Bagh Singh S/o Sh. Mithu Singh @ Sukhvinder Singh @APPELLANT@Hash State Of Rajasthan

Heard learned counsel Shri Kotwani and learned Public Prosecutor Shri Choudhary and perused the material available on record.

The applicant-appellant-Bagh Singh having been convicted by the learned Special Judge cum Additional Sessions Judge {Women Atrocity & Dowry

Cases}, Sri Ganganagar has approached this Court seeking suspension of sentence of life imprisonment awarded to him vide judgment dated

10.07.2014 passed in Sessions Case No.21/2014, for the offence under Section 302 IPC.

Shri Kotwani learned counsel representing the appellant urges:-

1] that deceased Smt. Karamjeet Kaur was married to the appellant about 10-12 years before the incident and thus the prosecution cannot claim any

presumption for proving the guilt of the appellant;

2] that as per the circumstance set out in the dying declaration Ex.P-8, there was no quarrel whatsoever between the appellant and deceased before

the fateful night on which the deceased received burn injuries;

3] that the dying declaration Ex.P-8 is inadmissible in evidence for the reason that the IAS Officer Shri Himanshu Gupta PW-5, who claims to have

recorded the same, did not take down the statement in his own hand writing;

4] that Shri Himanshu Gupta admitted in his cross examination that the statement does not bear any satisfaction that the patient was in a fit state of

mind and body to give such statement;

5] that in cross examination, the witness PW-5 Himanshu Gupta admitted that he was putting questions to the patient in Hindi and she was replying in

mono syllables yes or no whereas the dying declaration is in a detailed narrative form;

6] that doctor who issued the fitness certificate Ex.P-11 was not examined by the prosecution;

7] that doctor Prem Prakash Agarwal PW-11, who treated the deceased, did not state that Smt. Karamjeet Kaur was in a fit position to give the

statement and rather admitted in cross examination that when he started the treatment of the lady, she was in a state of shock and semi conscious and

was drowsy and confused.

Learned counsel Shri Kotwani thus urged that deceased was only making utterances in mono-syllables and as such the detailed dying declaration

Ex.P-8 is a fabricated document. That the appellant has remained in custody for last more than four years and there is no possibility of early disposal

of the appeal and hence he deserves to be enlarged on bail during the pendencey of the appeal.

Per contra, learned Public Prosecutor Shri Choudhary vehemently opposed the submissions advanced by Shri Kotwani and contended that the IAS

Officer Himanshu Gupta PW-5 had no occasion or animosity with to the appellant so as to falsely implicate him by not recording the dying declaration

in a faithful manner. However, he is not in a position to dispute the submission of Shri Kotwani that doctor who issued the fitness certificate, was not

examined in evidence and that the dying declaration Ex.P-8 was not recorded in the question answer form, as admitted by the witness PW5 Himanshu

Gupta in his cross examination.

We have carefully perused the testimony of PW-5 Himanshu Gupta, the witness who recorded the dying declaration of the deceased Smt. Karamjeet

Kaur marked as Ex.P-8 in the trial. Manifestly, the dying declaration is recorded in a detailed narrative form. The witness Shri Himanshu Gupta PW-

5, upon being cross examined, admitted that he put questions and answers to the lady and she was replying in mono-syllables yes or no. Despite that,

the statement is descriptive. Manifestly, the witness PW-5 Shri Himanshu Gupta could not have been aware of the minute details and particulars

pertaining to the deceased and her family. The deceased was not in a position to give any detailed description of the events and unless, there was an

external source of information to Shri Gupta, he could not have recorded the dying declaration with such detailed description. Further more, even if the

dying declaration is seen, manifestly there is no such allegation in it that the deceased was at any point of time before the fateful night of

22/23.12.2013, ever harassed or humiliated by the appellant on any count whatsoever. Thus, manifestly, there is no evidence of motive against the

appellant for making an attempt at the life of Smt. Karamjeet Kaur.

In view of these facts, we are of the opinion that appellant has strong grounds to challenge his conviction. Hearing of the appeal is unlikely in near

future. Therefore, we are inclined to suspend the sentences awarded to the appellant and release him on bail during pendency of the appeal.

Accordingly, the application for suspension of sentences filed under Section 389 Cr.P.C. is allowed and it is ordered that the sentences passed by the

learned Special Judge cum Additional Sessions Judge (Women Atrocities & Dowry Cases), Sri Ganganagar, vide judgment dated 10.07.2014 in

Sessions Case No.21/2014 against the appellant-applicant Bagh Singh S/o Sh. Mithu Singh @ Sukhvinder Singh, shall remain suspended till final

disposal of the aforesaid appeal and he shall be released on bail, provided he executes a personal bond in the sum of Rs.80,000/-with two sureties of

Rs.40,000/- each to the satisfaction of the learned trial Judge for his appearance in this court on 04.12.2018 and whenever ordered to do so till the

disposal of the appeal on the conditions indicated below:-

That he/she/they will appear before the trial Court in the month of January of every year till the appeal is decided.

That if the applicant(s) changes the place of residence, he/she/they will give in writing his/her/their changed address to the trial Court as well as to

the counsel in the High Court.

Similarly, if the sureties change their address(s), they will give in writing their changed address to the trial Court.

The learned trial Court shall keep the record of attendance of the accused-applicant(s) in a separate file. Such file be registered as Criminal Misc.

Case related to original case in which the accused-applicant(s) was/were tried and convicted. A copy of this order shall also be placed in that file for

ready reference. Criminal Misc. file shall not be taken into account for statistical purpose relating to pendency and disposal of cases in the trial court.

In case the said accused applicant(s) does not appear before the trial court, the learned trial Judge shall report the matter to the High Court for

cancellation of bail.