IN THE HIGH COURT OF MADHYA PRADESH AT INDORE CRA No. 2352 of 2022 (SUMER SINGH RAJPUT AND OTHERS Vs THE STATE OF MADHYA PRADESH)

Dated : 10-11-2022 Shri Vinay Saraf, learned Senior with Shri Namit Jain & Shri Palash Choudhary, learned counsel for the appellant nos.5, 6, 8, 9 & 11 Shri Mitesh Jain, learned counsel for the appellant nos.1, 4 and 7.

Shri Sanjay Kumar Sharma, learned counsel for the Respondent [COMP].

Shri Sudhanshu Vyas PL appearing on behalf of Advocate General/State.

Heard on I.A. No.14465/2022, an application for amendment in I.A.

No.13074/2022 wherein the name of appellant no.11 Bhima Singh has been mentioned as Krishna Singh due to typographical error.

In view of the averments made in the application which is duly supported within an affidavit, the same is allowed.

Heard on I.A. No.13167/2022, second application filed on behalf of appellant no.1/Sumer Singh Rajput, Appellant No.4 Anil Singh Rajput and appellant No.7 Kundan Singh Rajput for grant of suspension of jail sentence.

Also heard on I.A. No.13074/2022, second application filed on behalf o f Appellant No.5/Kamal Singh, Appellant No.6/Vimal, Appellant No.8/Krishna Singh, Appellant No.9/ Praveen Rathore, Appellant No.11/Bhim Singh.

Earlier, first application of the appellants was dismissed on merits by this Court vide order dated 23.06.2022.

All the appellants have been convicted and sentenced for 10 years (two counts), Seven years, 1-1 years, and six months R.I. with fine and default stipulations under Sections 307/149, 326/149, 148/149, 323/149 of IPC vide judgement dated 26.02.2022 passed in ST No.1000040/2016 by District and Sessions Judge, Dhar.

Learned Senior counsel for the appellants have submitted that at the time of deciding the first application it was not considered that how the accused persons of this case have sustained injuries whereas two persons were died. There is no explanation by the prosecution/investigating agency in this regard. It is also submitted that there is cross-case on behalf of the present appellants and the learned trial Court has decided and passed the judgments in both the cases on the same day. Dehati Nalishi in the present case was lodged on 05.11.2015 at 8:45 PM at Unique Hospital, Indore and FIR Ex.p/53 was registered on 16.11.2015 at about 1:20 AM, but nothing is mentioned in the FIR regarding Dehati Nalishi. In the cross-case, Dehati Nalishi was lodged on 04.11.2015 at Bombay Hospital, Indore and the FIR was registered on 05.11.2015 at 2:10 AM. It is also submitted that this FIR was registered on the basis of Ex.P/5 Dehati nalishi, which is clearly mentioned in this FIR. It is also submitted that the complainant party of the present case were convicted in cross-case for the offence punishable under Section 302/149 of IPC (two counts), 307, 324 and 148 if IPC and this fact has not been considered earlier. It is also submitted that appellant Sumer Singh has also sustained gun shot injury which is proved by DW/1, DW/2 and DW/3. Both the judgements passed by the learned Court below are contrary to each other and the learned Court below has passed the contrary judgements. Final hearing of the appeal will take sufficient long time, hence, prays for grant of benefit of suspension of jail sentence to the appellants.

In support of his contentions, learned Senior counsel for the appellants has placed reliance over the judgement passed by Hon'ble Apex Court in the case of Kumar vs. State Represented by Inspector of Police (2018 (7) SCC 536) and Laxmi Singh vs. State of Bihar (1976) 4 SCC 394, where the Hon'ble Apex court has observed that at the outset, it would be relevant to note the settled principles of law on this aspect. Generally failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true.

Learned counsel for the State as well as counsel for the complainant/objector have opposed by the prayer and supported