Madhya Pradesh High Court
Virendra Dubey vs The State Of Madhya Pradesh on 15 January, 2025
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1 CRA-11500-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 11500 of 2022
(VIRENDRA DUBEY Vs THE STATE OF MADHYA PRADESH )
Dated : 15-01-2025
Shri Aditya Adhikari - Senior Counsel with Shri Satyam Agrawal,
Advocate for the appellant/applicant.
Shri Akshay Namdeo - Government Advocate for the
respondent/State.
Shri Ranjan Banerjee - Advocate for the objector/complainant.
Per: Justice Avanindra Kumar Singh
Considered I.A.No.9063/2024, which is first application under section
389 (1) Cr.P.C. for suspension of sentence and grant of bail on behalf of
appellant/applicant-Virendra Dubey.
2. Vide impugned judgement dated 14.10.2022 passed by the Third
Additional Sessions Judge, Damoh in Sessions Trial No.100146/2015 (ST
No.146/2015) the appellant/applicant has been convicted for offences under
sections 302/34 r/w 120-B, 323/34 & 201 of the Indian Penal Code and
sentenced to undergo Life Imprisonment, R.I. for 08 months and R.I. for 01
year and fine of Rs.10,000/-, Rs.500/- & Rs.1000/- respectively with default
stipulations.
3. Learned counsel for the applicant submitted that as per
prosecution story informant Prahlad (PW.1) lodged an F.I.R. (Exhibit-P/1)
on 02.6.2015 stating that he was standing at a liquor shop with deceased
(Babulal Dubey). Two accused persons came there and started abusing them
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then the deceased asked him to drop him to his house. Thereafter, they went
on motorcycle towards home, in the midway a Gama Car which was driven
by appellant/applicant (Virendra) came and dashed against the motorcycle as
a result of which deceased (Babulal) and Prahlad fell down from the vehicle.
The deceased sustained head injuries. He was taken to the Hospital with the
help of Sonu Khan (PW.20). Deceased (Babulal) expired in the hospital.
Accordingly, offence was registered against 05 accused persons.
4. It is also argued by learned counsel for the applicant that wife of
deceased, Manish Dubey (PW.11) and Vikki Vikrant (PW.16) have been
named in the charge-sheet as eye witnesses. Many family members of the
appellant/applicants were named by the family members of the deceased but
the Police after investigation filed closure report against some of the persons.
Some of the accused persons were given anticipatory bail by this Court. It is
also submitted that present applicant filed an petition under section 482 of
Cr.P.C. but that was not considered thereafter, the applicant surrendered
before the trial Court. In the meanwhile trial of the remaining accused
persons was initiated while the appellant/applicant was declared as absconder
under section 299 of Cr.P.C. In the trial two persons were acquitted and two
were convicted. The learned trial Court did not believe the testimony of wife
of the deceased. Testimonies of Sonu Bhaijaan and Vikki were also
disbelieved. The present appellant/applicant took plea of alibi stating that he
was not present at the place of incident at relevant time but was at Bhopal
district. In the trial against present applicant fresh statement of witnesses
were recorded. In the meantime witness-Sonu Thakur expired, therefore,
3 CRA-11500-2022
prosecution could not examine him. The prosecution moved an application to
read his earlier statement, which was rejected vide order dated 01.7.2022.
5. It is further stated that in examination under section 313 of Cr.P.C.
the appellant/applicant was questioned about earlier deposition of witnesses,
which was challenged by the applicant in M.Cr.C.No.46123/2022 but in the
meanwhile trial concluded and he was sentenced. It is also submitted that in
the light of decision in Central Bureau of Investigation Vs. Abu Salem
Ansari and another, (2011) 4 SCC 426 in fresh trial evidence recorded has to
be recorded again. Earlier evidence can be seen only when deponent
(witness) is dead or is incapable of giving evidence or cannot be found or is
presence cannot be procured without an amount of delay. Same principle has
also been laid down in the case of Nirmal Singh Vs. State of Haryana,
(2000) 4 SCC 41 and Jayendra Vishnu Thakur Vs. State of Maharashtra and
another, (2009) 7 SCC 104 . It is submitted that in the trial against present
applicant witness (PW.1) Prahlad Rathore has turned hostile and had deposed
against the other accused in earlier trial as he was offered and transferred a
property in lieu of deposing against the accused persons. He stated that
present appellant was not present at the spot at the time of incident. PW.1
also stated that present appellant is not the person who was driving the four
wheeler at the time of incident.
6. On the other hand, learned Government Advocate for the State
submitted that appellant deliberately absconded. The trial Court has rightly
convicted the appellant. He does not deserve suspension of his sentence.
7. Learned counsel for the objector has also opposed the prayer for
4 CRA-11500-2022
suspension of sentence and submitted that earlier statement of PW.1 has to
be considered and the trial Court rightly convicted the accused persons.
8. Considered the contentions of learned counsel for the rival parties
and perused the record. In earlier trial i.e. S.T.No.146/2015 [State of M.P.
through Police Station, Pathariya Vs. Sourabh and others] the trial Court vide
judgment dated 07.9.2017 acquitted Kapil @ Nikesh but convicted accused
persons, namely, Sourabh @ Goga and Narendra Dubey whereas in the
subsequent trial of present appellant/applicant-Virendra Dubey in the same
case vide impugned judgment dated 14.10.2022 he has been convicted. The
statement of Prahlad (PW.1) regarding accused-Virendra Dubey starts from
paragraph 62 and this witness has been declared hostile and not supported
the prosecution case. The statement of PW.20- Sonu @ Sheikh Haleem
regarding present appellant/applicant was recorded on 18.12.2019, in which,
he has not deposed in terms of prosecution story regarding Virendra Dubey
(present appellant) but the prosecution has not declared this witness as
hostile, therefore his statement is binding on prosecution. At the stage of
suspension of sentence very minute appreciation of prosecution evidence is
not required but looking to the facts and circumstances of the case as also
evidence of the prosecution and without commenting finally on merits of the
case, this Court is of the considered opinion that this is fit case where benefit
of suspension of sentence can be granted to the appellant/applicant.
Accordingly, I.A.No.9063/2024 is allowed.
9. It is directed that that subject to depositing fine amount, if not
already deposited and on furnishing a personal bond in the sum of
5 CRA-11500-2022
Rs.50,000/- (Rupees Fifty Thousand Only) with one solvent surety in the
like amount to the satisfaction of the trial Court, the remaining part of the
substantive jail sentence imposed upon appellant/Applicant (Virendra
Dubey) shall remain suspended during the pendency of this case and he shall
be released on bail. Appellant shall appear before the concerned trial Court
on 19.03.2025 and on all such subsequent dates, as may be fixed by the trial
Court in this regard during the pendency of this appeal.
10. List for final hearing in due course.
(SUSHRUT ARVIND DHARMADHIKARI) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
RM
