Madhya Pradesh High Court
Manish vs The State Of Madhya Pradesh on 3 November, 2022
Author: Rohit Arya
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 227 of 2019
(MANISH Vs THE STATE OF MADHYA PRADESH)
Dated : 03-11-2022
Shri Niraj Shrivastava, learned counsel for the appellant.
Shri Rajesh Shukla, Dy. Advocate General for the respondent/State.
Heard on I.A. No.18303/2020, second application for suspension of
sentence and grant of bail filed on behalf of appellant Manish. The first
application was dismissed as withdrawn on 14.08.2019. The appellant is brother
in law (Devar) of deceased Rani who is in custody for last four years and seven
months pursuant to the judgment dated 20/12/2008 passed in S.S.T. No.
122/2014, whereunder he stands convicted for offence under Section 302 of
IPC and sentenced to undergo life imprisonment with fine of Rs.5,000/-, with
default stipulation.
A s per prosecution story, an intimation was sent by Ward Boy of
Hospital Ranjeet on 02.04.2013 (Ex. P/4) that injured (later deceased) Rani
Sharma W/o Dev Kumar R/o Khadiyahar was brought to the hospital by her
husband in a burnt condition. Pre- MLC was conducted vide Ex. P/3 and her
dying declaration (Ex. P/10) was recorded before the Executive Magistrate. On
14.04.2013 informant Dilip Sharma S/o Udaibhan Sharma submitted a Tahreer
that his sister- in- law (Bhabhi) Rani Devi has suffered burn injuries on
01.04.2013. She was admitted to a hospital at Morena wherefrom she was
shifted to Kamla Raja Hospital, Gwalior and then on 09.04.2013 to Hasnsraj
Hospital for treatment, thereafter she breathed her last and passed away.
Accordingly, merg was registered at 0/13 (Ex. P/7). Thereafter, investigation
started. Upon completion of the investigation a Crime Case no. 9/14 for
offences punishable under Section 302 of IPC vide Ex. P/5 was registered.
Upon completion of investigation challan was filed and case was committed to
Sessions Court for trial. Accordingly the appellant stands convicted and
sentenced as aforesaid.
Shri Niraj Shrivastava, Counsel for the appellant while taking exception to
the impugned judgment interalia submits that appellant is innocent and has
been falsely implicated. There are two dying declarations recorded on
02.04.2013 and 09.04.2013 running contrary to each other. Albeit, in the first
dying declaration appellant is alleged to have splashed kerosene oil on the body
of the deceased which led to burn injuries, however, in the later dying
declaration the deceased alleged to have stated that she suffered burn injuries
due to kerosine oil fell on her from a lamp kept on isle of the kitchen. That
apart, her own children DW-1 and DW-2, namely, Julie and Nitin who were
alleged to be present at the time of the incident have denied the presence of the
of applicant much less his complicity. That apart, appellant has already suffered
jail incarceration for four years seven months. Appeal is of the year 2019. There
is no likelihood of early hearing of the appeal. Hence, prays for suspension of
jail sentence.
Per contra, Shri Shukla contends that the first dying declaration has
rightly been preferred and relied upon by Sessions Court as the Executive
Magistrate (PW-7) Shri Manish Kaul who recorded the dying declaration has
proved the documents in contrast to the alleged dying declaration recorded on
09.04.2014 (Ex. D/4). Though, the said dying declaration was recorded by Naib
Tahsildarr, Bhumija Saxena, but she has not been examined. Hence, there is a
grave suspicion about the existence of the alleged document. Evenotherwise,
the same does not have any value for want of proving other documens.
Therefore, rightly ignored by the Sessions Court. Learned counsel also
submitted the reason indicated in first dying declaration relates to to the incident
occured a month ago while the appellant is alleged to have beaten her for which
she lodged the complaint in Police Station Sisonia. On fateful day, while she
was required to record her statement pursuant thereto the appellant initially
started beating her children and thereafter when she intervened, he had beaten
her and set her ablaze after splashing kerosene oil. Therefore, there was a
motive behind the alleged incident. However, he fairly submits that ocular
evidence as aforesaid controverts the allegation in the first dying declaration.
Husband of the deceased Dev Kumar has also not been examined by the
prosecution.
Upon hearing learned counsel for the parties, we refrain from
commenting upon rival contentions touching merits of the case, as such
contentions shall be addressed at the stage of final hearing, however, regard
being had to the fact that appellant, a villager has already suffered jail
incarceration for four years and seven months and there is no likelihood of
hearing of the appeal, therefore, in the obtaining facts and circumstances of the
case, the appellant is entitled for suspension of jail sentence. It is, accordingly,
directed that execution order of jail sentence of appellant shall remain
suspended during pendency of this appeal and he shall be enlarged on bail
subject to furnishing 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 and also subject to deposit of the fine amount (if not already
deposited) for appearance before the Registry of this Court on 09/01/2023, and
on further dates as may be directed by the Registry in that regard, with
following further conditions:
(i) Appellant will abide by the terms and conditions of various circulars
and orders issued by the Government of India and the State Government as
well as the local administration from time to time in the matter of maintaining
social distancing, physical distancing, hygiene, etc., to avoid proliferation of
Novel Corona virus (COVID-19);
(ii) 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 including the isolation/quarantine or any further
test required be undertaken immediately.
(iv) On violation of the conditions, State is free to apply for cancellation
of bail.
Accordingly, I.A. stands allowed and disposed of.
List for final hearing in due course.
Certified copy as per rules.
(ROHIT ARYA) (MILIND RAMESH PHADKE)
JUDGE JUDGE
ar
ABDUR RAHMAN
2022.11.04
10:52:48 +05'30'
