Ashutosh @ Bhajju vs The State Of Madhya Pradesh
2024 Latest Caselaw 12278 MP

Madhya Pradesh High Court

Ashutosh @ Bhajju vs The State Of Madhya Pradesh on 2 May, 2024

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                                     IN THE HIGH COURT OF MADHYA PRADESH
                                                  AT GWALIOR
                                                      CRA No. 3615 of 2018
                                           (ASHUTOSH @ BHAJJU Vs THE STATE OF MADHYA PRADESH)

                         Dated : 02-05-2024
                               Shri Arun Kumar Pateriya- Advocate for appellant.

                               Shri A.K. Nirankari - Public Prosecutor for respondent/State.

Heard on IA No.8484 of 2024, third application under Section 389(1) of Cr.P.C. moved on behalf of appellant- Ashutosh @ Bhajju seeking suspension of sentence and grant of bail. His earlier two bail applications

(IA.No.4170 of 2018 and IA. No.2382 of 2019) have been dismissed as withdrawn vide orders dated 31.05.2018 and 22.06.2023.

Appellant stood convicted under Section 302 of IPC and sentenced to undergo imprisonment for life with a fine of Rs.10,000/- with default stipulation, vide judgment of conviction and order of sentence dated 9th of March, 2018 passed by Additional Sessions Judge, Seondha, District Datia in Sessions Trial No. 35 of 2014.

Learned Counsel for the appellant, in addition to the grounds mentioned in the application, submits that on completion of investigation, final report was

submitted for offence punishable under Sections 498-A and 306 of IPC. Learned Sessions Court framed the charges for offence punishable under Section 302/34 of IPC against accused- Ashutosh alias Bhajju (appellant), co- accused Pradip, Priyanka, Sarju Sharan, Ramswaroop and Suman. Learned Trial Court acquitted all the co-accused but convicted the present appellant for offence punishable under Section 302 of IPC on same set of evidence without there being the charge of substantive offence of Section 302 of IPC. Learned Counsel further submits that there is no evidence that death of Bholi alias Rohni

was homicidal in nature. The Investigation Officer concluded that Bholi alias Rohni has committed suicide as there was no evidence to suggest that it was homicidal. Learned Counsel referring to Para 39 of the judgment, contends that the finding with regard to guilt of the appellant is based on conjecture and surmise. None of the circumstances was proved beyond doubt. Further, the circumstances do not point unerringly towards guilt of accused. Learned trial Court erroneously placed burden to explain the death of Bholi alias Rohni on her husband Ashutosh alias Bhajju (appellant) under Section 106 of Evidence Act, despite failure of prosecution to prove the implicating circumstances against the appellant. Learned counsel further contends that the learned Trial

Court has committed an error in convicting and sentencing the present appellant without appreciating the prosecution evidence properly. There are material contradictions and omissions in the evidence of witnesses. The appellant has remained in custody for a period of six years and six months. He was on bail during trial and did not misuse the liberty so granted to him. There is no likelihood of early hearing of appeal in near future. On these grounds, learned Counsel prays that execution of remaining jail sentence of appellant may be suspended and he may be enlarged on bail.

Per contra, learned Counsel for respondent State opposes the application and prays for its rejection.

Upon hearing learned Counsel for the parties but without commenting upon rival contentions touching merits of the case, this Court is of the view that application deserves to be allowed. It is, accordingly directed that execution of remaining jail sentence of appellant shall remain suspended during pendency of this appeal and he shall be enlarged on bail subject to furnishing personal bond

in the sum of Rs.1,00,000/-(Rupees One Lac Only) with two solvent surety

in the like amount to the satisfaction of Trial Court for compliance with following conditions:-

(1). The appellant shall deposit the amount of fine (if not deposited) forthwith;

(2). The appellant shall appear before the Trial Court on 07.08.2024 and on such further dates as may be directed by the Trial Court;

(3). The appellant shall ensure hearing of the appeal on the date fixed for such hearing and shall also ensure proper legal representation on his behalf, on the date notified for hearing.

In case of breach of any of the aforementioned conditions, this order granting suspension of sentence shall become ineffective.

The Trial Court shall be authorized to grant exemption from attendance to the appellant on any date, on sufficient cause being shown [Chapter XIII Rule 42 Sub-Rule 2 of the M.P. High Court Rules, 2008].

Where the appellant does not appear on the date of his appearance before the Trial Court and no sufficient cause for non-appearance is shown, the Trial Court shall be authorized to issue non-bailable/bailable warrants to secure his attendance under intimation to the Registry of High Court. The Trial Court shall also proceed under Section 446 of CrPC against such appellant and his surety without any reference to this Court and without any impediment of the

order granting bail. [Chapter XIII Rule 42 Sub-Rule 3 of M.P. High Court Rules, 2008].

On arrest/surrender in compliance with the warrant, the appellant shall be forwarded in custody to undergo sentence of imprisonment under intimation to the Registry of this Court.

Accordingly, IA No.8484 of 2024 stands allowed and disposed of. Certified copy as per rules.

                              (RAJENDRA KUMAR-IV)                     (SANJEEV S KALGAONKAR)
                                     JUDGE                                     JUDGE

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