Madhya Pradesh High Court
Rahul Kushwah vs The State Of Madhya Pradesh on 30 May, 2024
Author: Vivek Rusia
Bench: Vivek Rusia
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 4602 of 2020
(RAHUL KUSHWAH AND OTHERS Vs THE STATE OF MADHYA PRADESH)
Dated : 30-05-2024
Shri Sushil Goswami, learned counsel for the appellants.
Shri Lokendra Shrivastava, learned Public Prosecutor for the State.
Per Justice Sanjeev. S. Kalgaonkar
Heard on I.A. No. 20620 of 2023, which is second application filed on
behalf of appellant No.1 - Rahul Kushwah filed under Section 389 of
Cr.P.C. for suspension of sentence. First application for suspension of
sentence of appellant - Rahul was dismissed as withdrawn vide order dated
16.06.2023.
The present appellant stands convicted for the offence punishable under
Section 302/34 of IPC and sentenced to undergo Life Imprisonment with fine of
Rs.5,000/-, under Section 25(1-b)(a) of Arms Act and sentenced to undergo
two years RI with fine of Rs.1,000/- and under Section 27 of Arms Act and
sentenced to undergo three years RI with fine of Rs.1,000/- with default
stipulations vide impugned judgment dated 28.02.2020 passed by Additional
Sessions Judge Datia, District Datia in S.T. No.21/2017.
As per the case of prosecution, on 01.11.2016, co-appellant Rashmi and
her husband - Akhilesh were travelling on a motorcycle. Laxmi Prasad (PW-4)
and Lalta Prasad (PW-3) were following them on another motorcycle. Rashmi
and Akhilesh stopped midway to answer nature's call. Two unknown assailants
came on a motorcycle and fired gunshot at Akhilesh. Akhilesh was also
assaulted with baka. Akhilesh died on spot. Police was informed. Head-
Constable Harpal Singh of PS- Sarsai reached on spot of the incident. He
found Rashmi crying near the dead body of Akhilesh. Rashmi informed that
two unknown assailants have killed her husband. PS- Sarsai registered FIR at
Crime No.76/2016 for offence punishable under Section 302 r/w Section 34 of
IPC. Next day i.e. 02.11.2016, Lalta Prasad and Laxmi Prasad approached
Kuldeep Singh - SHO of PS- Sirsai and alleged that they have seen Rahul
(appellant) and his associate Dinesh assaulting Akhilesh. Rahul had fired on
Akhilesh with countrymade gun (adhiya) and thereafter, assaulted Akhilesh with
baka. Further investigation revealed that Rashmi had an affair with accused
Rahul. Therefore, Rashmi and Rahul conspired to kill Akhilesh. The call detail
report of communication between mobile-phone of Rashmi and Rahul revealed
communication between them immediately before and after the incident.
Learned counsel for the appellant contends that Lalta Prasad (PW-3) and
Laxmi Prasad (PW-4) are chance witnesses. Their testimony is week and
unbelievable. They did not report immediately to the police rather they
approached the police next day. There is no definite evidence about relationship
of Rashmi with the appellant- Rahul. Rashmi has been extended benefit of
suspension of sentence and grant of bail vide order dated 03.03.2023, therefore,
appellant may also be extended benefit of suspension of sentence and grant of
bail.
Per contra, learned counsel for the State opposes the application and
submits that the judgment of conviction passed by learned Trial Court is well-
reasoned judgment. The alleged firearm was seized at the instance of appellant -
Rahul. Learned trial Court in Paras 50 to 59 of the judgment has extensively
dealt with contentions of defence with regard to testimony of Laxmi Prasad
(PW-4) and Lalta Prasad (PW-3) and concluded that their testimony is
trustworthy. Appellant is main accused who had assaulted Akhilesh, therefore,
he may not be extended benefit of suspension of sentence and grant of bail.
Heard both the parties and perused the record.
Upon hearing the learned Counsel for the parties but without commenting
upon rival contentions, touching merits of the case, in the considered opinion of
this Court, appellant does not deserve suspension of jail sentence and grant of
bail. Consequently, IA No.20620 of 2023 stands dismissed.
(VIVEK RUSIA) (SANJEEV S KALGAONKAR)
JUDGE JUDGE
Vijay
