Madhya Pradesh High Court
Rishubh Choubey vs The State Of Madhya Pradesh on 3 October, 2024
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
1 CRA-12726-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 12726 of 2023
(RISHUBH CHOUBEY Vs THE STATE OF MADHYA PRADESH )
Dated : 03-10-2024
Shri Vishal Vincent Rajendra Daniel - Advocate for the appellant.
Shri C.M. Mishra - Government Advocate for the State.
Shri Shashank Pandey - Advocate for the Objector.
Heard on I.A.No.17266/2024, which is Second application filed on
behalf of appellant for suspension of sentence and grant of bail.
Earlier application of the appellant was dismissed as withdrawn with
liberty to revisit this Court after suffering some period of incarceration vide
order dated 23/02/2024.
The appellant has been convicted by the trial Court under Sections 307
of the Indian Penal Code and sentenced to undergo R.I. for 10 years with
fine of Rs.5000/-, Under Section 25 of Arms Act and sentenced to undergo
RI for 1 year with fine of Rs.1,000/- and Section 27 of Arms Act and
sentenced to RI for 3 years with fine of Rs.3,000/- with default stipulations.
The counsel for the appellant submits that the trial Court has not
properly appreciated the oral and documentary evidence available on record
and committed error while convicting the appellant for the aforesaid
offences. It is contended by the counsel that the date on which the incident
had occurred, the present appellant was assaulted at the behest of deceased
and his associates, as a result of which, the present appellant had sustained
injury which is evident from perusal of Exhibit D/6 which clearly shows that
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the present appellant had sustained as many as four injuries including parietal
part of skull and as per the FIR, one of the injury was caused to the present
appellant by the injured Govind Ghosh and he was further assaulted by
Pritam Ghosh and Than Ghosh as well and in regard to the said incident, FIR
vide Crime No.93/2020 was lodged with PS Digauda District Teekamgarh
(Exhibit D/5). However, the trial Court did not appreciate the aforesaid
aspect inasmuch as, the prosecution was duty bound to explain the factum of
injury on the part of the present appellant. Learned counsel has placed
reliance on the cases of State of M.P. Vs. Mishrilal (Dead) and Ors. reported
i n (2003) 9 SCC 426 and in the case of Ganesh Datt Vs. State of
Uttarakhand reported in (2014) 12 SCC 389 , thus submits that the present
appellant deserves to be enlarged on bail.
It is further contended by the counsel that the injury was sustained on
lower iliac region and no internal organ was damaged which is evident from
the testimony of Dr. Satendra Rajput (PW-12), therefore, the case in hand
can be treated to be a case under Section 308 of IPC instead of Under
Section 307 of IPC. It is further contended by the counsel that if the appellant
succeeds and ultimately if it is found that the case is not under Section 307 of
IPC, but a case under Section 308 of IPC, the lesser punishment can be
imposed upon the appellant. It is also contended that the appellant as of now
suffered incarceration of about 1 year and 1 month. as against the sentence of
10 years. It is further submitted that the appellant is in custody and disposal
of this appeal will take considerable time, therefore, the jail sentence of the
appellant be suspended and he be released on bail.
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Per contra, the counsel for the State and objector have opposed the
prayer and submitted that the appellant fired a gun shot by which the injury
was sustained by the injured on the vital part of the body. The said injury
according to the testimony of Dr.Yogesh Yadav (PW-11) is grievous in
nature, therefore, taking into consideration the act attributed to the present
appellant, he is not entitled to be released on bail.
Heard the submissions and perused the record.
On perusal of record as well as the impugned judgment, it reflect that
prima facie there is no consideration by the trial Court as regard the defence
version. Exhibit D/5 and D/6 were produced by the present appellant in his
defence before the trial Court and the trial Court was required to appreciate
that it was the bounden duty of the prosecution to explain the injury on the
part of the appellant as laid down by the Apex Court in the case of Mishrilal
(supra) and Ganesh Datt (Supra), therefore, considering the factum of non
explanation by the prosecution as regards injury which have been found on
the person of the present appellant vide Exhibit D/6, this Court deems it
proper to enlarge the appellant on bail. Therefore, I.A.No.17266/2024 is
allowed.
It is directed that subject to depositing the fine amount, if not already
deposited and on furnishing a personal bond in a sum of Rs.50,000/- (Rupees
Fifty Thousand only) with one surety in the like amount to the satisfaction of
the trial Court concerned, the custodial sentence of appellant namely Rishubh
Choubey shall remain suspended and he shall be released on bail for
securing his presence before the trial Court concerned on 18/12/2024 and on
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such other dates as may be fixed by that Court in this regard during
pendency of this appeal.
List the matter for final hearing in due course.
Certified copy as per rules.
(MANINDER S. BHATTI)
JUDGE
Astha
