Mahesh Sharma vs The State Of Madhya Pradesh
2023 Latest Caselaw 14449 MP

                                     1

       IN THE HIGH COURT OF MADHYA PRADESH
                    AT GWALIOR
                            CRA-11383-2022

    (MAHESH SHARMA AND OTHERS Vs . THE STATE OF MADHYA PRADESH)

DATED:- 04-09-2023

      Shri Kailash Chandra Sharma - Advocate with Shri Manas Dubey
- Advocate for appellant No.1, 3, 5 and 8.
      Shri Susheel Goswami- Advocate for appellant No.6.
      Shri A.K. Nirankari - Public Prosecutor for the respondent/State.

Dr. J.S. Kushwah and Shri P.S. Bhadoriya, Advocates for complainant.

Per Justice Deepak Kumar Agarwal:

Heard on I.A. Nos.14464/2023, 14667/2023 and 14683/2023 which are the first applications under Section 389(1) of Cr.P.C seeking suspension of sentence and grant of bail moved on behalf of appellant No. 6- Manoj Sharma, appellant No.5- Braj Kishore @ Kalla, appellant No.8- Ballu Rawat, appellant No.1- Mahesh Sharma and appellant No.3- Ramprasad respectively.

Vide judgment dated 17.10.2022 passed by First Additional Sessions Judge, Karera, District- Shivpuri (M.P.) in ST No.500140/2016, whereby the appellant No.6, 5, 8 and 3 have been convicted under Section 148 of IPC and sentenced to undergo six months RI with fine of Rs.500/-, under Section 302/149 of IPC and sentenced to undergo life imprisonment with fine of Rs.1,000/- and further sentenced to undergo seven years RI with fine of Rs.1,000/- for offence under Section 307/149 of IPC while appellant No.1 has been convicted under Section 148 of IPC and sentenced to undergo six months RI with fine of Rs.500/-, under Section

302/149 of IPC and sentenced to undergo life imprisonment with fine of Rs.1,000/- and further sentenced to undergo seven years RI with fine of Rs.1,000/- for offence under Section 307/149 of IPC and under Section 25 (1-B)(A) of Arms Act and sentenced to undergo one year R.I. with fine of Rs.500/- and under Section 27 of Arms Act and sentenced to undergo three years R.I. with fine of Rs.500/- with default stipulations.

In brief, prosecution story is that on 07.09.2009 around 5:45 pm, one Vanmal Singh Rawat along with his elder brother Balkishan (deceased), Arvind Rawat and Radhyshyam came to village Karera and all of them were returning back to their village Sada from Karera. On such fateful day Balkishan (deceased), Arvind and Radheshyam were driving the bike and were ahead of Vanmal Singh, who was on his different bike and was following the bike of Balkishan (deceased). When they reached Samoh Har Pakki road, a white Marshal car crossed the vehicle of Vanmal Singh who was following the bike of Balkishan (deceased) and then, such white Marshal car knocked/dashed the bike of Balkishan (deceased), Arvind and Radheshyam from behind which made them fall from their bike. And then from said car Gulli @ Ramkishore with countrymade pistol, Mahesh Pandit with coutnrymade pistol, Mathuradas, Kalla, Panjab, Ramprasad resident of Sadd, Ballu Rawat resident of Dabai, Devendra Singh with gun and Manoj resident of Suketa, all got off the car, following which Balkishan (deceased), Arvind and Radhyshyam ran towards the field and all three of them got injured. Gulli Pandit and Suresh Sharma fired upon Balkishan who was lying on the field and thereafter, all the accused fled towards Dinara while firing their firearms. Balkishan was died due to gunshot injury and Arvind and Radheyshyam got serious injuries. On the basis of the complaint by the complainant Vanmal Singh, a

dehatinalisi was prepared and upon such dehatinalisi Police Station- Karera lodged an FIR bearing Crime No.313/2009 against the present appellants and other co-accused persons under Sections 302, 307, 147, 148 and 149 of IPC and 25/27 of Arms Act. After completion of investigation and other formalities, charge sheet was filed against appellants and other co-accused persons, but co-accused Suresh and Devendra involvement was not found, due to which charge-sheet was not filed against both of them. After completion of trial, learned trial Court convicted the appellants for the aforesaid offences.

Learned counsel for appellants while taking exception to the impugned judgment submits that the trial Court has committed an error in convicting and sentencing the present appellants without appreciating the prosecution evidence properly. It is further submitted that Vanmal Singh has levelled allegation against Suresh that he was allegedly holding mouser and shot the deceased in the head and 12 bore rifle was found along with Devendra Sharma who was also fired on the deceased. Beside this, they were exonerated. Investigating Authority during investigation applied the procedure of pick and choose. Therefore, present appellants have been falsely implicated in this case. Fine amount has already been deposited. The present appellants so far have suffered jail incarceration of about one year . Appeal is of the year 2022 and there is no likelihood of early hearing of the appeal in near future. Co-appellants Punjab and Mathuradas have been extended benefit of suspension of sentence by this Court by order dated 01.08.2023. On the basis of parity, counsel for the appellants prays for suspension of sentence and grant of bail on behalf of appellants.

Per contra, learned counsel for the respondent-State as well as

counsel for the complainant though vehemently opposed the application and prays for its rejection.

Upon hearing learned counsel for parties, though this Court refrains from commenting upon rival contention touching the merits of the case, however, regard being had to the fact that co-appellants Punjab and Mathuradas have already been extended the benefit of suspension of sentence and grant of bail vide order dated 01.08.2023, in the obtaining facts and circumstances, appellant No. 6- Manoj Sharma, appellant No.5- Braj Kishore @ Kalla, appellant No.8- Ballu Rawat, appellant No.1- Mahesh Sharma and appellant No.3- Ramprasad are held entitled for suspension of sentence.

Consequently, I.A. Nos.14464/2023, 14667/2023 and 14683/2023 are hereby allowed and it is directed that the jail sentence of appellant No. 6- Manoj Sharma, appellant No.5- Braj Kishore @ Kalla, appellant No.8- Ballu Rawat, appellant No.1- Mahesh Sharma and appellant No.3- Ramprasad shall remain suspended and they shall be released on bail on their furnishing a personal bond in the sum of Rs.25,000/- (Rupees Twenty Five Thousand Only) each 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. Appellants are directed to appear before the Registry of this Court on 08.01.2024 and thereafter, on other subsequent dates as may be fixed by the Registry of this Court in this behalf.

Accordingly, IAs. stand allowed and disposed of.

The appellant shall mark his presence before concerned Police Station once in every fortnight.

It is clarified that in case the appellants commit any further offence

with the Complainant, the Complainant and the State would be at liberty to seek cancellation of this regular suspension of sentence granted to the appellants.

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

Certified copy as per rules.

         (ROHIT ARYA)                                              (DEEPAK KUMAR AGARWAL)
            JUDGE                                                          JUDGE


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                      Date: 2023.09.05 10:39:44 +05'30'