Bhaiyu And Others vs State Of Madhya Pradesh

Heard on I.A. No. 1243/2020, which is second application for suspension of sentence and grant of bail filed on behalf of appellant No. 1 Bhaiyyu and appellant No. 2 Babla. Earlier application of the appellants was dismissed by the Court as not pressed on 10.7.2019 after arguing at some length by the appellants' counsel.

The appellants have been convicted by the trial Court vide judgment dated 11.5.2019 passed in S.T. No. 43/2016 for the offences punishable under Sections 302/149 (on two counts), 323/149 (on three counts), 147/148 of the Indian Penal Code and sentenced to life imprisonment (on two counts) with fine of Rs. 10,000/- each (on each count) , R.I. for Six months (on three counts) and R.I. for one year with fine of Rs. 1000/- each, with default stipulations.

As per prosecution's case, on 26.9.2015 at about 8:15 PM in the night, the appellants and other co-accused persons by constituting an unlawful assembly and went in front of the house of Waheed and started abusing him, when Waheed and Rafiq came out of the house, they all assaulted Waheed, Rafiq, Mubarik, Sharif and Shakeel by deadly weapons like sword, gupti and danda, as a result of which Waheed and Rafiq sustained injuries and ultimately succumbed to the same and Mubarik, Sharif and Shakeel sustained injuries.

Learned counsel for the appellants submits that the only eye witness of the case namely Kallu was not cross-examined due to his death and all the other witnesses have turned hostile, even then learned trial Court has wrongly convicted the appellants. It is further submitted that jail sentence of co-accused Shabbir has already been suspended and he has been released on bail by this Court vide order dated 7.8.2020 passed in Criminal Appeal No. 4979/2019. In view of the above, it is prayed that the jail sentence of the appellants be suspended and they be released on bail.

Learned Panel Lawyer appearing on behalf of the State has strongly opposed the prayer for suspension of sentence.

We have heard learned counsel for the parties at length and gone through the evidence available on record along with the judgment of the trial Court. We have also perused the order dated 7.8.2020 passed in Criminal Appeal No. 4979/2019 by which jail sentence of co-accused Shabbir has been suspended. It appears that jail sentence of co-accused Shabbir has been suspended on the ground that the eye witness did not state anything against him. The case of the present appellants is totally different. It also appears that learned counsel for the appellants have wrongly contended that eye witness Kallu was not cross examined. In fact, learned counsel who was appearing for Irshad completed cross examination of Kallu on 13.6.2016 and learned counsel for the present appellants partly cross-examined Kallu. During the incident Mubarik, Sharif and Shakeel also sustained injuries, therefore, the appellants have been convicted under Sections 323/149, 147/148 of the IPC. Some hostile witnesses have partially corroborated the case of the prosecution and stated against the present appellants. Appellant Bhaiyyu is in jail since 19.10.2015, appellant Babla is in jail since 2.10.2015 and appellant Irshad is in jail since 19.10.2015.

Considering the overall facts and circumstances of the case and custody period of the appellants, we are not inclined to suspend the jail sentence of the appellants and to release them of bail.

Accordingly, I.A. No. 1243/2020 is hereby dismissed.