Madhya Pradesh High Court
Nana vs The State Of Madhya Pradesh on 20 June, 2022
Author: Vivek Rusia
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
ON THE 20th OF JUNE, 2022
CRIMINAL APPEAL No. 3616/2022
(NANA Vs. STATE OF MADHYA PRADESH)
Shri Sumit Kumar, learned counsel along with Ms. Lija Merin John
learned counsel for the sole appellant- Nana.
Shri Bhaskar Agrawal, learned Govt.Advocate for the
respondent/State.
Heard.
Admit.
Also heard on I.A. No.5544/2022 which is first repeat application
for suspension of sentence filed under section 389(1) of the Cr.P.C. on
behalf of sole appellant- Nana.
The appellant has been convicted and sentenced vide judgment
dated 25.01.2022 in Session Trial No.8/2019 passed by I Additional
Sessions Judge, Sardarpur, District Dhar as below:-
Conviction Sentence
Section Act Imprisonment Fine deposited Imprisonment
details in lieu of Fine
302 IPC Life Imprisonment (2 Rs.5000/- 6 months R.I
Counts)
As per prosecution story, on 05.09.2018 in the night villagers
noticed the flames in the house of Ramesh (deceased) Son of Sukhia. They
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entered in the house and brought Ramesh outside in a burnt condition.
They also found the dead body of Heera Bai @ Kakrubai in the house.
Both were taken to the hospital by Ritesh Sharma (PW-5) and Rajesh
Choudhary (PW-6). The information was given to the police station by
Prakash (PW-1). A Merg was registered at Merg No.36/2018 was
registered and the matter was taken up into investigation. Assistant Sub
Inspector, Ramnand Mishra (PW-13) reached the hospital and said to have
recorded the dying declaration of Ramesh (deceased) on 05.09.2018 at
11.38 P.M. In the dying declaration the doctor has certified that the injured
was in a conscious condition to give dying declaration.
In the dying declaration Ramesh (deceased) disclosed that due to
land dispute, the present appellant came with a burning cane to his house
and threw inside the house which has resulted death of his wife and burn
injuries to him.
In order to rule out the fire accident due to short circuit,
Investigating Officer has called Pankaj Soni (PW-12) Incharge/officer of
the Electricity Board, who after inspecting gave a report that there was no
short circuit. Taking into the consideration, the dying declaration and the
statement of brother Rameshwar (PW-8) of the Ramesh (deceased), the
police has arrested the present appellant. Accordingly an FIR was
registered against the appellant under Sections 304,427 and 323 of IPC.
He was tried under the aforesaid offence. After evaluating the evidence
came on record, appellant has been convicted under Section 302 of IPC
and sentenced to undergo Life imprisonment (2 counts) with default
stipulations vide judgment dated 25.01.2022 in Session Trial No.8/2019
passed by I Additional Sessions Judge, Sardarpur, District Dhar.
Learned counsel for the appellant has argued that so called dying
declaration is doubtful which is said to have been recorded on 05.09.2018
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at 11.38 P.M at the hospital whereas the Investigation Officer, who
recorded the dying declaration left the police station on 06.09.2018 at
00.01 as per daily diary. In cross examination, he gave an explanation that
there is error in recording the timing because of the electricity failure in
the police station. Learned counsel has also drawn our attention to the
cross examination of Dr. Prashant Rajput (PW-11), who states that when
Ramesh (deceased) was brought to the hospital he was 98% burnt.
Therefore, recording of dying declaration of a person, who is 98% burnt
makes the dying declaration doubtful. Apart from dying declaration,
nothing incriminating material has been collected by the police to convict
this appellant. Learned counsel has further submitted that so far the land
dispute is concerned the appellant had already succeeded in it; hence he
had no reason to commit this offence. There is no likelihood of final
hearing in near future of this appeal. The hearing of this appeal would
likely to take long time; hence prayed for suspension of sentence and
release of the appellant on bail.
Learned Govt. Advocate for the respondent/State opposes the prayer
for suspension of sentence but he has fairly submitted that apart from the
dying declaration there is no eye witness, who has seen the appellant
committing the crime.
Nothing has been recovered from the appellant. It is also been
confirmed that no cane was been recovered which is allegedly thrown by
the present appellant inside the deceased's house. We are not satisfied by
the explanation given by the Investigation Officer that there was a power
failure in the police station due to which wrong date and time has been
recorded in daily diary. Even during the power failure the computer
records the correct time and date.
Prima facie, we have no reasons to disbelieve Exhibit (D-1) in
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which the time and date of movement of the Investigating Officer is
recorded as 00.01 at 06.09.2018 from the police station then how could he
record the dying declaration prior to. Appellant has made out a case for
suspension of sentence.
Considering the facts and circumstances of the case, the period of
custody and that there is no likelihood of final hearing of this criminal
appeal in near future, without commenting on the merits of the case the
application for suspension of sentence I.A.No.5544/2022 is allowed.
Execution of jail sentence of the appellant-Nana is hereby suspended and
it is ordered that the appellant-Nana be released on bail on his furnishing
a personal bond for a sum of Rs.50,000/- (Rupees Fifty Thousand Only)
with one solvent surety in the like amount to the satisfaction of the
learned trial Court for his appearance before the Court, the execution of
custodial part of the sentence shall remain suspended, till the final disposal
of this appeal.
The appellant- Nana shall mark his presence before the registry of
this Court on 21/11/2022 and on all such subsequent dates, which are fixed
in this regard by the Registry.
List the matter for final hearing.
Certified copy as per rules.
(VIVEK RUSIA ) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
das
Digitally signed
by REENA
PARTHO SARKAR
Date: 2022.06.21
17:04:08 +05'30'
