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2024 DIGILAW 177 (RAJ)

Saleem v. State of Rajasthan

2024-01-29

ARUN BHANSALI, RAJENDRA PRAKASH SONI

body2024
ORDER : The appellant herein has been convicted and sentenced as below vide judgment dated 19/8/2023 passed by the learned Additional Sessions Judge No.6, Bikaner, in Session Case No.4/2022: Offences Sentence Fine 302 IPC Life Imprisonment Rs.10,000/- and in default of which to further undergo two years' simple imprisonment 2. The appellant-applicant has preferred the application for suspension of sentence under Section 389 Cr.P.C. for being released on bail during the pendency of the appeal. 3. It is submitted by learned counsel for the appellant that wife of the appellant, while working in the kitchen, suffered burn injuries on 6/2/2021 at about 8.30 am. She was taken to the hospital, where she remained admitted and was discharged on 17/2/2021. She was again admitted to one M.N.Hospital on 12/3/2021, where she died on 30/3/2021. The postmortem was conducted on 31/3/2021 on a report by brother of the deceased (Ex.D/5), wherein he indicated that his sister suffered burn injuries while cooking food, she was treated at PBM Hospital and again admitted to M.N.Hospital on 12/3/2021 where she died and, therefore, postmortem be conducted. The information was registered under Section 174 Cr.P.C with the same indication that death occurred on account of burn injuries suffered while cooking food. In the 'Fard Panchnama' (Ex.D/7) it was indicated that the witnesses after discussing indicated the cause of death as burn injuries while cooking food. In the statement recorded on 3/7/2021, the brother of the deceased again indicated the same aspect pertaining to burn injuries suffered by the deceased while cooking food. However, on 16/11/2021, a typed FIR (Ex.P/3) was given alleging that the appellant had poured petrol from Motorcycle on the deceased and put her up on fire, which resulted in the burn injuries, to which she succumbed. 4. It is submitted that the appellant has been convicted based on the statements of his twin daughters, Aseem & Khwaish aged 13 years. It is submitted that only on account of the fact that after death of his wife, the appellant, after about 08 months, expressed his desire to remarry that the complainant i.e. father & brother of the deceased became antagonized, which resulted in lodging of the FIR. 5. Submissions have been made that the daughters, who ever since the incident happened on 6/2/2021 were living with the respondents, have been made to give statements against the appellant. 6. 5. Submissions have been made that the daughters, who ever since the incident happened on 6/2/2021 were living with the respondents, have been made to give statements against the appellant. 6. It is pointed out that in the two site reports (Ex.P/4 & Ex.P/6) prepared on two different occasions, there is no indication about existence of any window in the room, wherefrom, it is alleged by the daughters that they saw the appellant burning the deceased. 7. Submissions have been made that the postmortem (Ex.P/7) indicates the cause of death as septicaemic shock due to dry heat flame lesions and Dr. Mahipal Mehra (P.W.10), who conducted the postmortem, in his cross examination clearly admitted that there were no symptoms of petrol etc. Further, there were no injuries present on the body of the deceased indicating that she was pushed onto the stove or petrol was poured on her and then burned. It was emphasized that the allegation is of using petrol from the motorcycle, however, neither the appellant owns any motorcycle nor any such motorcycle was recovered and, therefore, the entire case against the appellant being a result of subsequent antagonization, the conviction cannot be sustained. 8. It was submitted that the appellant is in custody now for over two years and the hearing of the appeal is likely to take sufficiently long time and, therefore, he may be enlarged on bail. 9. Learned Public Prosecutor contested the submissions made. 10. It was submitted that the testimony of P.W.1 and P.W.2, daughters of the deceased & the appellant, is unshaken and the same was sufficient to convict the appellant and that the bail application deserves to be dismissed. 11. We have considered the submissions made by learned counsel for the parties and have perused the material available on record. 12. The reasons indicated for not lodging the FIR for over 08 months are ipse dixit and the fact that the deceased was discharged from the hospital on 17/2/2021 and was readmitted on 12/3/2021 and in fact had stayed at her parental home was sufficient, in case she was burnt by the appellant, to have initiated the proceedings in this regard. 13. 13. Even after her death, the proceedings undertaken vide Ex.D/5 (report made to the police), Ex.D/7 ('Fard Panchnama') and Ex.D/8 (statements given by brother of the deceased to the police on 3/7/2021 i.e. after three months of the death of his sister indicating the burn injuries while cooking food) prima facie indicate that the allegations are an afterthought. 14. Having considered the totality of the facts and circumstances of the case and after carefully scrutinizing the record of the case, without making any observations on merits of the case, we are inclined to suspend the substantive sentence of the appellant-applicant - Saleem S/o Faij Mohammad during the pendency of the appeal. 15. Accordingly, the instant application for suspension of sentence filed under Section 389 Cr.P.C. is allowed and it is ordered that substantive sentence passed by the Additional Sessions Judge No.6, Bikaner, in Session Case No.4/2022 against the appellant-applicant- Saleem S/o Faij Mohammad 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. 1,00,000/- with two sureties of Rs. 50,000/- each to the satisfaction of learned trial Judge for his appearance in this court on 1/3/2024 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below: 1. That he will appear before the trial court in the month of January of every year till the appeal is decided. 2. That if the applicant changes the place of residence, he will give in writing his changed address to the trial Court as well as to the counsel in the High Court. 3. Similarly, if the sureties change their address(s) they will give in writing their changed address to the trial court. 16. The learned trial court shall keep the record of attendance of the accused-applicant in a separate file. Such file be registered as Criminal Misc. Case relating to original case in which the accused-applicant was tried and convicted. A copy of this order shall also be placed in that file for ready reference. Criminal Misc. file shall not been taken into account for statistical purpose relating to pendency and disposal of the cases in the trial court. In case the said accused-applicant does not appear before the trial court, learned trial Judge shall report the matter to the High Court for cancellation of bail.