Pratap @ Gunga vs The State Of Madhya Pradesh Thr
2022 Latest Caselaw 5469 MP

                                     1
              IN THE HIGH COURT OF MADHYA PRADESH
                           AT GWALIOR
                               CRA No. 1335 of 2016
            (PRATAP @ GUNGA Vs THE STATE OF MADHYA PRADESH THR AND OTHERS)

Dated : 13-04-2022
      Heard through Video Conferencing.

      Shri Susheel Goswami, learned counsel for the appellant.
      Shri Vijay Sundaram, learned Panel Lawyer for the respondent-State.

Heard on I.A. No.10973/2021, which is first application under Section 389 (1) of Cr.P.C. filed on behalf of the appellant-Pratap @ Gunga seeking suspension of sentence and grant of bail.

Appellant stands convicted under Section 302 of IPC and sentenced to undergone Life Imprisonment with fine of Rs.1000/- and under Section 3(2)(5) of SC/ST Act and sentenced to undergo Life Imprisonment with fine of Rs.1,000/- with default stipulation vide judgement dated 18/11/2016 passed by Special Judge, District Shivpuri (M.P.) in Special Sessions Trial No.81/2013.

As per prosecution story, found proved in the trial, while one Avtar was sleeping at the terrace of his house along with his relatives, deceased Harvilas armed with a gun came on the terrace and woke up Avtar at about 2 O'clock in the night insisting that instead of driving the tractor and trolley of Pappu Dhakad, he

should do the duty of driving tractor trolley of Gopal Yadav. The Avtar has expressed his helplessness. Deceased Harvilas tried to prevail upon the Avtar to toe his line and accept what he said. While the aforesaid interaction was going on, the accused alleged to have come on spot and asked the deceased Harvilas not to insist the Avtar instead he will talk to Avtar. The deceased Harvilas did not respond to him and continued intended altercation with Avtar. At this point of time, the appellant allegedly got infuriated and took up the gun of the deceased and thereafter, he fired gun-shot aiming him and the bullet hit him beneath the earlobe. The said injury so caused resulted into death of deceased Harvilas. Accordingly, case has been registered and upon submission of final report, case was committed to Sessions Court for trial.

Learned counsel for the appellant submits that appellant is undergoing jail sentence since 26/06/2013. Appellant was alarmed due to unwarranted insistence of

deceased Harvilas despite resistance of the appellant in the context of altercation entered with Avtar. The appellant may be got infuriated and fired the gunshot. Almost 8 years and 11 months period has passed by. He has no criminal antecedents. On merits, it is submitted that his presence on spot was accidental.

Neither there is premeditation of mind nor any conspiracy has hatched. Under such circumstances, it is not the case of murder. At the most, it is a case falling under Exception (4) to Section of 300 IPC and punishable under the provisions of Section 304 (Part-II) for which the maximum sentence is 10 years. Appeal is of the year 2016 and there is no likelihood of the early hearing of the appeal. With the aforesaid submissions, learned counsel for appellant prays for suspension of sentence and grant of bail.

Per contra, Shri Vijay Sundaram, learned Panel Lawyer for the respondent- State opposes the application supporting the impugned judgment with submission that it is a case of point blank gun-shot injury caused to the deceased by the appellant. Hence, no exception can be taken in the matter of suspension of jail sentence and grant of bail to the appellant. However, he does not dispute that appellant, in the obtaining facts and circumstances, has already undergone 8 years' and 11 months' of custody and that he has no other criminal antecedents.

Upon hearing learned counsel for the parties, though this Court refrains from commenting on merits of contentions advanced, but in the obtaining facts and circumstances and particularly, appellant has already undergone 8 years 11 months of jail incarceration with no criminal history, hence, I.A. No.10973/2021 deserves to be and is hereby allowed.

Accordingly, it is directed that the jail sentence of the appellant-Pratap @ Gunga shall remain suspended and he be released on bail on his furnishing a personal bond in the sum of Rs.2,00,000/- (Rupees two lac only) with one solvent surety in the like amount to the satisfaction of the trial Court. The appellant is directed to appear before the Registry of this Court on 23/06/2022 and on other subsequent dates as may be fixed in this behalf with following further conditions:-

(i) the concerned jail authorities are directed that before releasing the appellant, the medical examination of the appellant be conducted through the jail doctor and if it is prima facie found that he is having any symptoms of COVID-19, then the consequential follow up

action or any further test required be undertaken immediately. If not, the appellant shall be released on bail in terms of the conditions imposed in this order ;

(ii) violation of conditions, State is free to apply for cancellation of bail.

Accordingly, the IA stands allowed and disposed of. Certified copy as per rules.

            (ROHIT ARYA)                                                           (MILIND RAMESH PHADKE)
               JUDGE                                                                        JUDGE

   (Dubey)

        Digitally signed by SUNEEL DUBEY



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        Date: 2022.04.13 16:21:57 -07'00'