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Synopsis

The Madhya Pradesh High Court (Indore Bench), has refused to suspend the sentence of Sushil Mishra, the convict charged with planting explosives in a hostel room at Ujjain in 2016 impersonating himself to be a Muslim using a fake Aadhaar Card.

Justice Vijay Kumar Shukla, presiding over the case, delivered the decision noting that “the prosecution case and motive of the appellant and the co-accused person for creating disturbance during the occasion of Sinhast giving it colour of involvement of Muslim organization” was clearly established.

This significant ruling emerged from Mishra's second application for the suspension of his jail sentence under Section 389(1) of the Criminal Procedure Code (Cr.P.C.). The accused had been convicted under sections 419, 467, 471 of the IPC, and Section 5 of the Explosive Substances Act and sentenced to rigorous imprisonment for 1, 5, 5, and 5 years respectively, along with fines.

The case's origins trace back to March 18, 2016, when an individual masquerading as 'Sajish Khan' checked into Room no. 212 at the Atishay Shivalekh Hostel in Ujjain. Following Khan's disappearance, hostel authorities stumbled upon a cache of explosives and incriminating materials in his vacated room. Subsequent investigations led to the apprehension of Mishra and his co-accused, Ashish Singh, who helped in the creation of fake identity card.

During the proceedings, Mishra, represented by Senior Counsel R.S.Chhabra, vehemently contended that the entirety of the conviction rested solely upon the identification testimony provided by two witnesses. They emphasised that this identification occurred a month after the incident and was tainted by the presentation of the accused persons' photographs to the witnesses beforehand. As a consequence, the identification parade held little to no evidentiary value.

Mishra also raised concerns regarding the absence of CCTV footage and questioned the prosecution's handling of evidence. He further questioned “why efforts were not made to know the whereabouts of Sajish Khan who is alleged to be impersonated” by him.

On the other hand, the prosecution argued that Mishra and Singh conspired to incite communal discord during the Sinhasta Mela by implicating a fictitious Muslim identity and leaving Urdu papers at the scene. They highlighted the existence of call records between Mishra and his co-accused, Ashish, underscoring a calculated conspiracy to orchestrate the incident. Ashish, employed at the Lokayukt office, allegedly colluded with Mishra to plant the explosives, assuming the false identity of 'Sajish Khan'. This deceitful act, according to the prosecution aimed to “to show the involvement of a particular community for creating disturbance.”

The court found the prosecution's case compelling, citing witness testimonies and forensic reports confirming the presence of explosives.

The court rejected the argument that the identification parade was flawed. It held that “this court prima facie does not find any infirmity in the identification parade conducted by the prosecution.”

the court highlighted the prosecution's success in establishing Mishra's culpability and acknowledged the existence of call records between Mishra and his co-accused, Ashish, which further fortified the prosecution's argument, elucidating the motive behind the conspiracy.

Addressing Mishra's contention regarding the prosecution's failure to elucidate the circumstances leading to the incident's discovery, the court refuted this claim, citing testimonies from witnesses corroborating the manager's prompt communication with the police upon suspicion. Additionally, the court underscored the revelation that the Aadhar card used by the accused was indeed fabricated, debunking any necessity to track down the purported individual, 'Sajish Khan.’

In light of these comprehensive assessments of the evidence and circumstances, the court concluded that Mishra's offence, marked by its intent to foment communal unrest during the Sinhasta festival, warranted no leniency. The deliberate fabrication of a Muslim identity and the dissemination of Urdu materials to implicate a community in the crime underscored the severity of Mishra's actions. Consequently, the court dismissed the application for the suspension of Mishra's jail sentence.

 

Cause Title: Sushil v The State of Madhya Pradesh [CRA No. 10852 of 2023]