Madhya Pradesh High Court
Kailash Alias Shabbir vs The State Of Madhya Pradesh on 3 December, 2021
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1 CRA-1555-2021
The High Court Of Madhya Pradesh
CRA No. 1555 of 2021
(KAILASH ALIAS SHABBIR Vs THE STATE OF MADHYA PRADESH)
Jabalpur, Dated : 03-12-2021
Shri Vishal Daniel, Advocate for the appellant.
Shri Puneet Shroti, Panel Lawyer for the respondent-State.
Heard on I.A. No.15307/2021, which is an application filed on behalf of the appellant seeking suspension of sentence and grant of bail.
The objections have been filed in this case.
The appellant stood convicted in S.T.No.200141/2013 by Additional Sessions Judge, Seoni for the offences under Section 302 of IPC and sentenced to suffer life imprisonment with fine of Rs.5,000/-, failing which further RI for 6 months; Section 25(1-B)(A) of Arms Act and sentenced to suffer RI for 2 years with fine of Rs.2,000/- failing which further RI for 3 months and under Section 27 of the Arms Act and sentenced to suffer RI for 3 years with fine of Rs.2,000/- failing which further RI for 3 months.
The learned counsel for the appellant submits that the solitary reason to implicate and convict the appellant under Section 302 of IPC is that the weapon seized from him vide Ex.P/15 was found functional. He drew attention of this Court towards the fact that the jail sentence of co-accused Lokesh has been suspended and he has been granted bail by this Court vide order dated 07.07.2021 passed in Criminal Appeal No.1516/2021, who stood convicted under Section 120-B of IPC by the trial Court inasmuch the weapon (pistol) seized from him was not found functional. Albeit, the learned counsel for the appellant accentuates that he is not claiming parity with that of accused Lokesh, but he propounds that the bail has been granted to Lokesh on the ground that his weapon was not found functional at the time of incident and therefore the appellant is on the same footing as was Lokesh. Shri Daniel urged that on the basis of material available on record and the findings given by the trial Court, it is crystal clear like a noon day that the weapon seized from present appellant was also not functional and in that 2 CRA-1555-2021 event his conviction under Section 302 of IPC was improper and he should have also been convicted under Section 120-B of IPC and in that situation, the appellant is also entitled to get bail as has been granted to accused Lokesh. He further submits that the seizure memo by which the weapon was seized is Ex.P/15. The article seized is marked as "E" and the Investigating Officer Shivraj Singh (PW-21) in paragraph 57 of his statement has very categorically stated that the article "E" which is placed before the trial Court showing that it had been seized from the appellant is not the same weapon which got seized by the appellant vide Ex.P/15. He submits that the weapon which got seized from the present appellant had inscription "Made in England", but article "E" produced before the trial Court does not have such inscription "Made in England". Shri Daniel submits that under such circumstances, it cannot be presumed that the weapon which was seized from the present appellant was operational at the time of occurrence because that weapon was not before the Court and it is also not sure as to whether the weapon seized from the present appellant had been sent for FSL examination. Shri Danial submits that when it is itself under the clouds as to whether the same weapon which was seized from the appellant got examined by the forensic expert or not, the conviction of the appellant under Section 302 of IPC is not proper and therefore at the most he should have been convicted under Section 120-B of IPC. He further submits that the trial Court has not considered the material aspect and therefore prima facie it is established that offence under Section 302 of IPC is not made out against the appellant. On these premise, he prays for suspension of sentence and grant of bail.
Shri Shroti, learned Panel Lawyer appearing for the respondent-State opposes the submissions made on behalf of the appellant and submits that the weapon seized from present appellant as article "E" vide seizure memo (Ex.P/15) had been sent to FSL examination to ascertain that said weapon was used in the occurrence or not and as per the FSL report weapon was found operational and therefore on the basis of seized article and the report of 3 CRA-1555-2021 FSL thereof, the appellant has been rightly convicted under Section 302 of IPC. He submits that after FSL examination, the weapon was deposited in Malkhana from where weapon must have been replaced. He further submits that the statement of Investigating Officer in paragraph 57 cannot be used in favour of the appellant for seeking bail.
However, Shri Daniel submits that it is not sure as to when weapon has been replaced and it is nothing but an assumption that said weapon must have been replaced in Malkhana and it is not clear even from FSL report that the weapon which had been tested by the Forensic Expert was same weapon containing inscription "Made in England" and as such the benefit should be given to the appellant and he is entitled to be released on bail.
B e that as it may, on a prima facie appreciation of the facts and circumstances of the case, we are of the opinion that the appellant has established the case in his favour claiming himself at par with accused Lokesh. Therefore, without commenting any view on merits, I.A. No.15307/2021 is allowed and it is directed that on the appellant depositing the entire fine amount, if not already deposited, the remaining part of the jail sentence imposed upon him shall remain suspended and he shall be enlarged on bail on his furnishing a personal bond in the sum of Rs.50,000/- (Fifty Thousand Only) with one surety in the like amount to the satisfaction of the learned trial Court for his appearance before the Registry of this Court on 18.03.2022 and on such other subsequent dates as may be fixed by the office in that regard.
C.C. as per rules.
(SANJAY DWIVEDI) (VISHAL DHAGAT)
JUDGE JUDGE
Sudesh
SUDESH
Digitally signed by SUDESH KUMAR SHUKLA
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Date: 2021.12.06 15:37:28 +05'30'