Madhya Pradesh High Court
Sanjay Kushwah vs The State Of Madhya Pradesh on 12 May, 2023
Author: Rohit Arya
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 96 of 2018
(SANJAY KUSHWAH Vs THE STATE OF MADHYA PRADESH)
Dated : 12-05-2023
Shri Harish Sharma, learned counsel for the appellant.
Shri Rajiv Upadhyay, learned Public Prosecutor for the respondent/State.
Heard on IA.No.5887/2023, fourth repeat application under Section 389
(1) of Cr.P.C. filed on behalf of appellant-Sanjay Kushwaha. Last application
(IA No.7517/2022) was dismissed as withdrawn on 30.09.2022 with liberty to
renew the prayer after six months.
Appellant stood convicted under Sections 364A, 394 and 342 of IPC
and sentenced to undergo life imprisonment with fine of Rs.10000/-, seven
years RI with fine of Rs.7000/- and one year RI with fine of Rs.1000/-
respectively, with default stipulations vide judgment of conviction and order of
sentence dated 19.12.2017 passed in Special Sessions Trial No.400098/2007 by
Special Judge (MPDVPK Act) and Second Additional Sessions Judge, Gwalior
(M.P.).
The date of incident is 16/11/2007. Appellant, as transpired during course
of hearing, has so far suffered jail incarceration for six years four months.
Before adverting to the facts it is expedient to mention that co-accused
persons namely, Bhanu Yadav, Nithin Rathor and Brijesh Pandey, though
named in the FIR, have been acquitted by the trial Court, as discussed in
paragraph 42 of the impugned judgment.
A s per prosecution story, on 17.11.2007 Punit Bansal informed
concerned Police Station about missing of his father Ashok Bansal, upon which
a missing report No. 113/2007 was registered and investigation was started.
During investigation, Ashok Bansal was got released from the custody of
Brijesh Pandey S/o Ramkishan Pandey, Sanjay S/o Ramdas Kushwaha (present
appellant), Nitin S/o Sarman Rathor and Bhanu Yadav S/o Bhujbal Singh Yadav
from the place Chenchdi Bhawan, Ghasmandi, Gwalior. Co-accused Bhanu
Yadav fled away from the spot. A 315 bore countrymade katta with cartridge
was recovered from the possession of appellant Sanjay Kushwaha. In the
statement recorded under Section 161 CrPC, abductee Ashok Bansal stated
that on 16.11.2007 appellant Sanjay Kushwaha called him through mobile at T-
Point of Pagalkhana on the pretext of some wholesale work of papers, upon
which Ashok Bansal reached the place by his vehicle TVS Starcity No. MP-
07/ML-0141, where he met with Bhanu Yadav, Nitin Rathor, Sanjay Kushwaha
and Brijesh Pandey, who were carrying two motorcycles. They all four took
Ashok Bansal on second floor of Chenchdi Bhawan, Ghasmandi and tied him.
In the night accused persons caused marpit with the abductee and pointing gun
on his head asked him to bring money from his home on complainant's mobile
No.9827587029 and his landline No. 2484400. Thereafter, the accused persons
snatched abductee's mobile of Samsung Company and a purse and thereafter
threw him from the balcony, due to which abductee sustained injuries over wrist
of left hand, waist and on face, thereafter, appellant-accused Sanjay Kushwaha
fired a gun shot, which though did not cause any injury to the abductee and
stucked in a wall. Based upon the investigation, FIR was registered at Crime
No.510/2007 for the offences punishable under Sections 364-A, 307, 506 of
IPC. Thereafter, upon completion of investigation, final report was submitted.
The case was committed for trial to the Sessions Court. The trial Court upon
critical evaluation of the evidence on record and statements recorded, acquitted
other accused persons Brijesh Pandey, Nitin Rathore and Bhanu Yadav, but
convicted the appellant Sanjay Kushwaha as referred above.
Shri Sharma, learned counsel for the appellant while criticizing the
impugned judgment, submits that the appellant is innocent and has been falsely
implicated. The impugned judgment suffers from perversity of approach, as the
same rests upon surmises and conjectures. Relevant piece of evidence has not
been considered. Even otherwise, three other similar accused persons have
been acquitted by the trial Court. The appellant has already undergone six years
four months jail sentence. Therefore, in the light of liberty granted on
30.09.2022 this Court may consider suspension of sentence and grant of bail to
the appellant.
Per contra, Shri Upadhyay, learned Public Prosecutor, while combating
the submissions so advanced, inter alia contends that as against the appellant
there is a specific ocular evidence on record that he had called the relatives of
the abductee on the pretext of trading and thereafter abducted Ashok Bansal
and raised demand for ransom. Therefore, no exception to the impugned
judgment can be taken in the matter of suspension of sentence.
Upon hearing counsel for the parties, though this Court refrains from
commenting upon the rival contentions touching merits of the case, regard being
had to the fact that the appellant has already suffered six years four months jail
sentence, the appeal is of the year 2018, there is no likelihood of early hearing of
the appeal, and in the light of liberty granted by this Court on 30.09.2022, it is
considered apposite to suspend the sentence of appellant during pendency of
the appeal.
Consequently, I.A. No. 5887/2023 deserves to be and is hereby allowed.
Accordingly, it is directed that the jail sentence of appellant-Salnjay
Kushwaha shall remain suspended and he be released on bail subject to
depositing the amount of fine (if not already deposited) and on furnishing a
personal bond in the sum of Rs.2,00,000/- (Rupees Two Lakhs only) with
one solvent surety in the like amount to the satisfaction of the trial Court.
Appellant is directed to appear before the Registry of this Court first on
12/07/2023 and on other subsequent dates as may be fixed in this behalf 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 No1 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.5887/2023 stands allowed and disposed of.
It is made clear that the observations made on facts shall have no bearing
on the merits of the appeal.
Certified copy as per rules.
(ROHIT ARYA) (ANAND PATHAK)
JUDGE JUDGE
yog
YOGESH
VERMA
2023.05.12
VALSALA
VASUDEVAN
2018.10.26
15:14:29 -07'00'
19:41:05
+05'30'
