Bunty @ Banshi vs The State Of Madhya Pradesh
2023 Latest Caselaw 9716 MP

                                                              1
                                       IN THE HIGH COURT OF MADHYA PRADESH
                                                    AT JABALPUR
                                                         CRA No. 2812 of 2022
                                       (BUNTY @ BANSHI AND OTHERS Vs THE STATE OF MADHYA PRADESH)

                          Dated : 27-06-2023
                                 Ms. Indu Pandey - Advocate for the appellant No.3 Kamlesh.

                                 Shri A.N. Gupta - Government Advocate for the respondent-State of

M.P.

At the outset, learned counsel for the appellant prays for withdrawal of I.A.No.24207/2022.

Accordingly, it is dismissed as withdrawn. Also heard on I.A. No.5975 of 2023, an application filed under Section 389(1) of Cr.P.C. for suspension of sentence and grant of bail to appellant No.3 Kamlesh arising out of judgment dated 22.02.2022 delivered in S.T. No.227/2013 by Second Additional Sessions Judge, Gadarwara, District Narsinghpur.

This appellant has been convicted under Section 302/120-B of IPC and sentenced to undergo RI for Life with fine of Rs.2,000/- with default stipulation.

Learned counsel for the appellant submits that the case of the

prosecution is based on circumstantial evidence. As per prosecution story, appellant had previous animosity with deceased Govind because of that he hired other two accused persons namely Bunty and Rajju and gave them advance to murder Govind. After execution of the said task, remaining amount was required to be given. Learned counsel for the appellant by placing reliance on Para-22 of the judgment submits that the conviction is recorded on the basis of three factors namely:-

(i) Last seen theory;

Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 6/28/2023 2:08:54 PM

(ii) incriminating article and;

(iii) motive.

It is urged that the finding related to last seen theory given by Court below relates to accused Bunty and Rajju and no finding in this regard is given against the appellant.

So far the 'motive' is concerned, it is submitted that no doubt, a Rojnamcha was placed on record to show that the appellant lodged a report against Govind (deceased) but it was not translated in the shape of a regular criminal case etc. Animosity is the double edged sword and therefore in absence of any clinching evidence, only on the basis of previous enmity,

'motive' cannot be attributed. So far incriminating article is concerned, a mobile phone is allegedly recovered from the appellant and Bunty. In the cross- examination of (PW-23), he candidly admitted that the said SIM is in the name of one Kishorilal. Criticizing the findings given in para 34 of the judgment, it is submitted that it could not be established that the tower location of appellant was near the place of incident. The nature of discussion is not on record, and therefore, merely because there was some discussion/conversation between Bunty and Kamlesh as per the SIM, it is not sufficient to affirm the conviction. The final hearing of this appeal of 2022 will take time. The chain of circumstances is not complete and, therefore, the remaining jail sentence may be suspended.

Shri A.N. Gupta, learned Government Advocate supported the findings given in para-34 of the impugned judgment.

In this backdrop and without expressing any opinion of the merits of the case, we deem it appropriate to suspend the remaining jail sentence of the

Signature Not Verified appellant.

Signed by: S HUSHMAT HUSSAIN Signing time: 6/28/2023 2:08:54 PM

Accordingly, I.A. No.5975 of 2023 is allowed. Subject to depositing the fine amount (if not already deposited), the remaining jail sentence of appellant is hereby suspended and it is directed that this appellant be released on bail on his furnishing a personal bond for a sum of Rs.50,000/- (Rupees Fifty Thousand only) with one solvent surety of the like amount to the satisfaction of the trial Court with a further direction to appear

before the trial Court, Gadarwar District Narsinghpur on 3 rd of October, 2023 and also on such other dates as may be fixed by the trial Court in this regard during the pendency of this appeal.

Certified copy as per rules.

                               (SUJOY PAUL)                                 (ACHAL KUMAR PALIWAL)
                                  JUDGE                                             JUDGE

                          sh




Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 6/28/2023
2:08:54 PM