Chotelal @ Chota Kushwaha @ Kalka ... vs The State Of Madhya Pradesh
2023 Latest Caselaw 3640 MP

                                   1
            IN THE HIGH COURT OF MADHYA PRADESH
                         AT GWALIOR
                           CRA No. 5896 of 2022
   (CHOTELAL @ CHOTA KUSHWAHA @ KALKA PRASAD AND OTHERS Vs THE STATE OF MADHYA
                                    PRADESH)

Dated : 01-03-2023
      Shri Piyush Sharma, Counsel for the appellant.

      Ms. Kalpana Parmar, Panel Lawyer for the respondent/State.

Heard on IA.3245/2023, which is first application under Section 389(1) of Cr.P.C. seeking suspension of sentence and grant of bail moved on behalf of appellant no. 1- Chhotelal @ Chhota Kushwah @ Kalka Prasad.

Appellant stood convicted for the offence under Sections 302, 148 and 336 of IPC and sentenced to life imprisonment, six months RI and one month R I with fine of 1000/-, 500/- and 100/-, respectively, with default stipulation, vide judgment of conviction and order of sentence dated 27.06.2022 passed by First Additional Sessions Judge, Datia to the Court of Second Additional Judge, in Sessions Trial No.120 of 2012.

A s per prosecution story there was enmity between one Ajay and his family members with the deceased Heera. On the fateful day i.e. 04.08.2012 while Bhawani Kushwaha and his brother deceased Heera had gone to Karan

Sagar Pond to wash clothes, then they started gambling on the side of the road with Lala Ram Kushwaha, Chhinge alias Kamal Singh, Ajay Kushwaha, Bhupendra Kushwaha and the present appellant Chhotelal alias Chota. During the gambling, fight took place between them. As a result, Bhupendra hit the deceased Heera with a boulder (khanda) on head which led to serious injuries in the occipital region. Bhupendra fired gun shot by 12 bore gun hitting the deceased on the right side of his hand. Present appellant-Chhotelal alias Chota fired a gun shot by 315 country made gun which hit the wrist of the deceased. It

was also argued that co-accused Ajay fired a gun shot which hit the deceased on his right elbow. Thereafter, all of them indiscriminately started beating the deceased. Ultimately, Heera died homicidal death. After registration of the FIR, investigation was completed and case was committed to Sessions Court. The Sessions Court upon critical evaluation of the evidence placed on record convicted all the accused persons under Section 302 r/w Section 149 of IPC.

Shri Piyush Sharma, learned Counsel for the appellant while taking exception to the impugned judgment submitted that though the present appellant has been alleged to have fired a gun shot by 315 country made gun which hit the wrist of the deceased but no corresponding injury was found on the person of

the deceased. It has further been argued that in dehati nalishi recorded by Bhawani (PW/2) no specific allegation of firing gun shot at the deceased attributed to the present appellant. It was only after period of three days when the statements of PW/2 were recorded under Section 161 Cr.P.C. before Court that he made specific allegations against the present appellant, thus there was an improvement. It was also argued that no recovery was made of the fire arm from the possession of present appellant and therefore, false implication on the present appellant cannot be ruled out. The appellant has no criminal antecedents. He was on bail during the trial. He is a resident of Distt. Datia and he shall abide by such terms condition which this Court deems proper in the event his sentence is suspended.

P er contra, Ms. Kalpana Parmar, learned Panel Lawyer for the State while supporting the impugned judgement submits that there is direct evidence against the present appellant of firing gun shot at the deceased and the present appellant has been named in the dehati nalishi and looking to the over act attributed to the appellant, the conviction under Section 302 r/w Section 149 of

IPC is justified. Since there is a clear evidence of the present appellant being involved in the incident, no exception can be taken by the appellant in the matter of suspension of jail sentence. Thus, prayed for dismissal of the application.

Up o n hearing counsel for the parties, though this court refrains from commenting upon rival contentions touching merits of the matter but looking to nature of allegation which are not supported by the medical evidence and there is no criminal record, the application deserves to be allowed.

It is, accordingly, directed that execution of jail sentences of appellant No. 1- Chhotelal @ Chhota Kushwah @ Kalka Prasad shall remain suspended during pendency of this appeal and he shall be enlarged on bail subject to furnishing 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 and also subject to deposit of the fine amount (if not already deposited) for appearance before the Registry of this Court on 10/04/2023, and on further dates as may be directed by the Registry in that regard, with following further conditions:

(i) The concerned jail authorities are directed that before releasing the appellant, the medical examination of 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) in case of violation of conditions, State is free to apply for cancellation of bail.

Accordingly, the I.A.No.3245/2023 stands allowed and disposed of.

Certified copy as per rules.

List for final hearing in due course.

   (ROHIT ARYA)                                   (MILIND RAMESH PHADKE)
      JUDGE                                                JUDGE

neetu
        NEETU
        SHASHANK
        2023.03.02
        16:32:22
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