Madhya Pradesh High Court
Mohan vs State Of M.P. on 30 June, 2021
Author: Sujoy Paul
HIGH COURT OF MADHYA PRADESH;
BENCH AT INDORE
CRA.No.351/2021
Mohan and another Vs. State of MP 1
INDORE; DATED - 30.6.2021
Heard through video conferencing.
Shri Siddharth Jain, learned counsel for the appellants.
Shri Amit Singh Sisodiya, learned Govt. Advocate for the
respondent/State.
Heard on IA No.459/2021 which is an application filed under
section 389 of the Cr.P.C for suspension of sentence.
The appellants Mohan and Bhagubai are in custody because of
their conviction under section 302 of IPC and sentenced to undergo 3-3
months RI each arising out of judgment dated 9.11.2020 passed in
ST.No.01/2017.
Learned counsel for the appellants submits that the dying
declaration of the deceased is not trustworthy. It is not in the question
answer form. The time mentioned by the doctor while declaring the
mental and physical fitness to depose the statement is shown as 12:05
PM whereas the dying declaration was recorded at 11:55 am. Thus,
dying declaration is recorded prior in time than the fitness certificate
which was obtained later on.
Thus, in view of the recent judgment of the Hon'ble Supreme
Court in Jaiamma Vs. State of Karnakata (CRA.No.573/2016), the
dying declaration cannot become the basis for conviction. The other
prosecution witnesses did not support the prosecution story. The
appellants are senior citizens and were not residing with the deceased.
Thus, the remaining jail sentence of the appellants may be suspended.
The prayer is opposed by learned counsel for the respondent State
and has relied on Dehati Nalishi (EX-D-46) recorded by the
victim/deceased wherein she deposed that present appellants set her
ablaze. This Dehati Nalishi should also be treated as a 'dying
declaration' is the contention of Shri Sisodiya.
HIGH COURT OF MADHYA PRADESH;
BENCH AT INDORE
CRA.No.351/2021
A microscopic reading of dying declaration Ex-P-2 shows that Dr.
Upasaney (PW-9) gave declaration two times regarding fitness of the
victim. He declared at 11:55 AM also that the victim was in a fit state of
mind. This document was duly proved by him before the Court while
deposing his statement.
Thus, prima facie the arguments advanced by Shri Siddharth Jain,
which was attractive in first blush cannot cut any ice because the factual
backdrop of present case is different then the case of Jaiamma (supra)
where the solitary declaration regarding fitness given by the doctor was
admittedly later in point than the time when 'dying declaration' was
recorded.
In the instant case, the time of recording finding about fitness is
not subsequent to the time of recording dying declaration. Hence,
judgment of Jaiamma (supra) cannot be pressed into service. In view of
AIR 1993 SC 1180 (Ganpat Mahadeo Mane vs. State of Maharashtra),
it is trite that dying declaration was not required to be recorded always
in question answer form.
Considering the serious nature of crime, dehati nalishi and dying
declaration, at this stage, no case is made out for suspension of sentence.
IA No.459/2021 is dismissed.
(Sujoy Paul) (Anil Verma)
Judge Judge
das
Digitally signed by REENA
PARTHO SARKAR
Date: 2021.07.01 10:49:02
+05'30'
