Madhya Pradesh High Court
Deepu @ Gutta vs The State Of Madhya Pradesh on 13 February, 2024
Author: Rohit Arya
Bench: Rohit Arya
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 5185 of 2023
(DEEPU @ GUTTA AND OTHERS Vs THE STATE OF MADHYA PRADESH)
Dated : 13-02-2024
Shri Deependra Singh Raghuwanshi- Advocate for appellant No.1-
Deepu @ Gutta.
Ms. Anjali Gyanani - Public Prosecutor for the respondent/State.
Heard on I.A.No.2791 of 2024, second application under Section
389(1) Cr.P.C. for suspension of sentence and grant of bail moved on behalf of
appellant No.1- Deepu @ Gutta.
Present appellant stands convicted under Sections 302/34, 201 of IPC
and sentenced to undergo life imprisonment with fine of Rs.500/- and 5 years
RI with fine of Rs.1,000/- respectively with default stipulation vide judgment of
conviction and order of sentence dated 28.3.2023 passed by the Fifth
Additional Sessions Judge, Guna, in Sessions Trial No.6/2019.
The present appellant so far has already undergone jail sentence of more
than 1 year and 10 months.
As per the prosecution story, initially a missing report was lodged by
complainant/Ramesh Chandra Sahu (PW-1) with the complaint that his grand-
child Shivam (since deceased) had left home at about 2 in the afternoon on 30th
September, 2018 on TVS Motorcycle No.MP08 MK/5970 for market, however,
he did not turn back. He owned mobile No.9981710936. Despite repeated calls,
his phone was switched off. After having searched him at all possible places
since he was not found, missing report has been filed. Thereafter crime
No.663/2018 under Section 363 of IPC was registered. During the course of
investigation, the present appellant was apprehended on 7/10/2018 purportedly
on disclosure of fact by the complainant and others that the deceased used to
visit the present appellant for making of films which used to be uploaded on
YouTube by Shakshi Sharma (PW-4). Thereafter, statement of one Raghuveer
Sharma & complainant were recorded on 12/10/2018 & 18/10/2018
respectively. The body of the deceased was recovered on 3.10.2018.
Thereafter, offences under Sections 302, 201, 34 of IPC were further added on.
Upon collection of the evidence, the Challan was filed and the case was
committed to the Sessions Court. The Sessions Court on appreciation of
evidence placed on record convicted and sentenced the present appellant as
aforesaid.
Learned counsel for appellants while taking exception to the impugned
judgment of conviction and order of sentence inter alia submits that the
impugned judgment suffers from patent perversity of approach and rests upon
surmises and conjectures. The case of the prosecution is on the theory of last
seen together. The appellant was not last seen with the deceased. There is no
one to have disclosed the fact of last seen together except Raghuveer Sharma
(PW-6) whose statement was recorded after 12 days of the incident where it is
alleged that he had met present appellant at one Dhaba where he and co-
accused Mahesh told him that they were coming back from shooting of film
and they had purchased some eatables from the Dhaba. On being asked as to
why they had pulled up the glasses of the car, they disclosed that Shivam, the
deceased, who was sitting in the backseat, was suffering from cold. On such
statement, it was presumed that present appellant was seen last with the
deceased. That apart, Hemendra Tiwari (PW-18) alleged to be the Manager of
the Petrol Pump, in his statement said that in the CCTV footage, one Nano car
No.MP08 CA/3830 was seen being brought there for filling up the petrol. No
where in the CCTV footage, the appellant is found to be present with the car.
The car did not belong to the appellant, instead it belonged to one Savitri Bai
with whom there is no relationship of the appellant or any proximity established.
She has also not been examined. As such, the appellant has been falsely
implicated and convicted. It is further submitted that present appellant has so
far has arleady undergone incarceration of more than 1 year and 10 months.
Moreso, similarly placed co-accused/appellant No.2 Mahesh Sharma has
already been extended benefit of suspension of sentence and grant of bail by
this Court vide order dated 2/2/2024 under similar facts and circumstances. He
seeks parity in treatment. It is further submitted that the appeal being of 2023 is
not likely to be decided in near future. On these grounds, learned counsel
submits that the present appellant may be extended the benefit of suspension of
sentence and grant of bail.
P er contra, Ms. Anjali Gyanani, learned Additional Advocate General,
appearing on behalf of the respondent/State, while supporting the judgment
impugned submits that disclosure of fact of last seen by Raghuveer (PW-6)
since is corroborated with the CCTV footage and statement of the Manager of
the Petrol Pump indicating about the movement of Nano car, theory of last seen
has rightly been applied by the trial Court while convicting and sentencing the
present appellant. Moreso, wallet and Aadhar Card were seized from
possession of present appellant. However, he does not dispute that in the entire
judgment, there is no mention of the fact as regards visible display of CCTV
footage seen by the trial Judge or any person having found the appellant in the
CCTV footage.
Upon hearing learned counsel for the parties, though this Court refrains
from commenting upon rival contentions so advanced touching merits of the
case but regard being had to the fact that similarly placed co-accused/appellant
No.2 Mahesh Sharma has already been extended benefit of suspension of
sentence and grant of bail by this Court vide order dated 2/2/2024 under similar
facts and circumstances coupled with the fact that present appellant so far has
already undergone incarceration of more than 1 year and 10 months and that
appeal which is of the year 2023 is not likely to be decided in the near future, in
the obtaining facts and circumstances of the case, we are of the view that
present appellant is entitled to the benefit of suspension of jail sentence and
grant of bail.
Accordingly, I.A.No.2791 of 2024, stands allowed and it is directed that
the jail sentence of appellant No.1 Deepu @ Gutta shall remain suspended
during pendency of the present appeal and he shall be released on bail subject
to verification of the factum of depositing the fine amount and on his furnishing
a personal bond in the sum of Rs.1,50,000/- (Rupees One Lac & Fifty
Thousand only) with one solvent surety in the like amount to the satisfaction
of the Trial Court. appellant No.1 Deepu @ Gutta is directed to appear
before the Registry of this Court first on 20.05.2024 and on other subsequent
dates as may be fixed in this behalf.
Accordingly, the said IA stands allowed and disposed of.
Observations on facts, if any, are only for the purpose of deciding the
instant I.A. and shall have no bearing on the merits of the appeal.
Certified copy as per rules.
(ROHIT ARYA) (BINOD KUMAR DWIVEDI)
JUDGE JUDGE
(Dubey)
