Gurucharan vs The State Of Madhya Pradesh
2022 Latest Caselaw 1971 MP

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            THE HIGH COURT OF MADHYA PRADESH
                     BENCH AT INDORE
  (D.B.: HON'BLE Mr. JUSTICE VIVEK RUSIA AND HON'BLE Mr.
           JUSTICE RAJENDRA KUMAR (VERMA) JJ.)
                     Criminal Appeal No.7123/2018
                 (Gurucharan and others V/s State of M.P.)
Indore, Date: 14.02.2022:

         Shri Jagdish Baheti, learned counsel for the appellant No.1.
         Shri Santosh Khoware, learned counsel for the appellant no.2.
         Shri   Sudhanshu     Vyas     learned     panel     lawyer   for    the
respondent/State.

Shri Avinash Sirpurkar, learned senior counsel with Shri Yogesh Gupta, learned counsel for the objector.

Heard on I.A. No.29537/2021 repeat 5th application for suspension of sentence filed under section 389(1) of the Cr.P.C. on behalf of appellant no.1-Gurucharan and I.A. No24322/2021 which is first application for suspension of sentence filed under section 389(1) of the Cr.P.C. on behalf of appellant no.2-Rajesh.

The appellants have been convicted vide judgment dated 20.08.2018 in Session Trial No.962/2012 passed by the VII Additional Sessions Judge, Indore as below:-

Conviction                     Sentence
Appellants      Section        Imprisonment Fine           Imprisonment in
                                                           Lieu of fine
Gurucharan      302 r/w 149 of Life         Rs.1,000/- 1-month R.I.
                the IPC    and Imprisonment
                Section 148 of
                the IPC
Rajesh          302 r/w 149 of Life         Rs.1,000/- 1-month R.I.
                the IPC    and Imprisonment
                Section 148 of
                the IPC

The first application for suspension of sentence of the appellant no.1-Gurucharan was dismissed on 09.04.2019 thereafter, the appellant approached the Apex Court by way of SLP No.(Crl.) 5602/2019. Before the Apex Court the counsel has relied on an order

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dated 25.01.2019 by which the High Court had suspended the sentence of two co-accused persons therefore, the Apex Court has disposed of the SLP by giving the liberty to him to approach the High Court for seeking of suspension of sentence. Thereafter, appellant-Gurucharan filed a second application for suspension of sentence on (IA No.6718/2019) on the ground of parity but vide order dated 01.11.2019 this court has dismissed as did not find parity with Smt. Rajrani and Smt. Asha Bai. Thereafter, appellant No. 1 filed an application for temporary bail on the medical ground which was rejected on 22.01.2021. Vide order dated 04.06.2021 the fourth application for temporary suspension of the sentence was allowed on account of the death of the wife for a period of three days thereafter the appellant has surrendered and now filed this fifth application for suspension of the sentence before this Court on merit. The appellant No.1 along with the other co-accused have been convicted under section 302 r/w 149 of the IPC and section 148 of the IPC and sentenced to undergo life imprisonment with a fine of Rs.1,000/- with default stipulation.

According to the prosecution case, on 31.03.2012, the car of Dharmendra, Sunny, Shashi and Omprakash collided with a motorcycle parked opposite Patel Madhushala belonging to appellants, due to which the accused persons Gurucharan and Rajesh came out and hurled abuses them, Subsequently, Smt. Rajrani and Smt. Asha Bai also joined them. When uttering obscene words by the accused persons resisted by Sunny, the accused persons Gurucharan and Rajesh called the main accused: [email protected] Ashok to bring the gun from the house. He brought a Gun and fired a gun shot from the window of the car to Sunny, who later on died in the hospital.

Shri Baheti, learned counsel for appellant no.1 submits that so far the allegations against appellant No.1-Gurucharan is concerned

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same is that he only directed [email protected] Ashok to bring a gun from the house and thereafter [email protected] Ashok fired a gunshot on Sunny and due to which he died. Apart from this, there is no overact on his part. It is further submitted that the deceased was a son of a local MLA therefore, under pressure police has implicated entire family members in this case including the female members. The dispute arose due to motor accident in front of the shop (Madhushala) of this appellant. Hence offences under sections 148 and 149 of the IPC are not made out. It is a case of sudden provocation that occurred in a heat of passion and no case for common intention is made out. Hence, only [email protected] Ashok alone can be held liable for the offence under 304 (part-II) of the IPC ,because it is a case of death by single gunshot injury. The appellant is in jail since the last seven years as the incident took place in the year 2012. He is facing the agony of trial since the last 10 years. His wife had expired and he is aged about more than 70 years old and not keeping good health. Earlier applications filed for suspension of the sentence were dismissed as no ground of parity with co-accused persons was found. Shri Baheti has placed reliance on a recent judgment passed in Criminal Appeal no.1584/2021 (SLP(CRL.) No.11816 of 2019) Jasdeep [email protected] Jassu V/s State of Punjab in which in similar facts and circumstances the co-accused have not been convicted with the aid of section 34 of the IPC.

Learned counsel for appellant no.2 submits that so far the allegations against appellant-Rajesh is concerned that he directed [email protected] Ashok to bring a gun from the house and thereafter Ashok fired a gunshot on Sunny and due to which he died. Apart from this, there is no overact on his part. The appellant is in jail since the last seven years and the incident took place in the year 2012. He is facing the agony of trial since the last 10 years learned counsel has adopted

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the rest of the grounds raised by Shri Baheti.

Shri Vyas, learned Panel Lawyer for the respondent/State as well as Shri Sirpurkar learned senior counsel appearing for the objector oppose the prayer for suspension of sentence of both the appellants by submitting that there is no change in circumstances in this case after the rejection of first application for suspension. The appellant approach the Apex Court and after remand again the second application for suspension has been dismissed. However, they submitted that the only alleged act of the appellants is that they are directed [email protected] Ashok to bring the gun from the house, and thereafter [email protected] Ashok shot the deceased Sunny.

Looking to the age of appellant no.1-Gurucharan, allegations against him, role attributable by him and period of custody and there is no likelihood of coming of this case for final hearing in near future, without commenting on the merits of the case the application for suspension of sentence i.e. I.A. No.29537/2021 is allowed. Execution of jail sentence of the appellant is hereby suspended and it is ordered that the appellant No.1- Gurucharan be released on bail on his furnishing a personal bond for a sum of Rs.50,000/- (Rupees Fifty Thousand Only) with one solvent surety in the like amount to the satisfaction of the learned trial Court for his appearance before the Court, the execution of custodial part of the sentence shall remain suspended, till the final disposal of this appeal.

Considering the facts and circumstances of the case, allegations against appellant no.2-Rajesh, role attributable to him and period of custody and there is no likelihood of final hearing of this criminal appeal in near future, without commenting on the merits of the case the application for suspension of sentence I.A. No24322/2021 is allowed. Execution of jail sentence of the appellant is hereby suspended and it is ordered that the appellant No.2-Rajesh be

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released on bail on his furnishing a personal bond for a sum of Rs.50,000/- (Rupees Fifty Thousand Only) with one solvent surety in the like amount to the satisfaction of the learned trial Court for his appearance before the Court, the execution of custodial part of the sentence shall remain suspended, till the final disposal of this appeal.

The appellants shall mark their presence before the registry of this Court on 26/09/2022 and on all such subsequent dates, which are fixed in this regard by the Registry.

I.A. No.29537/2021and I.A. No24322/2021 stands disposed of.

List the appeal for final hearing in due course. Certified copy as per rules.

     (VIVEK RUSIA )                                       (RAJENDRA KUMAR (VERMA))
        JUDGE                                                       JUDGE
  Ajit




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KAMALASA st=Madhya Pradesh, 2.5.4.20=156c9cedca1b74d671db9f220a5e3ed6cba 241effad892107d95ef0a1afc55b4, pseudonym=CFDFD9C36711CA738F527A5D61A1EE 901C09EF29,

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