CRA.11057/2019 (MAHENDRA @ PAPPU v/s.STATE OF M.P.) Indore dt.24.8.2020 Shri Surendra Singh, learned Senior Advocate with Shri Vivek Singh, learned counsel for the appellant.Mrs. A. Kher, Dy.Advocate General for Non-applicant/State.Per S.C. Sharma, J :-I.A.No.4863/2020, is an application for urgent hearing.After hearing the learned counsel for the parties, the same stands allowed.Heard on I.A.No.4862/2020, which is first application filed under Section 389 of Cr.P.C. for suspension of jail sentence of the appellant (Mahendra Gurjar), who has been convicted by the Sessions Judge Neemuch in S.T.No.100/13 vide judgment dated 12.12.2019 and sentenced as under :-S.No Conviction under Sentence the provisions of Imprisonment Fine Imprisonment IPC.in lieu of fine 1 302 of IPC Life Rs.300/ 1 year RI Imprisonment 2 120B of IPC Life Rs.100/ 1 year RI Imprisonment 3 193 of IPC 5 years RI Rs.100/ 6 months RI The prosecution story in short that one of the co-accused person namely Ghanshyam against whom arrest warrants had been issued in NDPS Acts cases, tried to escape prosecution in NDPS cases by showing himself to be dead.He hatched a conspiracy with other co-accused persons including the present appellant and in pursuance of the conspiracy, he killed a man and placed his voter ID Card, Photograph, Mobile and purse in the pocket of the dead person, so that it may be concluded that now Ghanshyam was dead and cases ... 2 ... CRA.No.11057/2019 which have been registered against him may be closed on this account.The accusation against the present appellant Mahendra Gurjar was that it was he who had kept the photograph of Ghanshyam and a voter card of Ghanshyam in the pocket of the deceased.As per prosecution story, Ghanshyam had provided to him the photograph and voter ID card and one photograph of Ghanshyam and the copy of the voter ID card was seized from the possession of Mahendra as per his memorandum.Considering this evidence, the learned trial judge found appellant Mahendra Gurjar to be involved in the conspiracy and found the charges proved against him under Section 193 of IPC, which is regarding giving of fabricating false evidence also found proved against him.Learned Senior counsel has submitted that Mahendra Gurjar has been falsely implicated and the aforesaid voter card and photograph of Ghanshyam Dhakad was implanted upon him by the investigating officer.There is no evidence on record that Mahendra knew Ghanshyam and the meeting of mind, which is pre requisite for hatching of conspiracy has not been proved.Learned Senior counsel submits that it is unfathomable to assume that appellant would retain incriminating evidence with him.He submits that the body of the deceased person as Ghanshyam was identified by co-accused Babulal and Banshilal and not by the appellant, on this ground suspension of jail sentence has been sought.Written reply has been submitted on behalf of the prosecution in which it has been submitted that the factum of memorandum and seizure from appellant shows his involvement as co-conspirator.Submissions were heard and documents were perused.The main accused Ghanshyam in his memorandum Exhibit P/12 has stated that he used to talk on mobile phones to present appellant and co-accused Banshi Gurjar.However, the police has not ... 3 ... CRA.No.11057/2019 obtained the call records of Ghanshyam, present appellant and Banshi Gurjar in order to prove communication between them.Ghanshyam has further stated that he had given more than Rs.13.00 lacs to Banshi Gurjar and the present appellant for making arrangements in order to proclaim him dead, but no efforts have been made by Investigating Officer to recover any amount from the present appellant.In his memorandum dated 26.9.2012, Ghanshyam has stated that he gave two photographs and two voter ID cards to the present appellant, but in his memorandum, he does not state that the present appellant has kept the photograph and voter ID card in the pocket of the deceased.He states that the photograph and ID card were placed in the pocket of the deceased as per instructions of the present appellant.There is substance in the submissions of the learned Senior counsel for the appellant that why the appellant would keep photograph and voter ID of Ghanshyam with himself which would have been extremely dangerous.A suggestion has been given to Basant Shrivastava (PW31) the Investigating Officer that he in fact, has implanted the aforesaid photographs and voter card on the person of the appellant.This suggestion has been denied.It can be seen that when the police arrived and searched the body of the deceased, it found photograph and voter card in the pocket of the deceased which were given to Mahesh Dhakad, the brother of Ghanshyam and later on vide Exhibit P/71, the same photograph and voter I.D. card were seized from Mahesh Dhakad.Hence, the suspension application deserves to be allowed.Accordingly, I.A.No.4862/2020 is allowed and it is directed that on depositing the fine amount and on furnishing a personal bond to the tune of Rs.50,000/- with one solvent surety in the like amount to the satisfaction of the trial court, the substantive jail sentence of the appellant shall remain suspended during the pendency of this appeal and he shall be released on bail, for his regular appearance before the Registry of this Court on 20.10.2020 and all other subsequent dates, as may be fixed in this behalf by the Office/Registry of this Court in this behalf.List the matter for final hearing in due course.

Sections cited: Section 193 in The Indian Penal Code