Sumanbai Barela vs The State Of Madhya Pradesh
2022 Latest Caselaw 3054 MP

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        THE HIGH COURT OF MADHYA PRADESH
                   BENCH AT INDORE
(D.B.: HON'BLE Mr. JUSTICE VIVEK RUSIA AND HON'BLE
            Mr. JUSTICE PRANAY VERMA JJ.)
                    Criminal Appeal No.1008/2020
         (Sumanbai Barela and another V/s State of M.P.)
Indore, Date: 04.03.2022:
     Shri Anopam Chouhan, learned counsel for the appellant no.2.
     Ms.Vinita      Phaye,   learned       Govt.   Advocate   for   the
respondent/State.

Heard on I.A. No.1141/2021, first application for suspension of sentence under section 389(1) of the Cr.P.C. filed on behalf of the appellant no.2-Prakash Barela who has been convicted under section 302 of the IPC and sentenced to undergo life imprisonment with fine of Rs.500/- in default of payment of fine additional 3 month R.I. vide judgment dated 02/07/2019 passed by Ist Additional Sessions Judge, Barwani in Sessions Trial No.22/2018.

2. Prosecution story, in short, is as under:-

i. On 25.12.2017 Nisha W/o Bagga was brought to the government hospital Rajpur in a burned condition for treatment. Dr. Amit Shakiya sent information to the police station. Nayab Tehsildar took a statement of Nisha on 25.12.2017 in which she disclosed that these appellant no.1 being a mother-in-law and appellant no.2 being a brother-in-law (devar) have quarreled with her on an issue of going to her parents' house and in the morning they poured the kerosene and set her into the fire. She remained under the treatment and succumbs to the burn injuries on 9.1.2018. Information was sent to the police station and merg was registered followed by an FIR no.21/2018 dated 09.01.2018 under sections 307, 302 and 34 of the IPC. After completing the investigation charge sheet was filed. The prosecution has examined as many as 14 witnesses. In defense appellants have examined 3 witnesses. The appellants took the

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defence that they have been falsely implicated in this case by the father of the deceased as they have failed to fulfil the demand of rupees five lakhs. Appellant no.2 took the defense that there was a dispute in respect of jewellery of the deceased and she refused for the treatment and she had earlier tried to commit suicide by pouring kerosene in the house of her first husband. After evaluating the evidence the learned Additional Sessions Judge had convicted these appellants only on the basis of dying declaration. Hence, the present appeal before this court.

3. Learned counsel for the appellant submits that the appellant has falsely been implicated in this case only on the basis of dying declaration as well as on the statement of P.W.-1.(father of the deceased). The court did not consider the statement of P.W.-13 Bhagga, husband of the deceased who has stated that he came four days ago from Gujarat to attend the function in the family. Sumanbai Barela was distributing Tea to the guests and present appellant was preparing meat at that time deceased came outside the house in burning condition. He gave the same statement to the police under section 161 of the Cr.P.C. She was having a suicidal tendency. When she was living with her first husband she tried to commit suicide by pouring the kerosene. The dying declaration is doubtful in view of the statement of Nayab Tehsildar as well as the doctor. It is further submitted by the learned counsel that P.W.-3 in her statement did not disclose the name of the doctor who reported about the health status of the deceased before and after the recording of the dying declaration. In cross-examination, he took the name of Dr. Deepak Awasya who was present at the time of making the statement. She has also admitted that in the dying declaration (Exhibit P-8) there is no signature of Dr. Deepak Awasya. Dr. Deepak Awasya P.W.-5 in his cross-examination submits that there is no seal and name of Nayab

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Tehsildar in the dying declaration. Appellant was not living with the deceased and her husband and it has come on record that four days ago he came from Gujarat therefore, there was no reason that this appellant to pour kerosene and set her on fire. In a dying declaration, she has stated that appellant brought her back from her parents house and burned her. But that cannot be a reason for killing her by way of burning. She has not given any description as out of two accused persons who pour the kerosene and who put fire. The appellant is in jail since 2018 and there is no likelihood of an early hearing of this appeal in near future. The criminal appeals from 2006-07 are pending before this court and by that time this appellant will come for a final hearing she will undergo the entire sentence.

5. Learned Govt. Advocate for the respondent/State opposes the bail application for suspension of sentence by submitting that no case for suspension of sentence is made out in view of the dying declaration and the statement of P.W.-1. But it is correct that he was not the eyewitness of the incident.

Heard and perused the record.

6. P.W.-1 admitted in his cross-examination that he did not lodge a report of burning in the police station despite disclosing the entire story by the deceased. On 25.12.2017 information was sent by CFC Rajpur to the police station that Nisha W/o Bhagga was brought to the hospital and she was referred to the district hospital. The said information was recorded in the Roznamcha and daily dairy. In the district hospital, the doctor gave an opinion that she is not in a position to give a statement. On 08.01.2018 the duty doctor called the police by sending a letter that she is in a position to give a statement. The father of the deceased did not lodged an FIR from the date of the incident till the death of the deceased.

7. Considering the facts and circumstances, without commenting

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on the merits of the case, we deem it proper to suspend the remaining jail sentence of this appellant.

8. Accordingly, I.A. No.1141/2021 is allowed and it is directed that subject to depositing fine amount and on furnishing personal bond by the appellant in the sum of Rs.40,000/- (Rupees Forty 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.

9. The appellant after being enlarged on bail, shall mark his presence before the registry of this Court on 26/09/2022 and on all such subsequent dates, which are fixed in this regard by the Registry.

I.A. No.1141/2021 stands disposed of.

List the appeal for final hearing in due course.

   (VIVEK RUSIA)                                                          (PRANAY VERMA)
      JUDGE                                                                   JUDGE

Ajit


AJIT        Digitally signed by AJIT KAMALASANAN

DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE, postalCode=452001, st=Madhya Pradesh,

KAMALASA 2.5.4.20=156c9cedca1b74d671db9f220a5e3ed6cba241e ffad892107d95ef0a1afc55b4, pseudonym=CFDFD9C36711CA738F527A5D61A1EE901 C09EF29, serialNumber=7F0BEE2D78BD57DA058F3247441C87E7E

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