Madhya Pradesh High Court
Kamla Bai & Ors. vs The State Of M.P on 8 February, 2011
Author: T.K.Kaushal
Bench: T.K.Kaushal
(1) Cr.Appeal No. 1249/03
HIGH COURT OF MADHYA PRADESH AT JABALPUR
DIVISION BENCH:HON'BLE SHRI JUSTICE RAKESH SAKSENA
HON'BLE SHRI JUSTICE T.K.KAUSHAL
CRIMINAL APPEAL NO. 1249/2003
APPELLANTS: 1. Kamla Bai W/o Vishwanath aged 55 years,
2. Samadhan, S/o Vishwanath, aged 20
years, (M.P.)
Both residents of Village Bambhada
Police Station Shahpura, Tehsil
Burhanpur, District Khandwa (M.P.)
Versus
RESPONDENT: State of Madhya Pradesh through Police
Station, Arakshi Kendra Shahpura
District East Nimad, Khandwa M.P.)
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For the Appellants : Shri S.C.Datt, Senior Advocate with Shri Siddharth Datt, Advocate.
For the respondent/State : Shri Yogesh Dhande, Panel Lawyer. Date of hearing : 03/02/2011 Date of judgment: 08/02/2011 (J U D G M E N T ) Per: Rakesh Saksena; J, This appeal has been filed by the appellants against the judgment dated 25th July, 2003, passed by Additional Sessions Judge, Burhanpur in Sessions Trial No. 161/2002, convicting the appellants under Section 302 read with Section 34 of the Indian Penal Code and sentencing them to imprisonment for life with fine of Rs. 1000/-, in default further rigorous imprisonment for one month.
2) In short, prosecution case is that Bharti, the deceased was married to Kanahiya, the son of appellant no.1 Kamla Bai on 4.5.2001. Appellant (2) Cr.Appeal No. 1249/03 No.2 Samadhan is younger brother of Kanahiya. On 11.7.2002, at about 3 P.M., deceased suffered burn injuries. She was carried to hospital, where during treatment on 12.7.2002, she expired. It is alleged that appellants and two accused persons namely Shanta Bai and Pawan used to harass her by making demand of cash and ornaments in dowry and on not meeting the demand, subjected her to cruelty. When deceased was taken to hospital, she was found to have suffered 100% burn injuries. An intimation about deceased being brought to hospital was sent to police. A.S.I. Santosh Pathak (PW8) went to hospital and recorded the statement Ex. P/25 of the deceased under Section 161 of the Code of Criminal Procedure. Executive Magistrate/Naib Tehsildar Ramesh Pandey (PW9) also recorded dying declaration Ex. P/15 of the deceased. In the aforesaid statements, it was disclosed that accused persons poured kerosene and set fire to deceased. Accordingly, the first information report under Sections 307 and 498-A/34 of the Indian Penal Code was registered by Police Kotwali, Burhanpur. After the death of deceased, inquest proceedings were conducted and memorandum Ex. P/3 was drawn. Dead body of deceased was sent for postmortem examination to Nehru Hospital, Burhanpur where Dr. R.C.Dalal (PW4) conducted autopsy and found 100% burn injuries on the body of deceased. Hands, legs and face of the deceased were found burnt. Smell of kerosene was emanating from the body. Cause of death was burn injuries by kerosene flame. Postmortem examination report is Ex. P/9.
3) After completion of the investigation, charge sheet was filed under (3) Cr.Appeal No. 1249/03 Sections 498-A, 304-B and 302/34 of the Indian Penal Code. All the accused persons including the appellants abjured their guilt. According to them, they were falsely implicated. They lived separate after the marriage of deceased.
4) During trial, prosecution examined Jagannath (PW1), the father, Sunil (PW2), the brother, Chaya Bai (PW3), the sister and Vitthal (PW6), a neighbour of the deceased to substantiate the fact that accused persons subjected deceased to cruelty for not meeting the demand of dowry. However, these witnesses did not support the prosecution case and turned hostile. Relying mainly on the evidence of dying declaration Ex. P/15 recorded by Naib Tehsildar Ramesh Pandey (PW9) and the statement Ex. P/25 recorded by Inspector Santosh Pathak (PW8) and the medical evidence of Dr. Ashok Pagare (PW7), Dr. Umesh Vyas (PW11) and Dr.R.C.Dalal (PW4), learned trial Judge held the appellants guilty of offence under Section 302/34 of the Indian Penal Code. Finding the evidence insufficient against accused Shanta Bai, she was acquitted. Accused Pawan being juvenile, was sent for trial before the Juvenile Court. Appellants were also acquitted of the charge under Sections 498- A and 304-B of the Indian Penal Code. Aggrieved by the impugned judgment, appellants have filed this appeal.
5) We have heard the learned counsel for the parties. 6) It was no longer disputed that deceased Bharti died of burn
injuries. It is also reflected from the evidence of Dr. Umesh Vyas (PW11) that deceased Bharti was brought to Govt. Nehru Hospital, Burhanpur on (4) Cr.Appeal No. 1249/03 11.7.2002 by her husband in burnt condition. She had sustained about 100% burn injuries. Smell of kerosene was emanating from her body. She was given primary treatment by him. His report is Ex. P/17. Dr. Ashok Pagare (PW7), who was posted as Assistant Surgeon in Nehru Hospital deposed that he had examined the deceased Bharti. She was under shock and her pulse was weak. Her body had around 100% burns. On 12.7.2002, at about 4.25 P.M., she expired. Bed head ticket of the deceased was recorded by him is Ex. P/30. According to Dr. Ashok Pagare (PW7), he sent information to police vide letter Ex. P/14. Dr. R.C.Dalal (PW4) conducted the postmortem examination of the body of deceased Bharti on 13.7.2002 and found smell of kerosene present over her body and ante mortem burns over her face, hands, legs and other parts of her body. Her skin was burnt and was peeling off. In his opinion, deceased had died due to 100 % i.e. excessive burn injuries by kerosene flame. Her postmortem examination report Ex. P/9 written and signed by Dr. R.C.Dalal (PW4) is also placed on record. It was thus clearly evident that deceased Bharti died of burn injuries.
7) Learned counsel for the appellants, however, submitted that the trial Court gravely erred in placing implicit reliance on the dying declaration Ex. P/15 recorded by Naib Tehsildar Ramesh Pandey (PW9) and the statement recorded under Section 161 of the Code of Criminal Procedure by Inspector Santosh Pathak (PW8). According to him, learned trial Judge failed to consider that the aforesaid dying declarations were doubtful and appellants were falsely implicated. Learned counsel for the (5) Cr.Appeal No. 1249/03 State, on the other hand, justified and supported the conviction of the appellants.
8) We have also gone through the entire evidence on record. The dying declaration Ex. P/15 was recorded by Executive Magistrate Ramesh Pandey (PW9). He categorically stated that on 11.7.2002, he had received a requisition from police station for recording the dying declaration of deceased Bharti in Govt. Nehru Hospital, Burhanpur. When he reached, he asked the treating doctor to give a certificate about capability of deceased about giving her statement. After examining, doctor certified that she was fit to give her statement. The doctor signed the certificate. After recording the statement, doctor again certified that she was in full senses. The dying declaration recorded by him is Ex. P/15. He had also obtained her thumb impression. According to dying declaration Ex. P/15, deceased told that her mother-in-law, sister-in-law and sister-in-law's son burnt her. All these persons poured kerosene kept in a `Dibbi' and ignited her by match stick. When she shouted, no body turned up. They used to quarrel with her insisting that she should go for work on the fields, but she did not go. When a question was put to deceased as to what were the names of her relatives, she answered mother-in-law was Kamla, elder mother-in-law was Shanta Bai, husband's younger brother was Samadhan and sister-in-law's son was Pawan. She added that all these persons ignited her and that she had no quarrel with her husband. The dying declaration bore the thumb impression of deceased and also the endorsement of doctor that patient was conscious (6) Cr.Appeal No. 1249/03 and oriented at the time of making dying declaration. Ramesh Pandey (PW9) was subjected to lengthy cross examination, but nothing could be elicited out to indicate that he had concocted or fabricated the dying declaration Ex. P/15. It is true that none of the doctors examined in the Court stated about making of the certification about the fitness of deceased for making the dying declaration, but from the evidence of Ramesh Pandey (PW9), it was proved that doctor examined the patient and certified that she was fit to give statement. The endorsements and certificates of doctors were proved by Ramesh Pandey (PW9). There appears no valid reason to suspect that deceased was not in a position to give the statement when Executive Magistrate himself felt satisfied about the fitness of the deceased. Dr. Umesh Vyas (PW11) also deposed that when deceased was admitted in the hospital, he had talked to her. He firmly denied the suggestion that deceased was not in a position to speak. We are also unable to accept the arguments advanced by learned counsel for the appellants that deceased did not know `Hindi' language and she spoke only `Marathi'. In view of the evidence of Ramesh Pandey (PW9) that since deceased was speaking `Hindi', he did not feel it necessary to enquire whether she was unable to understand `Hindi'. In our opinion, the dying declaration Ex. P/15, recorded by Naib Tehsildar Ramesh Pandey (PW9) was truly and correctly recorded and was a genuine document.
9) There is yet another statement of deceased Ex. P/25 recorded by A.S.I. Santosh Pathak (PW8). According to him, on 11.7.2002, he (7) Cr.Appeal No. 1249/03 received information from Nehru Hospital that Bharti, the deceased was brought to hospital in burnt condition. After recording information in general diary, he went to hospital and enquired from Dr. Umesh Vyas (PW11) about the condition of deceased. When doctor gave in writing that deceased was fit to give her statement, he recorded her statement Ex. P/25 as narrated by her. He did not add or subtract anything into it. According to him, he had issued a requisition for getting the dying declaration of deceased recorded by Tehsildar and had also recorded the first information report Ex. P/24. It is true that no certificate was endorsed by the doctor on the statement Ex. P/25 about the fitness of deceased for making the statement, but it is significant to note that Santosh Pathak (PW8) had obtained opinion of doctor Ex. P/26, in which doctor opined that she was fit to give statement. Merely, because no mental or physical condition of the deceased was recorded in Ex. P/26, in our opinion, it cannot be held that deceased was not in such a condition that she could have made the statement. In Ex. P/25, deceased stated that her mother-in-law Kamla Bai, elder mother-in-law Shanta Bai, Dewar Samadhan and sister-in-law's son Pawan used to quarrel with her. At about 3 O' clock in the noon, when she arose after sleep, these persons began to quarrel with her saying that she used to eat four breads, but did not use to go to field. Her mother-in-law Kamla had a `Ken' of kerosene and Samdhan had `match stick'. Shanta and Pawan caught hold of her hands. Kamla poured kerosene on her and Samadhan ignited her by match stick. She shouted and ran out side the house.
(8) Cr.Appeal No. 1249/03
10) The statement Ex. P/25 recorded by Santosh Pathak (PW8) was not technically the dying declaration, it was a statement of deceased recorded by police officer under Section 161 of the Code of Criminal Procedure. However, since it had been recorded by the police officer before acting upon it, its genuineness is necessary to be tested. From the evidence of Santosh Pathak (PW8), it is apparent that after receiving intimation from the hospital, he immediately went there and recorded the statement after obtaining certificate Ex. P/26 from the doctor about the fitness of deceased for making statement. There is absolutely no material on record or even a suggestion from the side of accused persons that Santosh Pathak (PW8) was in any way interested in securing their prosecution or conviction. His fairness is indicated from the fact that he had sent a requisition to Executive Magistrate for recording a regular dying declaration. It is true that though Santosh Pathak (PW8) obtained the thumb impression of deceased in Ex. P/25, but he did not get it attested by some other witnesses, however, in our opinion, this lapse on his part is not sufficient to discard his evidence. We feel satisfied that Santosh Pathak (PW8) recorded the statement Ex. P/25 correctly. Since the deceased died after making the statement and the statement pertained to the transaction in which her death was caused, this statement could be treated as a dying declaration of deceased under Section 32 of the Indian Evidence Act. (See Balbir Singh and another Vs. State of Punjab-AIR 2006 SC 3221.)
11) Learned counsel for the appellants strenuously urged that the (9) Cr.Appeal No. 1249/03 aforesaid two dying declarations were inconsistent, therefore, it was not safe to rely on them. Even the trial Court did not find its safe to rely on them against accused Shanta Bai and acquitted her. He placed reliance on the decision of the Apex Court rendered in Smt. Kamla Vs. State of Punjab-AIR 1993 SC 374, wherein it has been held that the dying declaration should satisfy all the necessary tests and one such important test is that if there are more than one dying declaration they should be consistent particularly in material particulars.
12) On perusal of dying declaration Ex. P/15 recorded by Executive Magistrate Ramesh Pandey (PW9), it is revealed that in earlier portion of it deceased stated that her mother-in-law, sister-in-law, and her sister-in- law's son burnt her. All of them poured kerosene and set fire to her, but in later part of it, she stated that the name of her mother-in-law was Kamla, elder mother-in-law was Shanta Bai, Dewar was Samadhan and her sister-in-law's son was Pawan. All these persons had set fire to her. On examining this statement critically, it appears that in earlier portion of it, she did not name appellant Samadhan, whereas in later part making the general statement. She stated that all these persons set fire to her. In the statement Ex. P/25, recorded by Santosh Pathak (PW9), she stated that her mother-in-law Kamla, elder mother-in-law Shanta Bai, her Dewar Samadhan and sister-in-law's son Pawan used to quarrel with her. On the day of occurrence, appellant Kamla poured kerosene on her, Shanta Bai and Pawan caught hold of her hands and appellant Samadhan set fire to her. No specific statement was made against (10) Cr.Appeal No. 1249/03 appellant Samadhan in the dying declaration Ex. P/15. It was not stated that Samadhan set fire to her. On the contrary, in the earlier part of it, it was stated that her mother-in-law, sister-in-law and sister-in-law's son set fire to her. The evidence of dying declaration, therefore, against mother-in-law i.e. appellant Kamla Bai appears consistent. However, it appears inconsistent and doubtful about the act attributed to appellant Samadhan. Under the similar circumstances, Supreme Court in Balvir Singh Vs. State of Punjab (supra), keeping in view the inconsistencies between the two dying declarations extended benefit of doubt to one of the appellants. In our opinion, therefore, it would not be safe to uphold the conviction of appellant Samadhan on the basis of evidence of dying declarations. However, after having appreciated the two dying declarations, we find it established beyond doubt that appellant Kamla Bai actively participated in causing death of the deceased and, therefore, her conviction under Section 302 read with Section 34 of the Indian Penal Code by the trial Court was justified.
13) For the aforementioned reasons, we are of the opinion that there is no merit in the appeal of appellant No.1 Kamla Bai. Her conviction is affirmed. The conviction and sentence of appellant no.2 Samadhan under Section 302/34 of the Indian Penal Code, however, is set aside. He shall be released forthwith if, not required in any other case.
14) Appeal is allowed in part to the extent mentioned hereinabove.
(RAKESH SAKSENA) (T.K.KAUSHAL)
JUDGE JUDGE
AD/