IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR CRA No. 3561 of 2023 (KASSI @ KISHORI KURMI Vs THE STATE OF MADHYA PRADESH)

Dated : 04-07-2024 Shri Ashish Kurmi -Advocate for the appellant.

Shri Pramod Pandey -Government Advocate for the respondent/State The applicant/appellant Kassi @ Kishori Kurmi seeks suspension of sentence vide I.A. No.5652 of 2023 in his first attempt on merits during the pendency of present Criminal Appeal.

Appellant has been convicted and sentenced to undergo R.I for life with fine of Rs.3000/- under Section 302/34 of the Indian Penal Code, R.I for 2 years with fine of Rs.500/- under Section 201 of the Indian Penal Code and R.I for 2 years with fine of Rs.500/- under Section 404 of the Indian Penal Code with default stipulations. All the sentences have default stipulations and have been ordered to run concurrently.

A s per the prosecution story, the complainant Pyrelal (PW-2) got registered a Dehati Nalishi with the allegations that his younger brother went to the field on 25.10.2020 after doing pooja in the house. The applicant/appellant had appointed a labour in his field and he was also present there. On 28.10.2020, Hariram Sahu went along with the applicant/appellant to Pathariya to fetch fertilizer. The applicant/appellant came to the house of the complainant and took bahi and adhar card and returned the same in the evening. The next date i.e 29.10.2020 at about 8 A.M, the daughter of the deceased namely Ruby went to the field to serve food to Hariram, but he could not be located there and she came back after leaving the food in the tapariya of Hariram. She again went to the field on 30.10.2020 at about 8 A.M and saw after removing palli that Signature Not Verified Signed by: TARUN KUMAR Hariram was lying dead. On the information given by Ruby, the complainant Pyrelal went to the field and found that Hariram had sharp injures on his left side of head and beneath left ear. Some unknown person had committed the murder of Hariram with sharp edged weapon. The applicant/appellant was arrested and his disclosure/memorandum statement was recorded. In pursuance thereof recovery was effected from the applicant/appellant and co-convict Durgesh in the presence of Pyrelal (PW-2) and Jamna Sahu (PW-4), who were cited by the prosecution as seizure witnesses. According to Pyrelal (PW-2), recovery of Kulhadi was effected from the tapariya of the applicant/appellant. Whereas, Jamna Sahu (PW-4) stated that Kulhadi was lying where the dead body of Hariram was found i.e in the tapariya of Hariram.

Learned counsel for the applicant/appellant submitted that there is no evidence of eyewitness account. The conviction has been rested on the basis of circumstantial evidence. The Kulhadi allegedly recovered from the applicant/appellant was subjected to F.S.L. Article "G" i.e Kulhadi was having blood, but that was not categorized to be human blood and on further analysis the blood was found to be disintegrated along with soil recovered from the place of occurrence. On the basis of the aforesaid, discrepancies in the prosecution story, learned counsel for the applicant/appellant submitted that the circumstances have not been knitted so as to draw any inference of guilt of the applicant/appellant. The applicant/appellant was on bail during the trial and now he has undergone more than 2 years of the actual sentence as on date.

The applicant/appellant seeks suspension of sentence in his first attempt on merits. However, learned State Counsel has opposed the prayer on the premise that the recovery was effected from the tapariya of the Signature Not Verified Signed by: TARUN KUMAR applicant/appellant and as per finding of the trial court, human blood was detected on the weapon of offence i.e Kulhadi.

The arguments raised by learned State Counsel, if tested on the basis of the material on record, then it would be seen that the recovery of weapon from the tapariya of the applicant/appellant would remain debatable, in view of the testimony