Makhan vs State Of M.P

This Criminal appeal assails the judgment dated 12/2/2020 passed in Sessions Trial No. 244/2017 by First Additional Sessions Judge, Sabalgarh, District Morena whereby the appellant has been convicted under Section 302/34 of the IPC and has been sentenced to undergo Life imprisonment with fine of Rs.2,000/- with default stipulation.

I.A.No.4386/2020, first application under Section 389 (1) of CrPC for suspension of jail sentence and grant of bail moved by the sole appellant, is taken up and considered.

Learned counsel for the appellant has submitted that the trial Court has wrongly convicted the appellant without appreciating the evidence available on record. There is no evidence against the appellant. No witness has stated the involvement of the present appellant in the case. The principal eye-witness who lodged the FIR has admitted that he was knowing the appellant by face prior to the incident. The prosecution witnesses have not stated a word with regard to presence of the present appellant on the spot at the time of incident. Statement of Sunil (PW-1) under Section 161 of CrPC was recorded one day delayed. Relation of the appellant and Ramswaroop (PW-2) is very unfriendly. No recovery was made from the custody of the appellant. No memorandum or seizure witness has supported the prosecution case with regard to presence of the appellant at the place of incident. In para 17 and 18 of the impugned judgment itself, the trial Court has supported the version of the appellant. It is further submitted that the appellant is in jail since the date of impugned judgment. During trial, he was on anticipatory bail and he never misused the liberty granted to him. The final hearing of this case is not possible in near future due to COVID-19 pandemic. Hence, prayed for suspension of jail sentence of the appellant and grant of bail.

Learned State counsel has opposed the application and has submitted that there is sufficient evidence against the present appellant. The appellant has been convicted by the trial Court as there was common intention and as per Section 34 of the IPC, each person who has committed any offence in furtherance to common intention, is equally liable. As per para 19, 70, 71, 72 and 75 of the judgment, there is specific evidence against the present appellant and number of witnesses are not material. Hence, prayed to reject the application.

Heard learned counsel for the rival parties and perused the available record.

The trial Court has convicted the appellant under Section 302/34 of the IPC.Section 34 of the IPC reads as under:-

"34. Acts done by several persons in furtherance of common intention. - When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."

Looking to the arguments advanced by both the parties, evidence available on record as well as gravity of offence, at this stage, this Court does not find it appropriate to suspend the jail sentence of the appellant.

Accordingly, I.A. No. 4386/2020 is hereby rejected.