Madhya Pradesh High Court
Nagesh Goswami vs The State Of Madhya Pradesh on 24 November, 2023
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
CRA No. 1405 of 2023
(NAGESH GOSWAMI AND OTHERS Vs THE STATE OF MADHYA PRADESH)
Dated : 24-11-2023
Shri Avinash Sirpurkar, learned Senior Advocate with Ms. Rekha
Shrivastava, learned counsel for the appellant(s).
Shri Gaurav Singh Chouhan, learned Govt. Advocate for the
respondent/State.
Heard on I.A.No.14624/2023, which is first application under Section
389(1) of Cr.P.C. for suspension of sentence filed on behalf of appellant
No.2 Ankit Tanwar S/o Ashok Tanwar.
2. The appellant No.2 stands convicted by the judgment dated
19.10.2022, passed by the learned VIIth Additional Sessions Judge,
Mandsaur(M.P.) in S.T. No.46/2020 for the offence under Section 302 of IPC
and sentenced to Life imprisonment with fine of Rs.10,000/- and under Section
27(1) of the Arms Act sentenced to RI for 3 years with fine of Rs.1,000/- with
default stipulations.
3. As per prosecution story, complainant Bacchu Singh lodged Dehati
Nalishi Exhibit-P/2 against the present appellant and other co-accused that his
son deceased Yuvrajsingh had business rivalry with co-accused Deepak
Tanwar, as both deceased and Deepak Tanwar engaged in the same business of
cable and under the business rivalry, day before the date of incidence, i.e.
09.10.2019, appellant no.2 alongwith other co-accused had entered into a
dispute with Yuvrajsingh and co-accused Deepak Tanwar threatened him that
they will kill him and whole incidence were told by Yuvraj to his wife and father
and next day in the morning i.e. on the date of incidence when Yuvraj Singh was
standing near the Gajanand Hotel at that time accused Nagesh, Ankit and
Faizaan shot a gun fire over Yuvraj Singh due to which he died on the spot.
Accordingly, FIR Ex-P/133 was registered against all the accused persons and
all of them were arrested.
4. Learned Senior counsel for the appellant submits that the present
appellant is innocent and he has falsely been implicated in the offence. The
allegation against appellant No.2 is that he had inflicted gun shot injury on the
back of the deceased. The appellant has been convicted on the basis of finger
print marks found on the gun. However, there is no eye-witness to the incident
who saw that appellant inflicted injury. Statement of Ishwar(PW2) who is
alleged to be the eye-witness of the incident, has been disbelieved by the trial
Court. Seizures witnesses have also turned hostile. There are lot of material
contradictions and omissions in the statement of prosecution witnesses. This
appeal is of the year 2023 and final disposal of this appeal will take considerable
time. However, it is prayed that the substantive jail sentence of the appellant
No.2 be suspended and he be released on bail.
5. Per contra, learned Government Advocate appearing for the State has
vehemently opposed the bail application and submitted that the crime
committed by the appellant no.2 is heinous. He submitted that Bharat(PW3)
has turned hostile, but the reasons for the same is that he was threatened not to
give the evidence. CCTV footage was recovered and certificate under Section
65 of the Evidence Act has been issued. There is a strong motive behind the
incident. In such circumstances, the application for suspension of sentence
filed on behalf of appellant No.2 deserves to be dismissed.
6. Heard the learned counsel for the parties and perused the record.
7. On due consideration of the facts and circumstances of the case and in
absence of any substantive evidence available on record coupled with the fact
that final hearing of this appeal will take considerable long time, without
expressing any opinion on the merits of the case, I.A.No.14624/2023 is
allowed and it is directed that upon depositing the fine amount (if not already
deposited) and on furnishing a personal bond in the sum of Rs.
50,000/-(Rupees Fifty Thousand Only) with one solvent surety in the like
amount to the satisfaction of the trial court, the substantive jail sentence
of appellant No.2 Ankit Tanwar S/o Ashok Tanwar shall remain suspended
till final disposal of the appeal and he shall be released on bail. He shall appear
before the concerned trial Court firstly on 23.01.2024 and on all other
subsequent dates, as may be fixed in this behalf by that Court.
List for final hearing in due course.
Certified copy as per rules.
(S. A. DHARMADHIKARI) (PRANAY VERMA)
JUDGE JUDGE
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