Nasir Ali vs State Of Madhya Pradesh

Heard on I.A. No.8071/2020, which is the third application U/S.389(1) of Cr.P.C. for suspension of the custodial sentence passed against appellant Nasir Ali.

The first application (I.A.No.19619/2017) of the appellant has been rejected on merit by the co-ordinate Division Bench of this Court vide order dated 14/8/2018 and the second application (I.A.No.18616/2018) has been dismissed for want of prosecution by this Court vide order dated 28/6/2019.

This appeal has been preferred against the judgment dated 25/7/2017 passed by XIIIth Additional Session Judge, Bhopal (M.P.) in S.T. No.28/2012 whereby learned Judge found appellant guilty and convicted and sentenced as under:-

Section Act

Act

Imprisonment

Fine, if deposited

Imprisonment in Lieu of Fine

394 r/w section120-B and  Section 109

I.P.C.

Life Imprisonment

5000

Six months R.I.

Learned counsel for the appellant submitted that the trial Court without appreciating the evidence properly wrongly found the appellant guilty for the aforesaid offence. There is no evidence on record to show that the appellant committed the loot. Complainant/injured Gopilal (PW-1) also in his Court statement did not depose that the appellant took part in the incident. The only allegation against the appellant is that the appellant and co-accused Mohd.Yakub, Mohd. Amir, Mohd. Uvesh @ Imran and Shahzad hatched the conspiracy to commit loot with Gopilal (PW-1) and in furtherance of that conspiracy, co-accused persons committed loot and appellant obtained Rs.3,50,000/- out of the looted amount. But there is no evidence on record to show that the appellant was one of the conspirators of the crime. He made a plan to commit loot. Police only on the basis of a memorandum of the appellant and other co-accused persons and alleged seizure of Rs.3,50,000/-from the possession of the appellant, implicated the appellant in the crime. While the confessional statement of the appellant and other co-accused persons is not admissible in the evidence. The recovery of Rs.3,50,000/-from the possession of the appellant is also doubtful. In this regard both the independent witnesses of seizure memo (Ex.P/13), Rajendra Singh Rawat (PW-2) and Parasram Ahirwar (PW-3) did not support the prosecution story. Even from the prosecution evidence it is not proved that the amount allegedly seized by the police from the possession of the appellant was the looted property. However Nirmala Yadav (PW-8) identified the seized currency note as looted property, on the basis of her signature present on the bundles of seized currency notes, but in the F.I.R. lodged by Gopilal (PW/1) soon after the incident, it is not mentioned that the bundles of looted currency notes, bears the signature of Nirmala Yadav (PW-8), so it is also not proved that the currency notes seized by the police from the possession of the appellant were the looted property. He further submitted that during the trial the appellant remained in custody from 08/07/2011 to 08/03/2013 and now the appellant is in custody since the date of judgment i.e. 25/07/2017. Hence, prayed for suspension of the jail sentence and release of the appellant on bail since the hearing of this appeal will take time.

On the other hand, learned counsel for the respondent/State opposed the prayer and submitted that the earlier application of the appellant was rejected on merit by the Division Bench of this Court vide order dated 14/8/2018, thereafter there has been no change in circumstance and from the prosecution evidence the guilt of the appellant was proved beyond reasonable doubt, therefore, learned trial Court has rightly convicted and sentenced the appellant.

Looking to the contention of the learned counsel for the appellant and the fact that the during the trial the appellant remained in custody from 08/07/2011 to 08/03/2013 and now the appellant is in custody since the date of judgment i.e. 25/07/2017 and according to listing policy the hearing of this appeal is likely to take long time, the application is allowed and it is directed that the execution of the jail sentence alone passed against the appellant shall remain suspended during pendency of this appeal and he be released on bail upon furnishing personal bond in the sum of Rs.50,000/-(Rs. Fifty Thousand only) with one surety in the like amount to the satisfaction of the trial Court for his appearance before the Registry of this Court on 15/12/2020 and on such further dates as may be fixed in this behalf by the Registry during the pendency of this appeal.

List the matter for final hearing in due course.

C.C. on payment of usual charges.