Chhote Lal Warkade vs The State Of Madhya Pradesh

These first applications under Section 389(1) of the Code of Criminal Procedure have been preferred by appellant No.1 Ghanshyam Dwivedi in Criminal Appeal No.10167/2024 and appellant No.2 Chhote Lal Warkade in Criminal Appeal No.9898/2024 seeking suspension of the substantive jail sentence and grant of bail during the pendency of their respective criminal appeals. Both the appellants have been convicted by the common judgment dated 20.08.2024 passed by the learned 1st ASJ, Dindori in Sessions Trial No.27/2019 for offences punishable under Sections 304 Part-I, 330 and 342 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for ten years for the offence under Section 304 Part-I IPC along with the other sentences and fines, all directed to run concurrently.

The prosecution case, in brief, is that during investigation of Crime No.138/2013 registered for the murder of one Ramsujan Dheemar, whose headless body had been recovered in Village Sidholi, the police suspected Devlal Dheemar of having knowledge regarding the offence. Accordingly, on 30.12.2016, the present appellants, who were serving as police personnel, along with the co-accused, brought Devlal from his house to the police station for interrogation. It is alleged that while in illegal police custody, Devlal was subjected to severe physical assault and third-degree methods to extract information regarding the murder case. During the intervening night of 30/31.12.2016, he sustained multiple injuries all over his body and his condition became critical. He was thereafter taken for medical treatment, where he succumbed to the injuries. Following the merg enquiry and investigation, the prosecution collected oral and documentary evidence, including the statements of eyewitnesses and medical evidence, and filed a charge-sheet against the accused persons. The trial court has acquitted the appellants of the charge under Section 302 IPC but convicted the present appellants under Sections 304 Part-I, 330 and 342 of the IPC.

Learned counsel appearing for the appellants submits that the entire prosecution case rests upon circumstantial evidence and there is neither any direct eyewitness to the alleged custodial assault nor any reliable circumstance constituting a complete chain pointing unerringly towards the guilt of the appellants. It is further submitted that the prosecution has failed to establish the foundational facts necessary to connect either of the appellants with the alleged offence and that the learned trial Court has proceeded on presumptions while erroneously shifting the burden of proof upon the accused persons. Learned counsel also submits that there are material contradictions and omissions in the prosecution evidence which raise substantial and arguable questions requiring detailed consideration at the final hearing of the appeals. It is further argued that both the appellants have remained in custody after conviction, the hearing of the appeals is not likely to take place in the near future and, therefore, the substantive sentence deserves to be suspended during the pendency of the appeals.

Learned counsel for the appellant Chhote Lal Warkade has placed reliance upon the decisions of the Hon'ble Supreme Court in G.C. Manjunath and Others v. Seetaram (2025) 5 SCC 390, Ravi v. State of Punjab (2025) 3 SCC 584, Sham Kant v. State of Maharashtra 1992 Supp (2) SCC 521, in support of the contention that the evidence on record does not justify continued incarceration during the pendency of the appeals and that the appellants have raised arguable grounds warranting suspension of sentence.

Learned counsel for the appellant Ghanshyam Dwivedi also relied upon N. Ramamurthy v. State by CBI (2019) 14 SCC 198, Ajay Kumar Gupta v. State of Madhya Pradesh SLP (Crl.) No.2197/2026 order dated 10.02.2026 and Sukhchain v. State of Madhya Pradesh SLP (Crl.) Diary No.69384/2025 order dated 05.01.2026, in support of the prayer for suspension of sentence. It is submitted that the aforesaid decisions emphasise the need for a liberal approach in cases involving fixed-term sentences, consideration of the record and surrounding circumstances, the requirement that the prosecution must first establish its case before any burden can be placed upon the accused, and the need to avoid continued incarceration where the appeal is not likely to be heard in the near future.

6 . Per contra, learned Panel Lawyer appearing for the State has contended that the deceased died as a consequence of custodial violence and the prosecution has successfully established the involvement of the appellants through reliable evidence. It is further submitted that the offences are grave in nature, involving custodial assault resulting in death, and considering the seriousness of the allegations, the sentence awarded and the findings recorded by the trial Court, no case for suspension of sentence is made out. It is, therefore, prayed that both the applications be dismissed.

Heard the learned counsel for the parties and have perused the record.

A prima facie examination of the evidence indicates that prosecution witnesses PW-1 Ram Ganesh, PW-2 Dilip Singh, PW-3 Ram Lal, PW-4 Pramod, PW-5 Vijay and PW-7 Bhagwanti Bai have consistently supported the prosecution case and have clearly established that both the appellants had taken the deceased from his house and that the deceased remained in their custody. The testimony of PW-2 Dilip Singh, PW-3 Ram Lal and PW-7 Bhagwanti Bai, as noticed by the learned Trial Court, prima facie supports the prosecution version regarding the involvement of the appellants in the custodial assault. The evidence of PW-4 Pramod also lends corroboration to the prosecution case by specifically attributing acts of assault to appellant Chhote Lal Warkade.

Apart from the ocular evidence, the documentary evidence also prima facie supports the prosecution case. The colour photographs Ex.P-12 to Ex.P-125 and the CD Ex.P-125 depict that ample amount of injuries were found on the body of the deceased. At this stage, these exhibits constitute significant prima facie material corroborating the allegation that the deceased sustained numerous injuries while in custody. Thus, the prosecution evidence both oral and documentary cannot be said to be so weak or infirm as to justify suspension of the substantive sentence pending appeal.

The judgments relied by the counsel of appellants, do not lay down that suspension of sentence is automatic in every case involving a fixed-term sentence. The prayer has to be considered having regard to the facts and circumstances of the particular case. In the present case, there is prima facie material connecting the appellants with the deceased being taken into custody and the subsequent custodial assault. Moreover, under Section 106 of the Indian Evidence Act, 1872, corresponding to Section 109 of the Bharatiya Sakshya Adhiniyam, 2023, the burden of proving a fact which is especially within the knowledge of a person lies upon him. In the present case, therefore, the burden was upon the appellants to explain and establish the circumstances, in which the deceased sustained injuries while in their custody. The nature of the offence and the material available on record, therefore, do not justify suspension of sentence.

The offence alleged against the appellants pertains to custodial violence culminating in the death of a person, which is undoubtedly grave in nature. Having regard to the seriousness of the allegations, the nature of evidence available on record and the findings recorded by the learned Trial Court, this Court is of the considered opinion that sufficient prima facie material exists against both the appellants. The period of incarceration undergone by the appellants, by itself, is not such as to justify suspension of the substantive sentence. At this interlocutory stage, this Court finds no infirmity warranting interference with the well-reasoned judgment of conviction for the limited purpose of suspension of sentence.

Consequently, the applications filed by appellants under Section 389(1) of the CrPC are accordingly dismissed.

List for final hearing in due course.

C.C as per rules.