Madhya Pradesh High Court
Gul Singh vs The State Of Madhya Pradesh on 30 March, 2022
Author: Vivek Rusia
-1-
IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
ON THE 30th of March, 2022
CRA No.1115/2021
ORDER
Shri R.B.Singh, learned counsel for the appellants.
Shri K.K.Tiwari, learned counsel for the respondent
State.
******
Heard on I.A. No.24794/2021 which is first application
under Section 389(1) of Cr.P.C. for suspension of remaining jail
sentence on behalf of appellant no.1 Gul Singh s/o Gujariya and
appellant no.2 Thesiya S/o Gujariya.
The appellants have been convicted and sentenced vide
judgment dated 08.04.2019 passed by First Additional Sessions
Judge, Sendhwa District Barwani in S.T.No.55/2018 as under:-
Conviction Sentence
Section Imprisonment Fine Imprisonment in lieu
of Fine
302/149 Life Rs. 1 year R.I
IPC imprisonment 1,000/-
As per the prosecution story, on 28.2.2018 complainant
Mahariya (PW1) went to the police station Warla, District Barwani
and lodged a report that "Parsingh (deceased) is his son and he
went from Village Koli Kanjapani to village Babadad to see
"Bhagoriya" but till evening he did not return back to his house
and he thought that his son Parsingh may have stayed over at his
relatives house in village Mohala. The next morning his son
Tersingh (PW2) went to his relatives house to see his brother
Parsingh (deceased) but he was not in the house and on the same
day at around 11:00 to 12:00 AM he was informed by Kiragaya
Barela that a dead body was lying at "Kolki Fatha" then the
complainant Mahariya (PW1) along with Bhairam and Deewan
went to check whose body was there, and found that the dead body
was of his son Parsingh (Deceased) which had a head injury and
blood in its mouth", on the said information, Marg No. 10/2018
was registered and in inquiry of Marg, Safina form was drawn and
Naksha Panchanama of dead body was prepared. Dead body was
sent for P.M. and Dr. Rajendra Thakur (PW11) was opined that he
died due to severe head injury and is homicidal in nature. After
Marg inquiry FIR was registered under Section 302 of Indian Penal
Code, 1860 Crime No.41/2018. During the investigation, the
appellants and other co-accused persons were arrested and after
completion of the investigation charge sheet was filed under
S.302/149 I.P.C. The charges were framed which were denied by
the appellants and they pleaded for trial. After evaluating the
evidence came on record the appellants have been convicted for the
aforementioned offence.
Learned counsel for the appellants submitted that there is no
eye witness in the case and the case is based on circumstantial
evidence. The appellants were not present on the spot and the trial
Court has convicted the appellants only on the basis of extra
judicial confession and the judgment of the trial Court is not
sustainable in the eyes of law. He further submits that final hearing
of the present appeal in near future is not possible, the appellants
are permanent resident of District Barwani and there is no chance
to abscond and therefore prays for the suspension of jail sentence
of the appellants.
Learned counsel for the respondent (State) has opposed the
prayer of suspension of sentence and prayed for its rejection.
On perusal of record of the trial Court and the impugned
judgment, it is found that the case was not based on eye witness but
on last seen theory and circumstantial evidence and no recovery
was done from the appellants (Gulsingh and Thesiya). The police
had arrested the appellants on 03.03.2018 and since then they are in
custody. Custody period of the appellants are above four years. The
appeal was filed in the year 2021 and at present final hearing of
this appeal in near future is not possible due to long pendency of
criminal appeals.
So keeping in view the facts and circumstances of the case in
totality and also the fact that the appellants have already undergone
about four years of jail sentence, therefore, without commenting on
the merit of the case, we are of the considered opinion that the
application for suspension of custodial sentence moved on behalf
of the appellants deserves to be allowed.
Accordingly, I.A. No.24794/2021 is allowed and it is
directed that subject to depositing of fine amount and on furnishing
personal bond by the appellants no.1 Gul Singh S/o Gujariya
Bheel and appellant no.2 Thesiya S/o Gujariya Bheel in the sum
of Rs.50,000/- (Rupees Fifty thousand only) each with one
solvent surety each in the like amount to the satisfaction of the
learned trial Court for their appearance before the Court, the
execution of custodial part of the sentence shall remain suspended,
till the final disposal of this appeal.
The appellants no.1 and 2 after being enlarged on bail, shall
mark their presence before concerned trial court on 30/09/2022 and
on all such subsequent dates, which are fixed in this regard by the
concerned Trial Court.
IA.No.2753/2021which is an application filed under Section 5
of the Limitation Act for condonation of delay and I.A.No.2754.2021
for urgent hearing are accordingly allowed and disposed of as the
appeal was admitted for final hearing on 13/12/2021.
Certified copy, as per rules.
(VIVEK RUSIA ) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
Digitally signed by REENA
PARTHO SARKAR
Date: 2022.04.01 10:18:52
