Madhya Pradesh High Court
Shivmohan Singh Tomar vs The State Of Madhya Pradesh on 29 May, 2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 5593 of 2024
(SHIVMOHAN SINGH TOMAR Vs THE STATE OF MADHYA PRADESH)
Dated : 29-05-2024
Shri Awdhesh Singh Bhadauria - Advocate for appellant.
Smt. Anjali Gyanani - Public Prosecutor for the State.
Heard on I.A. No.9114 of 2024, first application under Section 389(1)
Cr.P.C. filed for suspension of sentence and grant of bail on behalf of the
appellant -Shivmohan Singh Tomar.
2. Appellant stood convicted under Sections 302 of IPC and sentenced to
undergo life imprisonment with a fine of Rs.1000/- with default stipulation, vide
judgment of conviction and order of sentence dated 01.05.2024 by Fifteenth
Additional Sessions Judge, Gwalior in Sessions Trial No.346/2023.
3. Prosecution case, in brief, is that on 04.03.2023, after receiving the
information at Maharajpura police station from the Police control room in
respect of firing in Ganga Vihar Colony, S.I. Jayendra Kushwah reached the
spot and saw that a person was lying unconscious outside the house, a bullet
hole was visible on his chest and blood was oozing out and an injury was also
visible on the rib on the right side. He had died. There was no one present at
home, there was a crowd of people outside the house but no one was saying
anything and they were discussing among themselves in a subdued tone that a
dispute was going on between the deceased Shyamsundar alias Shyamu and his
brother Shivmohan Singh alias Bunty Tomar regarding the distribution of land
for two-three hours and Shyamsundar was throwing stones at the door from
outside the house, then Shivmohan Singh came out of the house and shot
Shyamsundar with his gun which hit him in his chest and he fell down outside
the house, due to which, he died.
4. The dehati nalashi was recorded on the spot at Crime No.00/2023 under
Section 302 of IPC. On which, Crime No.170/2023 was registered under
Section 302 of IPC. The investigation was set in motion. Upon completion of
investigation including recording of statements, collection of evidence and
necessary formalities, challan was filed. The Sessions Court, on appreciation
of evidence placed on record, convicted and sentenced the present appellant, as
mentioned above.
5. Learned counsel for appellant submits that present appellant has falsely
been implicated in the instant case. It is submitted that no eye witness has
supported the story of prosecution. As per the defence version, on the date of
incident, the deceased Shyamsundar came running into the house of accused
Shivmohan Singh and closed the door, then four persons on two motor cycles
came from behind armed with double barrel guns. They called the deceased
Shyamsundar and started abusing him. The deceased Shyamsundar came out of
the house with the 12 bore gun of appellant Shivmohan Singh Tomar and fired
two shots in the air. The miscreants who came on motorcycle also fired, due to
which, deceased Shyamsundar sustained firearm injury and he succumbed to
the injury. This story has been supported by the eye witnesses of the
prosecution in their deposition before the Trial Court. It is further submitted that
at the time of incident, the accused was 8-10 kilometers away from the scene of
crime and getting his brother's house constructed and came to the place of
incident after 1/2 - 1 hour. The bullet injury because of which the deceased died
was not fired from the rifle of accused/appellant. However, the police has later
on cooked up the story and seized his rifle to falsely implicate the
appellant/accused in the incident. It is further submitted that the appeal being of
2024 is not likely to be decided in the near future. On these grounds, learned
counsel submits that the appellant may be extended the benefit of suspension of
sentence and grant of bail.
6. Per contra, learned counsel for the State, opposes the application and
submits that though the prosecution eye witnesses have turned hostile before
the Trial Court, but the evidence which had been collected and adduced before
the Trial Court were found believable and sufficient for the conviction of
appellant/accused. No defence witness was examined to prove his defence. The
deceased sustained gunshot injury and as per the FSL report (Ex. P-36),
Exhibits P-1, P-2 and W-1 seized from the scene of crime were the pieces of
bullet fired from 12 bore rifle. It is further opined in the FSL that Ex. EC1 and
EC2 were two empty cartridges of bullets fired from 12 bore rifle Ex. A1, which
is the licensee gun of the appellant/accused. The naksha panchayatnama
prepared shows that Bhu Adhikar & Rin Pustika as well as registered sale deed
(Exhibit P-20 to P-26) were lying near the door on the spot, in respect of which,
no explanation has been given by the appellant/accused. Thus, there is no
ground for suspension of sentence and grant of bail.
7. Heard learned counsel for the parties and perused the record.
8. Having heard learned counsel for the parties and having regard to the
fact that the place of incident is just in front of the house of accused where
registered sale deed and Bhu Adhikar & Rin Pustika were also found which
support the story of prosecution and that the FSL report transpires that the
bullet was fired from 12 bore gun seized from the appellant/accused, we are of
the view that no case for suspension of sentence and grant of bail is made out,
as at this stage, the defence of the appellant does not appear probable.
9. Accordingly, I.A. No.9114 of 2024 is dismissed.
10. 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.
(VIVEK RUSIA) (RAJENDRA KUMAR VANI)
JUDGE JUDGE
Aman
