Madhya Pradesh High Court
Smt. Asha Sahgal vs The State Of Madhya Pradesh on 10 April, 2023
Author: Rohit Arya
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 6871 of 2022
(SMT. ASHA SAHGAL Vs THE STATE OF MADHYA PRADESH)
Dated : 10-04-2023
Per Justice Satyendra Kumar Singh-
Shri Vivek Kumar Vyas - Advocate for the appellant.
Smt. Anjali Gyanani - Public Prosecutor for the respondent/State.
Heard on I.A. Nos.14609/2022 and 5734/2023, which are applications
under Section 389 (1) of Cr.P.C. seeking suspension of sentence and grant of
bail moved on behalf of appellant-Smt. Asha Sahgal.
Learned counsel for the appellant submits that he does not wish to press
appellant's second bail application bearing IA No.5734/2023 and would like to
argue first application bearing IA No.14609/2022, which is still pending.
Accordingly, second application bearing IA No.5734/2023 is dismissed
as not pressed.
Appellant stands convicted under Section 302 read with Section 34 of
IPC and sentenced to undergo life imprisonment (on two counts) and a fine of
Rs.5000/-, with default stipulation vide judgment of conviction and order of
sentence dated 19/07/2022 passed by 4th Additional Sessions Judge, Vidisha
in S.T. No.500059/2013.
Learned counsel for the appellant submits that it has been alleged against
the appellant that due to property dispute, on 28/8/2012 at about 9:30 hours
appellant alongwith other co-accused persons poured kerosene oil on
complainant-Lankesh Khatri and his wife Rashmi and set them on fire, due to
which, Rashmi died on 29/8/2012 while complainant died on 31/8/2012. He
submits that prosecution in its support has examined Anuradha Sharma (PW-1),
his son Amit Sharma (PW-8), deceased's son Vishal (PW-5) and daughter
Mahima (PW-13) as eyewitnesses and Executive Magistrate Motilal Ahirwar
(PW-12), who recorded the dying declaration Ex.P/14 of complainant/deceased
Lankesh and Inspector K.S. Karchhuli, who recorded Dehati Nalishi report
Ex.P/13 on the basis of statement made by the complainant/deceased Lankesh
before his death.
Learned counsel for the appellant further submits that none of the above
eyewitnesses including the deceased's son Vishal (PW-5) and daughter Mahima
(PW-13) have supported the prosecution case. Vishal (PW-5) in para 22 of his
examination-in-chief with regard to the appellant has deposed that his mother
Rashmi herself poured kerosene oil on her body and set herself on fire, while
his father Lankesh sustained burn injuries while rescuing her mother Rashmi.
Deceased's daughter Mahima (PW-13) in para 5 of her examination-in-chief with
regard to appellant made similar statement and denied to saw the incident.
Anuradha (PW-1) and her son Amit Sharma (PW-8) turned hostile. Dying
declaration Ex.P/14 has not been found reliable with regard to the co-accused
persons and they have been acquitted from all the charges framed against them,
therefore, on the basis of above dying declaration and on the basis of same set
of evidence conviction of the appellant is not sustainable. From the statement of
Medical Officer, Dr. Rajkumar Jaitwar (DW-1) and certificate Ex.D/5 issued by
him, it is apparent that on the date of incident appellant was admitted in Primary
Health Center, Rannod, District Shivpuri since 9:15 hours to 18:00 hours.
Therefore, impugned judgment convicting the appellant is liable to be set aside.
There is no likelihood of hearing of this appeal in near future. Appellant is a
widow aged about 40 years and there is no one to look after her, therefore, her
remaining period of sentence may be suspended and she be enlarged on bail.
Per contra, learned counsel for the respondent/State has opposed the
prayer and submits that the complainant/deceased Lankesh in his dying
declaration Ex.P/14 recorded by the Executive Magistrate and also in his Dehati
Nalishi report Ex.P/13 specifically stated that the appellant poured kerosene oil
on him as well as on his wife deceased-Rashmi and other co-accused persons
set them on fire. Respondent has filed appeal against the judgment of acquittal
with regard to co-accused persons. Conviction can be solely based on the
dying declaration and learned Trial Court has not committed error in convicting
the appellant. Alleged offence is of heinous in nature, therefore, appellant is not
entitled for bail.
Heard learned counsel for both the parties at length and perused the
record.
Admittedly there was a property dispute between the
complainant/deceased Lankesh and co-accused persons, namely, Krishnabai
and Bhupendra, who were his stepmother and step brother respectively while
appellant's husband co-accused Mani was the brother of Krishnabai.
Prosecution case is based on direct as well as circumstantial evidence. All the
eyewitnesses including the deceased's son and daughter have not supported the
prosecution case and dying declarations said to be made by the complainant
have been found suspicious in respect of co-accused persons and they have
been acquitted from all the charges. Therefore, considering the findings with
regard to dying declaration Ex.P/14 and Dehati Nalishi Ex.P/13 and also with
regard to the presence of the appellant on the spot at the time of incident,
without expressing any opinion on merits, in view of this Court, the appellant
deserves to be enlarged on bail.
Accordingly, I.A. No.14609/2022 stands allowed and it is directed that
the jail sentence of appellant shall remain suspended during pendency of present
appeal and he shall be released on bail on her 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 is directed to appear
before the Registry of this Court first on 26.4.2023 and on other subsequent
dates as may be fixed in this behalf 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 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, her medical examination be conducted through
the jail doctor and if it is prima facie found that she is having any
symptom of COVID-19 then the consequential follow up action
including the isolation/quarantine or any further test required be
undertaken immediately;
(iii) On violation of the conditions, State is free to apply for
cancellation of bail.
Accordingly, IA. No.14609/2022 stands allowed and disposed of.
Observations on facts, if any, are only for the purpose of disposal of the
instant application for suspension of sentence and shall have no bearing on the
merits of the appeal.
Certified copy as per rules.
(ROHIT ARYA) (SATYENDRA KUMAR SINGH)
JUDGE JUDGE
Arun*
ARUN KUMAR MISHRA
2023.04.10 20:17:06 +05'30'
