Ashok vs The State Of Madhya Pradesh
2023 Latest Caselaw 7712 MP

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             IN THE HIGH COURT OF MADHYA PRADESH
                          AT GWALIOR
                            CRA No. 6763 of 2021
                 (ASHOK AND OTHERS Vs THE STATE OF MADHYA PRADESH)

Dated : 11-05-2023
      Shri N.P. Dwivedi Sr. Advocate with Shri Gagan Sharma - Advocate for

the appellant.
      Shri A.K. Nirankari - Govt. Advocate for the respondent.

Shri S.S. Rajpoot - Advocate for the complainant.

Heard o n I.A.No.3537 of 2023, second application under Section 389(1) Cr.P.C. for suspension of sentence and grant of bail moved on behalf of

appellant No.1 Ashok. First application was dismissed as withdrawn vide order dated 07-11-2022.

Appellant stood convicted under Section 302/34 and 201/34 of IPC and sentenced to undergo Life Imprisonment with fine of Rs.1,000/- and sentenced to two years R.I. with fine of Rs.500/- with default stipulation vide judgment of conviction and order of sentence dated 13-09-2021 passed by the Second Additional Sessions Judge, Ashoknagar in Sessions Trial No.169/2015.

As per prosecution story, complainant Kartar Singh (PW/1) with his nephew Gopal Singh (PW/8) lodged a marg intimation on 30.08.2015 registered

at No. 14/15 u/s 174 of Cr.P.C. that accused persons including the appellant after having murdered (deceased Harpal) had thrown the dead body in a well near the house of Ratan singh Kushwah. On the same day, complainant Kartar Singh also lodged an FIR Ex. P/2 that on 29.8.2015 at about 6.30 pm while his brother deceased Harpal was at home, the present appellant Ashok Singh came and had taken him away on his motorcycle (deceased motorcycle) towards the agriculture field of Bijayi Kand. At about 7.30 pm in the evening Khachora

(PW/7) informed that his brother deceased Harpal Singh was being assaulted by accused Jandel singh by Kulhari, Prem Singh by Gainti, Ashok Singh by lathi and Rinko Bai with Hasia (Rinko Bai since has passed away). On such information received, Gopal Singh (PW/8), Veer Singh (P.W/3), Jigar (PW/2) reached to the house of Jandel Singh, however, no sooner did Jandel Singh see these persons coming to the house, he had rushed inside the house and closed the doors.Though they insisted to open the door and let them know about the whereabouts of the deceased Harlpal but Jandel Singh reacted furiously hurling filthy abuses and said that he was not aware of the whereabouts of the deceased Harlpal singh. These persons had seen the motorcycle of the

deceased parked in front of the house of Jandel Singh. Under such circumstances, the complainant party were searching for deceased Harpal Singh over night but to no avail. At about 1.00 in the afternoon on 30th of Aagust 2015, Ratan Singh Kushwah informed them that dead body of deceased Harpal was lying in the village near his house. Thereafter, complainant party reached the spot and found the dead body of the deceased and thereafter a regular FIR was lodged at No. 337 of 2015 and case was taken up for investigation. Upon completion of the investigation, the case was committed for sessions trial. The Trial Court upon critical evaluation of evidence placed on record has convicted and sentenced the appellant and others as indicated above. Shri N.P. Dwivedi Sr. Advocate with Shri Gagan Sharma while taking exception to the impugned judgement interalia submitted that in the obtaining facts and circumstances, it can not be a case of last seen together as on his own showing the complainant had seen the appellant along with the deceased at 6.30 in the evening on 29.08.2015, whereas dead body of the deceased was found at 3.30 O' clock afternoon on 30.8.2015. Therefore, there is a gap of eighteen and

half hours or more, hence possibility of death being caused by some other person can not be ruled out. Learned counsel relied upon the judgment of Supreme Court in the case of State of Goa v. Sanjay Thakran And Anr. reported in (2007) 2 SCC (Cri) 162 to bolster his submissions. He also submitted that there is contradictions and omissions in the evidence of witnesses, namely, Jigar Bagdi (PW/2), Veer Singh Bagdi (PW/3) and Gopal Singh (PW/8) in the matter of recovery of dead body from the well. Besides, there is also contradictions in the statement of Rati Ram (PW/4) and that of the Investigating Offficer (PW/15) as regards recovery of dead body from a particular well, in as much as though Rati Bhan has said that dead body was found from the well situated near the house of Jandel singh and Rati Ram. Whereas the IO has stated that the dead body was found from some different well. That apart, Sessions Court has also disbelieved the eye witnesses as regards the assault and inflicting of injuries on the body of deceased by the accused persons while referring para-27. The only allegation against the present appellnat is to have inflicted iunjuries by lathi. The recovered lathi does not have any blood stains as per FSL report. In any case, the deceased since has died of head injury as per postmortem report, therefore, the allegation against the appellant is of no relevance in the present facts and circumstances. With the aforesaid submissions, learned Counsel prays for suspension of sentence.

Per contra shri Nirankari, Counsel for the State and Shri S.S. Rajpoot Counsel for the complainant have made following submissions :-

1. That the complainant Kartar singh (PW1) has seen the deceased with the present appellant while he had taken him away on deceased's motorcycle at about 6.30 in the evening on 29.8.2015. Thereafter, Rati Bhan (PW/5) had

stated in para- 3 that he had seen deceased being dragged in the house of Jandel Singh by the accused persons. His testimony in that behalf has remained intact in his cross- examination. Further, when the complainant party on receiving the information had gone to the house of Jandel Singh the deceased's motorcycle was parked there. Kartar Singh in para- 6 of his deposition has clearly stated that when he had gone to the house of Jandel Singh to find out the whereabouts of deceased Harpal, Jandel Singh rushed inside the house and closed it and he shouted hurling filthy abuses and said that he did not know about the whereabouts of deceased Hapal Singh. Further Rati Bhan (PW5) has stated that dead body was lying in the well situated between the house of Jandel Singh and Rati Ram (PW/4). On such information the dead body could be recovered. The sequence of events suggests that there has been constant search of the deceased by the complainant party. The circumstances adumbrated above do suggest a clear case of murder and causing disappearance of the dead body. Therefore, it is incorrect to say that there is long delay of eighteen and half hours between the last seen and the dead body recovered. That apart learned counsel also submits that the Trial Court has discussed the evidence of eye witnesses and other witnesses in detail in para 56, 57, 58 and 59. That apart the complicity of the appellant in the alleged crime is therefore writ large regard being had to the ocular evidence of Kartar Singh (PW/1), Rati Bhan (PW/5), Khachora (PW/7) and Jigar Bagdi (PW/2). Under such circumstances, no case is made out in the matter of suspension of sentence.

Upon hearing Counsel for the parties, this court finds substantial force in the submission of Shri Nirankari and Shri S.S. Rajpoot. Prima facie it is not only a case of murder, but also case of causing disappearance of the dead body. Consequently, at this stage, no case is made out for suspension of

sentence. Application is dismissed on merits.

      (ROHIT ARYA)                              (MILIND RAMESH PHADKE)
         JUDGE                                           JUDGE

ar
     ABDUR RAHMAN
     2023.05.16 13:25:06
     +05'30'