Madhya Pradesh High Court
Pradeep Tomar vs The State Of Madhya Pradesh on 21 February, 2024
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 13764 of 2023
(PRADEEP TOMAR Vs THE STATE OF MADHYA PRADESH)
Dated : 21-02-2024
Shri Harshvardhan Sharma Advocate for appellant.
Shri RK Awasthi- Public Prosecutor, for the respondent/State.
Heard on IA No. 3125 of 2024, first application under Section 389(1)
Cr.P.C. moved on behalf of appellant Pradeep Tomar seeking suspension of
sentence and grant of bail.
Appellant stood convicted under Sections 392 read with Section 397 of
IPC and Section 13 of MPDVPK Act and sentenced to undergo seven years'
RI with fine of Rs.2,000/- with default stipulation vide judgment of conviction
and sentence dated 26.09.2023 passed by Special Judge (MPDVPK), District
Datia (M.P.) in Special Sessions Trial No.300038 of 2016.
Learned Counsel for the appellant submits that learned trial Court has
committed an error in convicting the present appellant for offence punishable
under Sections 392 read with Section 397 of IPC and Section 13 of MPDVPK
Ac t. Learned counsel referring to statements of Kailash Narayan Gupta
(PW1), Asha Gupta (PW2), Varun Gupta (PW4), submit that the complainant
has not identified the appellant as assailant who committed dacoity at his
residence. Despite there being no evidence of appellant's participating in the act
of dacoity, learned trial Court committed error in convicting appellant for
offence punishable U/s 392 read with Section 397 of IPC and Section 13 of
MPDVPK Act. Learned counsel further contends that the witness relating to
seizure of incriminating article at the instance of appellant Jafar Khan (PW-5)
and Mukesh (PW-15) did not support the prosecution. No bill of mobile phone
was seized or produced during trial. There is no specific identification of mobile
phones with regard to IMEI number. Identification of ornaments is doubtful.
Therefore, no offence was made out against the appellant.
The impugned judgment passed by learned Trial Court is based on
assumption, conjecture and surmises. There are material contractions and
omissions in the evidence of witnesses. The appellant was on bail during trial
and he did not misuse the liberty so granted to him. Fine amount has already
been deposited by the appellant. Appellant has undergone judicial custody
approximately nine months. There is no likelihood of hearing of appeal in near
future. Learned Counsel further submits that jail sentence of co-convicted
accused Yogendra Singh alias Ramu (appellant No.1) has been suspended vide
order dated 01-02-2024 and jail sentence of convicted accused Vijay Singh and
Shivam Gurjar has been suspended by this Court vide order dated 01-02-2024
passed in connected Criminal Appeal No.13339 of 2023 and Criminal Appeal
No.12677 of 2023. On these grounds, learned Counsel prays that execution of
remaining jail sentence of present appellant may be suspended and he may be
enlarged on bail.
Per contra, learned Counsel for respondent State opposes the
application and prays for its rejection.
Upon hearing learned Counsel for the parties but without commenting
upon rival contentions touching merits of the case, this Court is of the view that
application deserves to be allowed. It is, accordingly directed that execution of
remaining jail sentence of appellant Pradeep Tomar shall remain suspended
during pendency of this appeal and he shall be enlarged on bail subject to
furnishing 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 Trial
Court for compliance with following conditions:-
(1). The appellant shall deposit the amount of fine (if not deposited)
forthwith;
(2). The appellant shall appear before the Trial Court on 04.04.2024
and on such further dates as may be directed by the Trial Court;
(3). The appellant shall ensure hearing of the appeal on the date fixed for
such hearing and shall also ensure proper legal representation on his behalf, on
the date notified for hearing.
In case of breach of any of the aforementioned conditions, this order
granting suspension of sentence shall become ineffective.
The Trial Court shall be authorized to grant exemption from attendance
to the appellant on any date, on sufficient cause being shown [Chapter XIII
Rule 42 Sub-Rule 2 of the M.P. High Court Rules, 2008].
Where the appellant does not appear on the date of his appearance
before the Trial Court and no sufficient cause for non-appearance is shown, the
Trial Court shall be authorized to issue non-bailable/bailable warrants to secure
his attendance under intimation to the Registry of High Court. The Trial Court
shall also proceed under Section 446 of CrPC against such appellant and his
surety without any reference to this Court and without any impediment of the
order granting bail. [Chapter XIII Rule 42 Sub-Rule 3 of M.P. High Court
Rules, 2008].
On arrest/surrender in compliance with the warrant, the appellant shall be
forwarded in custody to undergo sentence of imprisonment under intimation to
the Registry of this Court.
Accordingly, IA No.21744 of 2023, stands allowed and disposed of.
Certified copy as per rules.
(SANJEEV S KALGAONKAR)
JUDGE
MKB
