committed to the Sessions Court. The Sessions Court on
consideration of evidence placed on record has convicted the appellant and
sentenced as aforesaid.
Learned senior counsel for the appellant while taking exception to the
impugned judgment inter alia submits that as a matter of fact except Mohan
Yadav (PW/2) and Investigating Officer Sher Singh (PW/19), other witnesses
namely Balsharan (P.W.3), who is alleged to have informed about the incident
to Mohan Yadav and thereafter Durvijay (P.W.1) who is alleged to have stated
seen the deceased last with the appellant, have turned hostile. Therefore, the
source of information of the incident is clearly disconnected between the source
of information and information lodged in the form of Dehati Nalishi. There is no
eye witness to incident. In the obtaining facts and circumstances of the case,
the conviction is based on surmises and conjectures and dehors the evidence
on record. Appellant has already suffered jail incarceration of one year and it is
a case of no evidence. Hence, prays for suspension of sentence and grant of
bail.
Per contra, State counsel opposes the application supporting the order
impugned with submission that besides Mohan Yadav (PW/2) who has proved
Dehati Nalishi, Sher Singh (PW/19) has also proved the seized articles. During
seizure, an orange colour sweater was found with blood stains was seized from
possession of appellant after disclosure thereof under section 27 memo. As
such complexity of the appellant in the said crime can not be ruled out,
particularly at the stage of suspension of sentence and grant of bail. Hence,
no case is made out.
Upon hearing counsel for the parties, though this Court refrains from
commenting upon rival contentions touching merits of the case but regard being
had to the fact that appellant so far as suffered one year jail sentence, in the
obtaining facts and circumstances, this Court is inclined to grant benefit of
suspension of sentence and grant of bail to the appellant.
Accordingly, it is directed that the jail sentence of the appellant shall
remain suspended and he be released on bail on his furnishing a personal bond
in the sum of Rs.2,00,000/- (Rupees Two Lacs only) with one solvent surety
in the like amount to the satisfaction of the trial Court.
Appellant is directed to appear before the Registry of this Court on
15.03.2023 and on other subsequent dates as may be fixed in this behalf with
following further conditions:-
(i) the concerned jail authorities are directed that before
releasing the appellant, the medical examination of the
appellant be conducted through the jail doctor and if it is
prima facie found that he is having any symptoms of
COVID-19, then the consequential follow up action or any
further test required be undertaken immediately. If not,
appellant shall be released on bail in terms of the
conditions imposed in this order;
(ii) violation of conditions, State is free to apply for
cancellation of bail.
Accordingly, I.A. No.15142/2022 stands allowed and disposed of.
Observations on facts, if any, are only for the purpose of deciding the
instant I.A. and shall have no bearing on the merits of the appeal.
Certified copy as per rules.
(ROHIT ARYA) (SATYENDRA KUMAR SINGH)
JUDGE JUDGE
Prachi
PRACHI
MISHRA
2023.01.13
18:11:50
+05'30'
