Javed @ Rihan vs The State Of Madhya Pradesh
2023 Latest Caselaw 856 MP

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                                                         CRA Nos. 9880/2022



         HIGH COURT OF MADHYA PRADESH: BENCH INDORE
   BEFORE DIVISION BENCH OF HON'BLE SHRI JUSTICE VIVEK
        RUSIA & HON'BLE SHRI JUSTICE ANIL VERMA
                         CRA No. 9880 of 2022
                    (Javed @ Rihan V/s. State of M.P.)
Date: 13.01.2023 :
      Shri Akshay Bhonde, learned counsel for the appellant.
      Shri Amit Singh Sisodia, learned Govt. Advocate for
respondent/State.

________________________________________________________ Heard on I.A. No.16143/2022, the first application for suspension of jail sentence filed on behalf of appellant - Javed.

Vide judgment dated 9.9.2022 passed by Third Addl. Sessions Judge, Barwaha, District West Nimar Mandleshwar in S.T. No.100287/2015 appellant along with others stands convicted u/s. 394 and 397 of the IPC and sentenced to undergo life imprisonment and 7 years RI and to pay fine of Rs.50,000/-.

As per prosecution story, complainant - Kapil lodged the report in Police Station Barwaha on 15.5.2015 that he along with his friends Mahesh and Vikas went on motorcycle to attend the marriage to Omkareshwar. They stayed near Rewa Fabrication, Barwaha at 2.30 in the night to have water. One Indica Vista car came there in which four boyes were sitting. They demanded Cigarette and when they refused, they assaulted them by means of knife and took out Rs.400/- from his pocket. They have also looted two mobile phones of Mahesh and Vikas and fled away. The complainant and others called 108 Ambulance and went to the hospital. The FIR was registered against

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CRA Nos. 9880/2022

unknown persons. Later on, present appellant along with others were arrested formally on 18.5.2015 as they were already in jail. On their disclosure mobile phones and cash of Rs.3-4,000/- and one knife were recovered. They were put to trial. Although they were identified by the complainant in the TIP but in the dock identification, they did not identify the present appellant and others and they were declared hostile by the prosecution. Only on the basis of recovery of mobile phones and cash of Rs.4,000/- appellant and others have been convicted and sentenced by the trial Court with a specific finding that they were identified by all the three complainants. Hence the present appeal before this Court.

Learned counsel for the appellant submits that the appellant has falsely been implicated in this case. All the complainants have not identified the present appellant and not supported the prosecution case and they have been declared hostile. Prima facie the finding given by the learned trial Court is perverse. The appellant is a young aged person. He was on bail during trial and he never misused the liberty. This appeal is of the year 2022 and there is no possibility of its final hearing in near future. The appellant is having parity with the other appellants who have been granted bail vide order dated 12.12.2022 passed in CRA Nos. 9625/2022, 8725/2022 and 8727/2022. He, therefore, prays for suspension of jail sentence of the appellants and for their release on bail.

Learned Government Advocate for the respondent/State opposes the application and supported the impugned judgment.

Considering the facts and circumstances of the case in totality

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CRA Nos. 9880/2022

and looking to the age of the appellant and also that there is no likelihood of coming up of appeals for final hearing in near future, without commenting anything on the merits of the case, we deem it proper to suspend the jail sentence of this appellant.

Accordingly, I.A. No.16143/2022 is allowed and it stands closed. It is directed that subject to deposit of fine amount of Rs.5,000/- out of Rs.50,000/- as imposed by the trial Court with the trial Court and on furnishing personal bond by the appellant - Javed @ Rihan in the sum of Rs.50,000/- (Fifty Thousand only) with one solvent surety in the like amount to the satisfaction of learned trial Court for his appearance before the trial Court on 09.10.2023 and on all such subsequent dates, which are fixed in this behalf, during pendency of this appeal the execution of custodial part of the jail sentence of the appellant shall remain suspended till final disposal of this appeal.

List for final hearing in due course along with connected appeals.

C.C. as per rules.

         [ VIVEK RUSIA ]                      [ ANIL VERMA ]
             JUDGE.                               JUDGE.
Alok/-
 Digitally signed by ALOK GARGAV
 Date: 2023.01.13 17:37:14 +05'30'