Madhya Pradesh High Court
Abhishek Kunde vs The State Of M.P. on 13 March, 2025
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1 CRA-8611-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 8611 of 2023
(ABHISHEK KUNDE Vs THE STATE OF M.P. AND OTHERS )
Dated : 13-03-2025
Shri Raman Patel and Shri Harshit Pandey - Advocates for appellant.
Shri Geetesh Singh Thakur - Govt. Advocate for respondent/State.
Heard on I.A. No.21691/2023 , which is first application filed under
Section 389(1) of the Code of Criminal Procedure 1973, for suspension of
jail sentence and grant of bail on behalf of sole appellant - Abhishek Kunde .
The appellant has been convicted for the offences punishable under
Section 302/34 of IPC and sentenced to undergo life imprisonment with fine
of Rs.5,000/-, Section 364 r/w Section 120B of IPC and sentenced to
undergo R.I. for 10 years with fine of Rs.5,000/-, Section 404 of IPC and
sentenced to undergo R.I. for 2 years with fine of Rs.2,000/- and Section
25(1-b)B Arms Act and sentenced to undergo R.I. for 1 year with fine of
Rs.2,000/-, with default stipulation vide judgment of conviction and order of
sentence dated 10.05.2023 passed by 4th Additional Sessions Judge, District
Jabalpur (M.P.) in S.T. No.690/2016.
This first application for suspension of sentence has been argued on
the ground that the last seen theory invoked here was not duly established by
the prosecution evidence; two witnesses Sanjay Mishra (PW-7) and Shiva
George (PW-17) were examined on this fact as TIP was held in the presence
of these two witnesses, but statements of Sanjay Mishra reveal that he was
shown the photographs of alleged accused persons before the TIP was held;
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the statements of Shiva George (PW-17) are also not very reliable on this
point as he claims to have identified all the accused persons who were on
two different motorcycles; his statements reveal that he only had a fleeing
glimpse of the faces of these persons and had even failed to correctly
identify some of them during TIP. It has also been argued that the police
statements of these two witnesses were recorded on 17.07.2016 while they
allegedly saw the deceased in the company of appellant on 11.07.2016. Long
delay and silence in not revealing this important fact has been questioned by
the appellant's side. It has also been argued that only on the basis of sole
circumstance of recovery of blood stained weapon or clothes, it cannot be
established that prosecution has discharged its burden of proving the case
beyond reasonable doubt. It is argued that in a case of circumstantial
evidence all links of the chain are supposed to be established beyond
reasonable doubt and all the circumstances from which the conclusion of
guilt is to be drawn should be consistent only with the hypothesis of guilt
and further it should be conclusive in nature. The recovery of locket of
deceased cannot prove his involvement in the crime as similar lockets are
available in the market and no specific identification mark on that locket was
indicated or highlighted by the witness at the time of its identification. Citing
decisions of the Apex Court in case of R. Shreenivasa Vs. State of
Karnataka, 2023 Livelaw (SC) 751 and Raja Naykar Vs. State of
Chhattisgarh, 2024 Livelaw (SC) 60, a request has been made to allow the
application for suspension of sentence.
State has opposed the application on the grounds that it was a case of
3 CRA-8611-2023
brutal murder where a young man was given 10 incised wounds and blood
stained weapons as well as clothes were recovered from the appellant for
which no explanation was offered. It has also been submitted that the theory
of last seen was established by the testimony of material witnesses. It is,
therefore, prayed that the application deserves to be dismissed.
Learned counsel for both the sides have been heard and record has
been perused.
Having considered rival submissions of both the sides and on perusal
of record, we are of the considered opinion that till disposal of this appeal,
execution of jail sentence awarded to the appellant under the impugned
judgment deserves to be suspended. Therefore, without commenting on the
merit of the case, this application is allowed.
It is directed that subject to depositing the fine amount, if not already
deposited and on furnishing a personal bond in a sum of Rs.50,000/- (Rupees
Fifty Thousand only) with one surety in the like amount to the satisfaction of
the trial Court concerned, the custodial sentence of the appellant shall remain
suspended and he shall be released on bail for securing his presence before
the trial Court concerned on 01.07.2025 and on such other dates as may be
fixed in this regard during pendency of this appeal.
Accordingly, the aforesaid I.A. stands allowed and disposed of.
List for final hearing in due course.
(SUSHRUT ARVIND DHARMADHIKARI) (ANURADHA SHUKLA)
JUDGE JUDGE
4 CRA-8611-2023
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