Madhya Pradesh High Court
Bhpendra Singh vs The State Of Madhya Pradesh on 27 June, 2017
Author: P.K. Jaiswal
Bench: Virender Singh, P.K. Jaiswal
1
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
D.B.: Hon'ble Shri P. K. Jaiswal &
Hon'ble Shri Virender Singh, JJ.
Criminal Appeal No.252 of 2012
Bhupendra Singh
V/s
State of Madhya Pradesh
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Shri A. S. Garg, learned Senior Counsel with Shri
Anshumaan Shrivastava, learned Counsel for the appellant.
Shri Milind Phadke, learned Public Prosecutor for the
respondent/State.
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ORDER
(27.06.2017) Per P.K. Jaiswal, J.
2. Challenge in this appeal is to the judgment of a Trial Court dated 27.12.2011 passed by the XII Additional Sessions Judge, Indore in Sessions Trial No.752/2010, by which the learned Trial Court convicted the appellant-- Bhupendra Singh (husband of the deceased--Monika) for the offence punishable under Section 302 of IPC and sentenced to undergo life imprisonment with fine of Rs.5,000/- and in default of payment of fine to suffer further three months R.I., Section 304-B of IPC and sentenced to undergo 10 years R.I. with fine of Rs.5,000/- and in default of payment of fine to suffer further three months R.I., and Section 498-A of IPC 2 and sentenced to undergo 3 years R.I. with fine of Rs.2,000/- and in default of payment of fine to suffer further two months R.I.
3. Prosecution version as unfolded trial is as under:
Monika (hereinafter referred to as "the deceased") was married to appellant--Bhupendra Singh on 17.4.2009, about one year 21 days prior to the alleged incident, which took place on 4.5.2010 at about 6.0 p.m. in the house of appellant. While the deceased was staying in the house of her in-laws, appellant and his family members, namely, Pushpa Bai, Praveen and Dipesh, after her marriage started demanding motorcycle and cash in dowry and due to the non fulfillment of the said demand they started cruelty with her. On the date of incident her husband--Bhupendra Singh by pouring kerosene on her person, set Monika on fire. The deceased suffered burn injuries. Dipesh brought the deceased to M.Y. Hospital, Indore. She sustained 60% and her husband sustained 20 % burn injuries. On the basis of intimation from M.Y. Hospital, Indore, Aerodrome Police Station recorded daily diary No.241 and for further investigation they called M.L.C. report of Monika and appellant--Bhupendra Singh. Their statement was recorded by the Executive Magistrate. She give her dying declaration which was recorded by Executive Magistrate--Pratul Sinha (PW/12) on 5.5.2010 she has deposed that due to non fulfillment of demand of dowry her husband poured kerosene oil on her person and then set her on fire.
4. On the basis of daily diary No.241 FIR No.212/2010 3 under Section 307 and 498-A of IPC was registered by SHO Police Station--Aerodrome, Indore. During treatment the deceased died on 10.5.2010 and after her death marg No.19/2010 under Section 174 of Cr.P.C. was registered. After marg statement Section 302 and 304-B/34 of IPC were added. On the basis of dying declaration all the four accused persons were arrested.
5. Dr. G.S. Mittal (PW/14), Chief Medical Officer, M. Y. Hospital, Indore in his statement has deposed that on the date of incident the deceased was brought by Dipesh and when he asked, she narrate her name as Monika and stated that due to fight with her husband she poured kerosene oil and ablazed herself. After her primary treatment, an intimation was given to Police Station, her MLC is Ex. P/19. Ram Singh Chouhan (PW/2) in his statement has deposed that on 4.5.2010, he was posted as Assistant Sub-Inspector at Aerodrome Police Station. On that date he received daily diary No. (Roznamcha Sanha) 241 for investigation. During investigation he visited M.Y. Hospital, Indore and found that the deceased and her husband were sustained burn injuries and their treatment were going on. Deceased sustained 60% burn injuries whereas her husband sustained 20% burn injuries. Executive Magistrate--Lakhan Singh Choudhary (PW/13) was called for recording her dying declaration. Police statement of Dipesh--brother-in-law of the deceased was recorded and the deceased was sent to Mayur Hospital and Research Centre, Indore for further treatment. Vide Ex. P/2 crime details form was prepared. Police statement of family 4 members of the appellant and deceased were recorded.
6. Renuka (PW/3) mother of the deceased in her statement has deposed that marriage of the deceased was solemnized with the present appellant on 17.4.2009. During treatment she died on 10.5.2010 at Mayur Hospital and Research Centre, Indore. Statement of Sudhir Singh Bais (PW/4) father of the deceased and Mahendra Singh Gaur (PW/5) were also recorded. Inquest was prepared vide Ex. P/7, articles were sent to F.S.L. for inspection. Her dying declaration was recorded on 5.5.2010 at about 3.50 p.m. at Mayur Hospital and Research Centre, Indore. The Executive Magistrate Pratul Sinha (PW/12) in his statement has deposed that before recording her dying declaration vide Ex. P/17, an endorsement was made by the Duty Doctor to the effect that patient was conscious, oriented in time and space and was able to make a statement. The deceased was died on 10.5.2010.
7. According to the post-mortem report (Ex.P/1) the deceased has suffered burn injures. The cause of her death, according to the Autopsy Surgeon, was due to cardio- respiratory failure, due to superficial deep burns injuries. Shailendra Chouhan (PW/11) conducted the investigation of the case. He prepared the spot panchnama and recorded the statements of witnesses. After completion of investigation, charge-sheet was filed. The case was committed by Judicial Magistrate Ist Class, to the Court of Sessions for trial. The charges were framed and the appellants were tried before the Court, to which they pleaded not guilty and came to be tried.
58. The prosecution examined 15 witnesses. In their statement under Section 313 Cr.P.C. the appellant denied the incident in question and alleged that no demand of dowry was made by him and it is a case of false implication. He examined six defence witnesses to prove that no demand of dowry was made nor he poured kerosene oil on her.
9. Placing reliance on the dying declaration Ex. P/17 purported to have been made by the deceased, learned Additional Sessions Judge after hearing the parties considering the entire evidence on record and held that it was accused-appellant who had put the deceased on fire and found the appellant guilty and convicted him under Sections 302, 304-B and 498-A of IPC. The other three accused persons were acquitted by the Trial Court.
10. Learned Senior Counsel for the appellant has drawn our attention to the statement of material prosecution witnesses and submitted that (PW/3) Renuka and (PW/4) Sudhir Singh Bais, mother and father of the deceased have not supported the case of the prosecution. (PW/5) Mahendra Singh Gaur signatory of Safina Form Ex. P6 has deposed that for the first time when he had seen the deceased at that time she was unable to speak. After 4-5 days she died. He is distinctly relative of the appellant has further deposed that at the time of marriage he was present and he never heard regarding demand of dowry by the appellant and his family members from the deceased. This witness has turned hostile and did not support the case of the prosecution. (PW/6) Chandra Pal Singh uncle of the deceased, (PW/7) Ashish independent 6 witness, (PW/8) Somati Bai and (PW/9) Pritesh Jain are the neighbors of the deceased did not support the case of the prosecution. Pratul Sinha (PW/12) Executive Magistrate, who has recorded the dying declaration Ex. P/17 has deposed that on the basis of intimation received from the Police Station Aerodrome, he reached at Mayur Hospital and Research Centre, Indore for recording the dying declaration of the deceased. Before recording the dying declaration, the deceased was examined by duty Doctor and as per endorsement made by the duty Doctor the deceased was conscious, oriented in time and space and was able to make a statement. After recording her dying declaration, an endorsement was made by the Duty Doctor. He in his cross- examination very categorically stated that at the time of recording the dying declaration deceased was conscious and in a fit state of mind.
11. Learned Senior Counsel for the appellant has submitted that appellant also sustained 20% burn injuries. He was examined by Doctor Ajay (DW/2) and her dying declaration was also recorded by (DW/6) Lakhan Singh Choudhary. This witness was also examined by the prosecution as PW/13. He submitted that mother, father, uncle, relative and neighbors of the deceased did not support the case of the prosecution. The Trial Court wrongly held that dying declaration was reliable. Immediately after the incident the deceased was admitted to the Hospital and she narrated the incident which was recorded by the Duty Doctor, wherein she very categorically stated that due to fight with her husband she 7 herself poured the kerosene oil and ablaze her. Reason for recording the second dying declaration was not explained. The Doctor who made endorsement in dying declaration (Ex. P/17) that the deceased was conscious and in a fit state of mind, his Court statement was not recorded before the Trial Court. The mother, father and uncle of the deceased supported the defence version. He also submitted that second dying declaration (Ex. P/17) was recorded by the Executive Magistrate but he has not explained as to what was the necessity of the second dying declaration, since there was already a dying declaration in existence recorded by (PW/14) Dr. G.S. Mittal. The condition of the deceased was very poor and she was unable to speak. Her second dying declaration (Ex. P/17) recorded by (PW/12) is not admissible in evidence. The learned Trial Court committed an error in convicting the appellant on the basis of Ex. P/17 and prays for acquittal of the appellant.
12. Per contra, Shri Milind Phadke, learned Public Prosecutor supported the case of the prosecution and submitted that no discrepancy was found in dying declaration Ex. P/17. The burn injuries were found on the person of the deceased and were corroborated by the statement of doctor. Her first dying declaration as is Ex. P/17 was recorded by the Executive Magistrate and the same has been duly proved by cogent evidence. Law on the reliability of the dying declaration is well settled. The learned Trial Court after appreciating the statement of (PW/2), (PW/12) and other material prosecution witnesses convicted the appellant and 8 rightly acquitted the other co-accused persons, namely, Pushpa Bai, Parveen and Dipesh and prays for dismissal of the appeal.
13. We have heard the learned Counsel for the parties at length and perused the record of the case.
14. The law is now well settled that dying declaration which has been found to be voluntarily, truthful and which is free from any doubt can be the sole basis for convicting the accused. In this connection we may point out that it is not necessary that a person who making dying declaration should make an elaborate and exhaustive statement so as to over each and every aspect of the incident and narrate the whole story of the case. The fact could not be lost sight that according to the medical evidence the deceased Monika has suffered 65% burn injuries and must have been under a severe stress and agony and on 4.5.2010 when she was admitted to M. Y. Hospital, Indore by her brother-in-law- Dipesh the Doctor narrated the incident in his medical legal injury report. In the said report the Doctor has stated that as per narration of the deceased, due to fight with her husband she poured kerosene oil and ablaze herself.
15. According to the evidence on record she was talking in low voice and was not able to talk much which indicate that she was able to speak with some difficulty and, therefore, it was not possible for her to make a statement before the Doctor when she was brought to the Hospital and it could not be accepted under the facts and circumstances of the present case. During her treatment, on the very next day i.e. on 9 5.5.2010 the Executive Magistrate was called and after examining by the Duty Doctor her dying declaration was recorded Ex. P/17 which reads as under:-
"e`R;iwoZ dFku LFkku e;wj vLirky] Center&203 fnukad 5-5-10 Pt. is fit to give statement le;%& 3.50 P.M. vkidk uke %& eksfudk ifjgkj vkids ifr dk uke %& HkwisUnz flag ifjgkj vkidh mez %& 19 o"kZ fuoklh %& nsokl] llqjky & bankSj] ,jksMªe] ckcweqjkbZ dkyksuh 1- vki dSls ty xbZ \ ifr us ?kklysV Mky fn;k FkkA 2- D;ksa \ ngst ds fy, eq>s lky Hkj ls ijs'kku dj jgs FksA lky Hkj igys gh 'kknh gqbZ FkhA 'kknh ds ckn ls gh dgus yxs cki ls xkM+h ds iSls ysdj vkvksA dHkh dqN cksyrs Fks] dHkh dqN ekaxrs FksA ngst ds fy, ijs'kku djrs FksA 3- ?kj&ifjokj esa fookn Fkk \ gk¡ & llqjky okys ngst ds fy, ijs'kku djrs FksA 'kknh ds ckn 6 eghus rks lkl lqlj us lkFk j[kk] blds ckn gesa vyx dj fn;kA 6 eghus ls vius ifr ds lkFk dkWyksuh esa gh nwljs edku esa jgus yxh FkhA 4- tc ifr ds lkFk vyx jgus yxh rks mlus ?kklysV D;ksa Mkyk \ oks Hkh ngst ds fy;s ijs'kku djrk FkkA dy 'kke ds le; mlus tc firk ls iSls ykus dgk rks eSaus euk fd;k ftlij mlus xqLlk gksdj eq>ij ?kklysV Mkydj tyk fn;kA 5- ?kVuk ds le; vkSj dkSu&dkSu Fkk ?kj is \ dsoy esjk ifr Fkk ftlus eq>s tyk fn;kA 6- vkSj dqN dguk gS \ ughaA jkst nk: ihdj eq>s ekjrs FksA c;ku i<+dj lquk;k x;k] lgh LohdkjA"
16. Dr. G.S. Mittal. Chief Medical Officer, (PW/14) has recorded the following medical legal injury report in column No.3 which reads as under:-
"Lo;a us >xM+k ifr ls gksus ds ckn xqLls esa ?kklysV 10 Mkydj vkx yxk yh ½ hour back"
17. Admission and discharge record of Mayur Hospital and Research, Centre Ex. P/21 reads as under:-
"Alleged H/o of accidental burn ? Suicidal be murder by husband using kerosene at 6.00 pm in Babu Murai Muhalla, aerodrome.
Patient was rushed to my Hospital where primary treatment was given and MLC."
18. (PW/14) Dr. G.S. Mittal, in para-2 of his statement has deposed the following which reads as under:-
"mDr fnukad dks fnis'k firk cztjktflag mez 18 lky iq:"k ftlus dh vius vkidks ejht dk cznj bu ykW crk;k Fkk ejht eksuh dk ifr HkwisUnz ifjgkj mez 19 lky efgyk fuoklh 142 ckcqeksjkbZ dkyksuh bankSj dks tyh gqbZ voLFkk esa ysdj vk;k FkkA iwNus ij eksfudk us crk;k Fkk fd Lo;a us ifr ls >xM+k gksus ds ckn xqLls esa ?kklysV Mkydj vkx yxk yh vk/kk ?kaVk igysA"
19. Reliance has been placed by the learned Senior Counsel on the above and submitted that the same is of her first dying declaration recorded by the deceased, wherein it is very clear and specific that she herself poured the kerosene oil and ablaze herself. Thereafter, second dying declaration, which was recorded by Executive Magistrate, there are number of infirmities but learned Senior Counsel failed to point out any infirmities in the dying declaration recorded by the Executive Magistrate Ex. P/17.
20. The decision of the Apex Court in the case of Shaikh Bakshu and others vs. State of Maharashtra reported in (2007) 11 SCC 269 is distinguishable on facts.
21. The law on the subject is well settled by the Apex Court in the case of Raju Devade vs. State of Maharashtra 11 reported in (2016) 11 SCC 673 . In the aforesaid case the Apex Court held that dying declaration has to be considered independently on its own merit so as to appreciate its evidentiary value and one cannot be rejected because of the contents of other. In cases having more than one dying declaration, it is the duty of the Court to consider each one of them in its correct perspective and satisfy itself that which one of them reflects the true state of affairs. Further, conviction can be recorded on basis of dying declaration alone, if the same is wholly reliable. In the event, if there are suspicions as regards to the said dying declaration, the Court should look for some corroborating evidence. In the case in hand, deceased died due to burn injuries allegedly caused by appellant-accused by pouring kerosene upon her and setting her on fire. She gave one dying declaration Ex. P/17 which was recorded by the Executive Magistrate in which she very categorically stated that burn injuries were caused by appellant by pouring kerosene upon her and set her on fire. It is not the case of the appellant that he had any grudge against police or even the appellant was known to the Executive Magistrate who had recorded the dying declaration. Theory of defence, that it was accidental death, was rightly rejected by the Trial Court. The prosecution, by cogent evidence, has proved its case. The Trial Court found that it was the appellant who poured the kerosene oil upon the deceased and ablazed her and rightly convicted him for the offence punishable under Sections 302, 304-B and 498-A of IPC.
22. After examining the entire evidence on record, cogent 12 reasons were given by the Trial Court for not accepting the evidence of the appellant i.e. Ex. P/19, medical and legal injury report of the deceased wherein it was written that she was sustained accidental burn injuries, is rightly not reliable by the learned Trial Court. No different view can be taken to one which has been taken by the Trial Court rejecting the case of the defence that it was a case of accidental death. The dying declaration (Ex. P/17) recorded by the Executive Magistrate. Non examination of Duty Doctor who gave certificate is of no consequence, since it has come in the evidence, that before and after recording of dying declaration the deceased was examined by the duty doctor of the Hospital. In the facts and circumstances of the case, the conviction has rightly been recorded.
23. The death has been caused by burn injuries, which is proved on record. The theory put up by the defence that it was accidental death having been rightly rejected and the prosecution by cogent evidences having proved the prosecution case the Sessions Judge has rightly convicted the accused of offence under Sections 302, 304-B and 498-A IPC.
24. On due consideration of the facts and circumstances of the case, we are of the view that no case is made out to set aside the conviction of the appellant. The appeal filed by the appellant has no merit and is, accordingly, dismissed.
(P. K. Jaiswal) (Virender Singh)
Judge Judge
pp