Gopal Singh vs State Of Madhya Pradesh

Since the appeal contains arguable points and is accordingly admitted for hearing.

Heard on I.A.No.198/2019, an application seeking suspension of sentence filed on behalf of appellant Gopal Singh.

This is first application for suspension of sentence and grant of bail filed on behalf of appellant Gopal Singh. Appellant has been convicted in

Sessions Trial No.482/2011 under Sections 148 and 302 read with section 34 of the IPC and sentenced to undergo R.I for 3 years and Life

Imprisonment effectively and fine in the sum of Rs.8,000/- with default stipulation.

Learned counsel for the appellant submits that no offence under Section 149 of the IPC is made out against the appellant and other accused

persons for the simple reason that said provision can be attracted if five or more persons were part of an unlawful assembly whereas in the instant

case, only four persons were there because one accused Ratan Singh admittedly died during the course of trial.

Shri Vagrecha, learned counsel for the appellant by taking this Court to Dehati Nalisi Ex.P/24 submits that the only allegation against the present

appellant Gopal is that he instigated the main accused Durgesh to kill deceased Nitin @ Nittu and in turn, Durgesh used his gun to kill Nittu. Learned

counsel for the appellant urged that the person who has written Dehati Nalishi was not identified. There is diametrically opposite deposition of Anurag

Singh (PW-5) and (PW-15) Investigating Officer. Anurag Singh 2007 Cr.L.J. 1247, Mirthagai Ali Vs. State which is followed by this Court in granting

benefit of suspension of sentence in Cr.A.No.2744/2012 on 12.01.2016, Shri Vagrecha urged that the very foundation i.e. Dehati Nalishi becomes

doubtful. Reliance is placed on Ex.D/4 (MLC information) to contend that incident is not reported in the Belkheda Police Station. Criticizing the spot

map, it is urged that there is no mention about any blood stains whereas the case of the prosecution was that the deceased died instantaneously on

getting the bullet injury. He was bleeding profusely yet it is strange that in the spot-map and in the clothes of eye witnesses, who allegedly carried the

deceased from Belkheda to Jabalpur, no blood stains were found and recovered. Reliance is placed on 2005 Cr.L.J. (DB) 299, Vijay Singh Vs State

of M.P. . In addition, 2003 (9) SCC 420, Khima Vikamshi Vs. State of Gujara tis also relied upon for this purpose. It is further urged that driver of the

vehicle Manoj Singh (PW-2) deposed that police recovered the seat cover of Safari in which deceased was taken to Jabalpur hospital whereas (PW-

15), Investigating Officer stated that no such seat cover was recovered/seized.

6 . Learned counsel for the appellant submits that two weapons were recovered from Durgesh, main accused and from Kamlesh. Only one weapon

of Kamlesh was sent for FSL. It was common defence of all the accused persons before the Court below that it was Kamlesh's gun, which caused

injury to the deceased because of which he died. In absence of sending his weapon for FSL test, the entire case of the prosecution lost its force. More

so, Armourer's report cannot be a reason to believe that the gun recovered from Durgesh was used because the Arm was not sent for FSL to

examine whether it was in a running condition. Reliance is placed on 1995 Supp. (3) SCC 217, Amarjit Singh Vs. State of Punjab.

7 . Lastly, it is submitted that while taking the deceased from Belkheda to Jabalpur, eye witnesses had opportunity to lodge report in various police

stations, which were situated in between in the midway and admit him in a nearby hospital. Having not done so, the prosecution case becomes

unbelievable in the teeth of 2003 (1) SCC 398, Raghunath Vs. State of Haryana. Since (PW-13), the doctor categorically stated that no opinion was

sought from him by the police by showing him the weapon which is allegedly used in commission of crime. It is urged that as per 1976 (4) SCC 356,

Ilam Singh and others Vs. State of U.P., the case of the prosecution must fail. In nutshell, learned counsel for the appellant submits that the first

version was the lodging of ""Dehati Nalsi"" but its genuineness is in serious doubt and as per this Dehati Nalishi, the limited role attributed on this

appellant Gopal Singh is that he instigated the main accused Durgesh. As per criminal record of Anurag Singh @ Golu (PW-5), his statement is not

trustworthy.

Per contra, learned Panel Lawyer for the respondent State placed reliance on the statements of eye witnesses to support the impugned judgment.

He submits that Court below in sufficient details considered the existence of motive, FSL report and the report of finger print expert. He opposed the

application for suspension of sentence.

We have heard the learned counsel for the parties on this aspect at sufficient length. As per Dehati Nalsi and prosecution story, main accused is

Durgesh, who allegedly caused injury shot on the deceased by using a double barrel gun because of which deceased Nittu died. The only allegation

against the present appellant Gopal Singh is to instigate him. ""Danda"" is recovered by the prosecution from the present appellant. There is no allegation

of use of Danda to assault the deceased person. Considering the limited role attributed to this appellant, in the backdrop of arguments of Shri

Vagrecha, we deem it proper to suspend the remaining jail sentence of appellant Gopal Singh. More so, when final hearing of this criminal appeal in

near future is not possible due to COVID-19 era and no criminal antecedents of this appellant were pointed out. Accordingly, I.A.No.198/2019 is

allowed.

It is directed that appellant Gopal Singh be released on bail on her furnishing a personal bond in the sum of Rs.50,000/- (Rs.Fifty Thousand Only)

alongwith one solvent surety in the like amount to the satisfaction of the trial court for his appearance before the trial Court, Jabalpur on 22.12.2020

and on such further dates as may be given by that court or until otherwise directed by this Court in this behalf till final hearing of this appeal.

C.c. as per rules.

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