Vinod vs The State Of Madhya Pradesh
2023 Latest Caselaw 3334 MP

                                    IN THE HIGH COURT OF MADHYA PRADESH
                                                     AT JABALPUR
                                                  CRA No. 5146 of 2017
                                          (VINOD Vs. THE STATE OF MADHYA PRADESH)



                          Dated : 23-02-2023
                                   Shri Ramgopal Upadhyay - Advocate for the appellant.
                                   Shri S.K. Kashyap - Govt. Advocate for the respondent /
                          State.
                          ........................................................................................

Heard on I.A No.21824 / 2021, repeat application under Section 389(1) of the Cr.P.C for suspension of sentence and grant of bail to appellant Vinod Yadav arising out of judgment dated 02.02.2016 delivered in S.T. No. 312/14, by VIth Additional Sessions Judge, Sagar.

The appellant has been convicted under Section 302 of I.P.C. and sentenced to undergo life imprisonment with fine of Rs.2,000/- with default stipulation.

Learned counsel for the appellant submits that as per prosecution story appellant called his wife on mobile but she did not pickup the phone. Out of anger, he came to his house along with his friend and poured kerosene on the wife and set her ablaze. It is argued that the statement of Moti Ram (DW-1), Sarpanch of village, shows that both the accused persons were attending a meeting in the Panchayat. Mother of this appellant came running and informed about the incident. It is argued that there is no eye-witness of the incident. No family member was

Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 2/24/2023 4:39:40 PM produced as eye-witness. There are two dying declarations (Ex.P-

13) recorded by investigating officer and (Ex.P-17) recorded by Executive Magistrate. However, the statement of three brothers of deceased shows that deceased was tutored while recording the dying declaration and it was recorded in the presence of family members.

As per Dr. Sachin Reja (PW-1), the cause of death is flaring up of flames (HkHkdk) of stove. The mother of the deceased and brothers stated that at the instance of brother-in-law, dying declaration was recorded against the appellant. The deceased narrated the incident in Bundelkhandi but it was reduced in writing in Hindi which creates doubt about the prosecution story. Considering the aforesaid, it is prayed that the remaining jail sentence of appellant may be suspended.

Learned counsel for the appellant has placed reliance on the judgment of Supreme Court dated 02 June, 2022 passed in Criminal Appeal No. 485/2012 ( Uttam Vs. The State of Maharashtra) and the judgment of Chhattisgarh High Court passed on 02.02.2023 in Criminal Appeal No. 976/2013 ( Tejram Yadu and Anr. Vs. State of Chhattisgarh).

Shri S.K. Kashyap, learned Govt. Advocate submits that Executive Magistrate clearly deposed that at the time of recording of dying declaration, no family member was present. There is no reason to disbelieve the statement of Executive Magistrate. There are two dying declarations which are against the appellant.

Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 2/24/2023 4:39:40 PM The Court below in para-33 of the impugned judgment opined that had it been a case of flaring up of flames, there would have been no smell of kerosene on the person of deceased. We prima facie find substance in this objection. As noticed above, two dying declarations including one which is recorded by Executive Magistrate are on record.

In the aforesaid factual backdrop, without expressing any opinion on merits of the case, no case is made out for suspension of sentence at this stage.

Accordingly, IA No. 21824/2021 is dismissed.

                          (SUJOY PAUL)                             (SMT. ANJULI PALO)
                              JUDGE                                       JUDGE
               sarathe




Signature Not Verified
Signed by: NAVEEN KUMAR
SARATHE
Signing time: 2/24/2023
4:39:40 PM