Madhya Pradesh High Court
Pahalwan Kataria vs The State Of Madhya Pradesh on 6 February, 2023
Author: Rohit Arya
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 2993 of 2021
(PAHALWAN KATARIA AND OTHERS Vs THE STATE OF MADHYA PRADESH)
Dated : 06-02-2023
Shri D.S. Tomar-Advocate for appellant No.3/Naval Singh @ Navla
Kataria.
Shri Deependra Raghuvanshi-Advocate for appellant No.5/Gulab
Kataria.
Shri Rajesh Shukla-Deputy Advocate General for the respondent -
State.
After arguing for a while, learned counsel for appellant No.3 seeks leave
of this Court to withdraw IA.14099 of 2022 second repeat application under
Section 389I(1) Cr.P.C. for suspension of sentence and grant of bail moved on
behalf of appellant No.3-Naval Singh @ Navla Kataria with liberty to revive his
prayer after six months.
Prayer allowed.
Accordingly, IA.14099 of 2022 stands dismissed as withdrawn with the
aforesaid liberty.
Heard o n I.A. No.2057 of 2023, which is second repeat application
under Section 389(1) of Cr.P.C. moved on behalf of appellant No.5 - Gulab
Kataria seeking suspension of sentence and grant of bail.
Appellant No . 5 stands convicted under Section 302/149 IPC and
sentenced to undergo life imprisonment with fine of Rs.500/- and under Section
147 IPC and sentenced to undergo one month's RI with fine of Rs.100/- with
default stipulations vide judgment of conviction and order of sentence dated
07.04.2021 passed by the Second Additional Sessions Judge, Mungaoli,
Signature Not Verified
Signed by: PAWAN
DHARKAR
Signing time: 2/6/2023
7:29:54 PM
District Ashoknagar (Madhya Pradesh) in Sessions Trial No.181/2012.
Appellant No.5 has so far undergone jail incarceration of two years and
two months including the period suffered during trial.
A s per prosecution story, over a trivial issue of grazing of cattle, a
dispute arose between the complainant party and accused persons. However,
after heated exchanges between the parties, Mohar Singh rushed to his house
and came back with Naval armed with lathi. Babbu, Sanjeev, Rumal, Bharat
Singh, Bhura, Gulab Singh (present appellant No.5) and Panjab Singh also came
o n the spot followed by Kamtabai and Anitabai. Babbu, Rumal and Bharat
alleged to have slapped the deceased and Naval assaulted the deceased-Rakesh
with lathi hitting on his waist. Thereafter, Mohar Singh was found to have
caused forehead injury with lathi resulting into his death. On the aforesaid
allegations, FIR was lodged. After completion of investigation, charge sheet
was filed and the case was committed to the Sessions Court. The Sessions
Court upon critical evaluation of the evidence placed on record has convicted
and sentenced the appellant as referred above.
Learned counsel for appellant No.5 while taking exception to the
impugned judgment of conviction and order of sentence submits that the
appellant No.5 is innocent and has falsely been implicated. The Sessions Court
did not appreciate the relevant piece of evidence. The judgment is based on
surmises and conjectures. No specific overt act is alleged against appellant
No.5-Gulab Kataria. Moreso, co-accused Babulal @ Babbu and Bharat Singh
Kataria against whom there was an allegation of slapping the deceased have
since been extended the benefit of suspension of sentence and grant of bail vide
orders dated 21.01.2022 and 06.01.2023; hence, prays for suspension of
Signature Not Verified
sentence and grant of bail.
Signed by: PAWAN
DHARKAR
Signing time: 2/6/2023
7:29:54 PM
Per contra, learned counsel for the respondent-State opposes the
application with submission that no fault can be found with the conviction
ordered by the Sessions Court under Section 302 read with 149 of IPC as all
the accused persons with common object had assaulted the deceased resulting
into homicidal death. Thus, no exception can be taken in the matter of grant of
suspension of jail sentence to appellant No.5-Gulab Kataria.
Upon hearing learned counsel for the parties, though this Court refrains
from commenting upon rival contentions so advanced touching merits of the
case, regard being had to the fact that no specific overt act has been attributed
to appellant No.5 whereas co-accused Babulal @ Babbu and Bharat Singh
Kataria against whom there was an allegation of slapping the deceased have
since been extended the benefit of suspension of sentence and grant of bail vide
orders dated 21.01.2022 and 06.01.2023, we see no reason as to why the
benefit of bail should not be given to appellant No.5/ Gulab Kataria.
Accordingly, we allow the application and it is directed that the jail sentence of
appellant No.5 - Gulab Kataria shall remain suspended during pendency of
present appeal and he be released on bail on his furnishing a personal bond in
the sum of Rs.2,00,000/- (Rupees Two Lacs only) with one solvent surety in
the like amount to the satisfaction of the trial Court subject to verification of
factum regarding deposit of fine amount. Appellant No.5 is directed to appear
before the Registry of this Court first on 15.03.2023 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 appellant
No.5 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
Signature Not Verified
Signed by: PAWAN
DHARKAR
Signing time: 2/6/2023
7:29:54 PM
required be undertaken immediately. If not, 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,I.A. No.2057 of 2023 stands allowed and disposed of.
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.
Certified copy as per rules.
(ROHIT ARYA) (SATYENDRA KUMAR SINGH)
JUDGE JUDGE
pd
Signature Not Verified
Signed by: PAWAN
DHARKAR
Signing time: 2/6/2023
7:29:54 PM
