IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VIVEK AGARWAL &

HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA th ON THE 19 OF NOVEMBER, 2024 CRIMINAL APPEAL No. 1310 of 2012 RADHELAL KROKU Versus THE STATE OF MADHYA PRADESH Appearance:

Smt. Durgesh Gupta - Advocate for the appellant.

Shri Arvind Singh - Advocate for respondent/State .

JUDGEMENT Per: Justice Vivek Agarwal This appeal is filed by the appellant Radhelal Korku s/o- Babulal Korku being aggrieved by the judgment dated 26-04-2012 passed by learned IInd Additional Sessions Judge, Betul in Sessions Case No. 161/2011 whereby the learned Sessions Judge has convicted the appellant under Section 302 of IPC and sentenced him to undergo RI for life with fine of Rs.

2000/- with default stipulation of six months RI.

2. Ms. Durgesh Gupta- learned counsel for the appellant submits that on 27-04-2011, there was a Programme of "Rasoi" on account of death of appellant's father Babulal. As per the prosecution case, present appellant came armed with sword and caused 2-3 assaults with a sword on Bisen, as a result of which, Bisen died on the spot. It is submitted that firstly prosecution Signature Not Verified Signed by: PARMESHWAR had examined only one witness namely Sukkulal (PW-3), who is a related witness and no other independent witness like Fagulal or Suresh were examined though their presence was shown at the spot.

3. It is submitted that in the alternate, she would like to submit that since it was only one assault on the neck, which caused death therefore, conviction of the appellant be converted from Section 302 of IPC to one under Section 304 Part-1 IPC and since he had suffered incarceration for over 13 years, his sentence be declared to be undergone.

4. Shri Arvind Singh, learned counsel for the State in its turn submits that Sukkulal (PW-3) is the eye-witness to the incident. He is not only related to deceased Bisen but, also related to appellant -Radhelal.

5. It is submitted that allegations on present appellant is that he had doubt over the deceased Bisen that he was involved in black magic, as a result of which, Radhelal lost his father Babulal for whom 'Rasoi' was organised on 27-04-2011. It is submitted that injuries found on the body of the Bisen, has been corroborated by Dr. K. Aathnere (PW-10) shows that it is not a case of single injury and secondly, the ingredients of exception of Section 300 of IPC are also not made out to show any indulgence to convert conviction from Section 302 of IPC to Section 304 Part-I of IPC.

6. After hearing learned counsel for the parties and going through the record, Sukkulal (PW-3) is the eye-witness to the incident. His presence has been corroborated by defence witnesses Santosh (DW-1) and Jhamsa (DW- 2). Thus, it is evident that Sukkulal is neither a planted witness nor a hearsay witness. When his testimony is examined then, Sukkulal (PW-3) clearly Signature Not Verified Signed by: PARMESHWAR stated that Radhelal is his brother-in-law. On the occasion of 'Rasoi' of his father-in-law Babulal, three persons namely Sukkulal, Bisen and Fagulal and one more person were sitting in the shadow. At about 3:00 PM, Radhelal came armed with a sword, which he had hidden behind his back and all of a sudden, took out his sword and given a blow on the back side of the neck of Bisen. Thereafter, Radhelal had given another blow on the right hand side of neck of Bisen, as a result of which, Bisen died immediately. Due to assault with the sword, neck of Bisen had cut though, it was not separated from the body and Bisen died instantaneously. This Sukkulal had separated Radhelal and then gave information to the family members, then Radhelal ran away. Wife of Bisen Dasribai (PW-2) had given intimation to the Police Chowki and then Police came. This witness Sukkulal (PW-3) had recorded the Dehati Nalishi (Ex.-P/5) which contains his signature from 'A-A', Merg intimation is (Ex.P/6). It is also stated that 'lash panchayatnama'(Ex.P/2) was prepa