Pushpendra Kumar Saraswat vs The State Of Madhya Pradesh
2023 Latest Caselaw 10212 MP

                                                             1
                                      IN THE HIGH COURT OF MADHYA PRADESH
                                                   AT JABALPUR
                                                     CRA No. 5649 of 2022
                                     (PUSHPENDRA KUMAR SARASWAT Vs THE STATE OF MADHYA PRADESH)

                         Dated : 05-07-2023
                                 Shri Sushil Kumar Tiwari-Advocate for the appellant No.2/ Bhupendra

                         Singh
                                 Shri A.N. Gupta -Government Advocate for respondent / State.

Shri Nitesh Kumar Patel-Advocate for the complainant.

Heard on I.A No.12262/2022 an application under Section 389(1) of the

Cr.P.C for suspension of sentence and grant of bail to appellant Pushpendra Kuamr Saraswat arising out of judgment dated 17.06.2022 delivered in S.T No.86/2013 by learned Session Judge, Umaria District-Umaria (M.P).

The appellant has been convicted under Section 302 of the I.P.C. and sentenced to undergo R.I. for life and fine of Rs.5,000/- with default stipulation.

Learned counsel for the appellant, after taking this Court through the evidence on record, especially depositions of Premshankar Saraswat (PW-1), Kamlesh Devi (PW-2), Rambabu Saraswat (PW-3), Dr. Arun Kumar Verma (PW-7) and defence witness Ashok Maravi (DW-8), Pushhpendera Kumar

Saraswat-appellant (DW-2) and documentary evidence produced by prosecution/appellant,, submits that from evidence on record dying declaration (Ex.E/13) is not proved and it is tutored one and second in time. It was not disclosed at the earliest. Ex.D-3A's dying declaration is prior in time and it is voluntary and truthful and it shows that deceased accidentally got burn injuries on account of bursting of kerosene stove. In this connection, he has relied upon the judgment passed by Hon'ble Apex Court in Cr.A. No.1290/2010 (Makhan Singh Vs. State of Haryana). Learned trial Court has concluded Signature Not Verified Signed by: KUNDAN SHARMA Signing time: 7/6/2023 10:54:46 AM

the offence under Section 304-B of IPC is not proved. Hence, there was no motive for appellant to commit the crime. Appellant has been on bail during trial. Therefore, the remaining jail sentence of this appellant may be suspended.

Learned Government Advocate for the State has opposed the application on the grounds mentioned in written objection.

Perusal of record shows that there are two dying declarations on record and they are contradictory and leaned trial Court has relied upon the second dying declaration (Ex.P/13) and has discarded Ex.D-3A's dying declaration, which was prior in time in comparison to dying declaration (Ex. P/13). In the instant case, no kerosene stove has been seized from the scene of incident and

in FSL report (Ex.C/1) residues of kerosene oil has been found in deceased's scalp hair. Therefore, looking to the above facts and over all evidence on record, including statement of applicant Pushpendra Kumar Saraswat himself and his examination under Section 313 of Cr.P.C., we deem it not proper to suspend the remaining jail sentence of the appellant Pushpendra Kumar Saraswat. Accordingly, I.A No.12262/2022 is rejected .

Certified copy as per rules.

                            (SUJOY PAUL)                                    (ACHAL KUMAR PALIWAL)
                               JUDGE                                                JUDGE

                         kundan




Signature Not Verified
Signed by: KUNDAN
SHARMA
Signing time: 7/6/2023
10:54:46 AM