Madhya Pradesh High Court
Harish @ Harishankar vs The State Of Madhya Pradesh on 13 July, 2022
Author: Vivek Rusia
Bench: Vivek Rusia, Amar Nath Kesharwani
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IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
ON THE 13th OF JULY, 2022
CRA No. 1999 of 2022
(HARISH @ HARISHANKAR AND OTHERS Vs THE STATE OF MADHYA PRADESH)
Dated: 13-07-2022
Shri Kailash Chandra Garg, learned counsel for the appellant.
Shri Mukesh Kumawat, learned counsel for the respondent/State.
Heard on I.A. No.5834/2022, which is the first application for suspension of sentence filed under Section 389 (1) of Cr.P.C. on behalf of appellant No.2- Sumitrabai.
The appellants have filed this criminal appeal being aggrieved by the judgment of conviction and sentence dated 08.02.2022 passed by II- Additional Sessions Judge, Garoth, District-Mandsaur in Session Trial No.34/2016 whereby the appellants have been convicted and sentenced as under:-
Conviction Sentence
Section Act Imprisonment Fine deposited Imprisonment in
details lieu of Fine
302 I.P.C. Life Rs.5000/- 6 month R.I.
imprisonment
According to the prosecution story, the deceased- Mayabai (wife of
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appellant No.1 and daughter-in-law of appellant No.2) sustained burn injuries on 01.10.2015 at about 9 p.m. and thereby she succumbed to death due to burn injuries on 07.10.2015. As per the prosecution story, the appellants poured kerosene on the deceased and set her ablaze causing the said burn injury. During the investigation, the appellants were arrested and upon completion of the investigation, the charge sheet was filed under Section 307, 302, 498-A, and 201/34 of IPC. Thereafter, the case was committed to the Sessions Court, Mandsaur and after that, the case was made over to Additional Sessions Judge, Garoth, District-Mandsaur. Thereafter, the trial court framed charges against the appellants under Section 302, 498-A, and 201 of IPC, and subsequent charge under Section 306 of IPC was also framed. The appellants denied the charges and pleaded for trial. After evaluating the evidence that came on record, the learned trial court found them guilty and convicted and sentenced as mentioned herein above. Being aggrieved by the said judgment of conviction and sentence, the appellants have filed this criminal appeal before this Court.
Learned counsel for the appellants submitted that the conviction is mainly based on the dying declaration Ex.P-16 and on the statement of Radheshyam (PW-2), Rajesh (PW-3), and Kumari Diksha Sharma (PW-5), who are the uncle, brother, and daughter of the deceased respectively. The prosecution has not examined any other witness, who is a neighbour, and submitted that Diksha Sharma (PW-5), who is the daughter of the deceased, was residing with her maternal uncle and under the pressure of the maternal uncle, she has stated against the appellants and submitted that the deceased in her first dying declaration Ex.P-7, which was recorded on 01.10.2015, has stated "that she was heating Ghee to apply on the Roties (Chapaties) and the
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Ghee caught fire due to which her Saree caught fire and she got burnt" and after that in pressure of her parental relatives, dying declaration Ex.P-16 was given by her, in which she alleged against the appellants that they set her ablaze.
Learned counsel for the appellants submits that the appellant No.2 is an old handicapped lady thus, the allegation against her that she poured the kerosene and ablaze the deceased is not believable. The trial court has committed an error in believing the evidence of the prosecution witnesses despite there being many contradictions and omissions in the statements. The judgment of the trial court is against the law. Appellant No.2- Sumitrabai was on bail during trial and she has never misused the liberty granted to her. This appeal is of the year 2022 and is not likely to come up for a final hearing in near future, hence, prays for suspension of sentence and grant of bail to appellant No.2-Sumitrabai.
On the other hand, learned counsel appearing for the respondent/State opposed the prayer and submitted that appellant No.2- Sumitrabai has actively participated in the incident. After the incident, which took place on 01.10.2015, the deceased died on 07.10.2015, and in the meanwhile, her dying declaration (ExP-16) was recorded on 04.10.2015 by the Executive Magistrate Shrikant Sharma (PW-7) in which the deceased told that her husband-Harishankar Purohit and her mother-in-law Sumitra Bai, poured kerosene on her and set her ablaze. The statement of the deceased under Section 161 of Cr.P.C. was also recorded on 04.10.2015 Ex.P-31 in which she stated that the appellants with the intention to kill her had poured kerosene upon her and set her on fire. Learned counsel for the respondent/State submitted that the appellants have been rightly convicted
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and sentenced by the learned trial court, hence the application for suspension of sentence is liable to be dismissed.
We have perused the record of the court below and considered the statements of Badrilal (PW-1), Radheshyam (PW-2), Rajesh (PW-3), Dikshika Sharma (PW-5), Shrikant Sharma, Tehsildar- (PW-7), Mayabai (PW-11), and Inspector Mahendra Singh Gour (PW-12) as well as the dying declaration (Ex.P-16) in which she stated that earlier, she gave an incorrect statement regarding the incident as she was under pressure, the statement recorded under Section 161 of Cr.P.C. Ex.P-31 and the facts mentioned at the back portion of Ex.P-12 regarding the incident, FSL report Ex.P-27 in which substance of kerosene was found on articles seized and other evidence placed on record, We are not inclined to suspend the remaining jail sentence of appellant no.-2 Sumitra Bai. Accordingly, I.A. No.5834/2022 filed on behalf of appellant No.2- Sumitrabai is rejected.
List the matter for final hearing in due course.
Certified copy as per rules.
(VIVEK RUSIA ) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
N.R.
Digitally signed
by NARENDRA
KUMAR RAIPURIA
Date: 2022.07.15
18:12:25 +05'30'