State Of Rajasthan vs Rajendra Singh

Heard on the application under Section 5 of the Limitation Act.

There is a delay of 69 days in filing leave to appeal to challenge the order dated 14th June, 2017 passed by Sessions Judge, Sawaimadhopur.

It is contended that against the order dated 14th June, 2017, office of the Public Prosecutor received directions to file the appeal. It was on 27th October, 2017 and thereupon, preparation of appeal took time. It could be filed on 17th November, 2017. Prior to the aforesaid, the certified copy of the order was obtained by learned Public Prosecutor, who appeared before the trial Court and it was then sent to the District Magistrate on 20th June, 2017 itself. The decision to file the appeal was taken thereupon on 07th July, 2017 and accordingly, file was processed and sent to the Law Department, Secretariat, Jaipur. After further examination of the matter, a decision was taken to file an appeal but the process took time and accordingly, delay in filing leave to appeal has been explained.

The application under Section 5 of the Limitation Act has been opposed by learned counsel for the accused-respondent but we find reasons to condone the delay in filing leave to appeal.

Accordingly, the application under Section 5 of the Limitation Act is allowed. The delay in filing leave to appeal is condoned.

Heard on leave to appeal.

It is a case where an FIR was lodged of the incident where the accused's wife sustained burn injuries after pouring kerosene. The allegation was made against the respondent- accused in reference to "Parcha Bayan" (Exhibit P-2) so recorded by PW - 22 Kailash Chandra. The aforesaid has not been believed by the trial Court for the reason that as per the statement of the doctor, the deceased was not in position to speak having sustained burn injuries to the extent of 90 to 95 per cent. It was not otherwise recorded in the presence of the Magistrate.

The fact, however, remains that in the MLR, the doctor found smell of kerosene and how the kerosene came on the body of the deceased, remained unexplained at the instance of the accused. It is moreso when, Section 106 of the Indian Evidence Act, 1872 is attracted. It is for the reason that the occurrence took place at the residence of the accused, thus he was in exclusive possession of place of the occurrence. Thus, even if the Exhibit P- 2 is ignored, it has not been denied that incident took place at the residence of the accused and deceased died out of burn injuries.

The majority of the witnesses have turned hostile but PW - 11 Smt. Asha Kanwar, PW - 12 Smt. Heera Rani and PW - 21 Tarun Singh Jadoun have supported the prosecution case.

Taking into consideration the overall facts of the case and without making further comment on merits, as it may affect either of the parties while arguing the appeal finally, we are inclined to accept the leave to appeal.

Accordingly, leave to appeal is granted. The Registry is directed to register leave to appeal as criminal appeal.

Admit.

Since learned counsel is appearing for the accused- respondent, he is directed to produce the accused before the Registrar (Judicial) on 21st January, 2019 and to submit personal bonds in a sum of Rs.25,000/- with the stipulation that he will appear before this Court as and when required.