Madhya Pradesh High Court
Kailash vs The State Of Madhya Pradesh on 2 May, 2022
Author: Vivek Rusia
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CRA No. 8107/2021
HIGH COURT OF MADHYA PRADESH: BENCH INDORE
BEFORE DIVISION BENCH OF HON'BLE SHRI JUSTICE VIVEK
RUSIA & HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
CRA No. 8107 of 2021
(Kailash S/o. Govardhan Jaat V/s. State of M.P.)
Date: 02.05.2022 :
Shri Ajay Bagadiya, learned Sr. Advocate with Shri G.S.
Chouhan, Advocate for the appellant.
Shri Bhaskar Agrawal, learned Govt. Advocate for
respondent/State.
Heard on the question of admission.
Admitted for final hearing.
Also heard on I.A. No.30272/2021, first application u/s. 389(1)
of the Cr.P.C. for suspension of the jail sentence on behalf of the
appellant. The appellant stands convicted vide judgment dated
30.11.2021 passed by 2nd Additional Sessions Judge, Barwaha, District
Mandleshwar in S.T. No.03/2018 as under :
Section & Act. Imprisonment Fine Amount Imprisonment in
lieu of default of
payment of fine.
302 of the IPC. Life 10,000/- Two years'
Imprisonment. additional RI.
As per prosecution story, the appellant was married with
Manjubai. On 2.7.2017 at 2.30 pm. Manjubai was brought to City
Hospital Barwaha in burnt condition. The dying declaration was
recorded in which she disclosed that she sustained the burn injuries
from kerosene stove. From the City Hospital Barwaha, she was
referred to M.Y. Hospital, Indore from where her relatives took her to
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Bombay Hospital, Indore where her statement was again recorded on
4.7.2017 in which she made allegation against the appellant. She died
on 12.7.2017 because of the complications arose due to the burn
injuries. The postmortem was carried out, statements of witnesses
were recorded and the appellant was arrested. Upon completion of the
investigation, charge-sheet was filed. Charge u/s. 302 of the IPC was
framed against the appellant which he denied and pleaded for trial. On
the basis of subsequent dying declaration and unnatural conduct of the
appellant, presence of kerosene on the spot has led the conviction of
the appellant, as stated first. Hence, the present appeal before this
Court.
Shri Ajay Bagadiya, learned counsel for the appellant submits
that the appellant has falsely been implicated in this case. In the first
dying declaration recorded on 2.7.2017 the deceased did not make any
allegation against the appellant and narrated the truth, but after two
days in presence of her parents the subsequent dying declaration was
recorded in which no thumb impression was obtained which makes
the dying declaration doubtful. As per spot map, no sign of scuffle was
found. Even at the time of admission in Bombay Hospital, Indore the
burn due to kerosene stove was recorded, therefore, the conviction
based on suspicious dying declaration is bad in law. Hence, the
appellant is entitled to be released on bail by suspending the sentence.
On the other hand, Shri Bhaskar Agrawal, learned Govt.
Advocate appearing for the respondent/State opposes the prayer by
submitting that the Naib Tehsildar (P.W.4) has recorded the dying
declaration in which she made an allegation against the appellant.
Radheshyam Jaat (P.W.2), father of the deceased and her brother viz.
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Dinesh Jaat (P.W.3) have specifically deposed that the appellant used
to demand Rs. 5.00 Lakhs and he has burnt her by pouring kerosene,
therefore, he has rightly been convicted and sentenced by the learned
Sessions Judge, hence the application for suspension of sentence is
liable to be dismissed.
We have perused the record of court below.
Learned court below has convicted the appellant on the basis of
subsequent dying declaration recorded on 4.7.2017 in which there is
no thumb impression of the deceased as due to the burn injuries she
was not in a position to put her thumb impression. But in the dying
declaration recorded on 2.7.2017 there is thumb impression of the
deceased. On the date of burning the statement was recorded in which
the thumb impression is there and after two days, she was not in a
position to put her thumb impression. There is an entry in Rojnamcha
on 2.7.2017 at 7.03 prepared by Sub Inspector Prem Singh and
according to which a dying declaration was recorded and in which she
disclosed that she suffered the burn injuries from the kerosene stove
while cooking the tea. The statement of son of the deceased aged
about 13 years was recorded u/s. 164 of the Cr.P.C. before the
Magistrate in which also, he has disclosed that his mother caught fire
because of the stove while cooking the tea, but he has not been
examined in the court by the prosecution.
In view of the aforesaid facts and circumstances of the case, we
find it is to be a fit case to suspend the custodial sentence of the
appellant.
Accordingly, I.A. No.30272/2021 is allowed and it is directed
that subject to deposit of fine amount, if already not deposited, with
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the trial Court and on furnishing personal bond by the appellant in the
sum of Rs.40,000/- (Forty Thousand only) with one solvent surety in
the like amount to the satisfaction of learned trial Court for his
appearance before the Registry of this Court, the execution of
custodial part of the sentence of the appellant shall remain suspended
till final disposal of this appeal.
The appellant after being enlarged on bail shall mark his
presence before the Registry of this Court on 12.12.2022 and on all
such subsequent dates, which are fixed in this behalf.
C.C. as per rules.
[ VIVEK RUSIA ] [AMAR NATH (KESHARWANI)]
JUDGE. JUDGE.
Alok/-
Digitally signed by ALOK GARGAV
Date: 2022.05.04 17:49:23 +05'30'
