Munna Shah vs The State Of Madhya Pradesh
2025 Latest Caselaw 179 MP

Madhya Pradesh High Court

Munna Shah vs The State Of Madhya Pradesh on 1 May, 2025

                                                             1                             CRA-13122-2023
                                       IN THE HIGH COURT OF MADHYA PRADESH
                                                    AT GWALIOR
                                                    CRA No. 13122 of 2023
                                       (MUNNA SHAH AND OTHERS Vs THE STATE OF MADHYA PRADESH )



                          Dated : 01-05-2025
                                Shri Arun Kumar Paterya, Advocate with Shri Abhishek Tiwari,

                          Advocate for the appellants.
                                Shri B.P.S. Chauhan - Public Prosecutor for the respondent/State.

Heard on admission.

Appeal being arguable, is admitted for final hearing.

Heard on I.A.No.8441/24, which is an application for change of counsel filed by the appellants.

After due consideration, the application is allowed. Shri Mohit Shivhare and his associates are permitted to appear on behalf of appellants in place of Shri A.K. Jain, Advocate and his Associates.

Heard on I.A. No.22669/2023 , which is first application under Section 389 of Cr.P.C for suspension of sentence and grant of bail to the appellant No.1 Munna Shah and appellant No.2 Chhotu Shah.

At the outset, learned counsel for the appellants does not press the

suspension of sentence and grant of bail relating to the appellant No.2 Chhotu Shah.

Prayer allowed.

The application of suspension of sentence and grant of bail relating to appellant No.2 Chhotu Shah is dismissed as withdrawn.

2. This Criminal Appeal assails the judgment dated 12.09.2023 passed

2 CRA-13122-2023 in ST No.301/2019 by the Eighth Additional Sessions Judge, Gwalior, District Gwalior whereby appellant No.1 Munna Shah has been convicted as under:

Fine of Imprisonment in lieu of Section Imprisonment Rs. fine 120-B of IPC (2 10 years R.I. 2,000/- 2 months' R.I. counts) 366 of IPC( 2 counts) 8 years' R.I 2,000/- 2 months' R.I. 370-Ka (2) (2 counts) 5 years' R.I. 2000/- 2 months' R.I.

3. Learned counsel for the appellant submits that the trial Court has wrongly convicted the appellant without proper appreciation of facts of the case as well as evidence on record. It is further submitted that present

appellant Muuna Shah is 67 years of old. He was 65 years at the time of passing of judgment. He remained in custody for more than three years and 1/3rd of sentence, he has suffered. It is also submitted that under Section 120-B of IPC, no separate sentence could have been passed. The other sentences are up to eight years. The prosecutrix PW-9 and PW-13 have turned hostile and did not support the story of prosecution though the DNA report is positive but keeping in view the hostility of prosecutrix, no case is made out against the present appellant Munna Shah, who has been convicted under Section 366(2 counts), 370 -Ka (2 counts) and 120-B of IPC. It is also submitted that having regard to the age, period of custody and the case of hostility of both the prosecutrix, present appellant, is entitled to release on bail. He also relied upon a judgment of the Hon'ble Apex Court in the case of Kamal Vs. State of Haryana in SLP (Crl.) No.3599/2004 , in which, after

3 CRA-13122-2023 undergoing imprisonment for about two years, out of the sentence of seven years, he has been granted bail by order dated 15.10.2004. It is also submitted that the present appellant is ready and willing to abide by any condition which may be imposed by the Court. There is no possibility of final hearing of this appeal in near future. Therefore, it is prayed that sentence of the appellant may be suspended.

4. Per contra, learned counsel for the State opposed the application on the ground that prosecutrix PW-9 though declared hostile but thereafter she admitted the suggestions given by prosecution and ratified the allegations levelled by the prosecution against present appellant and it is discussed in para 17 of the impugned judgment. This statement, coupled with the DNA report, which is found to be positive against present appellant, the conviction and sentence under aforesaid sections on cogent grounds. He also submitted that paragraphs 37 and 38 dealt with the facts found proved by the trial. Therefore, there is no ground to challenge the conviction and sentence as imposed by the Court.

5. Heard learned counsel for the parties and perused the record.

6. Merits are to be considered for deciding application for suspension of sentence, which differ from case to case. Considering the attending facts and circumstances of the case, the judgment of Hon'ble Apex Court in the case of Kamal (Supra) is distinguishable on facts. Though, appellant is 67 years old and has suffered more than three years of custody but keeping in view the nature of crime, severiority of punishment and manner in which

crime has been committed and having regard to material and evidence on

4 CRA-13122-2023 record but without commenting on the merits of the case, in the considered opinion of this Court, the present appellant is not entitled for grant of suspension of sentence.

7. Accordingly, I.A.No.22669/2023 is hereby dismissed.

(RAJENDRA KUMAR VANI) JUDGE

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