Rupesh Shakya @Hash State Of M.P.

In pursuance of the directions issued by the Apex Court and guidelines issued by the High Court of Madhya Pradesh in the wake of COVID-19 outbreak, the matter was taken up through video conferencing while adhering to the norms of social distancing prescribed by the Government.

I.A. No.12796/2020, an application for urgent hearing through video conferencing, accordingly, stands allowed.

Heard on I.A.No.6860/2020, second application, under section 389(1) of the Cr.P.C., moved on behalf of the appellant Rupesh Shakya. His first application (I.A.No.10255/2019) was dismissed as withdrawn vide order dt.03.02.2020.

This Criminal appeal assails the judgment dated 15.03.2019 passed by the Sixth Additional Sessions Judge, Gwalior in S.T. No.204/2013, whereby appellant Rupesh Shakya has been convicted under section 302 of the IPC and sentenced to undergo life imprisonment with fine of Rs.2,000/-, in default to suffer additional R.I. for one month.

The prosecution story found to be proved is that the present appellant has poured the kerosene over the body of his deceased wife (Puja Shakya) and set her on fire and due to burn injuries, she died.

Learned counsel for the appellant submitted that the conviction has been recorded on the basis of dying declaration of the deceased. Dying Declaration has been tutored by Babulal Diwan. Before recording the dying declaration (Ex.P/13), mother, father, sister, maternal uncle and one Babulal Diwan had a talk with the deceased Puja. The deceased had informed all of them that she was burnt accidentally and she further stated that since the appellant does not work regularly to run Egg counter, therefore, due to anger, she had set herself on fire. On such statement, Babulal Diwan had tutored that due to burning, her face has become ugly and her husband will not keep her alongwith him and therefore when the statement would be recorded she has to depose that her husband (i.e. the appellant) had burnt her, so that no case would be registered against her and the appellant would be under her control. It is therefore, submitted that such dying declaration is not trustworthy. Learned counsel also referred the statements of P.W.2 and P.W.3 in support of his contention. It is further submitted that in view of COVID-19 outbreak, detention of appellant in already congested prisons may be detrimental. It is prayed that considering the aforesaid, benefit of suspension of custodial sentence may be extended to the appellant.

On the other hand, learned Dy.Advocate General appearing for the respondent/State has opposed the prayer contending that the appellant is the main accused in the case. Doctor has certified that the deceased was in a fit condition to record the dying declaration. It is further submitted that bare perusal of the statements of P.W.2 and P.W.3, it is clear that the statements are contradictory in nature. At one place they have deposed that the deceased herself had set her on fire, whereas on the other hand, it has been stated that the husband of the deceased was not regular in his business and therefore some quarrel took place between them and as a result deceased had set herself on fire. It is also submitted that the custody period is less. Looking to the conviction of life imprisonment, at this stage, no case for grant of suspension is made out and on such grounds prays for rejection of the application.

At this stage, learned counsel for the appellant, after arguing for half an hour, while referring to the statements of P.W.1, found that the statement is incomplete and due to inadvertence two pages could not be filed. This court had suggested him to file the same during the course of the day so that entire statement can be taken into consideration. Instead of filing the same, learned counsel for the appellant prayed for withdrawal of the application itself.

After utilizing precious time of more than half an hour, this court certainly can not permit the appellant to withdraw the application.

Taking into consideration the over all facts and circumstances, in the opinion of this Court, it is not a fit case for grant of suspension of sentence. Accordingly, I.A.No.6860/2020 stands dismissed.