Madhya Pradesh High Court
Pappu Singh & Anr. vs The State Of M.P. on 21 November, 2017
AFR
HIGH COURT OF MADHYA PRADESH, JABALPUR
Criminal Appeal No.863 of 1998
Appellants : 1. Pappu Singh,
S/o Natthu Singh,
Aged 24 years.
2. Nanhi Bai,
W/o Pappu Singh,
Aged 22 years.
Both R/o Village Gambhira, P.S. Tejgarh,
District Damoh (M.P.)
-Vs-
Respondent : State of Madhya Pradesh
Present : Hon. Shri Justice S.K. Gangele
Hon. Shri Justice Anurag Shrivastava
Shri Aditya Adhikari, learned Senior Advocate with Shri
Satish Chaturvedi, counsel for the appellants.
Shri Pradeep Singh, G.A., for the respondent/State.
Whether approved for reporting : Yes/No
JUDGMENT
(21.11.2017) Per Anurag Shrivastava, J :-
The present appeal under Section 374(2) of Cr.P.C., has been preferred by the appellants/accused persons being aggrieved of the judgment and sentence dated 16.3.1998 passed by First Additional Sessions Judge, Damoh in Sessions Trial No.143/1995, whereby the appellants have been convicted for commission of offence punishable under 2 Cr.A.No.863/1998 Pappu Singh & anr.
Vs. State of M.P. Section 302 read with section 34 of IPC and sentenced to undergo R.I. for life.[
2. The case of the prosecution in brief is that the deceased Smt.Kamla Bai was the wife of Bittu Singh Lodhi, who was younger brother of Natthu Singh. Appellants Pappu Singh is the son of Natthu Singh and appellant Nanhi Bai is the wife of Pappu Singh. The husband of Nanhi Bai had expired some 15 years ago. After the death of husband, deceased was living in her parental house. After a gap of 13- 14 years she returned to her matrimonial house and started claiming share of her husband in his ancestral property. The appellants had refused to give her any share in the parental property and on account of this there was a property dispute between the appellants and deceased Kamla Bai. The appellants Pappu Singh had beaten Kamla Bai some 15 days prior to the incident and deceased had lodged report against this at Police Outpost Imaliya. On 28.7.1995 at around 8 o'clock in the morning Kamla Bai was sleeping in her room, meanwhile the appellants came there, Nanhi Bai caught hold of hand of the deceased and Pappu Singh sprinkled kerosene oil on her and set her ablaze. The deceased shouted for help. Hearing this her Jeth, Natthu Singh arrived there and dowsed the fire by covering her in a blanket. After the incident neighbour also arrived on the spot. Kamla Bai was taken to the hospital where she was examined by the Doctor and admitted for treatment. The intimation of incident was sent by the Doctor to the police station Damoh. The dying declaration of Kamla Bai was got recorded by the Naib Tahsildar Sanjeev Kumar on the same day. Head Constable Suresh Prasad recorded Dehati Nalishi Ex.P-10 on the basis 3 Cr.A.No.863/1998 Pappu Singh & anr.
Vs. State of M.P. of statement of Kamla Bai in the hospital. Kamla Bai expired on the next day in the morning during treatment.
3. The police registered marg intimation Ex.P-1 and initiated inquest. The Panchnama of the dead body of deceased was prepared and body was sent for postmortem. An offence under section 302 read with section 34 of IPC has been registered against the appellants. During investigation spot Ex.P-12 map was prepared. One bottle of kerosene oil was seized at the instance of appellant Pappu Singh. The statements of witnesses were recorded and after completion of usual investigation, the charge-sheet has been filed.
4. The appellants have been charged for offence punishable under Sections 302 read with section 34 of IPC. Accused/appellants abjured guilt and pleaded innocence. The prosecution has examined 17 witnesses, whereas the appellants had examined 1 witness in their defence. The trial Court on appreciation of evidence found the appellants guilty for commission of offence punishable under sections 302 read with section 34 of IPC and sentenced them, as stated herein above. Against this, the appellants have preferred this appeal.
5. Heard arguments and perused the record.
6. It is not disputed that at the time of incident deceased Kamla Bai had sustained burn injuries, she was brought to hospital where during treatment she had expired. Dr. O.P. Dubey (PW-7) deposed that on 28.07.1995 at District Hospital Damoh he had examined Kamla Bai and found about 70% burn injuries on person of her body. This fact is corroborated by MLC report (Ex.P/9). Dr. Pramod Shrivastava (PW-16) deposed that on 03.08.1995 he had performed 4 Cr.A.No.863/1998 Pappu Singh & anr.
Vs. State of M.P. postmortem of body of Kamla Bai and found burn injuries all over the body. The cause of death was burn and its complications. The statement of doctor is duly corroborated by postmortem report (Ex.P/20). Thus, relying upon postmortem report it is proved that deceased had died due to burn injuries.
7. The case of the prosecution depends upon dying declaration given by the deceased. From the statement of Nathu Singh (PW-3), Phool Singh (PW-2), Dharshan (PW-6) and Bhagat Singh (PW-5), it is found that on 28.07.1995 Kamla Bai had sustained burn injuries and she was brought to District Hospital Damoh. Dr. O.P. Dubey (PW-7) deposed that on 28.07.1995 he was posted at District Hospital Damoh. Kamla Bai was brought to hospital for treatment, she had sustained burn injuries by kerosine oil. Kamla Bai informed him that Pappu Singh and his wife had poured kerosine oil on her and set her ablaze. He has sent intimation (Ex.P/7) to Police Station Kotwali, Damoh. He had examined Kamla Bai and mentioned above facts in MLC report (Ex.P/9).
8. Suresh Prasad (PW-9) deposed that on 28.07.1995 he was working as Head Constable at Police Outpost District Hospital, Damoh. He received information about Kamla Bai and visited the hospital where she was admitted for treatment. He got her medically examined and intimated Executive Magistrate to record dying declaration. He had also recorded her statement (Ex.P/11) and Dehati Nalishi (Ex.P/10) on the report of Kamla Bai.
9. Sanjeev Kumar Kanchan (PW-17) deposed that on 28.07.1995, he was working as Naib Tahsildar, at around 5:50 pm in the evening he had recorded dying declaration of Kamla Bai at District Hospital, Damoh. He had also obtained 5 Cr.A.No.863/1998 Pappu Singh & anr.
Vs. State of M.P. certificate of doctor regarding fitness of Kamla Bai. Kamla Bai had given dying declaration (Ex.P/22) and signed it on A to A place. Sanjeev Kumar further deposed that at the time of recording of dying declaration nobody was present near her. He had removed all the persons attending her. This fact is also corroborated by Dr. O.P. Dubey (PW-7) who deposed that on 28.07.1995 at around 5:50 pm Naib Tahsildar had recorded dying declaration of Kamla Bai. He had examined Kamla Bai at that time and found her fully conscious and mentally fit to make statement. He had endorsed the certificate of fitness at B to B and D to D place of dying declaration. This certificate shows that the deceased was fully conscious and physically and mentally fit to make statement during recording of dying declaration.
10. The dying declaration recorded by Naib Tahsildar (Ex.P/22) reads as under:-
"ej.kklu dFku deykckbZ C;ku nsus yk;d iw.kZ gks'k esa gSA uke& deykckbZ] mez& 30 o"kZ fuokl & xEHkhjk] Fkkuk rstx<+ iz- vkidk uke D;k gSA m- deyk ckbZ iz- vkidh mez D;k gS m- yxHkx 30 o"kZ iz- vki dgkW dh jgus okyh gS m- xEHkhjk ds] tks rstx<+ Fkkus esa vkrk gSA iz- & rqEgsa vkx dc vkSj dSls yxh m- & eq>sa vkx vkt lqcg djhc 8-00 cts lqcg esa iyax ij ysVh Fkh fd mlh le; esjs ftBksr iIiw dh cgw uUuh ckbZ us esjs nksuksa gkFk idM+ fy;s rFkk iIiw us rsy feV~Vh dk tks fd 'kh'kh esa Fkk esjs mij Mky fn;k vkSj ekfpl ls vkx yxk nhA iz- & tc rqEgsa vkx yxk;h x;h ml le; dkSu&2 Fks 6 Cr.A.No.863/1998 Pappu Singh & anr.
Vs. State of M.P. m- & iIiw] uUuh ds vykok nqjx flag] Hkkjr rFkk vkSj Hkh yksx FksA iz- & ?kVuk ds le; vkids ifr dgkW Fks m- & 15 lky igys ej x;s iz- & D;k dksbZ >xM+k ifgys ls Fkk m- & esjk muls ifgys 1 o"kZ ls >xM+k py jgk Fkk] tksfd fiNys 15&20 fnuksa ls T;knk gks x;k FkkA iz- & >xM+k fdl ckr ij FkkA m- & os yksx eq>sa cnuke djrs rFkk csTtrh djrs Fks iz- & vkx yxus ij vkidks cpkus dksbZ vk;k Hkh ugha m- & vkx yxus ds FkksM+h nsj ckn esjs tsB uRFkwflax tks fd iIiw ds firk gS] us eq>sa cpk;kA esjs mij diM+k Mkydj eq>s cpkus dh dksf'k'k dh rFkk ogha eq>s vLirky yk;sA iz- & vkx yxkus okyks dks >xM+s dk D;k dkj.k Fkk m- & ifr dh e`R;w ds ckn esa ek;ds pyh x;h vkSj fiNys ,d lky ls llqjky esa jg jgh FkhA bu yksxksa dh esjs izfr uh;r Bhd ugh Fkh] eq>sa ijs'kku djrs gS bldk fojks/k gh >xM+s dk dkj.k cukA iz- & tks dqN Hkh rqe cksy jgh gks og lp gS ;k fdlh ds izfr jaft'k o'k ,slk dg jgh gks m- & es fcYdqy lgh cksy jgh gWwA iz- & rqe dqN vkSj dguk pkgrh gks m- & eSus bu yksxks dh fjiksVZ yxHkx 15 fnu ifgys befy;k Fkkus esa rFkk neksg Fkkus esa Hkh dh FkhA cl vc dqN ugha dguk gS c;ku i<+k@lquk lgh ik;k^^
11. Thus, from the dying declaration, it appears that due to property dispute the appellant Nanhi Bai caught hold of hands of Kamla Bai and Pappu had poured kerosine oil and set her ablaze. At the time of incident deceased was living in her matrimonial house.
12. It is argued by the learned counsel that Sanjeev Kumar (PW-17) had stated that when he asked deceased for signature she said that she was illiterate and could not make her signature. Therefore, the signature of deceased on dying declaration and on Dehati Nalishi creates doubt on its 7 Cr.A.No.863/1998 Pappu Singh & anr.
Vs. State of M.P. credibility. Witness Nathu Singh (PW-3), Chain Singh (PW-4) and Jagat Singh (PW-8) deposed that deceased had informed them that Ujyar Singh, Durga Singh and Bharat Singh have set fire to deceased. These persons were present at the time of incident. Ujyar Singh was Sarpanch of village he used to beat the deceased, to which effect deceased also got a report registered against the Sarpanch some 15 days before the incident. Ujyar Singh and Bharat Singh had a dispute with the deceased at the time of recording of dying declaration. Sister of Ujyar Singh namely Lalli Bai was present with the deceased and she had tutored her while making dying declaration. The deceased had given different statement regarding the incident to the witnesses who arrived at the spot after incident. In view of contradictions and inconsistencies in dying declaration of deceased, the trial Court has committed illegality on relying upon the sole dying declaration (Ex.P/22) and convicted the appellants. The motive to commit crime is not proved.
13. In disputably conviction can be recorded on the basis of dying declaration alone but therefore, the same must be wholly reliable. The admissibility of dying declaration is explained by Hon'ble Supreme Court in case law Ramesh v state of Haryana AIR 2016 SC 5554 as under:-
"Law on the admissibility of the dying declarations is well-settled. In Jai Karan v. State of N.C.T., Delhi3, this Court explained that a dying declaration is admissible in evidence on the principle of necessity and can form the basis of conviction if it is found to be reliable. In order that a dying declaration may form the sole basis for conviction without the need for independent corroboration it must be shown that the person 8 Cr.A.No.863/1998 Pappu Singh & anr.
Vs. State of M.P. making it had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish. If, in the facts and circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the court on strict scrutiny finds it to be reliable, there is no rule of law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated. A dying declaration is an independent piece of evidence like any other piece of evidence, neither extra strong or weak, and can be acted upon without corroboration if it is found to be otherwise true and reliable."
3. (1999) 8 SCC 161 : AIR 1999 SC 3512
14. The deceased received burn injuries on 28.07.1995 and she died on 03.08.1995. At the time when she was brought to the hospital she was conscious and capable of making statement, this fact is duly proved by the statement of Dr. O.P. Dubey (PW-7), Naib Tahsildar Sanjeev Kumar (PW-17) and also Head Constable Suresh Prasad (PW-9). Other prosecution witnesses Phool Singh (PW-2) and Nathu Singh (PW-3) who brought the deceased to the hospital also stated in their evidence that deceased was fully conscious and making statement. Dr. O.P. Dubey (PW-7) deposed that at the time of medical examination the deceased had informed him that she was burnt by Pappu and his wife Nanhi Bai. This fact has been mentioned by the doctor in MLC report (Ex.P/8) also. Suresh Prasad, Head Constable (PW-9) deposed that after getting the information of the incident he visited District Hospital, where the deceased was admitted 9 Cr.A.No.863/1998 Pappu Singh & anr.
Vs. State of M.P. for treatment. He asked the deceased about the incident and recorded Dehati Nalishi (Ex.P/10) and her statement (Ex.P/11). This Dehati Nalishi can also be treated as dying declaration. I am fortified from the judgment of the Supreme Court in the matter of Paras Yadav v. State of Bihar reported in (1999) 2 SCC 126 wherein it has been held by the Supreme Court that "a statement of the deceased recorded by a police officer in a routine manner as a complaint and not as a dying declaration can also be treated as dying declaration after the death of the injured and relied upon if the evidence of the prosecution witnesses clearly establishes that the deceased was conscious and was in a fit state of health to make the statement".
15. Thus, in the present case, we find three dying declarations i.e Dehati Nalishi (Ex.P/10), statement (Ex.P/11) and dying declaration (Ex.P/22) recorded by Naib Tashildar.
16. In the present case, it appears that the witnesses Phool Singh (PW-2), Nathu Singh (PW-3), Chain Singh (PW-4), Darshan (PW-6), Jagat Singh (PW-8) had arrived on the spot after the incident and found the deceased in burnt condition. Nathu Singh (PW-3) deposed that hearing the cry of deceased he went towards her house and saw Ujyar Singh, Durg Singh and Bharat Singh coming out of the house. He went in the house where found deceased in burnt condition, she told him that Ujyar Singh and Bharat Singh had set her ablaze. This witness has been turned hostile. He has been confronted from his police statement (Ex.P/4) but he denied to make such statement. Nathu Singh further deposed that he called on Kotwar Darshan Singh and informed him about the incident. Darshan (PW-6) also deposed that after the incident Nathu Singh came and informed him that deceased 10 Cr.A.No.863/1998 Pappu Singh & anr.
Vs. State of M.P. has set her ablaze. He came on the spot and asked the deceased as to how she got burnt, she told him that take her to Damoh whatever she want to say she would say it there. Thus, Darshan Singh has stated that after the incident Nathu Singh had informed him that deceased herself set her ablaze. Nathu Singh did not tell him that Ujyar Singh and Bharat Singh had ablazed her. This creates doubt on testimony of Nathu Singh. If deceased would have informed him that she was ablazed by Ujyar Singh and Bharat Singh than he would not having informed the Kotwar Darshan Singh that deceased herself set her ablaze. Nathu Singh is father of the appellant Pappu Singh. Therefore, it is quite possible that he is trying to save his son and daughter-in-law.
17. Other witnesses Chain Singh (PW-4) and his brother Jagat Singh (PW-8) deposed that after getting information they both reached on the spot and found the deceased in burnt condition. Chain Singh deposed that decease had told him that she was ablazed by Ujyar Singh, Durg Singh and Bharat Singh. But, this fact is not corroborated by Jagat Singh, who was also present there. He did not say that deceased had made any statement before them. This creates doubt on statement of Chain Singh. Phool Singh (PW-2) deposed that after the incident Nathu Singh came and informed him that the deceased had set her ablaze. He came on the spot where deceased had stated him the same fact.
18. Thus, from above statements of witnesses, it appears that, Nathu Singh and Chain Singh had stated that the deceased told them Ujyar Singh, Durg Singh and Bharat Singh had set her ablaze. But, Nathu Singh informed other witnesses Phool Singh (PW-2) and Darshan Singh (PW-6) 11 Cr.A.No.863/1998 Pappu Singh & anr.
Vs. State of M.P. that the deceased herself set her ablaze. Phool Singh (PW-2) deposed that deceased told him that she herself set her ablaze whereas Jagat Singh (PW-8) did not say that deceased had made any statement. Thus, there is contradictory statements of these eye witnesses, who arrived on the spot after the incident. Nobody had seen the incident. Thus, it appears that the witnesses are giving different versions of the incident. There is inconsistencies occurred in their statement how the deceased was burnt. Whether she was burnt by Ujyar Singh, Durg Singh and Bharat Singh or she herself set her ablaze it is not clear. If these persons Ujyar Singh etc. would have burnt the deceased why Nathu Singh had not lodged the report against them. Why he had not informed this fact to witnesses Phool Singh and Darshan ? Therefore, statement of Nathu Singh, Chain Singh, Jagat Singh and Phool Singh cannot be relied upon. All above witnesses have been declared hostile by the prosecution. Thus, keeping in view of inconsistencies in multiple oral dying declarations of the deceased to the witnesses, these oral dying declarations cannot be relied upon. The witnesses are not telling the truth.
19. Learned counsel for the appellants relied upon the case laws State of Punjab Vs. Parveen Kumar (2005) 9 SCC 769, Rajesh Jagdamba Avasthi Vs. State of Goa (2005) 9 SCC 773, Amol Singh Vs. State of Madhya Pradesh (2008) 5 SCC 468, State of U.P. Vs. Shishupal Singh 1992 Supp (3) SCC 60, State of Rajasthan Vs. Yusuf (2009) 12 SCC 139. Hon'ble Apex Court in case law Amol Singh Vs. State of M.P. (2008) 5 SCC 468 observed as under:-
"Law relating to appreciation of evidence in the form of more than 12 Cr.A.No.863/1998 Pappu Singh & anr.
Vs. State of M.P. one dying declaration is well settled. Accordingly, it is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration.
The statement should be consistent throughout. If there are more than one dying declaration they should be consistent.
However, if some inconsistencies are noticed between one dying declaration and the other, the court has to examine the nature of the inconsistencies, namely, whether they are material or not. While scrutinising the contents of various dying declarations, in such a situation, the court has not examine the same in the light of the various surrounding facts and circumstances."
20. In the present case, we have three dying declarations made by the deceased. One recorded by Naib Tahsildar and other two are recorded by Head Constable Suresh as Dehati Nalishi and police statement. All the three dying declarations i.e. Dehati Nalishi (Ex.P/10), statement (Ex.P/11) and dying declaration (Ex.P/22) recorded by Naib Tahsildar are consistent and corroborates each other. We cannot believe that the deceased was tutored by Lalli Bai who was trying to save her brother. The dying declaration Ex.P/22 is also corroborated by Ex.P/9 and Ex.P/19, the MLC report wherein the deceased had informed the doctor the appellants had set her ablaze. Although, we find that in Dehati Nalishi (Ex.P/10) the deceased had made her signature whereas in dying declaration (Ex.P/22) she had affixed her thumb impression.13
Cr.A.No.863/1998 Pappu Singh & anr.
Vs. State of M.P.
In our considered opinion, seeing the signature of the deceased it appears that she had signed the Dehati Nalishi with difficulty. She may not be a literate woman but she was knowing to sign. At the time of dying declaration she might have found it easier to put her thump impression rather than signing it. Therefore, only on this ground her dying declaration cannot be disbelieved. Thus, it appears that the dying declaration (Ex.P/22) made by the deceased is voluntary, reliable and made in fit mental condition. The statement is consistent through out. The deceased had property dispute with the appellant Pappu Singh. Some fifteen days prior to the incident Pappu Singh had beaten her. He wanted to expel the deceased from the village. This fact is mentioned in the statement of deceased Ex.P/10 and P/11. The trial Court considering the above evidence on proper appreciation of evidence relied upon the dying declaration of the deceased and arrived at the conclusion that the appellants had set the deceased on fire and thereby committed her murder. The findings recorded by the trial Court is correct and acceptable. It is rightly found proved by the trial Court that the appellants had committed murder of the deceased, which is punishable under Section 302 r/w Section 34 of IPC.
21. Thus, the appeal is devoid of merits and is hereby dismissed. The appellants are on bail, their bail bonds stand cancelled they be taken into custody and be sent to jail for serving remaining of jail sentence.
(S.K.Gangele) (Anurag Shrivastava)
Judge Judge
M/Vin**
Digitally signed by VINOD
SHARMA
Date: 2017.11.22 01:01:40
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