1. Heard on I.A.No.7523/2025, an application under Section 389(1) of Cr.P.C. for suspension of jail sentence and grant of bail on behalf of appellant No.1 - Prashant Sikarwar as well as I.A.No.24418/2024, an application under Section 389(1) of Cr.P.C. for suspension of jail sentence and grant of bail on behalf of appellant No.2 - Mahendra Singh Sikarwar.

2. As per order dated 27.10.2025 passed in SLP (Criminal) No.13465/2025 passed by Hon'ble Supreme Court of India these applications referred above are being heard analogously and decided by this common order.

3. This criminal appeal assails the judgment dated 13-07-2023 passed in S.T.No.38/2019 and 45/2020 by the II Additional Sessions Judge, Morena District Morena whereby appellants have been convicted as under:



4. It is the submission of learned counsel for appellants that trial Court erred in convicting the appellants and awarding jail sentence. Appellant No.1 Prashant Sikarwar already suffered 2 years 5 months incarceration whereas appellant No.2 Mahendra Singh Sikarwar suffered 2 years 6 months incarceration as pre and post trial detention. Hearing of this appeal shall take time.

5. It is further submitted that on 20.09.2018 around 8:30 pm complainant side, showed aggression and caused marpeet/injuries to the present appellants' side, therefore, FIR vide Crime No.982/2018 was registered at the instance of appellant side (Prashant Sikarwar was complainant) around 9:30 pm at Police Station Kotwali, District Morena. Later on, complainant side on next day i.e. 21.9.2018 around 1:11 pm filed FIR vide Crime No.984/2018 at Police Station Kotwali, District Morena against present appellants. Therefore, FIR filed at the instance of complainant side is much after the incident caused by the complainant side. Therefore, FIR registered at the instance of complainant side was in the nature of counter-blast and to falsely implicate the appellants to wriggle out from the FIR registered at the instance of appellants. As per the own submissions of learned counsel for the appellants, they shared animosity with one Surajpal from complainant side and they did not have any animosity with deceased Rohit.

6. It is further submitted that Trial Court acquitted the appellants for offence under Sections 302/34, 307/34, 325/34, 294 and 506 Part-2 of IPC but convicted them only under Sections 302 and 341 of IPC. Once they are acquitted from offence under Section 302/34 of IPC, meaning thereby the element of common intention shared by them goes and since they never had any animosity with deceased Rohit, therefore, it would be at best be a case of transfer of malice under Section 301 of IPC which brings the case into ambit of Culpable Homicide not amounting to murder. Then case would have to be seen from different perspective of Section 304 of IPC and not from offence under Section 302 of IPC.

7. It is further submitted that it was a case of accident and not murder as projected by the prosecution. Learned counsel appearing for the appellants refers merg intimation (Ex.P/8) recorded by Police Officer Kamlesh Kumar (PW-5) who refers cause of death of Rohit by way of accident and when he was cross-examined by defence counsel, then he admits that word accident was mentioned in Dehati Nalishi but because of mistake it happened. Learned counsel for the appellants refers statements under Section 313 of Cr.P.C. of appellants in which theory of accident and subsequent injuries sustained by deceased Rohit is narrated.

8. Learned counsel for the appellants also refers MLC reports (Ex.D/4 and D/5) which refers the time of treatment of complainant side as 8:30 and 8:40 p.m. respectively whereas FIR was registered next day at 1:11 pm. This creates contradiction and anomaly. It is further submitted that Doctor who conducted MLC as well as Doctor who conducted postmortem refers only one injury over the head of deceased Ravi, whereas eyewitness account indicates that both the appellants inflicted lathi blow (single blow each) to deceased on same spot. While referring judgment of Apex Court in the case o f Purshottam & Anr. vs. State of M.P. reported in 1980 Supp SCC 409, counsel for the appellants refers para 13 and submits that it is inherently improbable and intrinsically incredible that two injuries were sustained on the same spot with such precision. This makes the case vulnerable for prosecution.

9. It is further submitted by counsel for the appellants that appellants were earlier granted benefit of suspension of sentence/bail vide order dated 29.4.2025 when the case was made out on merits. It was not the case where without considering the merits, only on the basis of expression of community service, bail was granted. Learned counsel refers paragraph 3 in page 3 in this regard wherein this aspect has been categorically mentioned.

10. Learned counsel for the respondent/State opposed the prayer. According to counsel for respondent, both the appellants inflicted lathi blow to deceased Rohit and possibility cannot be ruled out that both the injuries sustained in similar pattern. Eyewitness account also narrates the incident. He prayed for dismissal of application.

11. Learned counsel for the complainant also opposed the prayer. According to him, fact of accident was mistakenly written by Kamlesh Kumar (PW-5) and he clarified this fact in examination-in-chief itself. An enquiry was held in this regard against him and he was punished accordingly. He reiterated the argument and submits that two injuries can be sustained by victim on the same spot.

12. Heard the counsel for the parties at length and perused the record.

13. This case is considered again with the aid of record after the matter is remanded back.

14. Considering the rival submissions especially the submission of learned counsel for the appellants that the FIR was lodged by the appellants vide Crime No.982/2018 at Police Station Kotwali, District Morena on 20.9.2018 at 9:30 pm for offence under Sections 451, 294, 323, 506 Part-II and 34 of IPC (as submitted trial is still pending) and the FIR lodged by the complainant side vide Crime No.984/2018 next day around 1:11 pm as well as the fact that Trial Court acquitted the appellants from offence under Sections 302/34, 307/34, 325/34, 294, and 506 Part-2 of IPC and convicted only for offence under Sections 302 and 341 of IPC, therefore, arguments of appellants regarding transfer of malice as well as case falling under Section 304 of IPC (culpable homicide) is not ruled out as well as the fact that as per the judgment of Apex Court in the case of Purshottam (supra) it is highly improbable that two injuries were sustained by victim on same spot with such precision as mentioned by the witnesses, thus, without expressing any opinion on merits of the case, this Court intends to allow the applications for suspension of sentence (I.A.Nos.7523/2025 & 21418/2024). If appellants furnish bail bond in the sum of Rs.50,000/- (Rupees Fifty Thousand Only) each along with two solvent sureties each, of the like amount to the satisfaction of the trial Court that they shall appear before the Principal Registrar of this Court on 23.03.2026 and on all other subsequent dates as may be fixed by the Office for appearance, then they shall be released on bail and execution of jail sentence is suspended till disposal of this appeal, subject to deposit of fine amount.

15. This Court granted bail earlier vide order dated 29.4.2025 after going through the merits of the case thereafter as per willingness expressed by appellants to perform community service, they were directed to plant saplings. Order was passed on merits and this aspect has been categorically mentioned in the earlier order dated 29.4.2025 itself in page 3 in following manner:

          "It is made clear that this order of suspension of sentence is granted once the case is made out and thereafter, direction for plantation of saplings is given and it is not the case where a person intends to serve social cause can be given bail without considering the merits."

16. Appellants shall not be source of embarrassment and harassment to the complainant in any manner and they shall not move in their vicinity.

17. Applications stand allowed and closed.

18. Copy of this order be sent to the Trial Court concerned for information and necessary compliance.

19. Certified copy as per rules.