Madhya Pradesh High Court
Dharmveer vs The State Of Madhya Pradesh on 4 March, 2024
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 12484 of 2023
(DHARMVEER Vs THE STATE OF MADHYA PRADESH)
Dated : 04-03-2024
Shri Ravi Dwivedi- Advocate for appellant.
Shri Shri Dheeraj Budholiya- Panel Lawyer for respondent- State.
Heard on the question of admission.
Record of the trial Court has been received.
Being arguable, the appeal is admitted for final hearing.
Also heard on IA No.4163 of 2024, second application under Section
389(1) Cr.P.C. moved on behalf of appellant- Dharmver Gurjar seeking
suspension of jail sentence and grant of bail.
First application i.e. IA No. 18185 of 2023 was dismissed as withdrawn
vide order dated 01-12-2023.
Appellant stood convicted under Section 392 of IPC and sentenced to
undergo seven years' rigorous imprisonment with fine of Rs.1,000/- and
sentenced to undergo three years' rigorous imprisonment with fine of Rs.1,000/-
under Section 11/13 of MPDVPK Act with default stipulations vide judgment
of conviction and sentence dated 21st of September, 2023 passed by Special
Judge (MPDVPK Act), Gohad, District Bhind in Special Dacoity Case No.15
of 2018.
Learned Counsel for the appellant, submits that complainant Rahul Singh
(PW-1), in his FIR dated 15-07-2018, named Golu Tomar and Rajesh Singh
Tomar as assailants. It was alleged that third unknown person was also
participated in the loot. Learned Counsel submits that complainant Rahul Singh
(PW-1) in Para 9 of his testimony, has stated that he knew Karua alias Rakesh
Gurjar and Dharmveer Gurjar (appellant) prior to the incident. He had seen
Dharmveer and Karua once before the incident, then he saw them in police
station and thereafter in jail. Learned Counsel contends that in view of his
statement, identification of appellant in Test Identification Parade by Rahul
Singh (PW-1) renders frivolous.
Learned Counsel further submits that independent witnesses, namely,
Manroop Singh (PW3) and Banti Singh (PW4) relating to recovery of seizure at
the instance of appellant, did not support prosecution. Further, Kamini Tomar
(PW5) declined to identity the appellant in Court. Further, she denied
identification in the Test Identification Parade. The incriminating article alleged
to be seized at the instance of appellant was not produced before the Trial
Court, during evidence of Rahul Singh (PW1) and Kamini Tomar (PW5).
Learned Counsel also contends that impugned judgment passed by
learned Trial Court is based on assumption, conjectures and surmises. The
learned Trial Court has committed an error in convicting and sentencing the
present appellant without appreciating the prosecution evidence properly. There
are material contradictions and omissions in the evidence of witnesses.
Learned Counsel further contends that appellant was aged 25 years at the
time of incident. He has already undergone custody of more than one year
during trial and after judgment. No criminal antecedent is reported against the
appellant. Fine amount has already been deposited. There is no likelihood of
early hearing of appeal in near future. On these grounds, learned Counsel prays
that execution of remaining jail sentence of 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 Dharmveer Gurjar 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 22.04.2024
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.4163 of 2024 stands allowed and disposed of.
List for final hearing in due course.
Certified copy as per rules.
(SANJEEV S KALGAONKAR)
JUDGE
MKB
