Madhya Pradesh High Court
Rakesh Kushwah vs The State Of Madhya Pradesh on 2 November, 2022
Author: Rohit Arya
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 885 of 2017
(RAKESH KUSHWAH Vs THE STATE OF MADHYA PRADESH)
Dated : 02-11-2022
Shri Sushil Goswami, learned counsel for the appellant.
Shri Rajesh Shukla, learned Deputy Advocate General for the
respondent-State.
Heard o n I.A. No.6358/2022, third repeat application under Section
389(1) of Cr.P.C. for suspension of sentence and grant of bail moved on behalf
of sole appellant-Rakesh Kushwah. His first and second application were
dismissed as withdrawn on 17/07/2018 & 28/01/2020 respectively.
Appellant stood convicted under Section 302 of IPC and sentenced to
suffer life imprisonment with a fine of Rs.5,000/- with default stipulation vide
judgment o f conviction and order of sentence dated 09/05/2017 passed by
Sessions Judge, Vidisha (M.P.) in Sessions Trial No.188/2016.
So far the present appellant has undergone jail incarceration for 6 years
and 4 months.
As per prosecution story, deceased Seema @ Bittibai was the wife of the
present appellant. They were blessed with four children. On the fateful day i.e.
on 09/04/2016, when the whole family was at home along with the sister of the
appellant namely Priti, the deceased asked the appellant for Rs.2,250/- for
depositing the money in group savings. The appellant reacted to the same and
indulged in heated exchanges with her. Thereafter, appellant is alleged to have
thrown kerosene oil on her and set her ablaze. She suffered serious burn injuries
and therefore could not survive. Albeit, she was hospitalized. Dehati Nalishi was
filed by the deceased herself. Thereafter, during treatment, dying declaration
was also recorded by Executive Magistrate whereunder she stated that followed
by the fight between the appellant and the deceased for the aforesaid reason,
appellant splashed kerosene oil on her and set her ablaze. Upon completion of
investigation, challan was filed. The case was committed to the Sessions Court
for trial. The trial Court upon critical evaluation of the evidence placed on
record and statements recorded, convicted and sentenced the appellant as
referred above.
Learned counsel for appellant while taking exception to the impugned
judgment though fairly does not argue on merits but submitted that considering
the entirety of the facts and circumstances, it is a case which may fall within the
four corners of Section 304-II IPC as appellant could not be said to have had
the intention albeit knowledge of the alleged crime for which minimum sentence
is 10 years and the appellant so far has undergone 6 years and 4 months of jail
incarceration. Moreso, four children of the couple are without home and shelter.
They are living at different places at the mercy of the relatives. Appeal is of the
year 2017 and there is no likelihood of early hearing of the appeal. Under such
circumstances, learned counsel prays that appellant may be enlarged on bail.
Per contra, learned Deputy Advocate General for respondents/State,
while supporting the impugned judgment opposes the instant application with
submission that it is a clear case of murder. Appellant had not only knowledge
but also intention while he splashed kerosene oil on the body of the deceased
and set her ablaze. Hence, no exception can be taken in the matter of
suspension of sentence and grant of bail to appellant.
Upon hearing learned counsel for the parties, though this Court refrains
from commenting upon the rival contentions touching the merits of the case,
however, regard being had to the fact that appellant has already suffered for 6
years and 4 months of jail incarceration and that four children, born out of the
wedlock, are without home and shelter. They are stated to be wandering here
and there and left at the the mercy of the relatives. Besides, there is no
likelihood of early hearing of the appeal, therefore, in the obtaining facts and
circumstances, the application deserves to be and is hereby allowed.
Accordingly, it is directed that the jail sentence of appellant-Rakesh
Kushwah shall remain suspended and he shall be released on bail subject to
verification of the factum of depositing the fine amount and on his furnishing a
personal bond in the sum of Rs.2,00,000/- (Rupees Two Lacs only) with one
solvent surety in the like amount to the satisfaction of the trial Court. Appellant-
Rakesh Kushwah is directed to appear before the Registry of this Court first on
09/01/2023 and on other subsequent dates as may be fixed in this behalf with
following further conditions:-
( i ) the concerned jail authorities are directed that before releasing
appellant, his medical examination be conducted through the jail doctor and if it
is prima facie found that he is having any symptoms of COVID-19, then the
consequential follow up action or any further test required be undertaken
immediately. If not, appellant shall be released on bail in terms of the conditions
imposed in this order;
(ii) in case of violation of conditions, State is free to apply for
cancellation of bail.
Accordingly, the I.A. stands allowed.
Observations on facts, if any, are only for the purpose of deciding the
instant I.A. No.6358/2022 and shall have no bearing on the merits of the
appeal.
Certified copy as per rules.
(ROHIT ARYA) (MILIND RAMESH PHADKE)
JUDGE JUDGE
(Dubey)
SUNEEL DUBEY
2022.11.03
13:21:23 -07'00'
