Madhya Pradesh High Court
Charan Singh And Ors. vs The State Of M.P on 27 January, 2010
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HIGH COURT OF MADHYA PRADESH AT JABALPUR
DIVISION BENCH:HON'BLE SHRI JUSTICE RAKESH SAKSENA
HON'BLE JUSTICE (SMT.) SUSHMA SHRIVATAVA
CRIMINAL APPEAL NO. 2151/2003
1. Charan Singh S/o Shiv Singh, aged 27 years,
Occupation: Labour Village: Rohinikala, P.S.Nohta,
District Damoh (M.P.)
2. Shiv Singh S/o Bhansingh, aged 56 years,
Occupation:Agriculturist Village Rohinikala, P.S.
Nohta District Damoh (M.P.)
........APPELLANTS
Versus
State of Madhya Pradesh through Police Station
Nohta District Damoh (M.P.)
.......RESPONDENT
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For the Appellants : Shri Madan Singh, Advocate
For the State : Shri S.K.Rai, Government Advocate.
Date of hearing : 19/1/2010
Date of judgment: 27/1/2010
(J U D G M E N T)
Per: Rakesh Saksena; J,
Appellants have filed this appeal against the judgment dated 18.11.2003 passed by Second Additional Sessions Judge, Damoh in Sessions Trial No. 226/2002, convicting the appellants under Section 302 read with Section 149 and Section 147 of the Indian Penal Code and sentencing them to imprisonment for life with fine of Rs. 1000/- and rigorous imprisonment for two years , on each count respectively.
2. In short, the prosecution case is that on 18.4.2002, Durga Bai (deceased) was brought to District Hospital Damoh in burnt condition. She was examined by Dr. Y.P.Patel (PW8). Dr. Patel sent a requisition to Station Officer of City Kotwali, Damoh to get the dying declaration of Durga Bai recorded. Naib Tahsildar/Executive Magistrate O.P.Sharma (PW7) went to hospital for 2 recording the dying declaration and after obtaining the certificate from Dr.Rakesh Rai (PW13) that Durga Bai was fit to give her statement recorded her dying declaration (Ex.P/9) on the same day at about 7.40 P.M. Durga Bai stated that when she asked her husband and father-in-law to arrange for a separate house for her living, they maltreated her; Charan Singh, her husband; Shiv Singh father-in-law; her mother-in-law; Jithani Sheelabai and Halki Chachi took her to `Atari' and set her on fire. As a result of burn injuries, on 22.4.2002 Durga Bai died. Dr. P.K.Jain (PW9) conducted the postmortem examination and found 65% burn injuries on her body. A merg was registered and the case was sent for investigation to police station, Nohta. Police registered the first information report under Section 302/34 of the Indian Penal Code against all the six accused persons. During investigation, S.D.O. Police M.B.S. Jaggi (PW12) prepared the spot map (Ex. P/4) and seized the burn clothes, quilt, kerosene kuppi etc. from the spot. Since accused Sheela Bai, Jamuna Bai, Bhuri Bai and Gudda remained absconding, only the appellants were tried.
3. Before the trial Court, prosecution examined 13 witnesses and adduced the dying declaration (Ex. P/9) recorded by Naib Tahsildar/Executive Magistrate O.P.Sharma (PW7). Accused persons pleaded false implication. According to them, Durga Bai had committed suicide by self igniting her. They also examined Munna singh (DW1) in their defence. Relying only on the evidence of dying declaration, learned trial Judge held the appellants guilty and convicted and sentenced them as mentioned above.
4. Shri Madan Singh, learned counsel for the appellants submitted that before the trial Court the father, mother and brother of deceased did not support the prosecution story. According to them, the relations between the deceased and the accused persons were cordial. There was no motive for the accused persons to set fire to deceased. The dying declaration given by Durga Bai was not true, in fact she had committed suicide because of the frustration and 3 misbehavior done to her by the accused persons. It was not possible or probable for the accused persons to have forcibly taken the deceased to `Atari' i.e. upper story of the house because there was no regular staircase. It was not possible for the deceased to have made the dying declaration because of 75% burn injuries on her body. Trial Court committed error in placing implicit reliance on the alleged dying declaration.
5. On the other hand, Shri S.K.Rai, learned counsel for the State submitted that the evidence of dying declaration was wholly reliable, it suffered with no infirmity. It was made by Durga Bai when she was in fit state of mind to make the statement. He justified the finding of conviction and sentence of the appellants recorded by the trial Court.
6. We have heard the learned counsel of both the parties and perused the impugned judgment and record of the trial Court carefully.
7. Dr.Y.P.Patel (PW8) deposed that on 18.4.2002, he was posted as Assistant Surgeon in District Hospital Damoh. On that day, at about 5 P.M. Durga Bai was brought to the hospital. She was fully conscious. She had superficial burn injuries on her face, neck, forearms, chest, abdomen and whole back side of the body. There were blisters and her hair were singed. Smell of kerosene was emanating from her body. He had given his report Ex. P/10. From the evidence of Dr. Patel, it is evident that on 18.4.2002, Durga Bai had suffered burn injuries.
8. Hari Singh (PW1), Chhitar Singh (PW2) and Neema Bai (PW3) deposed that due to burn injuries Durga Bai died. A merg intimation Ex. P/12 was recorded by Head Constable Purshottam (PW10), according to which, Durga Bai died in the hospital on 22.4.2002. Dr. P.K. Jain (PW9) deposed that he conducted the postmortem examination of the body of Durga Bai and found burn injuries on her face, front and back side of body and forearms. There were 65% burns on her body. The cause of her death was secondary infection due to 4 burn injuries. From the above evidence, it is proved that Durga Bai died on 22.4.2002, due to burn injuries, she suffered on 18.4.2002.
9. The next question before us is that who caused burn injuries to Durga Bai. No eye witness account is available in the case. According to prosecution, Durga Bai told to her family members that she was burnt because of the dispute about the room, but these witnesses viz. Hari Singh (PW1), Chhitar Singh (PW2), Neema Bai (PW3) and Bahadur (PW6) did not support the prosecution case. They deposed that Durga Bai did not tell them that the accused persons set fire to her. All these witnesses were declared hostile. Apparently, prosecution did not get any help from the evidence of these witnesses. Thus there remained only the evidence of dying declaration (Ex. P/9) which was recorded by Executive Magistrate O.P.Sharma (PW7). According to O.P.Sharma, on 18.4.2002 he was posted as Naib Tahsildar at Damoh. He received a requisition from police Nohta for recording dying declaration of Durga Bai, wife of Charan Singh. He went to hospital and found Durga Bai on bed No.4 of the Government Hospital. He sought verification from the doctor that she was in a fit condition to give her statement. He, then recorded the dying declaration at about 7.40 P.M. In the dying declaration, Durga Bai stated that "the name of her husband was Charan Singh; she was resident of village Rohinikala; she was about 22 years of age. Her father-in-law Shiv Singh set fire to her because she asked him to get a separate house constructed for her as the room in which she was living was very small and all the people used to come in it. Her father-in-law abused and said to her that she should get her house constructed from her parents. When she asked why should they get the house constructed, her husband's younger brother Gudda ran after her to assault with shoes. Her father-in-law told that she was of no use and she should be burnt. They forcibly took her to `Atari', where her husband Charan Singh and father-in-law Shiv Singh held her hands, mother-in-law poured oil, Jithani 5 Sheela caught her legs and Halki Chachi set fire to her by matchstick. She did not know as to who witnessed the incident as she became unconscious." Her thumb impression was obtained by the Executive Magistrate O.P.Sharma (PW7) on Ex. P/9 and it was signed by him as well as by the doctor who gave verification certificate. In cross examination, this witness stated that since the hands of Durga Bai were burnt and she was unable to sign the dying declaration, he had obtained the thumb impression. According to him, he had obtained her left hand thumb impression though it was not recorded in Ex. P/9.
10. The evidence of Executive Magistrate O.P.Sharma (PW7) finds corroboration from the evidence of Dr. Rakesh Rai (PW13), who deposed that Durga Bai was admitted in surgery ward of District Hospital Damoh. At about 7.35 P.M., Executive Magistrate O.P.Sharma had come to record the dying declaration. Before recording her statement, he had examined Durga Bai and found that she was in a fit condition to give her dying declaration. He had endorsed his certificate in the dying declaration to that effect. He had also certified that she remained conscious throughout while the dying declaration was being recorded. He categorically denied that Durga Bai was unconscious or was not in a position to speak. Trial Court appreciated the evidence of these witnesses and found that the dying declaration Ex. P/9 was correctly recorded and Durga Bai was in a fit condition to make the aforesaid dying declaration. There appears no reason to suspect the veracity of Executive Magistrate and Dr. Rakesh Rai before whom the statement was made and recorded. Apart from that, there is nothing on record to indicate that these witnesses had any animus against the accused persons or were otherwise interested in getting them prosecuted. On appreciating the evidence of Executive Magistrate O.P.Sharma (PW7) and Dr. Rakesh Rai (PW13), we are of the view that there was no infirmity in recording the dying declaration by them and the dying declaration Ex. P/9 was a correct and genuine document.
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11. Learned counsel for the appellant argued that the dying declaration gave by Durga Bai was not correct and truthful version of the occurrence, in fact out of annoyance and frustration she committed suicide by self igniting her and out of rancour and animus made false accusation against the appellants. It was not possible for the accused persons to have carried her to the `Atari' forcibly where there was no staircase and only a ladder was used for climbing. He carried us through the evidence of Investigating Officer M.B.S. Jaggi (PW12) and also the statements of Hari Singh (PW1), Chhitar Singh (PW2) and Neema Bai (PW3). Investigating Officer (PW12) deposed that deceased resided in a `Kotha' situated on `Atari' i.e. upper floor, rest of the other family members and accused persons lived on the ground floor. Accused Shiv Singh resided at some distance from the residence of deceased. According to him, there was no regular staircase for going into upper `Atari'. There was only a ladder by which at a time only one person could climb up or down. In dying declaration Ex. P/9, Durga Bai stated that the `Kotha' in which she was living was very small and all the persons used to come in it, therefore, she told to her father-in-law for getting a separate house constructed for her, but her father-in-law abused and told her that she should ask her father and mother to get the house constructed. When she retorted that why should they construct the house, her husband's younger brother Gudda ran after her to assault by shoes and her father-in-law told that she was of no use and she should be burnt. They forcibly took her on the `Atari' (`Mujhe Jabardasti Upar Atari Me Pakad Kar Le Gaye' ) and all the family members including appellants and ladies of the house set fire to her. On strict scrutiny of this statement in the light of evidence of Investigating Officer, it appears improbable and impossible that the accused persons could have taken a healthy young woman forcibly on the `Atari' by climbing a ladder. This throws a thick cloud of suspicion on the truthfulness of the statement made by the deceased. It is also important to note that it was father-in-law Shiv Singh, who 7 carried Durga Bai to hospital immediately after the occurrence. Dr. Y.P.Patel testified that Durga Bai was brought to hospital by her father-in-law and this fact finds place in the M.L.C. report Ex. P/10 also. Hari Singh (PW1), father of Durga Bai deposed that accused Shiv Singh and Charan Singh and other persons had taken Durga Bai to Damoh for the treatment and at that time, she was unconscious. He also disclosed that accused Shivsingh lived in a separate house which was situated about half a furlong from the house of Durga Bai.
12. It is well settled that the dying declaration ought to be treated with care and caution since the maker of the statement cannot be subjected to any cross examination. In Munnu Raja Vs. State of Madhya Pradesh-AIR 1976 SC 2199, the Apex Court held that:
" It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subjected to cross examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. Thus Court must not look out for corroboration unless it comes to the conclusion that the dying declaration suffered from any infirmity by reason of which it was necessary to look out for corroboration."
13. In K.Ramachandra Reddy Vs. Public Prosecutor- AIR 1976 SC 1994, the Apex Court observed that:
" The dying declaration is undoubtedly admissible under S. 32 and not being a statement on oath so that its truth could be tested by cross examination, the Courts have to apply the strictest scrutiny and the closest circumspection to the statement before acting upon it.
While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to 8 implicate an innocent person, yet the Court has to be on guard against the statement of the deceased being a result of either tutoring prompting or a product of his imagination. The Court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. Once the Court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration."
14. On a critical appreciation of the circumstances as narrated in the dying declaration Ex. P/9, it can be gathered that at the time of occurrence deceased must be in excessively agitated state of mind because her father-in-law had abused and asked her to get the house constructed for her from her parents and had said that she was a useless woman and the younger brother of her husband had ran after her to beat by shoes. In these circumstances, the possibility that out of frustration and infuriation Durga Bai might have committed suicide after going to her `Atari' and that because she decided to end her life, due to insulting behaviour of accused persons, out of rancour, she might have made accusation of setting fire by them, cannot be ruled out. Since the reliability and truthfulness of the dying declaration cannot be tested by the cross examination of the deceased, we were constrained to apply the strict scrutiny and the close circumspection to the statement of deceased before acting upon it.
15. For the above reasons, we are not inclined to accept the dying declaration Ex. P/9 as a truthful version of the occurrence in which deceased suffered burn injuries in the absence of any independent corroboration, and in our opinion no implicit reliance can be placed on it. Accordingly, we hold that the finding of the trial Court that appellants caused the death of Durga Bai by 9 setting fire to her is not justified and is, therefore, liable to be set aside.
16. In that view of the matter, the conviction and sentence of the appellants is set aside. The appeal stands allowed and the appellants are acquitted. They are in jail, they be set at liberty forthwith unless required in any other case.
17. Appeal allowed.
(RAKESH SAKSENA) (SMT. SUSHMA SHRIVASTAVA)
JUDGE JUDGE
AD/