Madhya Pradesh High Court
Surjeet Mehto vs The State Of Madhya Pradesh on 27 June, 2017
CRA-3850-2016
(SURJEET MEHTO Vs THE STATE OF MADHYA PRADESH)
27-06-2017
Shri Anil Khare, learned senior counsel with Shri Alok Vagrecha,
advocate for the appellant.
Shri Brahamdatt Singh, learned government advocate for the
respondent/State.
Shri Manish Datt, learned senior counsel with Shri Siddharth Datt, advocate for the objector/complainant.
Today, the case is listed for admission and consideration on I.A.No.3908/2017 filed under Section 389(1) of the Cr.P.C. for suspension of jail sentence.
Appearing counsel for the appellant heard on admission. Record of the trial Court perused.
The appeal is admitted for final hearing.
No fresh notice is necessary to the respondent as government advocate for respondent has already appeared.
Appearing counsel for the parties heard on I.A.No.3908/2017, first application filed for appellant Surjeet Mehto under Section 389(1) of the Cr.P.C. for suspension of his jail sentence. Appellant Surjeet Mehto has been convicted and sentenced vide judgment passed on 15.10.2016 by the Second Additional Sessions Judge, Jabalpur in Sessions Trial No.352/2013 under Section 302 of the IPC to undergo life imprisonment with a fine of Rs.5000/- and under Section 25(1-B)(a) of the Arms Act to undergo 3 years R.I. with a fine of Rs.500/- and under Section 27 of the Arms Act to undergo 7 years R.I. with a fine of Rs.500/- with default stipulations and it has also been directed that all the jail sentences of the appellant to rune concurrently.
Learned senior counsel for the appellant contended that the learned trial Court had itself observed in para no.28 of its judgment that three incidents occurred at three different places have been amalgamated in relating case and in first alleged incident, some prosecution witnesses were injured by appellant Surjeet and acquitted co-accused persons at Ramleela ground where a marriage party was being celebrated and thereafter in main incident occurred at Hilatganj in front of house of deceased, he was murdered and thereafter in third incident happened at Tangakhana, Nilesh was injured by acquitted accused Pawan by firing a firearm, whereas third incident of Tangakhana is not mentioned in the FIR (Ex.P.1) lodged by the son of the deceased, namely Lucky Tamiya (P.W.1) and in the site plan, the place is not indicated fromwhere reporter Lucky Tamiya (P.W.1) had seen the incident of murder of his father Lalit Tamiya and report Lucky Tamiya (P.W.1) and other prosecution eye witnesses had given omnibus depositions against all the tried nine accused persons whereas learned trial Court has convicted only appellant Surjeet and it has acquitted all the other eight tried co-accused persons. It was further contended that FIR was ante-timed and according to evidence given by Sunil Chouhan (P.W.7) in his cross-examination (para 11), deceased Lalit Tamiya was with him in the marriage ceremony happened at Ramleela maidan at 22:30 hours where he and other witness Nitin were injured and thereafter reporter Lucky Tamiya had taken him and other injured witness to police station Cantt where within one hour, their report was lodged and thereafter he, Lucky Tamiya and Nitin had gone with police for his and Nitin's medical examination to Victoria hospital where they remained till mid-night at 1:00 a.m. and thereafter it came to his knowledge that Lucky's father Lalit Tamiya had been murdered. Thus, it was vehemently argued that according to Sunil Chouhan (P.W.7)'s evidence, reporter Lucky Tamiya could not be an eye witness to the incident happened at Hilatganj, in which his father was murdered by alleged firing by a revolver by appellant Surjeet. Placing reliance on the cases of State of U.P. Vs. Harihar Bux Singh and another [(1975) 3 SCC 167], Phool Kumar Vs. Delhi Administration [(1975) 1 SCC 797], Brijpal Singh Vs. State of M.P. [(2003) 11 SCC 219], Puran Singh Singh Vs. State of Uttaranchal [(2008) 3 SCC 795], Noushad alias Noushad Pasha & others Vs. State of Karnataka [(2015) 2 SCC 513] and Chand Singh Vs. State of Punjab (2010 Cri.L.J.170), it has been vehemently contended that according to ballistic expert's report (Ex.P.48) of F.S.L., fired bullet recovered from the dead body of deceased Lalit Tamiya by the doctor was not found to be fired by the revolver allegedly seized from appellant Surjeet during investigation and the allegedly recovered one empty cartridge and one live cartridge from the appellant during investigation could not be fired from recovered revolver of appellant Surjeet. Thus, the ocular evidence given by Lucky Tamiya (P.W.1) and other prosecution eye witnesses relating to role of appellant Surjeet is contradicted by the medical evidence and F.S.L. report, thus it was contended that the trial Court had erred in convicting the appellant and the trial Court during trial also dismissed the application filed for the defence to call the ballistic expert as witness in the case, thus the appellant was substantially prejudiced during the trial also. Hence it is prayed that the appellant be given the benefit of suspension of his jail sentence.
On the other hand, learned government advocate supporting his written objection and objector's learned senior counsel have opposed the above mentioned prayer on grounds that the evidence of Lucky Tamiya (P.W.1) and other eye witnesses regarding appellant Surjeet's role could not be disbelieved only on the ground that their evidence was not believed in relation to eight acquitted co-accused persons. It was contended that according to P.W.1's report and evidence, incident of his father's murder happened near their house at about 22:00 hours and the reporter Lucky Tamiya (P.W.1) was present as shown in the site plan and appellant Surjeet was not arrested on spot or just after the incident. Appellant Surjeet was arrested on 27.1.2013 whereas the incident had occurred on 21.1.2013. Thus, placing reliance on the citations of Sidhartha Vashisht alias Manu Sharma Vs. State (NCT of Delhi) [(2008) 5 SCC 230], Himanshu Mohan Rai Vs. State of U.P. [(2017) 4 SCC 161] and Sidhartha Vashisht alias Manu Sharma Vs. State (NCT of Delhi) [(2010) 6 SCC 1], it has been vehemently contended that the evidence of Lucky Tamiya (P.W.1) and other eye witnesses was found truthful and stood corroborated by the fact that bullet was recovered from the body of deceased and it was further contended that ballistic report showed that only recovered firearm was not used by the appellant for killing the deceased and police remained unsuccessful in recovering the actual weapon used for killing and the accused had ample time to dispose of the weapon. In these circumstances, only due to ballistic expert's report, reliable ocular evidence of eye witness, who witnessed shooting, which was found truthful by the Court below could not be rejected. It has been also contended that according to evidence of Lucky Tamiya (P.W.1) and his FIR, his father, younger brother and he himself had returned from the marriage party occurred in Ramleela maidan to their home and at the time of incident at 10:00 p.m., his father was walking outside their house and Sunil Chouhan (P.W.7) had not deposed in his examination-in- chief that in the incident happened with him or thereafter reporter Lucky Tamiya was with him and he clearly deposed that when he ran away from Ramleela ground, then he was informed with the fact of murder of deceased by appellant Surjeet. Thus, facts deposed by him in cross-examination (para 11) could not nullify the evidence of Lucky Tamiya (P.W.1). Hence, dismissal of above mentioned prayer was sought.
In the case of Sidhartha Vashisht alias Manu Sharma Vs. State (NCT of Delhi) [(2008) 5 SCC 230], it has been observed by Hon'ble the Apex Court that under consideration of application under Section 389 of the Cr.P.C., the real point for consideration is whether reasons exist to suspend execution of sentence and grant of bail. In light of above mentioned citation of Himanshu Mohan Rai Vs. State of U.P. [(2017) 4 SCC 161], it is clear that ballistic report indicates only that during investigation actually used weapon of offence could not be recovered and on this basis, otherwise reliable ocular evidence of eye witnesses could not be discarded.
After considering the rival contentions made by the learned counsel for the parties and having gone through the evidence on record, but without expressing any opinion on merits of the case, we are not inclined to suspend the jail sentence of appellant Surjeet and grant bail to him. Hence, I.A.No.3908/2017 is dismissed.
Office is directed to list the appeal for final hearing in due course keeping in view that the appellant is undergoing the jail sentence. C.C. as per rules.
(S.K. GANGELE) (ASHOK KUMAR JOSHI)
JUDGE JUDGE
C