Rafeeq Kha vs State Of Madhya Pradesh

Heard on I.A.No.6459/2020, which is repeat (third) application under Section 389 of Cr.P.C. for suspension of sentence and grant of bail to the appellant-Rafique Khan. Earlier application filed by the appellant being I.A.No.8603/2018 was dismissed as withdrawn vide order dated 25.9.2018 and I.A.No.5249/2019 was dismissed as withdrawn with liberty to the applicant to file it afresh only after serving half of his jail sentence.

The appellant stands convicted by the judgment dated 11.5.2018, awarded by the Court of II Addl. Session Judge, Nasrullaganj, Sehore, District Sehore (MP), in S.T. No.101/2015, for offence punishable under Ssection 304 Part-II of the IPC and sentenced him to undergo RI for 10 years with fine of Rs.5,000/- & Section324 of the IPC and sentenced him to undergo RI for 2 years with fine of Rs.500/-, with default stipulation.

A s per prosecution case, on 30.3.2015, at about 1:00 PM, when complainant went to fetch water, then mother of accused Rafique told him to return the ball of his son. Thereafter, accused/appellant being annoyed with the same assaulted Shakoor with a stick on his head. Complainant tried to intervene into the matter, but he was also assaulted by present accused/appellant and co-accused Salman by means of stick, due to which he sustained injuries. They threatened him to dire consequences also. During treatment, Shakoor succumed to the injuries. Thereafter, case has been registered against the

Learned counsel for the appellant/accused submits that accused/appellant is in jail since 2.4.2015 till now, so he has served almost half of his jail sentence. Appellant is convicted for offence under Section 304-II of IPC, so 5 years jail sentence is proper. This appeal is of year 2019 and trial will take time to conclude the same. There are material contradictions and omissions in the statement of the witnesses. There is fair chance to succeed in the appeal. There is no likelihood of his absconding and tampering with the evidence. Under the circumstances, if the execution of jail sentence of the appellant is not suspended, his right to file appeal will be futile. Hence, prayer is made for suspension of jail sentence and grant of bail of present accused/ appellant.

Learned Panel Lawyer has opposed the application and prayed for its rejection.

Having considered the arguments advanced by learned counsel for the parties, on perusal of the record, accused/appellant is in jail since 2.4.2015 and till now, so he has served almost half of his jail sentence, this appeal is of year 2018, final hearing of this appeal will take time, but without commenting anything on the merit of the case, the said I.A. is allowed. It is ordered that subject to payment of fine amount, if not already deposited, the execution of jail sentence of the appellant-Rafique Khan shall remain suspended during the pendency of this appeal and he be released on bail on his furnishing a personal bond for a sum of Rs.50,000/-(Rupees Fifty Thousand Only) with one solvent surety in the amount of Rs. 50,000/- to the satisfaction of the trial Court for his appearance before the trial court on 20.10.2020 and thereafter on all other such subsequent dates, as may be fixed by the trial court in this regard.

In case, the appellant is found absent on any date fixed by the trial court then the said court shall be free to issue and execute warrant of arrest without referring the matter to this Court, provided the Registry of this Court is kept informed.

I n view of the outbreak of 'Corona Virus disease (COVID-19)' the applicant shall also comply with the rules and norms of social distancing.

Further, in view of the order passed by the Hon'ble Supreme Court in suo moto W.P.No.1/2020, it would  be appropriate to  issue the following direction to the jail authority :-

The Jail Authority shall ensure the medical examination of the applicant by the jail doctor before his release.

2 . The appellant shall not be released if he is suffering from 'Corona Virus disease'. For this purpose appropriate tests will be carried out.

3 . If it is found that the appellant is suffering from 'Corona Virus disease', necessary steps will be taken by the concerned authority by placing him in appropriate quarantine facility.

List this matter for final hearing in due course, as per listing policy.

C.C. as per rules.