GOLU Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) Heard on I.A.No.6553/2020, which is repeat(second) application filed by the accused/appellant, under section 389 (1) of Cr.P.C . for suspension of his jail sentence awarded by the Court of II Additional Session Judge, Umariya, District Umariya (MP), in S.T. No.30/2017 vide its judgment dated 3.4.2019 convicting the appellant/accused under S section 307 of the IPC and sentenced him to undergo RI for 7 years with fine of Rs.2,000/- & Section 25 (1-b) of the Arms Act and sentenced him to undergo RI for 2 years with fine of Rs.1,000/-, with default stipulation on each count, as mentioned in the impugned judgment.

(2.) A s per prosecution case, prior to three days of the incident, complainant/injured Lavkush Gupta (PW/2) was coming to his house from State Bank Navrojabad. On the way, accused/appellant and co-accused met him, they stopped him, doe to fear of them, he went to his shop. On 24.4.2017, complainant-Lavkush was at his shop. At that time, accused/appellant and co-accused reached there on a motorcycle, they threatened him and thereafter accused/appellant fired gun shot from a country made postol (Katta) to him, which struck to the glass of shop. Due to this glass of shop was broken. On shriek of complainant-Lavkush, some neighbours reached there. Thereafter, accused/appellant and co-accused ran away from the spot. During the investigation, one country made pistol (Katta) was seized from the possession of accused/appellant. One cartridge was seized from the spot. After the investigation, charge sheet has been filed.

(3.) Rs.e a r n e d counsel for the appellant/accused submits that accused/appellant remained in jail during trial since 26.4.2017 to 28.12.2017 and thereafter he is in jail since 3.4.2019, so he has served almost two years of his jail sentence. This appeal is of year 2019 and trial will take time to conclude the same. The evidence of complainant-Lavkush Gupta (PW/2) is not wholly reliable. He did not lodge any report against the present accused/appellant prior to the incident. There is previous enmity. No other eye witness has supported the case of prosecution and they declared hostile by the prosecution. It is alleged by the prosecution that during investigation country made pistol and one cartridge were seized from the possession of accused/appellant vide Ex.P/12, but seizure witness Mahaveer Kol (PW/5) and Chhotu (PW/8) did not support the case of prosecution. Investigating Officer R.B. Soni (PW/11) prepared arrest memo vide Ex.P/11. It is not mentioned in the arrest memo that any article was seized from the possession of accused/appellant. Broken pieces of glass of shop of complainant were not seized. Execution of sentence of other co-accused has already been suspended and he has been granted bail vide order dated 10.2.2020. There are material contradictions and omissions in the statement of the witnesses. There is fair chance to succeed in the appeal. There is no likelihood of their absconding and tampering with the evidence. Under the circumstances, if the sentence of the appellant is not suspended, their right to file appeal will be futile. Hence, prayer is made for suspension of jail sentence and grant of bail of present accused/ appellant.