Madhya Pradesh High Court
Dharmendra vs The State Of Madhya Pradesh on 15 May, 2020
Author: Shailendra Shukla
Bench: Shailendra Shukla
THE HIGH COURT OF MADHYA PRADESH, INDORE BENCH CRA No.1397/2020 Indore, dated :15.05.2020 Shri Pankaj Ajmera, learned counsel for the appellants. Shri Amol Shrivastava, learned Public Prosecutor for the non-applicant - State.
Submissions were made on I.A. No.2251/2020 which has been filed under Section 389 of Cr.P.C. for suspension of jail sentence of the appellants who have been convicted under Sections 399/149 of IPC and sentenced for 5 years R.I. with fine of Rs.2000/- each with default stipulation and under Section 402/149 and sentenced for 1 year R.I. with fine of Rs.1000/- each with defalut stipulation.
The prosecution story was that on 23.11.2017, pursuant to receipt of an information that some miscreants are making preparation to commit decoity in a bus which would be travelling from Sendhwa to Indore, the police team alongwith the independent witnesses proceeded to the spot and came across a Xylo car near a culvert in which there are 8-10 occupants were sitting. On seeing the police team, they tried to get off the car, but were apprehended by the police. On search, it was found that the appellants were in possession of falia, stick, sabbal, sword, tamy and screw driver etc. they were also found to be in possession of 100gms red chilly powder and on interrogation, admitted that they were planning to rob a bus which would be coming at 1:00 AM in the night. A case was registered against them and after investigation, charge-sheet was filed. The appellants have been convicted and sentenced as stated above.
Learned counsel for the appellants submits that the appellants have already been in jail for a period of one year, that there is no evidence to show that the appellants had been planning to commit dacoity. He submits that the memorandum statements of the appellants are inadmissible. He has drawn attention of the court towards the report in which the prosecution witness (PW-2) has stated that the appellants were apprehended on the basis of suspicion. The learned counsel also submits that there is no other evidence to show that the appellants gathered for committing decoity. According to learned counsel, the appellants had gone to attend a wedding at Nandurwar (Maharashtra) and had parked their vehicle near a river in order to fresh up when they were apprehended by the police. Learned counsel had submits that ingredients of section 399 of IPC are not attracted in this matter. He also submits that the prosecution had to prove its case on its own strength and offence can not be found prove on the basis of inadequate defense evidence. He has also submitted that the witnesses who have been relied upon by the trial Court are also hear se witnesses. On all these grounds, suspension has been sought.
4. Learned Govt. Advocate has opposed the application for suspension of sentence. He submits that seizure of red chilly powder and weapons like falia, tamy, sword etc. itself shows that the appellants had made preparation for committing some serious offence. He submits that although the prosecution has to prove its case beyond reasonable doubt, but onus had shifted to appellants to show as to why they had stationed their vehicle in mid night at an isolated spot. He also submits that the appellants have criminal antecedents and ingredients of Section 399 of IPC are properly proved by the prosecution.
5. Submissions were heard and record was perused.
6. The appellants have admitted to have stationed their vehicle at the spot. They however, had not been able to show the purpose of stationing their vehicle. Clearly the onus had shifted in this matter. Once, weapons and red chilly powder was found to be in their possession, the appellants ought to have proved that they had gone to attend the wedding at Nandurwar (MH). However, the appellants have not been able to lead any evidence regarding this defense. Section 399 of IPC would be found proved if the prosecution is able to show that the accused have made any preparation for committing decoity. Learned counsel submits that weapons found in possession of appellants were such which can be found in any vehicle such as screw driver etc. However, the objects which have been seized from the Xylo vehicle are not commonly such items which are carried in a vehicle such as sword, falia and tamy. Presence of red chilly powder has also not been explained by the appellants. These pieces of evidence, prima facie, show the culpable mindset of the appellants. The appellants also have criminal antecedents which can be seen from the arrest memos. Hence, after duly considering the evidence available on record, I am of considered opinion that the appellants do not deserve to be granted benefit of suspension of sentence. Hence, the application I.A. No.2251/2020 stands rejected at this stage.
The appeal is admitted for final hearing.
List for final hearing in due course.
(Shailendra Shukla) Judge amit Digitally signed by Amit Kumar Date: 2020.05.15 16:50:45 +05'30'