Madhya Pradesh High Court
Himanshu Lalawat @ Anshu vs The State Of Madhya Pradesh on 24 January, 2025
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
1 CRA-15958-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
CRA No. 15958 of 2023
(HIMANSHU LALAWAT @ ANSHU Vs THE STATE OF MADHYA PRADESH )
Dated : 24-01-2025
Shri Manish Kumar Vijaywargiya, learned counsel for the applicant.
Shri Harish Singh Rathore, learned counsel for the respondent/state.
Heard on IA No.8779/2024, which is first application for grant of
suspension of jail sentence.
The appellant has been convicted under section 302/34 of IPC and
sentenced to undergo RI for life with fine of Rs.5000/- with default
stipulation.
As per the prosecution case, the complainant Sudama lodged a
complaint on 21.11.2021 at police station Dewas Gate Ujjain District Ujjain.
As per the complaint, on 20.11.2021, complainant alongwith Pankaj
Kanojiya (deceased) went to Indore on deceased's motorcycle for their
friend's wedding and at around 12:00 AM, they left for Ujjain from Indore.
The bike was driven by complainant and when they reached zero-point
bridge in Ujjain, deceased asked complainant to stop the bike as he wanted
to go to toilet. Both complainant and deceased were doing urine on side of
road and it is alleged that suddenly two unknown persons came on their
motorcycle and started abusing deceased and complainant against which
deceased raised objection.
It is alleged that unknown persons started beating deceased and when
complainant tried to save the deceased, they started running towards him as a
2 CRA-15958-2023
result of which complainant ran few meters away from place of incident. It is
alleged by complainant that one person grabbed deceased and another person
inflicted injuries on deceased with Knife. It is alleged that complainant threw
stones on perpetrators who then ran away on their motorcycle. It is alleged
that complainant came near deceased and saw wounds inflicted through knife
and blood oozing out of such wounds after which he took deceased to
hospital and during treatment, deceased succumbed to his injuries. Based on
complaint, FIR was registered as crime no.464/21 at P.S. Dewas Gate Ujjain
Distt. Ujjain for offence U/s 302, 294 & 34 of IPC against unidentified
person. During investigation, on basis of informant's information, the police
arrested the applicant, co-accused Piyush Bairagi, Himanshu @ Anshu and
recorded their memorandums U/s 27 of Evidence Act.
Learned counsel for the applicant submits that the prosecution case
was based on the testimony of eye-witness/complainant Sudama Dodiya. He
has turned hostile and has not supported the prosecution case. He further
argued that the seizure witness of the alleged knife PW No.15 Radheshyam
Suryavanshi and PW No.16 Bheema @ Bittu have turned hostile and they
have also not supported the prosecution case. In the post mortem report cause
of death is not mentioned. In the post moretem report cause of death is not
mentioned. The conviction is based solely on the DNA. He argued that the
sample was taken on 10.05.2022 and the application for sending the sample
to lab was filed before the trial court on 30.09.2022. Thus, the sample was
kept in Malkhana for the period of about 6 months. He referred the testimony
of PW no.32 Sammurti Chabniya, who admitted that the sample was kept in
3 CRA-15958-2023
the police station for such long time. He had not stated that the sample was
kept sealed and in a safe custody and also did not explain why the sample
were sent for examination after long period. He did not produce any register
or any other documentary record to show that the sample was kept safely in
the Malkhana and there was no possibility of tampering the same. He further
submitted that the applicant has been implicated only on the basis of memo
of co-accused Sheran Ali recorded under section 27 of the Evidence Act.
This court has already granted suspension to co-accused Sheran Ali today in
connected appeal and the present applicant also deserves the benefit of
suspension of jail sentence. In support of his submission, he has placed
reliance in the judgments passed by this Court in the case of Shailesh VS.
State of MP reported in 2002 (II) MPJR SN 26 and judgments of the Apex
Court in the case of Rahul Vs. State of Delhi passed in Cri. Appeal
No.611/2022 and Allarakhan Habib Memon and Ors Vs. State of Gujara
reported in (2025) 1 SCC (Cri) 147.
Learned counsel for the respondent/state opposed the prayer.
After hearing learned counsel for the parties, we find that the eye-
witness/complainant Sudama Dodiya has turned hostile and he has not
supported the prosecution case. Further, the seizure witnesses of the alleged
knife has also turned hostile. From the testimony of the I.O., we find that the
prosecution has failed to prove the delay in sending the sample for
examination to lab and also failed to prove that the sample was kept in a
sealed and safe custody. Thus, possibility of tempering cannot be ruled as
held by the Apex Court in the case of Rahul (supra) and Allarakha (supra).
4 CRA-15958-2023
Accordingly IA No.8779/2024 is allowed. The substantive jail
sentence of the appellant Himanshu is suspended upon depositing the fine
amount if not already deposited, and on furnishing bail bond of Rs.50,000/-
with one surety in the like amount to the satisfaction of the trial court for
appearance before the Registry of this Court on 24.06.2025 and on the
subsequent dates as may be fixed in this behalf by the Registry.
(VIJAY KUMAR SHUKLA) (PRANAY VERMA)
JUDGE JUDGE
Sourabh
