Madhya Pradesh High Court
Gyan Singh Gurjar vs The State Of Madhya Pradesh on 5 March, 2024
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 8947 of 2023
(GYAN SINGH GURJAR AND OTHERS Vs THE STATE OF MADHYA PRADESH)
Dated : 05-03-2024
Shri Anand Purohit with Shri Trishant Mishra- Advocates for the
appellant.
Shri Neeraj Dhamanya- Panel Lawyer for respondent/State.
Heard on the question of admission.
Being arguable, the appeal is admitted for final hearing.
Heard on IA No.23474/2023 and I.A. No.918/2024, third application
under Section 389(1) Cr.P.C. moved on behalf of the appellant No.1 Gyan
Singh Gurjar and appellant No.2- Rai Singh Gurjar respectively seeking
suspension of sentence and grant of bail. First application (I.A.No.14207/2023)
was dismissed as withdrawn by this Court vide order dated 01.09.2023 passed
in CRA No.8947/2023. Second temporary bail (I.A.No.18528/2023) on the
ground of death of Smt.Rambeti was allowed by this Court vide order dated
11.10.2023 passed in CRA No.8947/2023.
Appellant stood convicted under Section 395 read with Section 13 of
MPDVPK Act and sentenced to undergo seven years' rigorous imprisonment
with fine of Rs.2,000/- with default stipulation vide judgment of conviction and
order of sentence dated 03.07.2023 passed by Special Judge (MPDVPK) Act,
District Datia (M.P.) in Special Sessions Case No.300047/2016.
Learned Counsel referring to statement of Mohar Singh (PW-1) submits
that complainant Mohar Singh has declined to identify the appellant before trial
Court. He further refused identification of appellant in TIP. Mohar has stated
that assailants have taken his motorcycle and mobile, but he has not given any
description of his motorcycle and mobile phone. No document with regard to
ownership/ possession of the complainant over motorcycle or mobile phone
was recovered and seized during investigation even the registration number of
the motorcycle or IMEI number of mobile phone is mentioned in the evidence
of Mohar Singh (PW-1). Shrimant Singh (PW-2), Dhandhu (PW-5) and Bunty
Baghel (PW-6), independent eye-witnesses of search and seizure did not
support prosecution. Learned trial Court committed an error in convicting the
appellants on the basis of doubtful recovery in absence of identification of the
recovered material by Mohar Singh. Learned trial Court has committed an error
in convicting and sentencing the present appellants without appreciating the
prosecution evidence properly. There are material contradictions and omissions
in the evidence of witnesses. The appellants were on bail during trial and did not
misuse the liberty so granted to them. Fine amount has already been deposited
by the appellants. There is no likelihood of early hearing of the appeal in the
near future. On these grounds, learned Counsel prays that execution of
remaining jail sentence of appellants may be suspended and appellants 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 appellants shall remain suspended during pendency of
this appeal and they shall be enlarged on bail subject to furnishing personal
bond in the sum of Rs.50,000/- (Rupees Fifty Thousand Only) each with
one solvent surety each in the like amount to the satisfaction of Trial Court for
compliance with following conditions:-
(1). The appellants shall deposit the amount of fine (if not deposited)
forthwith;
(2). He shall appear before the Trial Court on 29.04.2024 and on such
further dates as may be directed by the Trial Court;
(3). The appellants shall ensure hearing of the appeal on the date fixed
for such hearing and shall also ensure proper legal representation on his/her/their
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 appellants do not appear on the date of their 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
their attendance under intimation to the Registry of High Court. The Trial Court
shall also proceed under Section 446 of CrPC against such appellant and their
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 appellants shall be
forwarded in custody to undergo sentence of imprisonment under intimation to
the Registry of this Court.
Accordingly, I.A. Nos.23474/2023 and 918/2024 stands allowed and
disposed of.
List for final hearing in due course.
Certified copy as per rules.
(SANJEEV S KALGAONKAR)
JUDGE
Avi
