Raju Sharma vs The State Of Madhya Pradesh
2022 Latest Caselaw 13550 MP

                                     1
              IN THE HIGH COURT OF MADHYA PRADESH
                           AT GWALIOR
                              CRA No. 6786 of 2021
                (RAJU SHARMA AND OTHERS Vs THE STATE OF MADHYA PRADESH)

Dated : 14-10-2022
         Shri Pradeep Katare, learned counsel for the appellant.

         Shri Lokendra Shrivastava, learned Public Prosecutor for the respondent-

State.

Shri Harshit Sharma, learned counsel for the complainant. In compliance of the order passed on 27.09.2022 by this Court, appellant No.3 Gyan Singh is produced by ASI Veerpal Singh, Police Line, Gwalior from

Central Jail, Gwalior.

Heard on I.A.No. 2623/2022, first application filed under Section 389(1) of Cr.P.C. for suspension of sentence and grant of bail moved on behalf of appellant No.3 Gyan Singh.

The appellant stands convicted under Sections 148, 307/149 and 302/149 of IPC and sentenced to undergo one year's RI, five years' RI and life imprisonment with fine of Rs.1000/-, 3000/- and 5000/- with default stipulation vide judgment of conviction and order of sentence dated 14/09/2021 passed by Fourth Additional Sessions Judge in Criminal Appeal No. 216/2012.

Shri Katare referring to the medical report dated 07.05.2022 submit that the appellant No. 3-Gyan Singh is suffering from abdominal disease for which though treatment is given in the hospital but due to non-availability of required course he is not sent to J.A. Hospital, Gwalior for better treatment. It is stated that he is 71 years of age. Relying upon the judgment of the Hon'ble Supreme Court in case of Anil Ari Vs. State of West Bengal reported in (2009) 3 SCC (criminal) 1377, learned counsel prays for suspension of sentence on the

ground of age. He further submitted that two eye witnesses, namely, Munim Sharma (PW/15) and Neelu Sharma (PW/16) have deposed against two persons, namely, Bantu Sharma and Chhunna Sharma as assailants have been fired gunshots albeth against others including the present appellant general statement of indiscriminate firing has been made. It is further submitted that the complainant-Guddu Sharma has turned hostile. He, therefore, prays for suspension of sentence.

Per contra, Shri Lokendra Shrivastava, learned Public Prosecutor for the State submits that there is no evidence on record to suggest that the appellant No.3-Gyan Singh is 71 years of age except the arrest memo, which denotes that

he was 61 years of age in 2012 but there is no authentic evidence in that behalf.

Shri Harshit Sharma, learned counsel for the complainant submits that this Court has already rejected application for suspension of sentence of Kullu Sharma @ Raj Kishore and Deepak Sharma @ Sonu Sharma against whom similar offence being part of the unlawful assembly and indiscriminate firing have made by the same witnesses. Hence, no exception can be taken in the matter of present appellant for suspension of sentence. However, he fairly submits that the age of Kullu @ Raj Kishore Sharma and Deepak Sharma @ Sonu Sharma are approximately 30 years of age.

Before adverting to rival contentions, it is expedient to reiterate the prosecution story in brief being found proved by the trial Court. A complaint filed by the complainant on 27.07.2021 at about 08:50 AM that at about 07:00 AM in the morning while his cousin brother Sitamber Sharma was going to the shop of Mataprasad to buy certain commodities, accused persons, namely, Chhunna Sharma, Bantu Sharma, Kullu Sharma, Sonu Sharma, Mithun Sharma, Pappu Yadav, Gyan Singh-present appellant, Ravi Yadav, Balveer Yadav, Kullu

Sharma, Raju Sharma and Manoj Sharma standing in the adjacent lane of the shop and started indiscriminate firing on him. As a result, Sitamber Sharma suffered homicidal death. By that time, Neelu Sharma and Chiman Sharma came to the spot for rescue of the injured Sitamber Sharma, but he had already passed away. On the aforesaid allegations, FIR was lodged. Upon completion of investigation, challan was filed. The case was committed to the Sessions Court for trial.

Upon consideration of the submissions advanced, indeed there is eye witnesses, namely, Munim Sharma (PW/15) and Neelu Sharma (PW/16) have deposed about the occurrence of the incident and involvement of the accused persons named in the FIR in the matter of indiscriminate firing which led to the death of the deceased Sitamber Sharma.

Upon consideration of the arguments on merits as aforesaid, this Court has declined suspension of sentence to two accused persons, namely, Kullu @ Raj Kishore Sharma and Deepak Sharma @ Sonu as mentioned above. Nevertheless, looking to the fact that the appellant No.3-Gyan Singh as per arrest memo is now about 71 years of age and looking to his health condition and the medical report submitted, this Court in the obtaining facts and circumstances, considered it is appropriate to suspend the sentence particularly for the reasons of advanced the age of appellant i.e. 71 years.

Accordingly, it is directed that the jail sentence of appellant No.3-Gyan Singh shall remain suspended during pendency of the present appeal and he shall be released on bail subject to verification of the factum of depositing the fine amount and on his furnishing a personal bond in the sum of Rs.1,50,000/- (Rupees One Lac and Fifty Thousand only) with one solvent surety in the

like amount to the satisfaction of the Trial Court. He is directed to appear before the Registry of this Court first on 13/12/2022 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, his medical examination 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, appellant shall be released on bail in terms of the conditions imposed in this order;

(ii) if appellant is found to be involved in any activity disturbing the peace and tranquility of the area or any other criminal act, the bail granted to him today shall stand automatically cancelled.

Accordingly, I.A.No.2623/2022 stands allowed.

Observations on facts, if any, are only for the purpose of deciding the instant I.A. and shall have no bearing on the merits of the appeal.

ASI Veerpal Singh, Police Line, Gwalior shall take the appellant No.3- Gyan Singh back to the Central Jail, Gwalior, wherein shall be lodged. Upon furnishing the bail as ordered, he shall be released.

    (ROHIT ARYA)                                                   (MILIND RAMESH PHADKE)
       JUDGE                                                                JUDGE

 neetu
NEETU    Digitally signed by NEETU SHASHANK
         DN: c=IN, o=HIGH COURT OF MADHYA
         PRADESH BENCH GWALIOR, ou=HIGH
         COURT OF MADHYA PRADESH BENCH
         GWALIOR, postalCode=474001,




SHAS
         st=Madhya Pradesh,
         2.5.4.20=36b486bb0d381b950e435ec09e
         066bc6b58cb947c1474b7dc349a1cf27ea
         a2ce,
         pseudonym=C09AF52B2B8D28DBCFF3D
         4A07CC4C71E915C48FC,




HANK
         serialNumber=E60A9BBFC39E0EE500EAA
         DE1E0B3B8565CB3A7DC9F5CD048197DF
         0FF3149AE58, cn=NEETU SHASHANK
         Date: 2022.10.14 17:43:30 +05'30'