Madhya Pradesh High Court
Rakesh vs The State Of Madhya Pradesh on 11 March, 2025
Author: Anand Pathak
Bench: Anand Pathak
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 1822 of 2018
(RAKESH Vs THE STATE OF MADHYA PRADESH )
Dated: 11-03-2025
Shri Atul Gupta-Advocate & Shri D.S. Raghuvanshi-Advocate for
appellant.
Shri D.S. Kushwaha-Additional Advocate General for
respondent/State.
Heard on I.A.No.22262/2024, second repeat application under
Section 389(1) of Cr.P.C. for suspension of jail sentence and grant of bail
on behalf of appellant-Rakesh Ahirwar.
This criminal appeal assails the judgment dated 30/11/2017 passed
in ST No.17/2015 by Second Additional Sessions Judge, Guna, District
Guna (M.P.) whereby present appellant has been convicted as under:
Section Imprisonment Fine
302 of IPC Life Imprisonment Rs.5,000/- with default
stipulation.
It is the submission of learned counsel for appellant that the trial
Court erred in convicting and awarding jail sentence to appellant. It is
further submitted that he has already suffered 9 years of incarceration as
pre and post trial detention. Deceased was wife of appellant and as per
allegations, he was in the house when she was strangulated. It is the
submission of learned counsel for appellant that as per memo under
Section 27 of the Evidence Act, he committed this murder in the fit of
rage and anger because in midnight his wife was talking to somebody
else on mobile. Therefore, if this analogy is accepted, even then at best,
he can be punished for offence under Section 304 of IPC and not beyond
that. It is further contended that his confessional statement under Section
27 of Evidence Act is before Police and for that purpose, prosecution
had to establish the foundational fact for roping in of appellant for
offence under Section 302 of IPC. In absence of any foundational fact
being led, he is not required to discharge the burden as raised under
Section 106 of Evidence Act. He relied upon the judgment of Apex Court
passed in the case of Sadashiv Dhondiram Patil Vs. the State of
Maharashtra reported in [2025] 1 S.C.R. 592. Even otherwise, appellant
has good case on merits and final hearing of appeal would take some
time. Hence, he prays for suspension of sentence.
Learned counsel for the State opposed the application and prayed
for its dismissal. According to him, this case is not of offence under
Section 304 of IPC but of Section 302 of IPC. It is also submitted that
initial foundational fact was led by the prosecution but appellant could
not discharge the burden successfully; therefore, he was rightly
convicted.
Considering the submissions advanced especially the period of
custody which is more than 9 years, this Court intends to allow the
application for suspension of sentence (I.A.No.22262/2024).
If appellant-Rakesh Ahirwar furnishes bail bond in the sum of
Rs.50,000/- (Rupees Fifty Thousand Only) along with one solvent
surety of the like amount to the satisfaction of the trial Court that he shall
appear before the Principal Registrar of this Court on 24/04/2025 and
thereafter, on all other subsequent dates as may be fixed by the Office for
appearance, then he shall be released on bail and execution of jail
sentence is suspended till disposal of this appeal, subject to deposit of
fine amount.
I.A.22262/2024 stands allowed and disposed of, accordingly.
Copy of this order be sent to the trial Court concerned for
information and necessary compliance.
List the case for final hearing in the month of April, 2025.
Meanwhile, office is directed to prepare the paper-book and
provide to all counsel appearing in the case.
Certified copy as per rules.
(Anand Pathak) (Hirdesh)
Judge Judge
(Dubey)
