Madhya Pradesh High Court
Raju Koli vs State Of M.P. on 5 January, 2019
Author: Virender Singh
Bench: Virender Singh
Division Bench: Hon'ble Shri Justice Rohit Arya and
Hon'ble Shri Justice Virender Singh
Criminal Appeal No.291/2008
Raju S/o Kamilal Koli
Vs.
State of Madhya Pradesh
Shri Vivek Singh, learned counsel for the appellant.
Shri Mukesh Kumawat, learned counsel for the respondent/State.
Whether approved for reporting: Yes/No
JUDGMENT
(Delivered on 05/01/2019) Per : Virender Singh, J. :
1. The appellant has preferred this appeal against judgment and order dated 07.02.2008 passed in Sessions Trial No.96/2017 by Special Judge, Badwani, whereby the learned Court has held the appellant guilty for the offence under section 302 of the IPC and sentenced him to undergo life imprisonment with fine Rs.2,000/- and in default of payment of fine further to undergo 06 months RI.
2. The prosecution has come before the court with a story that the appellant Raju S/o Kamilal was annoyed with the deceased Raju S/o Chunnilal on account of some dispute in offering traditional cash gift usually been given after having food in a banquet on the occasion of marriage. Due to this animosity, three days prior to the incident also the appellant assaulted on the deceased and caused injuries on his left hand by a blade. On 16.04.2007 at about 08:00 in the night, when the deceased was coming back home after relieving himself, the appellant came suddenly, slapped him twice, poured kerosene over him brought in a plastic carry-bag and set him on fire with a match stick. The deceased sustain serious burn injuries. Neighbors saw the incident and doused the fire.
The deceased revealed the incident before his mother, who took him to the hospital, where they disclosed the incident before the doctor, who referred him to the District Hospital, Badwani and informed the police. He was admitted in the District Hospital, Badwani. The police reached hospital, recorded Dehati analishi and registered crime no.54/07 under section 307 of the IPC against the appellant. During the treatment, the deceased died on 11.05.2007 consequently, the police added Section 302 IPC to the crime already registered against the appellant. After usual investigation, the police filed the charge sheet.
3. The appellant was charged, tried and convicted for the offence under section 302 of the IPC and sentenced as stated in para 1 above.
4. The appellant has preferred this appeal on the grounds that the judgment and order of the trial Court is contrary to the law and the facts available on record. The trial Court has erred in believing the prosecution witnesses and discarding the defense version. The trial Court has not considered the material contradictions and omissions appeared in the statements of the witnesses. Conclusions of the trial Court are neither legal nor proper or correct. The learned trial Court has not considered that the deceased was hard core criminal. Several criminal cases of theft, drubbing and trading of illegal liquor were registered against him. Once the police also initiated the proceedings to extern him. His mother was also indulged in infamous trade of illegal liquor. The appellant was a councilor of his constituency. He was pursuing them not to do all these illegal pursuits; therefore, they both were suspecting that he only got the criminal case registered against them. Due to hostility of the deceased with several persons, on getting opportunity some unknown person have committed the incident but due to annoyance towards the appellant owing to his protest for their illegal businesses, they have falsely implicated him in the present case. Both the independent witnesses Ramesh PW/2 and Vikram PW/3 have not supported the case of the prosecution and mother of the deceased was inimical towards him, therefore, his conviction based on the sole testimony of mother of the deceased is bad in law and he is entitled for acquittal.
5. Learned public prosecutor has opposed the prayer. It is submitted that the statement of mother Bhagwanti Bai PW/1 is well supported by the statements of Dr. Rajesh Jain PW/6 and Dr. J.P. Pandit PW/7 and also by the statement of Investigation Officer SHO S.S. Chouhan PW/9, which are fully corroborated by the documents prepared by them all in the course of their duty. The learned public prosecutor asserted that the prosecution has successfully proved its case beyond all the reasonable doubts. Heavy reliance is placed by the learned Public Prosecutor on the dying declaration and the first intimation deduced in the form of Dehati Nalishi. Therefore, the trial court has rightly convicted the accused and there is no scope of interference, on any account, for this Court.
6. The appellant has not controverted the fact that on 16.04.2007, the deceased sustained burn injuries. He was taken to the hospital Anjad and thereafter referred to the District Hospital, Badwani where he died on 11.05.2007 due to those burn injuries. To reassure ourselves, we peeped into the evidence and found that these facts are well proved by the statements of Dr.J.P. Pandit PW/7 of Civil Hospital, Anjad and Dr.Rajesh Jain PW/6, Medical Officer Badwani, who performed autopsy also. Statement of both these doctors are well corroborated by the reports Ex.P/5 and post mortem report Ex.P/4. Nothing contrary could be brought on record in cross examination of both these doctors. Therefore, the trial Court has rightly held that on the alleged date, time and place of the incident, the deceased sustained burn injuries which ultimately resulted in his death.
7. Now the only question remains for determination is as to how the deceased sustained burn injuries. To establish the claim that it was the appellant who caused such injuries, the prosecution has examined Dr.J.P Pandit PW/7 who has stated that on 16.04.2007 at about 10:35 PM, the deceased was brought to the Civil Hospital, Anjad by his mother. He was 80-90% burnt. They both revealed the incident before him but looking to his serious condition; he immediately referred him to the District Hospital, Badwani and could not record his dying declaration.
8. Nayab Tehsildar Chandar Singh Solanki PW/5 has stated that on 17.4.2007 at about 02:15 AM he had gone to the District Hospital, Badwani and recorded dying declaration of the deceased. He has further stated that before and after recording his dying declaration, he obtained opinion of the doctors regarding fitness of the deceased to give statement and on both occasions; the doctor certified that he was fit to give statement.
9. SHO SS Chouhan PW/9 has stated that on 17.04.2007, the deceased narrated the incident before him and he deduced the same as Dehati Nalishi Ex.P/11.161
10. On all these three occasions, the deceased has revealed that it was the appellant who poured kerosene on him and set him on fire. Statements of all these witnesses are well corroborated by intimation Ex.P/5, dying declaration Ex.P/3 and Dehati Nalishi Ex.P/11 prepared by them at the relevant point of time. Their testimony was tested on the anvil of cross examination but nothing contrary could be brought on record, which could dent their trustworthiness. The trial Court has rightly believed them.
11. Extra Judicial Dying declaration in the form of statement of mother of the deceased Bhagwantibai is produced by the prosecution. Bhagwantibai is examined as prosecution witness No.1 and has stated before the Court that at about 08:30 in the night deceased came home in a burning condition. He revealed before her that the appellant has doused him in kerosene and set him on fire. With the help of Ramesh Thakur, she immediately took him to the hospital where doctor also asked to him as to how he sustained these injuries. Her son and she both revealed before the doctor that the appellant has drenched the deceased in kerosene and set him on fire. His testimony was questioned by the defense on several grounds mainly on the ground of enmity. Though, she has admitted that several criminal cases were registered against her son regarding theft and sell of illicit liquor and she was suspecting that all these cases were got registered by the appellant. Once the police also took action to extern her son and behind this also she was suspecting the hand of the appellant. She has further admitted that the appellant has got him arrested twice in the case of illicit liquor and all these facts make her statement a bit doubtful but this doubt is not sufficient to dent her testimony, looking to the spontaneous and instant reaction and revelation of the fact before the doctor and also looking to the further corroboration available in the form of dying declaration recorded by Naib Tehsildar Chandar Singh Solanki, Dehati Nalish and police statement of the deceased recorded by SHO S.S. Chauhan and the statements of Dr. J.P.Pandit and Dr. Rajesh Jain, who all are impartial and unbiased witnesses and have no reason to implicate the appellant fallaciously.
12. All these evidences are appreciated by the trial Court in the backdrop of the grounds raised by the appellant, and it has rightly reached on the conclusion that the grounds raised by the appellant are not sufficient to discard the statement of these impartial witnesses, which are further well corroborated by the documents prepared in the course of investigation. We are also of the view that nothing is there to disbelieve the incident in the form narrated by the deceased himself on several occasion that it was the appellant who doused him in the kerosene and set him on fire. In such a situation, we find no scope or no ground; whatsoever, to interfere in the findings of the learned trial Court and therefore, we have no hesitation to confirm the conviction of the appellant. On due consideration, we also find the sentence awarded to the appellant just and proper and confirm that also.
13. Ex-consequenti, the appeal is dismissed hereby.
(Rohit Arya) (Virender Singh)
Judge Judge
sourabh
Digitally signed by
SOURABH YADAV
Date: 2019.01.08 17:05:39
+05'30'