Madhya Pradesh High Court
Brij Mohan @ Gunthe vs The State Of Madhya Pradesh on 27 February, 2024
Author: Rohit Arya
Bench: Rohit Arya
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 14508 of 2023
(BRIJ MOHAN @ GUNTHE AND OTHERS Vs THE STATE OF MADHYA PRADESH)
Dated : 27-02-2024
Shri Pradeep K. Shrivastava- Advocate for the appellants.
Dr. Anjali Gyanani - Public Prosecutor for respondent/State.
Heard on IA No. 23214 of 2023, first application under Section 389(1)
Cr.P.C. for suspension of sentence and grant of bail moved on behalf of
appellant No.2 - Kalyan @ Kalli.
Present appellant stood convicted under Sections 147, 148, 302/149 (two
counts), 307/149 IPC (two counts) and under Section 506-B of IPC and
sentenced to undergo RI for one year with a fine of Rs.2,000/-, RI for two
years with a fine of Rs.2,000/-, imprisonment for life with a fine of Rs.5,000/-
(in each counts), RI for seven years with a fine of Rs.5,000/- (in each counts)
and RI for one year with a fine of Rs.2,000/- with default stipulations vide
judgment of conviction and order of sentence dated 28.08.2023 passed by
Second Additional Sessions Judge District Bhind in Sessions Trial No.94 of
2018.
The present appellant so far has undergone actual jail sentence of six
years and three months.
A s per prosecution story, complainant Rajesh Kushwah (PW-1) on
26.10.2017 at Police Station Raun District Bhind reported to the effect that he
was a farmer and residing at village Mangarh District Bhind. According to him,
six months before, in the summer, Shivam alias Chhotu made an attempt to
molest the daughter of his younger brother. On that incident, the quarrel took
place between both the families.Therefore, enmity flared up between both the
families. He further stated that on the date of incident, at about 10 am, the
accused persons came on motorcycle and started hurling abuses to the
complainant but on the intervention of the villagers, the accused persons
returned from there. Again, in the evening, at about at about 7 pm, the accused
persons alongwith two others persons armed with firearms came and with an
intention to kill the complainant started firing indiscriminately. Accused Amit
fired aiming Jagdish (father of the complainant) which hit on his left hand.
Accused Milap fired pointing firearm towards Balram (nephew of the
complainant) which hit on his chest and he fell down. Meanwhile, Chhotu,
Kamlesh and Shivam started firing which hit Veerendra (uncle of the
complainant) due to which he sustained bullet injuries and he fell down. The
complainant and other members of his family including women ran to rescue the
injured persons. Thereafter, all the accused persons fled away while hurling
abuses and threatening them for dire consequences from the place of
occurrence. Thereafter, the complainant dialed 100 number and took the injured
persons to primary hospital Raun where doctors declared them dead. Marg was
registered. After marg enquiry, the FIR was reduced in writing. Investigation
was set in motion. Upon completion of investigation including recording of
statements, collection of evidence and necessary formalities, challan was filed
before the concerned JMFC, who, in turn, committed the case to the Sessions
Court. The Sessions Court on appreciation of evidence placed on record
convicted and sentenced the present appellant as mentioned above.
Larned counsel for the present appellant while taking exception to the
impugned judgment of conviction and order of sentence, inter alia, submits
that though present appellant's name finds place in the FIR but no act much less
overt act has been attributed to him. The complainant (PW-1) in Para 10 of his
statement recorded under Section 164 of Cr.P.C. has admitted that he himself
did not see the appellant on the place of occurrence at the time of incident. In
Para 11, he admitted that the appellant neither participated in the incident nor
used any firearm. It is further submitted that the Sessions Court has not
appreciated the evidence placed on record in correct perspective. The judgment
suffers from conjecture and surmises. Present appellant has already suffered
incarceration of six years and three months. Appeal is of the year 2023 and
there is no likelihood of its early hearing in the near future. On these grounds,
learned counsel submits that the present appellant may be extended the benefit
of suspension of sentence and grant of bail.
Per contra, learned Public Prosecutor, appearing on behalf of the
respondent/State, while supporting the judgment impugned contends that the
present appellant had actively participated in the crime. Hence, no exception can
be taken in the matter of suspension of sentence and grant of bail, regard being
had to the nature and gravity of offence found proved against the present
appellant.
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 obtaining facts and circumstances of the case
particularly the fact that present appellant has already suffered incarceration of
six years and three months and the appeal which is of the year 2023 is not likely
to be decided in the near future, we are of the view that present appellant is
entitled to the benefit of suspension of sentence and grant of bail.
Accordingly, IA No. 23214 of 2023 stands allowed and it is directed
that the jail sentence of appellant No.2 - Kalyan @ Kalli shall remain
suspended during pendency of the present appeal and he shall be released on
bail subject to verification of the factum of depositing the fine amount and 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.
Appellant No.2 - Kalyan @ Kalli is directed to appear before the
Registry of this Court first on 31.05.2024 and on other subsequent dates as
may be fixed in this behalf.
Accordingly, the said IA 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) (BINOD KUMAR DWIVEDI)
JUDGE JUDGE
ojha
