Ashish vs The State Of Madhya Pradesh
2021 Latest Caselaw 8446 MP

                                                                            1                            CRA-2077-2018
                                                   The High Court Of Madhya Pradesh
                                                            CRA No. 2077 of 2018
                                                               (ASHISH Vs THE STATE OF MADHYA PRADESH)


                                            Indore, Dated : 08-12-2021

                                                  Shri Amit Lahoti, learned counsel for the appellant.

                                                  Shri Sudhanshu Vyas, Panel Lawyer for respondent/State.

Heard on I.A.No.5634/2021, which is an application for suspension of jail sentence of the appellant who has been convicted by the Sessions Judge, Indore, vide judgment dated 26.2.2018, for

commission of offence punishable under Section 302 of IPC, has been sentenced to undergo life imprisonment with fine of Rs.1000/-. In default of payment of fine, 1 year's additional RI.

Learned counsel for the appellant at the outset by taking assistance of the judgment of Apex Court in the case of Babu Singh vs. State of U.P. , AIR 1978, SC 527 submits that although his previous application for suspension of sentence was dismissed on merits, the second consideration is not impermissible if ingredients

mentioned in para 2 of this judgment are satisfied.

By taking this Court to two dying declarations Exhibit D/10 and Exhibit P/10, Shri Lahoti, learned counsel for the appellant submits that Exhibit D/10 is dying declaration which is given to the Assistant Sub-Inspector wherein, the deceased deposed that she put herself ablazed whereas, in the second dying declaration given to the Executive Magistrate Exhibit P/10, she deposed that the appellant has poured kerosene and set her ablazed.

Learned counsel for the appellant submits that Dr. Himanshu Bansal (PW.8) who has certified his declaration on the dying

Signature Not VerifiedDigitally signed by declaration Exhibit P/10 about fit state of mind of the deceased, SAN SHAILESH MAHADEV SUKHDEVE Date: 2021.12.09 10:55:55 IST 2 CRA-2077-2018 deposed that this dying declaration Exhibit P/10 was recorded by Executive Magistrate Purnima Singhi. Purnima Singhi, never entered the witness box and proved the said document. In absence thereof, this dying declaration Exhibit P/10 is not trustworthy. The Court below has erred in giving credence to this Exhibit P/10. Reliance is also

placed on the statement of Dr. Prashant Mishra (PW.15) who deposed that the injuries found on the body of the present appellant were occasioned because he tried to save the deceased from burn injuries.

Shri S. Vyas, learned Panel Lawyer for State supported the impugned judgment and submits that a careful reading of para Nos.25, 26, and 27 of the impugned judgment shows that the Court below has analyzed this aspect within sufficient details and, therefore, appellant does not deserve the benefit of suspension of sentence.

We have heard the parties at length.

Indisputably, the appellant's previous application is dismissed on merit.

The Court below has considered this aspect in para Nos.25, 26 and 27 in great detail and found that the dying declaration Exhibit D/10 does not contain any declaration by doctor that deceased was in a fit state of mind, when such declaration was recorded whereas, in the second dying declaration Exhibit P/10, there exists a declaration regarding fitness of the deceased at the time of deposition by the doctor. Dr. Himanshu Bansal (PW.8) entered the witness box and proved his declaration. In para 27, the Court below clearly mentioned that the correct name of the Executive Magistrate was Nidhi Verma (PW.16) and not Purnima Singhi, which is wrongly mentioned as Purnima Singhi, which is only a typographical error. Since dying Signature Not VerifiedDigitally signed by SAN SHAILESH MAHADEV SUKHDEVE Date: 2021.12.09 10:55:55 IST 3 CRA-2077-2018 declaration Exhibit P/10 is recorded by the Executive Magistrate and is pregnant with the certification of fitness by doctor, it is more trustworthy.

In our view, prima facie the Court below has taken a plausible view and its not a fit case for suspending the remaining jail sentence of the appellant at this stage.

Accordingly, I.A.No.5634/2021, stands rejected.

                                                (SUJOY PAUL)                                   (PRANAY VERMA)
                                                    JUDGE                                         JUDGE
                                             SS/-




Signature Not Verified
              VerifiedDigitally
                       Digitally signed by
  SAN                  SHAILESH
                       MAHADEV
                       SUKHDEVE
                       Date: 2021.12.09
                       10:55:55 IST