Madhya Pradesh High Court
Om @ Dharmveer vs The State Of Madhya Pradesh on 28 August, 2023
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 9910 of 2023
(OM @ DHARMVEER Vs THE STATE OF MADHYA PRADESH)
Dated : 28-08-2023
Shri Awdhesh Singh Bhadauria, learned counsel for the appellant.
Ms. Kalpana Parmar- Panel Lawyer for respondent/State.
Heard on the question of admission.
Being arguable, the appeal is admitted for final hearing. Also heard on IA No. 14403/2023, first application under Section 389(1) Cr.P.C. moved on behalf of the appellant seeking suspension of sentence and grant of bail.
Appellant stands convicted under Sections 148, 397/149 of IPC read with Section 11/13 of MPDVPK Act and 395/149 of IPC read with Section 11/13 of MPDVPK Act and sentenced to undergo one year's RI with fine of Rs.500/-, Five years RI with fine of Rs.1000/- and Seven years RI with fine of Rs.1000/- respectively with default stipulations vide judgment of conviction and sentence dated 25.07.2023 passed by Special Judge, (Dacoity) Bhind, in SC (DOCT) 60 of 2014.
Learned Counsel for appellant submits that the impugned judgment passed by learned Trial Court is based on assumption, conjecture 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 contractions and omissions in the evidence of witnesses. Learned counsel referring to evidence of eye witnesses on record submits that none of the witnesses have identified appellant in the Court. Vishambhar Dayal (PW2) has identified only accused Pradeep Kumar during Signature Not Verified Signed by: RAM KUMAR SHARMA Signing time: 29/08/2023 10:38:43 AM 2 Court identification. He has stated that he could not see other accused persons. Learned counsel contends that the trial Court has committed grave error in law in convicting appellant/accused merely on the basis of evidence relating to TIP which is not substantive evidence. The motorcycle allegedly seized at the instance of appellant has not been identified by any of the prosecution witness. Learned trial court has failed to appreciate the fact that no recovery of incriminating article connecting accused with the alleged offence has been proved. No criminal antecedent is reported against the appellant. The appellant was on bail during trial and he did not misuse the liberty so granted to him. Fine amount has already been deposited by the appellant. There is no likelihood of 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 opposed the application by referring Para 29 of the judgment and contends that learned trial Court has taken cognizance of conduct of appellant Om alias Dharamvir. Therefore, considering this fact, the application for suspension of sentence deserves no indulgence by the Court.
In reply, learned counsel for the appellant submits that the conduct of appellant as alleged, has no relevance to the prosecution and conviction of appellant in the alleged offence. Further, it is yet to be proved that the appellant was involved in surrender by other person named Akash in his place. Therefore, the appellant deserves to be released on bail.
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 Signature Not Verified Signed by: RAM KUMAR SHARMA Signing time: 29/08/2023 10:38:43 AM 3 remaining jail sentence of appellant 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 and also subject to deposit of the fine amount (if not already deposited) for his appearance before the Registry of this Court on 31.10.2023 and on further dates as may be directed by the Registry in that regard.
Accordingly, I.A. No.14403/2023 stands allowed and disposed of. List the matter for final hearing in due course.
Certified copy as per rules.
(SANJEEV S KALGAONKAR) JUDGE Rks Signature Not Verified Signed by: RAM KUMAR SHARMA Signing time: 29/08/2023 10:38:43 AM