Madhya Pradesh High Court
Avdesh Kumar vs The State Of Madhya Pradesh on 20 May, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 3140 of 2023
(AVDESH KUMAR AND OTHERS Vs THE STATE OF MADHYA PRADESH)
Dated : 20-05-2024
S h r i Sushil Goswami - Advocate for appellant No.2-Dharmendra
Yadav.
Shri Ravindra Singh Kushwaha - Deputy Advocate General for the
respondent/State.
Shri D.R.Sharma - Advocate for the complainant.
Heard on IA No.14030 of 2023, which is the first application under
Section 389 (1) of CrPC filed on behalf of appellant No.2- Dharmendra
Yadav for suspension of sentence and grant of bail.
2.Present appellant along-with other accused persons stood convicted
under Sections 148 and 302/149 of IPC and sentenced to undergo 3 years
rigorous imprisonment with fine of Rs.1,000/- and life imprisonment with fine of
Rs.5,000/- respectively with default stipulations vide judgment dated 19.01.2023
passed by the Second Additional Sessions Judge, Seonda, District Datia (MP)
in Sessions Trial No.100039 of 2012.
3.Prosecution case in brief is that on 14.10.2011 complainant Ramswadin
Yadav along with his uncle Kallu Yadav had gone to Indergarh to bring certain
articles. At about 8 pm complainant along with his uncle was purchasing articles
from the shop of Kashiram Sahu, at that time Swaroop Yadav and Sarnam
Yadav were sitting nearby. At that juncture, accused Bablu @ Mukesh Yadav,
Awdhesh, Sanjeev, Munna, Narendra, Dharmendra (appellant), Amarsingh and
Jagmohan armed with Lathi, Lohangi, hockey and iron rod came with common
object and assaulted Kallu Yadav with their respective weapons on the point of
lodging false report for the theft of buffalo. Bablu @ Mukesh inflicted blow of
iron rod on right hand, Awadhesh Yadav inflicted Lathi blow on left hand,
Sanjeev inflicted Lathi blow on right hand, Munna Yadav inflicted Lathi blow on
left hand, Narendra Yadav inflicted hockey blow near knee of right leg,
Dharmendra Yadav (appellant) inflicted blow of iron rod near knee of left leg,
Amarsingh gave beating by means of Danda and Jagmohan inflicted Lathi blow
on legs. Due to beating of accused persons, both the hands and legs of Kallu
have broken and blood was oozing out. When complainant and his uncle
shouted, Sarnam Yadav, Swaroop Yadav, Ravi Yadav and Chandrabhan Yadav
came on the spot and intervened in the matter. The accused persons damaged
the Honda Shine motorcycle and fled away. On the report, Crime No.235 of
2011 was registered at police Station Indergarh under Sections 147, 148, 149,
307, 427 of IPC. During treatment, Kallu died, hence, offence under Section
302 of IPC was enhanced. Matter was investigated. After completing
investigation, police filed Challan. Thereafter, the case was committed for trial
to the Sessions Court. The Sessions Court upon evaluation of evidence placed
on record has convicted and sentenced the present appellant as referred above.
4.Learned Counsel for the appellant submits that prosecution has
examined only interested witnesses and there are various contradictions and
omissions in their statements. During trial appellant remained in custody for 10
months and 9 days and thereafter from the date of judgment i.e. 19.1.2023 he is
in custody. The appeal is of the year 2023 and there is no likelihood of early
hearing of this appeal in the near future. The appellant is ready to abide by all
the terms and conditions imposed by this Court. On these grounds, learned
SOODAN PRASAD Counsel prays for suspension of sentence and grant of bail to appellant.
5.Per contra, learned counsel for the State as well as complainant
opposed the application by submitting that complainant Ramswadin (PW-1)
and Sarnamsingh Yadav (PW-2) and Swaroop (PW-3), who were present at
the spot as per the FIR, have clearly stated in their examination-in-chief that
appellant along with other co-accused persons have beaten the deceased. It is
further submitted that due to beating deceased received several injuries which
are mentioned in MLC report (Ex.P/5) and postmortem report (Ex.P/6). Dr.
M.M.Shakya (PW-5) clarifies that injuries were sufficient to cause death and
were fatal. It is also stated by this witness that nerves and bones have been
separated and blood was oozing out profusely. The appellant was the member
of unlawful assembly whose common object was to cause murder of deceased
Kalyan Singh, and therefore, the appellant along with co-accused persons are
liable under Section 302/149 of IPC. Appellant Dharmendra and co-accused
Jagmohan, Munna, Amar Singh and Bablu @ Mukesh were absconding and
they have been arrested later on, and thereafter supplementary Challan has been
filed against them, hence , the delay has been caused due to the lapse on the
part of appellant and co-accused persons. On these grounds, he prayed for
dismissal of the application.
6.Having heard learned counsel for the parties and perusal of the record,
keeping in view the nature and number of injuries caused in furtherance of
common object of all the accused persons to kill the deceased and the role
attributed to the appellant, no case for grant of suspension of sentence is made
out at this stage. Accordingly, I.A.No.14030 of 2023 is dismissed.
02:11:24 AM (VIVEK RUSIA) (RAJENDRA KUMAR VANI)
JUDGE JUDGE
ms/-
