Udaybhan Alias Udayram Yadav vs The State Of Madhya Pradesh
2023 Latest Caselaw 12209 MP

                                                               1
                                        IN THE HIGH COURT OF MADHYA PRADESH
                                                     AT JABALPUR
                                                        CRA No. 2501 of 2020
                                (UDAYBHAN ALIAS UDAYRAM YADAV AND OTHERS Vs THE STATE OF MADHYA PRADESH)

                           Dated : 01-08-2023
                                 Shri A.P.Singh- Advocate for the appellants.

                                 Shri Ajay Shukla- Government Advocate for the respondent/State.

Considered I.A.No.14975/2022, which is third application under section 389(1) of Cr.P.C. on behalf of appellants No.1 & 2, namely, Udaybhan @ Udayram Yadav and Raja Bai Yadav. First application being I.A.No.5103/2020

has been dismissed as withdrawn on 20.8.2020. Second one being I.A.No.6330/2020 has been dismissed on 05.7.2022 for want of prosecution.

By the impugned judgment dated 29.2.2020 passed by Fourth Additional Sessions Judge, Katni in S.T.No.162/2013 the appellants have been convicted for offences under sections 328, 302/34 of IPC each and sentenced to undergo R.I. for 05 years & L.I. respectively with fine of Rs.3,000/- & Rs.5,000/- each with default stipulations.

Learned counsel for the applicants submits that deceased-Ganeshi Bai had herself consumed poisonous substance. The applicants are brother-in-law

and sister-in-law of the deceased. The deceased was suffering from depression. The husband of the deceased, namely, Ajor Singh Yadav has been declared hostile. The trial Court has not properly appreciated the dying declaration which is not admissible on account of infirmities therein.

Learned Government Advocate has opposed the prayer for suspension of sentence and prays for dismissal of instant application.

We have carefully gone through the record of S.T.No.162/2013, in particular, dying declaration (Exhibit-P/4) which has been recorded by the Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 02-08-2023 19:09:04

Block Medical Officer-Dr.Gulab Rai (PW-7), statement of PW.1-Ajor Singh (husband of the deceased who has been declared hostile by the prosecution), statements of Bhujwal Yadav (PW.2), Dukhiram (PW.3), Swamideen (PW.4) and Charan Chaudhari (PW.5). The witnesses PW.2, PW.3, PW.4 and PW.5 have been declared hostile by the prosecution. The statement of Dr.Gulab Rai (PW.7) is of particular importance who in paragraph 8 has stated that he asked the questions to deceased regarding incident and the question was recorded by Police Officer Shri Jhariya. In paragraph 9 this witness has again deposed that answers were recorded by Police Officer Shri Jhariya. But, Exhibit-P/4 (dying declaration) carries a note, which prima facie appears to be in handwriting of

Doctor, which is as follows- "Statement recorded by me in front of witnesses and ASI Jhariya". Whereas, statement of ASI Jhariya (PW.13) regarding recording of dying declaration in paragraph 4 is at variance with the statement of Doctor (PW.7) as PW.13 deposes that Doctor-Gulab Rai (PW.7) recorded the dying declaration.

Be that as it may be, this is not the stage for minute evaluation of entire evidence but coupled with the facts mentioned above and looking to the custody period of both the appellants i.e. Appellant No.1-Udaybhan remained in custody for 91 days before the trial and for appellant No.2-Raja Bai it is 150 days and they are in custody from the date of judgment i.e. 29.2.2020 till date.

Considering the over all facts and circumstances of the case, period of custody of appellants and the fact that final disposal of instant appeal would take considerable time, without commenting on merits of the case, application can be allowed and, therefore, application (I.A.No.14975/2022) for suspension of sentence is allowed.

Signature Not Verified It is directed that subject to appellants depositing the fine amount, if not Signed by: RAJESH MAMTANI Signing time: 02-08-2023 19:09:04

already deposited and on furnishing a personal bond for a sum of Rs.50,000/- (Rupees Fifty Thousand only) each with one surety each of the same amount to the satisfaction of the trial Court concerned, the remaining custodial sentence of appellant No.1-Udaybhan alias Udayram Yadav and appellant No.2- Raja Bai Yadav will remain suspended and they shall be released on bail for securing their presence before the trial Court concerned on 20.11.2023 and on such other dates as may be fixed in this regard during pendency of this appeal by the trial Court.

List for final hearing in due course.

Certified copy as per rules.

                                (SUJOY PAUL)                               (AVANINDRA KUMAR SINGH)
                                   JUDGE                                            JUDGE

                           RM




Signature Not Verified
Signed by: RAJESH
MAMTANI
Signing time: 02-08-2023
19:09:04