Raja Bhai vs The State Of Madhya Pradesh
2022 Latest Caselaw 13563 MP

IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR CRIMINAL APPEAL No.5881 of 2019 (RAJA BHAI Vs THE STATE OF MADHYA PRADESH)

DATED : 14.10.2022

Mr.Kapil Pathak, learned counsel for the appellant.

Mr.Dayaram Vishwakarma, learned Panel Lawyer for the State.

Heard on I.A.No.7065/2022, which is the second application filed

under section 389(1) Cr.P.C. for suspension of sentence and grant of bail to

appellant-Raja Bhai. His first application was dismissed as withdrawn vide

order dated 19.12.2019.

The appellant herein has been tried and convicted for the offence

punishable under section 302 IPC and sentenced to suffer rigorous

imprisonment for life and a fine of Rs.10,000/-, with default stipulation.

The case of the prosecution against the appellant herein is that on

account of a property dispute, he poured kerosene oil on the deceased and set

her on fire. By way of evidence against the appellant herein, the prosecution

has taken the aid of two dying declarations. The first one being 'dehati

nalish' recorded almost immediately after the incident and the second being

the dying declaration recorded by the Tehsildar in the Hospital.

Further, learned Panel Lawyer for the State, while opposing the

application for bail, has referred to the relevant portions of the judgment of the learned trial Court to show that merely because there are some

discrepancies in the statement of the deceased in her multiple dying

declarations, as long as they are not material.

Per contra, learned counsel for the appellant has argued rather

vehemently that the incident itself is suspicious. He says that in the 'dehati

nalish', the deceased very clearly states that the appellant herein came to the

house at the time when husband of the deceased was having his food in

another room upon which, the deceased told him to settle the dispute of

property upon which the appellant is alleged to have told the deceased that

he would never give her the land even if it meant killing her. Thereafter, she

says that he went to his house, got a can of kerosene oil and poured it over

her and set her on fire. Thereafter, she says that her husband came and put

out the fire himself in the course of which he suffered burn injuries on his

hands. This is the version given in the 'dehati nalishi'.

Thereafter, learned counsel for the appellant has drawn the attention of

this Court to the dying declaration recorded by the Tehsildar i.e. Ex.P/14 in

which the deceased says that on the date of incident when the appellant came

to her house she asked him to return the lands, upon which there was an

altercation between her and the appellant and there was certain other persons

also present there and thereafter, she says in a fit of anger, she poured

kerosene oil over herself and the appellant lit the fire.

Learned counsel for the appellant states that there is a variation in two

dying declarations. One recorded as 'dehati nalishi' and the other recorded

by the Tehsildar and the difference between the two is material as in one

version she says that it was the appellant who poured kerosene oil over her

and set her on fire. While in the statement to the Tehsildar, she states very

clearly that it was she herself who had poured kerosene oil over her in a fit of

anger and the appellant struck the match and set her on fire.

Learned counsel for the appellant has also referred to the statement of

husband of the deceased, who was examined before the trial Court as PW-1

with specific reference to paragraph no.9 in the cross-examination where

PW-1 says that he did not see the appellant set his wife on fire but upon

hearing her scream he came outside into the room where she was on fire and

then saw the appellant running away from the scene of crime after throwing

the empty can of kerosene. Before that, in paragraph no.6 of the cross-

examination, PW-1 says that while he was having food he heard the

conversation between the deceased and the appellant herein where he says

that the appellant was passing by the house when the deceased told him to

return the lands and not to carry out any cultivation on it. Thereafter, the

altercation took place and she was set of fire.

Learned counsel for the appellant has also submitted that the son of

the deceased who was an adult whose name was Dharmendra who also came there to the scene of occurrence and had caught hold of his mother after the

fire was put off and exclaimed that the appellant had set her on fire was

never examined as a witness before the learned trial Court. Learned counsel

for the appellant further says that the mother-in-law of the deceased was also

there at the scene of occurrence, was also not examined as witness and

therefore, this arouses a presumption against the prosecution under Section

114 (g) of the Evidence Act.

He further states that by drawing reference to paragraph no.44 of the

trial Court order that as far as the motive was concerned the same could not

be proved, as, of a property dispute between the deceased and the appellant,

as the civil Court has held that the deceased had filed civil suit against the

appellant which was dismissed against which the first appeal preferred by

the deceased, was also dismissed.

Under the circumstances, learned counsel for the appellant submits

that since he had won from two courts below on the civil side with regard to

disputed property, there was no motive for him to set the deceased on fire.

Be that as it may, in view at what has been argued before us and

considered by us herein above and moreover without entering into the merits of

the appeal, I.A.No.7065/2022 is allowed. It is directed that the appellant shall

be enlarged on bail upon his furnishing a personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand Only) with one surety in the like amount

to the satisfaction of the learned trial Court.

The jail authorities shall have the appellant checked by the jail doctor to

ensure that he is not suffering from the Novel Corona Virus (COVID-19) and if

he is, he shall be sent to the nearest hospital designated by the state for

treatment. If not, he shall be transported to his place of residence by the jail

authorities.

Certified copy as per rules.

       (ATUL SREEDHARAN)                          (PRAKASH CHANDRA GUPTA)
               JUDGE                                        JUDGE
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Date: 2022.10.18 11:14:28 +05'30'
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