Jaiprakash vs The State Of Madhya Pradesh
2023 Latest Caselaw 7310 MP

IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR CRA No. 7082 of 2022 (JAIPRAKASH Vs THE STATE OF MADHYA PRADESH)

Dated : 04-05-2023 Shri Siddharth Datt - Advocate for the appellant.

Shri Ajeet Rawat - Government Advocate for the State.

Heard on admission.

Appeal is admitted for hearing.

Heard on I.A No. 19163/2022, which is an application under Section

389(1) of Cr.P.C. for suspension of sentence and grant of bail and I.A No.4419/2023, which is application under Section 389(1) of the Cr.P.C for suspension of sentence and grant of temporary bail to appellant Jai Prakash @ Lala Pandey arising out of judgment and conviction dated 29/07/2022 delivered in Sessions Trial No.980/2016 by First Additional Sessions Judge, District Rewa.

T h e appellant has been convicted under section 394 of I.P.C. and sentenced to undergo rigorous imprisonment for seven years with fine of Rs.2,000/- and in default of payment of fine to undergo additional rigorous

imprisonment for two months.

Learned counsel for the appellant submits appellant was falsely implicated in the matter. The prosecution failed to prove the offence under Section 394 of IPC. Learned counsel has drawn attention of this Court towards the inconsistencies in the prosecution evidence. Learned counsel forcefully submits that no Identification was conducted during investigation with regard to property alleged to be seized at the instance of appellant. The complainant Santosh Tiwari (PW-2) also did not identify the property in Court. Therefore, Signature Not Verified Signed by: APARNA TIWARI Signing time: 5/8/2023 3:56:20 PM

prosecution had failed to prove that the property subject matter of the offence, was recovered from the possession of appellant.

Learned counsel further submits that the prosecution evidence with regard to identification of the appellant is full of discrepancies, therefore, the appellant deserves to be acquitted. Final disposal of instant appeal would take considerable time. Therefore, pending the appeal, the appellant may be released on bail.

Per contra, learned counsel for the State opposes the prayer for suspension of sentence and grant of bail to the appellant and submits that the complainant Santosh Kumar Tiwari (PW-2) specifically identified the accused in

Court as well as during Test Identification Parade (TIP) conducted during investigation. There is no discrepancy in identification of accused. Further, the evidence of Investigating Officer Mahendra Pandey (PW-12) would reveal that various jewellery items with name tag of complainant Santosh Tiwari have been recovered at the instance of the appellant. Therefore, no further identification was required in the matter. It is a case of direct evidence.

In reply, learned counsel for the appellant submits that the appellant was in custody for 164 days during trial and he has undergone sentence for 1 year and 29 days till 14.03.2023. He is also suffering from severe backache with spinal desiccation at L-4 and L-5 level. Therefore, the sentence may be suspended and the appellant may be granted benefit of bail.

Heard learned counsel for the parties at length and perused the record of the court below.

Recently, Honourable the Apex Court in the case of Omprakash Sahni v. Jai Shankar Chaudhary and another decided in Criminal Appeal

Signature Not Verified Nos.1331-1332 of 2023 order dated 2.5.2023 held that in order to suspend Signed by: APARNA TIWARI Signing time: 5/8/2023 3:56:20 PM

the substantive order of sentence under section 389 of the Criminal Procedure Code, there ought to be something apparent or gross on the face of the record, on the basis of which, the Court can arrive at a prima facie satisfaction that the conviction may not be sustainable. The courts must endeavour to see as to whether the case presented by the prosecution and accepted by the trial court can be said to be a case in which, ultimately the convict stands for fair chances of acquittal. It was further held that the appellate court should not reappreciate the evidence at the stage of section 389 of Cr.P.C. and try to pick up few lacunas or loopholes here or there in the case of the prosecution.

The inconsistencies and lacunas pointed out by learned counsel for the appellant has been dealt with by the Trial Court. Considering the lacunas and inconsistencies pointed out, in totality, this court does not prima facie find that the conviction would not be sustainable. Therefore, without commenting on merits of the case, this court is not inclined to suspend the remaining jail sentence of the appellant.

Accordingly, I.A No. 19163/2022 and I.A. No. 4419/2023 are rejected.

List this case for final hearing in due course. Certified copy as per rules.

(SANJEEV S KALGAONKAR) JUDGE

AT

Signature Not Verified Signed by: APARNA TIWARI Signing time: 5/8/2023 3:56:20 PM