Sundar vs The State Of Madhya Pradesh
2023 Latest Caselaw 3785 MP

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        IN THE HIGH COURT OF MADHYA PRADESH
                               AT INDORE

                         CRA No. 5177 of 2020
                  (SUNDAR Vs THE STATE OF MADHYA PRADESH)



Dated : 03-03-2023
      Ms. Sharmila Sharma, learned counsel for the appellant.
      Ms. Mamta Shandilya, learned Government Advocate for the
respondent/State.
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Heard on I.A. No.997/2023 which is first application under Section 389 of Cr.P.C. for suspension of remaining jail sentence of appellant/Sunder.

The appellant has been convicted for the offence punishable under Section 302/149 of IPC and sentenced to undergo life imprisonment with fine of Rs. 1000/- with default stipulation.

As per the prosecution story, on 28.2.2018 complainant Mahariya (PW1) went to the police station Warla, District Barwani and lodged a report that "Parsingh (deceased) is his son and he went from Village Koli Kanjapani to village Babadad to see "Bhagoriya" but till evening he did not return back to his house and he thought that his son Parsingh may have stayed over at his relatives house in village Mohala. The next morning his son Tersingh (PW2) went to his relatives house to see his brother Parsingh (deceased) but he was not in the house and on the same day at around 11:00 to 12:00 AM he was informed by Kiragaya Barela that a dead body was lying at "Kolki Fatha" then the complainant Mahariya (PW1) along with Bhairam and Deewan went to check whose body was there, and found that the dead body was of his son Parsingh (Deceased) which

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had a head injury and blood in its mouth", on the said information, Marg No. 10/2018 was registered and in inquiry of Marg, Safina form was drawn and Naksha Panchanama of dead body was prepared. Dead body was sent for P.M. and Dr. Rajendra Thakur (PW11) was opined that he died due to severe head injury and is homicidal in nature. After Marg inquiry FIR was registered under Section 302 of Indian Penal Code, 1860 Crime No.41/2018. During the investigation, the appellants and other co-accused persons were arrested and after completion of the investigation charge sheet was filed under S.302/149 I.P.C. The charges were framed which were denied by the appellants and they pleaded for trial. After evaluating the evidence came on record the appellants have been convicted for the aforementioned offence.

Learned counsel for the appellant submitted that there is no eye witness in the case and the case is based on circumstantial evidence. The appellant was not present on the spot and the trial Court has convicted the appellant only on the basis of extra judicial confession and the judgment of the trial Court is not sustainable in the eyes of law. He further submits that final hearing of the present appeal in near future is not possible, the appellant is permanent resident of District Barwani and there is no chance to abscond and therefore prays for the suspension of jail sentence of the appellant.

Learned counsel for the respondent (State) has opposed the prayer of suspension of sentence and prayed for its rejection.

On perusal of record of the trial Court and the impugned judgment, it is found that the case was not based on eye witness but on last seen theory and circumstantial evidence and no recovery was done from the appellant. Custody period of the appellant is

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above four years. The appeal was filed in the year 2021 and at present final hearing of this appeal in near future is not possible due to long pendency of criminal appeals.

So keeping in view the facts and circumstances of the case in totality and also the fact that the appellant has already undergone about four years of jail sentence, therefore, without commenting on the merit of the case, we are of the considered opinion that the application for suspension of custodial sentence moved on behalf of the appellant deserves to be allowed.

Accordingly, I.A. No.997/2023 is allowed and it is directed that subject to depositing of fine amount and on furnishing personal bond by the appellant/Sunder in the sum of Rs.50,000/- (Rupees Fifty thousand only) with one solvent surety each in the like amount to the satisfaction of the learned trial Court for their appearance before the Court, the execution of custodial part of the sentence shall remain suspended, till the final disposal of this appeal.

The appellant after being enlarged on bail, shall mark their presence before concerned trial court on 20/07/2023 and on all such subsequent dates, which are fixed in this regard by the concerned Trial Court.

I.A.No.998/2023 is closed.

Certified copy as per rules.

                                    (VIVEK RUSIA)                                  (ANIL VERMA)
                                       JUDGE                                           JUDGE
                                    praveen




Digitally signed by PRAVEEN
NAYAK
Date: 2023.03.04 14:28:54 +05'30'