The Madhya Pradesh High Court has granted bail pending appeal to a 78-year-old retired Army Head Constable convicted under Section 302 read with 120B IPC, citing grave procedural gaps and the accused’s advanced age. The order underscores that suspension of sentence under Section 389 CrPC is not contingent on a final determination of merit but on prima facie grounds of injustice, especially where evidence is weak and procedural safeguards are absent.
Background & Facts
The Dispute
The appellant, Sobran Singh Tomar, a 78-year-old retired Head Constable of the Indian Army, was convicted by the IV Additional Sessions Judge, Gwalior, on 18.11.2025 under Section 302 read with Section 120B IPC for conspiracy and murder. He was sentenced to life imprisonment and a fine of Rs. 2,000 with default stipulation. The prosecution alleged that the appellant conspired with two other accused, Ankit and Saurabh, to murder the victim on 30.05.2018. The sole link between the appellant and the crime was a mobile phone seized during arrest and alleged calls made to him on the day of the incident.
Key Facts
- The incident occurred on 30.05.2018
- The appellant was arrested on 01.06.2018
- The trial commenced in S.T. No. 482/2018
- The appellant was in judicial custody for approximately 1 year and 2 months prior to and during trial
- The prosecution relied heavily on a mobile phone seized from the appellant and alleged call records
- No CAF (Customer Acquisition Form) report was obtained by the Investigating Officer to establish ownership or usage of the mobile number by the appellant
- The Investigating Officer (PW-27) admitted in court on 15.09.2025 that no CAF report was prepared for the mobile number in question
- The prosecution’s case hinged on the claim that Ankit and Saurabh called the appellant on the day of the incident, but no CAF report corroborated this
- The motive alleged was the death of the appellant’s son in 2004, 14 years prior to the incident
- All material prosecution witnesses, including eyewitnesses and forensic experts, turned hostile during trial
- The appellant retired from the Indian Army in 1985 and has no prior criminal record
Procedural History
- 30.05.2018: Alleged murder incident
- 01.06.2018: Arrest of appellant
- 18.11.2025: Conviction and sentencing by IV Additional Sessions Judge, Gwalior
- 12.12.2025: Filing of Criminal Appeal CRA No. 11784 of 2025 before the High Court, Gwalior
- 18.01.2026: Filing of I.A. No. 1845/2025 under Section 389(1) CrPC for suspension of sentence and grant of bail
- 29.04.2026: Hearing of interim application before the Division Bench
The Parties' Positions
For the Appellant
The appellant’s counsel argued that:
- The prosecution failed to establish a direct link between the appellant and the crime due to absence of CAF report
- The mobile phone seized could not be conclusively tied to the appellant
- The alleged calls to the appellant were not verified by any official record
- The motive of revenge for a 14-year-old incident is implausible for a man of advanced age
- All prosecution witnesses turned hostile, undermining the entire case
- The appellant is 78 years old and has already endured over a year in custody
- The appeal has substantial grounds and will take considerable time to hear
For the Respondent/State
The Additional Advocate General opposed the application, contending that:
- The conviction was based on circumstantial evidence and the trial court’s findings should not be disturbed at the interim stage
- Suspension of sentence is not a matter of right
- The gravity of the offence (murder) militates against granting bail
- The appellant’s age and custody duration do not override the seriousness of the crime
Relief Sought
The appellant sought suspension of the life sentence and grant of bail pending disposal of the appeal, subject to furnishing a bail bond and surety, and compliance with conditions to avoid harassment of the complainant.
The Legal Issue
Can a court suspend a life sentence under Section 389(1) CrPC when the conviction rests on uncorroborated circumstantial evidence, hostile witnesses, and the absence of critical documentary proof such as a CAF report, particularly when the accused is elderly and has already served significant pre-trial and post-trial custody?
Arguments Presented
For the Appellant
The appellant’s counsel relied on State of Madhya Pradesh v. Madan Lal and Rajendra Prasad v. State of U.P. to argue that suspension of sentence under Section 389 CrPC is discretionary and must be granted where the appeal raises substantial questions of law or fact, and continued incarceration would cause irreparable hardship. The absence of a CAF report rendered the mobile evidence inadmissible as proof of communication. The hostile nature of prosecution witnesses, coupled with the implausibility of a 14-year-old motive, rendered the conviction unsafe. The appellant’s age and time served were compelling humanitarian grounds.
For the Respondent/State
The State contended that Section 389 CrPC requires a prima facie case of error in conviction, which was not made out. The trial court had evaluated evidence and found the appellant guilty beyond reasonable doubt. The State cited K. S. Puttaswamy v. Union of India to argue that procedural lapses do not automatically vitiate convictions unless they affect the fairness of trial. The gravity of murder, it was submitted, outweighs any interim hardship.
The Court's Analysis
The Court examined the nature of the evidence and the procedural failures in the prosecution’s case. It noted that the Investigating Officer himself admitted that no CAF report was obtained for the mobile number allegedly used to contact the appellant. Without such a report, the Court held, it is impossible to establish that the calls were made to or from the appellant’s device. The Court observed:
"In the absence of a CAF report, any inference that the appellant was in communication with the prime accused on the day of the incident is speculative and cannot form the basis of a conviction under Section 120B IPC."
The Court further noted that all prosecution witnesses, including those who were expected to testify to the appellant’s presence or involvement, turned hostile. The motive - revenge for a son’s death 14 years prior - was deemed too remote and implausible to sustain a conspiracy charge against a man of 78. The Court emphasized that while it was not expressing any opinion on the final outcome of the appeal, the cumulative effect of these factors created a prima facie case for suspension of sentence under Section 389 CrPC.
The Court also considered the appellant’s advanced age and the fact that he had already undergone over a year in custody. It held that continued incarceration pending appeal, under such evidentiary uncertainty, would amount to undue hardship. The Court reiterated that suspension of sentence is not an acquittal but a procedural safeguard to prevent irreparable injustice during the pendency of a legitimate appeal.
The Verdict
The appellant succeeded. The Court suspended the life sentence and granted bail subject to the following conditions: the appellant shall furnish a bail bond of Rs. 50,000 along with one solvent surety of the like amount, to be approved by the trial court; he shall appear before the Principal Registrar of the High Court on 12.10.2026 and on all subsequent dates as directed; he shall not contact or harass the complainant or his family; and he shall deposit the fine of Rs. 2,000 within 15 days. Execution of the jail sentence is suspended until final disposal of the appeal.
What This Means For Similar Cases
Suspicion Alone Cannot Sustain Conviction
- Practitioners must insist on corroboration for circumstantial evidence, especially when digital evidence is central
- Absence of CAF reports or telecom records must be raised as fatal defects in prosecution’s case
- Courts may suspend sentences where digital evidence is unverified, even in serious offences
Age and Custody Duration Are Material for Bail Pending Appeal
- Advanced age and prolonged pre-trial/post-trial custody are valid humanitarian grounds under Section 389 CrPC
- Courts are increasingly willing to suspend sentences where the accused has served substantial time and the appeal raises serious evidentiary issues
- The burden is not on the accused to prove innocence, but on the prosecution to establish a prima facie case that survives scrutiny
Hostile Witnesses Undermine Prosecution’s Case
- When all material witnesses turn hostile, the prosecution’s case collapses unless independently corroborated
- Courts will not uphold convictions based on testimony that is later retracted without alternative evidence
- Defence counsel must systematically document hostile conduct and seek adverse inference under Section 118 of the Evidence Act
