Vinay vs The State Of Madhya Pradesh on 5 April, 2024

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Madhya Pradesh High Court

Vinay vs The State Of Madhya Pradesh on 5 April, 2024

Appeal being arguable is admitted for hearing. Registry is directed to prepare paper book so that during all the subsequent hearings, even of interlocutory nature, this Court has the advantage of paper book.

I.A. No.14977 of 2023, first application filed u/S.389(1) of Cr.P.C. for suspension of sentence on behalf of appellant no.1 - Vinay, who is in custody since last about three years, is taken up and considered along with objection of the State.

This criminal appeal assails the judgment dated 15.12.2022 passed in S.T. No.146/2014 by the Second Additional Sessions Judge, Rahli, Distt. Sagar whereby appellant has been convicted u/Ss. 302 r/w Section 34 of IPC and sentenced to undergo life imprisonment and fine of Rs.1,000/- with default stipulation.

Learned counsel for the State opposed the application and prayed for its rejection by contending that on the basis of the allegations and the material available on record, no case for suspension of sentence is made out.

The prosecution story found to be proved is that on the fateful day which happened to be Diwali, the deceased Khushbu, wife of appellant no.1, suffered burn injuries and was admitted to the hospital. The prosecution recorded three Signature Not Verified Signed by: VAISHALI TRIPATHI Signing time: 4/5/2024 6:18:16 PM 2 dying declarations, first on 03.11.2013 (Ex.D/3); second on 10.11.2013 (Ex.D2); and third on 14.11.2013 (Ex.P/35). First two dying declarations i.e. 03.11.2013 and 10.11.2013 categorized the incident to be an accident where deceased disclosed that her clothes caught fire from a burning Diya. However, the third dying declaration dated 14.11.2013 implicated the appellant.

Learned counsel for appellant submits that as per the recent decision of Hon'ble Apex Court in Irfan @ Naka vs. State of Uttar Pradesh, 2023 SCC OnLine SC 1060 rendered by three judges Bench of Apex Court on 23.08.2023, the principles as regards admissibility of dying declaration including multiple dying declarations has been laid down. The relevant portion of the said judgment relied upon by learned counsel for appellant as contained in para 62 is reproduced below for ready reference and convenience:

"62. There is no hard and fast rule for determining when a dying declaration should be accepted; the duty of the Court is to decide this question in the facts and surrounding circumstances of the case and be fully convinced of the truthfulness of the same. Certain factors below reproduced can be considered to determine the same, however, they will only affect the weight of the dying declaration and not its admissibility:--

(i) Whether the person making the statement was in expectation of death?

(ii) Whether the dying declaration was made at the earliest opportunity? "Rule of First Opportunity"

(iii) Whether there is any reasonable suspicion to believe the dying declaration was put in the mouth of the dying person?

(iv) Whether the dying declaration was a product of prompting, tutoring or leading at the instance of police or any interested party?

(v) Whether the statement was not recorded properly?

(vi) Whether, the dying declarant had opportunity to clearly Signature Not Verified observe the incident?

Signed by: VAISHALI TRIPATHI Signing time: 4/5/2024 6:18:16 PM 3

(vii) Whether, the dying declaration has been consistent throughout?

(viii) Whether, the dying declaration in itself is a manifestation/fiction of the dying person's imagination of what he thinks transpired?

(ix) Whether, the dying declaration was itself voluntary?

(x) In case of multiple dying declarations, whether, the first one inspires truth and consistent with the other dying declaration?

(xi) Whether, as per the injuries, it would have been impossible for the deceased to make a dying declaration?"

By relying upon the aforesaid, it is contended that since present is a case of multiple dying declarations, the earlier one which appears to be recorded in accordance with law, ought to be given preference over the subsequent ones.

It is further submitted by counsel for appellant that neither parents nor brothers of the deceased, who were examined as PW- 3, PW-4, PW-5 and PW-6 supported the story of prosecution.

It is thus submitted that the entire case hinges upon the third inculpatory dying declaration and circumstantial evidence in the shape of FSL report, which inter alia opines that the clothes and hairs of the deceased smelt of kerosene oil.

Considering the aforesaid and the fact that appellant has suffered about three years of incarceration and fact that the entire case hinges solely upon circumstantial evidence, this Court is inclined to grant bail to appellant no.1 - Vinay by way of suspension of sentence. Hence, I.A. No.14977 of 2023 is allowed.

It is directed that jail sentence of appellant No.1 - Vinay will remain under suspension subject to deposit of fine amount, if not already deposited, and on furnishing bail bond of Rs.50,000/- (Rupees Fifty Thousand Only) with two Signature Not Verified Signed by: VAISHALI TRIPATHI Signing time: 4/5/2024 6:18:16 PM 4 solvent sureties of the like amount to the satisfaction of concerned available Magistrate for his appearance before concerned available Magistrate on 02.07.2024 and on such further dates as may be fixed in this regard which shall be of frequency not less than once a year.

In case, appellant is found absent on any date fixed by the concerned available Magistrate, then concerned available Magistrate shall be free to issue and execute warrant of arrest for securing his presence without first referring the matter to this Court, provided the Registry of this Court is kept informed.

A copy of this order be sent to the trial Court concerned for compliance. C.c. as per rules.

                           (SHEEL NAGU)                                 (AMAR NATH (KESHARWANI))
                              JUDGE                                              JUDGE

                         VPA




Signature Not Verified
Signed by: VAISHALI
TRIPATHI
Signing time: 4/5/2024
6:18:16 PM

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