Pahalwan Kataria vs The State Of Madhya Pradesh
2023 Latest Caselaw 370 MP

                                                             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 : 06-01-2023
                                Mr. D.S. Raghuvanshi, learned counsel for the appellants.

                                Mr. Rajesh Shukla, learned Deputy Advocate General for the
                          respondent - State.

Heard o n I.A. No.1955/2022, which is first application under Section 389(1) of Cr.P.C. moved on behalf of appellant No.2 - Bharat Singh Kataria

Navala seeking suspension of sentence and grant of bail.

Appellant No.2 stands convicted under Section 302/149 of IPC and sentenced to undergo life imprisonment with fine of Rs.500/- and under Section 147 of IPC and sentenced to undergo one month RI with fine of Rs.100/- with default stipulation vide judgment of conviction and order of sentence dated 07.04.2021 passed by the Second Additional Sessions Judge, Mungaoli, District Ashoknagar (Madhya Pradesh) in Sessions Trial No.181/2012.

Appellant No.2 has so far undergone jail incarceration of three months during trial and since the date of judgment i.e. 07.04.2021. Appellant said to be

65 years of age.

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 and Panjab Singh also came on the spot followed by Kamtabai and Anitabai. Babbu, Rumal and present appellant alleged to have slapped the deceased and Naval assaulted the deceased-Rakesh with lathi hitting Signature Not Verified Signed by: BARKHA SHARMA Signing time: 06-Jan-23 5:18:19 PM

on his waist. Thereafter, Mohar Singh is 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 the appellants while taking exception to the impugned judgment of conviction and order of sentence submits that the appellant No.2 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 conjecture. Even otherwise, accepting the story of prosecution, the allegations against the present appellant is similar to that of Babbu who has been extended the benefit of suspension of sentence and grant of bail by the co- ordinate Bench vide order dated 21.01.2022. Hence, prays for suspension of sentence and grant of bail.

Per contra, learned counsel for the respondent-State opposes the application and submissions that no fault can be found with the conviction order 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. He also tried to draw the attention to the fact that the benefit of extension of suspension of sentence to the co-accused was granted as he was 70 years of age, whereas the appellant is only 65 years of age. Hence, no parity can be claimed.

Upon hearing learned counsel for the parties, though this Court refrains from commenting upon rival contentions so advanced touching merits of the

Signature Not Verified case, yet regard being had to the fact that the allegations against the present Signed by: BARKHA SHARMA Signing time: 06-Jan-23 5:18:19 PM

appellant are similar to that of co-accused Babbu and since Babbu has been extended the benefit of suspension of sentence and grant of bail, we see no reason as to why the benefit of bail should not be given to appellant No.2. Accordingly, we allow the application and it is directed that the jail sentence of the appellant No.2 - Bharat Singh Kataria 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 Lakh 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 is directed to appear before the Registry of this Court o n 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 the appellant be conducted through the jail doctor and if it is prima facie found that she 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) violation of conditions, State is free to apply for cancellation of bail.

Accordingly, I.A. No.1955/2022 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

                          bj/-

Signature Not Verified
Signed by: BARKHA
SHARMA
Signing time: 06-Jan-23
5:18:19 PM