Pawan Garg vs The State Of Madhya Pradesh
2023 Latest Caselaw 7559 MP

                                                             1
                                      IN THE HIGH COURT OF MADHYA PRADESH
                                                   AT JABALPUR
                                                     CRA No. 3096 of 2022
                                        (PAWAN GARG AND OTHERS Vs THE STATE OF MADHYA PRADESH)

                          Dated : 09-05-2023
                                Shri Ajay Jain - Advocate for appellant No.1 - Pawan Garg.

                                Shri Ajay Shukla - Government Advocate for the respondent/State.

I.A. No.4521 of 2023 for suspension of sentence and grant of bail to appellant No.1 - Pawan Garg arising out of judgment dated 09.03.2022 in S.T. No. 137/2018 delivered by VIIth Additional Sessions Judge, Katni,

District - Katni (M.P.) is taken up.

The appellant No.1 has been convicted under Section 302/34 of IPC and sentenced to undergo life imprisonment with fine of Rs.5,000/- within default stipulation.

Learned counsel for the appellant No.1 submits that as per prosecution story the deceased Achhelal was an employee of Gram Panchayat and used to regulate the water supply of the Panchayat. A sudden quarrel had taken place relating to water supply and closing of the supply

tap in which appellant No.1 allegedly assaulted him by means of a 'Lathi'. The FSL report does not support the case of prosecution. Both the eye- witnesses who are sons of the deceased namely Rajkumar (PW-2) and Sandeep (PW-4) did not support the prosecution story and turned hostile. The whole case of prosecution is founded upon a dying declaration.

It is submitted that the incident had taken place on 22.05.2018 and deceased was hospitalised at Katni on the same day. On 25.05.2018, also he was at Katni. On 05.06.2018, he was shifted to Medical College, Signature Not Verified Signed by: HIMANSHU KOSHTA Signing time: 5/10/2023 3:25:49 PM

Jabalpur. On 08.06.2018, he was discharged from Medical College, Jabalpur. On 11.06.2018, he was readmitted in Katni Hospital from where he was taken to Medical College, Jabalpur where he died on 19.06.2018.

By taking this Court to the statement of Vinod Kumar (PW-5) who conducted the MLC was relied upon to submit that nature of injury found on the body of deceased was simple in nature.

Shri Ajay Jain, learned counsel for the appellant No.1 submits that the statement of deceased under Section 161 of Cr.P.C. was allegedly recorded by I.O. Vishnu Shankar (PW-9) on 13.06.2018 when he was

admitted in Medical College, Jabalpur. The statement of the treating Doctor Dinesh Kathela (PW-14) shows that for last three days the treating doctor deposed that on examination of patient, it was found that his condition was very serious and he was not able to speak. In this backdrop, it is highly doubtful as to how a statement under Section 161 of Cr.P.C. could be recorded by the I.O. Vishnu Shankar. By reading the entire statement, learned counsel for the appellant No.1 submits that in an unusual manner the statement under Section 161 of Cr.P.C. was recorded which talks about each date and event with mathematical accuracy which is ordinarily not possible in cases of injured persons who suffered injuries of the magnitude projected by the prosecution. It is further submitted that finding of Court below is bad in law inasmuch as in Paras 27 and 28 of impugned judgment, the Court opined that aforesaid doctor has not given statement by examining the injured, indeed, he deposed on the basis of information received by the relatives of injured person. It is submitted that there is no legal evidence on Signature Not Verified Signed by: HIMANSHU KOSHTA Signing time: 5/10/2023 3:25:49 PM

the basis of which appellant could have been held guilty. The final hearing of this appeal will take time, thus, the appellant's remaining jail sentence may be suspended.

Shri Ajay Shukla, Government Advocate for the State opposed the same on the basis of reply and placed heavy reliance on dying declaration.

In view of aforesaid, a case is made out for suspension of sentence, thus, without expressing any conclusive opinion on merits, we deem it proper to suspend the remaining jail sentence of the appellant No.1 - Pawan Garg.

Accordingly, I.A. No. 4521 of 2023 is allowed.

Subject to depositing the fine amount (if not already deposited), the remaining jail sentence of the appellant is hereby suspended and it is directed that the appellant No.1 - Pawan Garg be released on bail on her furnishing a personal bond for a sum of Rs.30,000/- (Rupees thirty thousand only) with one solvent surety of the like amount to the satisfaction of the trial Court with a further direction to appear before the trial Court, Katni on 12th July, 2023 and also on 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)                               (DWARKA DHISH BANSAL)
                                  JUDGE                                          JUDGE

                          HK




Signature Not Verified
Signed by: HIMANSHU
KOSHTA
Signing time: 5/10/2023
3:25:49 PM