Madhya Pradesh High Court
Raghuveer vs State Of M.P. on 11 January, 2022
Author: G.S. Ahluwalia
Bench: G.S. Ahluwalia
1
Raghuvir Vs. State of M.P. (Cr.A. No. 667 of 2010)
HIGH COURT OF MADHYA PRADESH
GWALIOR BENCH
DIVISION BENCH
G.S. AHLUWALIA
&
DEEPAK KUMAR AGARWAL J.J.
Cr.A. No. 667 of 2010
Raghuvir
Vs.
State of M.P.
Shri Ashok Jain Counsel for the Appellant
Shri C.P. Singh Counsel for the State
Date of Hearing : 04-01-2022
Date of Judgment : 11th-Jan-2022
Approved for Reporting :
Judgment
11th- January -2022
Per G.S. Ahluwalia J.
1.This Criminal Appeal under Section 374 of Cr.P.C. Has been filed against the judgment and sentence dated 26-7-2010 passed by Sessions Judge, Morena in Sessions Trial No. 143 of 2009, by which the appellant has been convicted under Section 302 of IPC and has 2 Raghuvir Vs. State of M.P. (Cr.A. No. 667 of 2010) been sentenced to undergo Life Imprisonment.
2. The necessary facts for disposal of present appeal in short are that Shobharam, the husband of the deceased brought the injured Smt. Sonkali to the hospital in burnt condition and an information was sent to Police Station Civil Lines, Morena. Accordingly, a Dehati Nalishi, Ex. P.3 was recorded in the hospital. It was disclosed by the injured Smt. Sonkali that She was married to Shobharam about 12 years back. Gauna ceremony took place after 5 years of marriage. She gave birth to 2 daughters who have already expired. Her Devar (appellant) used to scold her that the injured has spoiled the family and her father has taken Rs. 10,000 which he is not returning back. At about 8:00 P.M., She was inside her room. Her Devar came there and started abusing her. When She objected to it, then he set her on fire after pouring kerosene oil on her. After hearing her screams, her neighbour Banwari Prajapati came on the spot and extinguished fire after putting water on her. Her husband was not in the house and had gone for labour work. After he came back, he has brought her to the hospital. Raghuvir has burnt her with an intention to kill her.
3. Accordingly, the police registered the F.I.R.. The statement of the injured Sonkali was also recorded under Section 161 of Cr.P.C. Her dying declaration was got recorded by Naib Tahsildar. The deceased died during her treatment. Post-mortem was got done. Statements of the witnesses were recorded. Appellant was arrested and container of Kerosene Oil as well as match box were seized on 3 Raghuvir Vs. State of M.P. (Cr.A. No. 667 of 2010) disclosure made by him. The seized articles were sent to F.S.L. The police after completing the investigation, filed charge sheet under Section 302 of I.P.C.
4. The Trial Court by order dated 30-6-2009, framed charge under Section 302 of I.P.C.
5. The appellant abjured his guilt and pleaded not guilty.
6. The prosecution examined Dr. Rakesh Sharma (P.W.1), V.B.S. Kushwaha (P.W.2), Shobharam (P.W.3), L.K. Mishra (P.W.4), Dr. D.K. Soni (P.W.5), and Rajveer Sharma (P.W.6).
7. The appellant did not examine any witness in his defence.
8. The Trial Court by the impugned judgment convicted and sentenced the appellant for the above mentioned offence.
9. Challenging the judgment and sentence passed by the Trial Court, it is submitted by the Counsel for the appellant, that Shobharam, the husband of the deceased has turned hostile. The case is based on the sole circumstance of dying declarations. They are not reliable. At the time of incident, the appellant was not present on the spot. Banwari, the person who reached on the spot at the very beginning has not been examined by the prosecution. Further, there is nothing on record to suggest that the dying declaration was read over to the injured by L.K. Mishra, Naib-Tahsildar.
10. Per contra, the Counsel for the State has supported the prosecution case.
11. Heard the learned Counsel for the parties 4 Raghuvir Vs. State of M.P. (Cr.A. No. 667 of 2010)
12. Before adverting to the merits of the case, this Court would like to find out as to whether the death of deceased Sonkali was homicidal in nature or not?
13. Dr. D. K. Soni (P.W.5) had medically examined the injured Sonkali and found the following injuries on her body :
Burns over :
Face and neck Chest and upper part of abdomen Back of chest Both upper limbs Right and Left thigh upto knee Burn is deep in nature General Condition - Not Fair Adv. - Giving Primary Treatment and referred to Medical College, Gwalior Opinion : Deep burn approximately 50%. Smell of Kerosene coming from cloths and body
14. The Pre M.L.C. is Ex. P.20
15. This witness had also given first aid treatment to the injured Sonkali and at the request of the police, the Naib Tahsildar Morena also recorded dying declaration, on whose query, he had given the medical certificate to the effect that the patient is fully conscious. The certificate is at A to A on dying declaration Ex. P.5. The dying declaration was recorded in his presence.
16. This witness was cross-examined.
In cross-examination, this witness stated that after admitting the injured, he had given her first aid and had also called Surgeon. After going through the case history, this witness clarified that Dr. V.V. Sharma had examined the injured. However, this witness also 5 Raghuvir Vs. State of M.P. (Cr.A. No. 667 of 2010) clarified that he had given antibiotics to the injured and had also applied ointment on the wound. Further, I.V. fluid was also given. He further stated that the general condition of the patient was not good. He further stated that before giving certificate of fitness, he had verified from the patient and came to the conclusion that She is in a fit state of mind. He further stated that he had again examined the injured after the recording of her dying declaration. He denied that at the time of giving medical certificate, lot of persons were present. He admitted that at the time of recording of her dying declaration, her husband and other persons were present. He denied that the condition of the injured was poor and was not in a position to speak. He admitted that since, She was serious, therefore, She was referred to Gwalior. He denied that he had not admitted the patient before referring her to Gwalior. He denied that he had given the fitness certificate in his duty room. He stated on his own that he had given the fitness certificate while standing near the injured. He denied that the Naib-Tahsildar had obtained the fitness certificate in the duty room. He denied that he was not present at the time of recording of dying declaration.
17. It is not out of place to mention here that the injured was brought to the hospital by her husband Shobharam. In the Pre M.L.C., Ex. P.20, the smell of kerosene oil was found in the cloths and body of the injured.
18. The injured Sonkali expired during her treatment and post- 6
Raghuvir Vs. State of M.P. (Cr.A. No. 667 of 2010) mortem of her dead body was conducted by Dr. Rakesh Sharma (P.W.1) and his team who found the following injuries on her body :
(i) Superficial to deep burns over face and neck
(ii) Deep burn over chest and upper part of abdomen
(iii)Deep burn over back
(iv) Dep burn over both upper limb
(v) Superficial to deep burn over right and left thighs upto knees Total extent of burn is 70%. Ante-mortem with pealed condition and red patches on skin with blackening of skin.
In our opinion, death of Sonkali is caused by shock due to extensive burn within 12 to 24 hours before P.M. Examination. The Post-mortem report is Ex. P.1.
19. In cross-examination, this witness clearly stated that he is not in a position to state as to whether the deceased was in a position to speak or not. He stated that on account of congestion of air pipe, lungs etc. it cannot be said that the injured would not be in a position to speak. He further stated that congestion doesnot mean that the air pipe was completely blocked. However, he admitted that because of congestion, a person may feel difficulty in speaking. The cloths which were seized were not burnt as they were changed. He admitted that the hands of the deceased had suffered deep burns. He stated that the injured could have moved her hands but was not in a position to sit on her own.
20. Thus, from the Pre. M.L.C., Ex. P. 20 and Post-mortem report, Ex. P.1, it is clear that the deceased had died on account of burn injuries. However, whether the burn injuries were accidental, homicidal or suicidal, would be decided after considering the merits of the case.
7
Raghuvir Vs. State of M.P. (Cr.A. No. 667 of 2010)
21. It is submitted by the Counsel for the appellant that Shobharam (P.W.3) who is the husband of the deceased and real brother of the appellant has turned hostile and has not supported the prosecution case. The case now rests entirely on three dying declarations i.e., Dehati Nalishi, Ex. P.3, Statement recorded under Section 161 of Cr.P.C., Ex. P. 4 and Dying Declaration recorded by Naib Tahsildar, Ex. P.5. It is submitted that all the three dying declarations are not reliable. The fact that FIR number is mentioned on the statement of the deceased, Ex. P.4 clearly shows that it is a concocted document. The deceased was not in a position to make statement as her face and neck was burnt. The appellant was not in the house at the time of incident.
22. Per contra, the Counsel for the State has submitted that the dying declarations of the deceased are reliable and trustworthy.
23. Heard the learned Counsel for the parties.
24. It is the prosecution case, that the injured Sonkali was brought to the Hospital by her husband Shobharam (P.W.3) in a burnt condition, from where an information was given to the police and accordingly, Dehati Nalishi, Ex. P.3 was recorded. Thereafter police statement under Section 161 of Cr.P.C., Ex. P.4 was recorded. At the request of the police, the Naib-Tahsildar also recorded dying declaration, Ex.P.5.
25. Shobharam (P.W.3) has stated that on 7 th February he had gone for labour work. At 8:30 P.M., he received an information that his 8 Raghuvir Vs. State of M.P. (Cr.A. No. 667 of 2010) wife has tried to commit suicide by setting herself on fire after pouring kerosene oil. Accordingly, he came back to his house and took the injured to hospital. She expired at 5 A.M. on the next morning. The Naksha Panchayatnama, Ex. P.8 was prepared. The spot map is Ex. P.10. The police had seized the plaster of wall as well as of the floor vide seizure memo Ex. P.11. The police had handed over the ornaments of his wife, vide Supurdaginama Ex. P.16. The dead body was handed over by receipt, Ex. P.17. This witness was declared hostile as he did not support the prosecution in entirety. In cross-examination, he stated that he got married to the deceased about 13-14 years back. Gauna ceremony was performed after 5 years. He admitted that he was blessed with two daughters, but both of them expired. He denied that although he had gone on his duty to V.S. Mill, but the appellant was in the house. He denied that when he came back, then he was told by his wife that She has been burnt by the appellant. In further cross-examination by the appellant, this witness stated that the appellant had also gone with him on duty. The injured was lying in the courtyard and was not in a position to speak. He stated that his wife was upset as her children had not survived. He further stated that earlier also, his wife had tried to commit suicide by jumping in the well. He further stated that the father and brother of the injured had also come to hospital and they had stayed for the whole night.
26. From the evidence of Shobharam (P.W.3) it is clear that he has 9 Raghuvir Vs. State of M.P. (Cr.A. No. 667 of 2010) supported the prosecution case to the effect that his wife had suffered burn injuries in the house and he took the deceased to the hospital.
27. V.V.S. Kushwaha (P.W.2) is the investigating officer, who was posted in Civil Lines Morena as Sub-Inspector. At about 9:25 P.M., an information was given by Ramprakash Mudgal, constable posted in Police Outpost Hospital, that Sonkali has been brought in a burnt condition, therefore, some officer be sent. The said information was recorded in Rojnamchansanha no. 420 at 21.25, Ex. P.2 and thereafter, this witness went to hospital. The injured was fully conscious and he recorded the Dehati Nalishi, Ex. P.3 on the information given by the injured. The injured had informed that She got married to Shobharam about 12 years back. Gauna was performed after 5 years of marriage. She gave birth to 2 daughters, but both of them expired. Her Devar (appellant) used to scold her by saying that She has spoiled the house. Her father had taken Rs. 10,000 and now he is not returning back and has misappropriated the same. At about 8 P.M., She was in the house The appellant came there and started abusing her. When she objected to it, then he poured kerosene oil on her and lit the match. She raised an alarm. Her neighbour Banwari Prajapati came on the spot and extinguished the fire by putting water. The appellant Raghuvir ran away from the spot. Her husband was not in the house as he had gone for labour work. He has brought her to the hospital for treatment. Raghuvir has burnt her with an intention to kill her. Thereafter, he again recorded the police statement of Sonkali, Ex. P.4 in which also 10 Raghuvir Vs. State of M.P. (Cr.A. No. 667 of 2010) she made the similar statement. This witness in his evidence, also re- iterated the statement given by the injured. It was further stated that he also sent a wireless message to L.K. Mishra, Naib Tahsildar, for recording the dying declaration of the deceased. At his request, Naib- Tahsildar also came to the hospital and recorded the dying declaration separately. He obtained the certified copy of the dying declaration recorded by the Naib-Tahsildar, Ex. P.5. Thereafter, he went back and recorded the proceedings in the Rojnamchasanha, Ex. P.6. On 8-2- 2009, he received an information from hospital regarding death of the injured. Accordingly, Merg, Ex. P.7 was registered. The lash Panchnama, Ex. P.8 was prepared. A requisition for post-mortem, Ex. P.9 was prepared. After the post-mortem, the dead body was handed over for cremation. On 8-2-2009, the statements of Munshi Prajapati and Banwari were recorded. The spot map, Ex. P.10 was prepared. At the time of preparation of spot map, whatever physical evidence was available, was seized. The appellant Raghuvir was arrested on 10-2-2009. His memorandum, Ex. P. 12 was recorded and on his information, a container of kerosene oil and match box were seized vide seizure memo Ex. P.13. He also requested Patwari to prepare spot map. The seized articles were sent to F.S.L. by memo Ex. P.14, however, the FSL report has not been received so far.
28. The Counsel for the appellant expressed that he would like to cross examine this witness after the examination of all witnesses, which was accepted and accordingly, his cross-examination was 11 Raghuvir Vs. State of M.P. (Cr.A. No. 667 of 2010) deferred and was cross examined at later stage.
29. In cross-examination, this witness stated that when he went to hospital, her treatment was going on. When he saw Sonkali, her hand, legs, chest, scalp hairs, neck was burnt. He had recorded the statements without obtaining any medical certificate from the treating Doctor. The injured was answering very clearly. He denied that the injured was completely burnt. He had reached hospital at about 9:45 P.M. and recorded Dehati Nalishi, Ex. P.3. He took about 15 minutes to record Dehati Nalishi, Ex. P.3. He also recorded her statement, Ex. P.4 after recording her Dehati Nalishi. Container of kerosene oil was not found at the time of preparation of spot map. The place of occurrence was the room of the injured. In reply to the question by the Court, this witness stated that he had recorded the statement of the injured at 10:10 P.M. In further cross examination by the defence, this witness stated that Dehati Nalishi, Ex. P.3 was recorded at "0" and it is possible that while recording her statement, he might have got an information about FIR number.
30. L.K. Mishra (P.W. 4) is the Naib-Tahsildar, who recorded the dying declaration of the injured Sonkali. This witness has stated that on 7-2-2009 he received an information that he has to record a dying declaration, therefore, he reached hospital at 10 P.M. and obtained a fitness certificate from the Doctor. A fitness certificate was given that the patient is in a position to give dying declaration. Accordingly, in the presence of the Doctor, he recorded the dying declaration of the 12 Raghuvir Vs. State of M.P. (Cr.A. No. 667 of 2010) injured. After completing the dying declaration, another fitness certificate was given by the Doctor. The dying declaration is Ex. P.5. He started recording dying declaration at 10 P.M in question answer form. While re-iterating the dying declaration, it was stated by this witness that the injured had disclosed that the appellant Raghuvir set her on fire after pouring kerosene oil. This witness has also stated that the injured was in a fit state of mind during the recording of dying declaration. This witness was cross-examined.
In cross-examination, this witness stated that he had received the requisition from police outpost Hospital. The requisition was given in the police outpost, whereas earlier he was informed on phone which was received by him at 9:30 P.M. He denied the suggestion that S.H.O. V.V.S. Kushwaha had took him from his residence. He denied that he was already informed by V.V.S. Kushwaha about the incident. He denied that at the time of recording of evidence, the parents or family members of Sonkali were present. He on his own stated that before recording dying declaration, he had instructed the persons to leave the room. He had contacted Dr. D.K. Soni in the duty room, who informed that one lady in a burnt condition has been brought and is in a position to give dying declaration. He obtained the fitness certificate on dying declaration, Ex. P.5 which is at A to A. The doctor after examining the patient had given the certificate in the duty room. This witness also stated that the Doctor was already treating the injured. He stated that at the time 13 Raghuvir Vs. State of M.P. (Cr.A. No. 667 of 2010) of recording of evidence, the Doctor was in his duty room. He denied that the injured Sonkali was not speaking and was answering by signs.
31. Rajveer Sharma (P.W.6) had registered the FIR, Ex. P.21 on the basis of Dehati Nalishi written by V.V.S. Kushwaha. On 8-2-2009, Constable no. 589 had brought one sealed packet from Distt. Hospital containing parts of the body of deceased and another sealed packet and specimen seal, which were seized vide seizure memo Ex. P.22. In cross-examination, this witness stated that he had received the Dehati Nalishi at 22:50. The property as mentioned in seizure memo Ex. P.22 was seized after the post-mortem was done. The sealed packets were containing a slip mentioning the contents of the sealed packet.
32. By referring to the evidence of Rajveer Sharma (P.W.6), it is submitted by the Counsel for the appellant, that as the FIR was registered at 22:50, therefore, the so-called police statement, Ex. P.4 was an ante-dated and ante-time document as it also contains the number of FIR.
33. Considered the submissions made by the Counsel for the appellant.
34. V.V.S.Kushwaha (P.W.2) has given an explanation regarding mentioning of Crime No. on police statement. It is true that according to V.V.S. Kushwaha (P.W.2) the police statement was recorded at about 10 P.M. but it also contains the FIR No., but this 14 Raghuvir Vs. State of M.P. (Cr.A. No. 667 of 2010) Court cannot lose sight of the fact that the general condition of the injured was not good and She ultimately died at 5 A.M. in the same night. The investigating officer, could not have recorded the police statement under Section 161 of Cr.P.C. prior to registration of offence, and when the condition of the patient was also sinking, therefore, the explanation given by V.V.S. Kushwaha (P.W.2) that he might have come to know about the Crime No. appears to be plausible. Further more, this case is not based on a singular dying declaration. This case is based on three dying declarations i.e., Dehati Nalishi, Ex. P.3, Police Statement, Ex. P.4 and Dying Declaration, Ex. P.4. Thus, it is held that merely because the police statement, Ex. P.4 contains the Crime No., it cannot be held that it is an ante-dated and ante-timed document, for the simple reason, that the time of recording of the statement is also mentioned by the Investigating Officer. If he really wanted to manipulate the things, then he would not have mentioned the time on the police statement Ex. P.4 or could have wrongly mentioned some time, subsequent to the registration of FIR.
35. It is next contended by the Counsel for the appellants, that there are material variance in the three dying declarations. It is submitted that in Dehati Nalishi, Ex. P.3, Police statement, Ex. P.4, it is also mentioned that the injured had also disclosed the reasons for setting her on fire, but in the dying declaration, Ex. P.5, no reason has been assigned.
15
Raghuvir Vs. State of M.P. (Cr.A. No. 667 of 2010)
36. Considered the submissions made by the Counsel for the appellant.
37. In all the three dying declaration i.e., Dehati Nalishi, Ex. P.3, Police Statement, Ex. P.4, and Dying Declaration, Ex. P.5, the deceased had specifically stated that Raghuvir, after pouring kerosene oil on her, set her on fire. However, it is clear from dying declaration, Ex. P.5, no question was put by Naib-Tahsildar, with regard to cause of incident. When no question was put to the patient regarding cause of incident, then it was not expected from the injured to disclose the same on her own. But one thing is clear that in all the three dying declarations, there is no discrepancy regarding the act of the appellant.
38. It is next contended by the Counsel for the appellant, that the police statement, Ex. P.4 and dying declaration, Ex. P.5 were written at 10:00 P.M., which is not possible.
39. Considered the submission.
40. It is true that as per the witnesses, the police statement, Ex. P.4 and dying declaration, Ex. P.5 were written at 10:00 P.M., but an explanation has been given by V.V.S. Kushwaha, (P.W. 2) and stated that this may happen due to different time shown by the watches of the witnesses. This explanation given by V.V.S. Kushwaha (P.W.2) appears to be plausible. The police statement, Ex. P.4 was recorded prior to recording of dying declaration, Ex. P.5 but both the statements were recorded in quick succession. Both the witnesses 16 Raghuvir Vs. State of M.P. (Cr.A. No. 667 of 2010) must have mentioned the time which was being reflected by their watches. The difference of 10-15 minutes in two different watches is possible. Thus, the explanation given by V.V.S. Kushwaha (P.W. 2) appears to be correct, and hence, it is held that there merely because there is some confusion regarding the time of recording of Police Statement, Ex. P.4 and the Dying Declaration Ex. P.5, it cannot be said that it goes to the root of the prosecution case. Thus, it is held that neither the police statement, Ex. P.4 nor the Dying Declaration, Ex. P.5 can be discarded on account of minor difference in the timings of their recording.
41. It is next contended by the Counsel for the appellant, that it is clear from the evidence of L.K. Mishra (P.W.4) that the Doctor had given the fitness certificate in his duty room and thus, the fitness certificate is not reliable and is false endorsement.
42. Considered the submissions made by the Counsel for the appellant.
43. L.K. Mishra (P.W.4) in para 9 of cross-examination has stated that after examining the injured, the Doctor gave the fitness certificate in his duty room. Thus, it is clear that the suggestion as given by the Counsel for the appellant that since, the fitness certificate was given in duty room therefore, it should be presumed that the said certificate was given without examining the injured is false. Further, Dr. D.K. Soni (P.W. 5) had treated the patient Sonkali also. Every thing took place in such a quick succession, i.e., the 17 Raghuvir Vs. State of M.P. (Cr.A. No. 667 of 2010) injured was brought to the hospital at about 9 P.M., therefore, information, Ex. P.19 was sent to the police. Accordingly, V.V.S. Kushwaha (P.W.2) recorded Dehati Nalishi, Ex. P.3 at 21:55 and the dying declaration was also recorded by L.K. Mishra (P.W. 4) Naib- Tahsildar, just few minutes thereafter, and undisputedly, Dr. D.K. Soni (P.W. 5) had treated the injured, therefore, even if it is accepted that after examining the injured, Dr. D.K. Soni (P.W.5) went to his duty room in order to write down the fitness certificate, then it cannot be said that the fitness certificate was given without examining the injured. Thus, by no stretch of imagination, it can be said that the fitness certificate issued by Dr. D.K. Soni (P.W.5) is false certificate. Further more, L.K. Mishra (P.W. 4) Naib-Tahsildar has specifically stated that the injured was in a fit state of mind. It is well established principle of law that there is no mandatory requirement of obtaining fitness certificate from the Doctor, and if the witness who recorded the dying declaration was satisfied that the injured is in a fit state of mind, then the dying declaration can be recorded, even without any fitness certificate. The Supreme Court in the case of Laxman v. State of Maharashtra, reported in (2002) 6 SCC 710 has held as under :
5. The Court also in the aforesaid case relied upon the decision of this Court in Harjit Kaur v. State of Punjab wherein the Magistrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not 18 Raghuvir Vs. State of M.P. (Cr.A. No. 667 of 2010) render the dying declaration suspicious in any manner. For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this Court in Paparambaka Rosamma v. State of A.P. (at SCC p.
701, para 8) to the effect that "in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration"
has been too broadly stated and is not the correct enunciation of law. It is indeed a hypertechnical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind especially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration. Therefore, the judgment of this Court in Paparambaka Rosamma v. State of A.P. must be held to be not correctly decided and we affirm the law laid down by this Court in Koli Chunilal Savji v. State of Gujarat.
44. The Supreme Court in the case of Govindappa v. State of Karnataka, reported in (2010) 6 SCC 533 has held as under :
24.......What is essentially required is that the person who recorded the dying declaration must be satisfied that the deceased was in a fit state of mind. The certification by the doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of the declaration can be established otherwise.
45. The Supreme Court in the case of Jagbir Singh v. State (NCT of Delhi), reported in (2019) 8 SCC 779 has held as under :
39. We can proceed on the basis that even absence of the certificate by a doctor is not fatal to act upon a dying declaration. However, the requirement remains that the person who records the dying declaration must ensure that the patient was in a fit condition, both mentally and physically, to give the declaration.19
Raghuvir Vs. State of M.P. (Cr.A. No. 667 of 2010)
46. In the present case, the treating Doctor namely Dr. D.K. Soni (P.W.5) had given the fitness certificate after examining the injured. Whether the fitness certificate was written in the duty room or it was written in the ward itself, would not make much difference. The crux of the matter is Dr. D.K. Soni (P.W.5) had treated the injured and was on duty. Further, Dr. D.K. Soni (P.W.5) has also stated that he had given the fitness certificate after examining the injured. The Doctor and the Naib-Tahsildar are independent witnesses and have no axe to grind against the appellant.
47. Further, the Counsel for the appellant could not point out any thing from the record that any sedative drug was given to the injured. On the contrary, Dr. D.K. Soni (P.W.5) has stated that he had applied ointment on the burns as well as given antibiotics and I.V. Fluid. Since no sedative drug was given, therefore, it cannot be said that the drugs might have lower down the brain activity or the injured must have been under drowsiness. Thus, it is held that the injured was in a fit state of mind at the time of giving dying declaration. Further more, the injured was brought by her husband to the hospital and She had alleged against her Devar i.e., younger-brother-in-law.
48. The Counsel for the appellant could not point out any circumstance, which may indicate that the injured was tutored. The Supreme Court in the case of Ravikumar v. State of T.N., reported in (2006) 9 SCC 240 has held as under :
5. Section 32 of the Evidence Act, 1872 is an exception to 20 Raghuvir Vs. State of M.P. (Cr.A. No. 667 of 2010) the general rule against hearsay. Sub-section (1) of Section 32 makes the statement of the deceased admissible which is generally described as "dying declaration". The dying declaration essentially means statements made by the person as to the cause of his death or as to the circumstances of the transaction resulting in his death. The admissibility of the dying declaration is based upon the principle that the sense of impending death produces in man's mind the same feeling as that of a conscientious and virtuous man under oath. The dying declaration is admissible upon consideration that the declarant has made it in extremity, when the maker is at the point of death and when every hope of this world is gone, when every motive to the falsehood is silenced and the mind is induced by the most powerful consideration to speak the truth.
Notwithstanding the same, care and caution must be exercised in considering the weight to be given to these species of evidence on account of the existence of many circumstances which may affect their truth. The court has always to be on guard to see that the statement of the deceased was not the result of either tutoring or prompting or a product of imagination. The court has also to see and ensure that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy itself that the deceased was in fit mental condition to make the dying declaration, has to look for the medical opinion. Once the court is satisfied that the declaration was true and voluntary, it undoubtedly, can base its conviction on the dying declaration without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely the rule of prudence. These well-settled principles have been recognised and reiterated by this Court in Paniben v. State of Gujarat; Uka Ram v. State of Rajasthan; Laxman v. State of Maharashtra; P.V. Radhakrishna v. State of Karnataka; State of Maharashtra v. Sanjay; Muthu Kutty v. State.
49. The Supreme Court in the case of Laltu Ghosh Vs. State of W.B. reported in (2019) 15 SCC 344 has held as under :
18. The courts cannot expect a victim like the deceased herein to state in exact words as to what happened during the course of the crime, inasmuch as it would be very 21 Raghuvir Vs. State of M.P. (Cr.A. No. 667 of 2010) difficult for such a victim, who has suffered multiple grievous injuries, to state all the details of the incident meticulously and that too in a parrot-like manner. The trial court assumed that the investigating officer in collusion with the doctor wilfully fabricated the dying declaration. It is needless to state that the investigating officer and the doctor are independent public servants and are not related either to the accused or the deceased. It is not open for the trial court to cast aspersions on the said public officers in relation to the dying declaration, more particularly when there is no supporting evidence to show such fabrication.
19. It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated by other evidence. A dying declaration, if found reliable, and if it is not an attempt by the deceased to cover the truth or to falsely implicate the accused, can be safely relied upon by the courts and can form the basis of conviction. More so, where the version given by the deceased as the dying declaration is supported and corroborated by other prosecution evidence, there is no reason for the courts to doubt the truthfulness of such dying declaration.
50. The Supreme Court in the case of Kalawati Vs. State of Maharashtra, reported in (2009) 4 SCC 37 has held as under :
14. "12. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination.
The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as 22 Raghuvir Vs. State of M.P. (Cr.A. No. 667 of 2010) indicated in Paniben v. State of Gujarat: (SCC pp. 480-81, paras 18-19)
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of M.P.)
(ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of U.P. v. Ram Sagar Yadav and Ramawati Devi v. State of Bihar.)
(iii) The court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy v. Public Prosecutor.)
(iv) Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P.)
(v) Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P.)
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P.)
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu.)
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha v. State of Bihar.)
(ix) Normally, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of M.P.)
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan.)
(xi) Where there are more than one statements in the 23 Raghuvir Vs. State of M.P. (Cr.A. No. 667 of 2010) nature of dying declaration, the one first in point of time must be preferred of course, if the plurality of the dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra.)"* See also Mohan Lal v. State of Haryana, at SCC pp. 153-55, para 10.
51. Further the police statement recorded under Section 161 of Cr.P.C. is also be admissible under Section 32 of IPC. The Supreme Court in the case of Pradeep Bisoi @ Ranjit Bisoi Vs. State of Orissa reported in (2019) 11 SCC 500 has held that the statement recorded under Section 161 of Cr.P.C. is admissible under Section 32 of Evidence Act.
52. Similarly, the FIR lodged by the deceased will also be admissible under Section 32 of Evidence Act. The Supreme Court in the case of Munnu Raja v. State of M.P., reported in (1976) 3 SCC 104 has held as under :
9. In regard to the second dying declaration, Ex. P-14, the main objection of the learned counsel is that it was made to the investigating officer himself and ought therefore be treated as suspect. In support of this submission, reliance was placed on a judgment of this Court in Balak Ram v.
State of U.P.. The error of this argument consists in the assumption that the dying declaration was made to an investigating officer. The statement, Ex. P-14, was made by Bahadur Singh at the police station by way of a first information report. It is after the information was recorded, and indeed because of it, that the investigation commenced and therefore it is wrong to say that the statement was made to an investigating officer. The Station House Officer who recorded the statement did not possess the capacity of an investigating officer at the time when he recorded the statement. The judgment on which the counsel relies has therefore no application.
53. The Supreme Court in the case of Jai Prakash and others Vs. 24 Raghuvir Vs. State of M.P. (Cr.A. No. 667 of 2010) State of Haryana reported in 1999 Cr.L.J. 837 has held as under :
3. It was urged by the learned counsel for the appellant that no reliance whatsoever should have been placed upon the said dying declaration as it was recorded on 7-10-1990; and even though Sushma survived till 11-10-1990, no further attempt was made to get her regular dying declaration recorded by a Magistrate. In our opinion, the submission made by the learned counsel is misconceived. As Sushma was taken to the hospital with burns, the hospital authorities informed the police. The police after going there, recorded the statement of Sushma. It was then in the nature of a complaint and was later treated as a dying declaration because she died. Whether police could have recorded a regular dying declaration or not was a matter for cross-
examination of the Investigating Officer. In absence of such cross-examination, it cannot have any bearing on the correctness or otherwise of the statement recorded on 7-10- 1990. The said statement was sent to the police station at about 1.30 p.m. and the FIR was recorded at 3.30 p.m. A copy of the said FIR was received by the Magistrate on 8- 10-1990 at about 10.00 a.m. Therefore, there is no scope for doubting genuineness of that statement in this case. We are emphasising this aspect because it was also contended by the learned counsel that the dying declaration - Ex. PJ was not her statement at all. Only a vague suggestion was made to the Investigating Officer and to the Doctor that no statement at all was made by the deceased. This suggestion was denied by both of them. There is nothing on the basis of which it can be said that there is any substance in that suggestion.
4. It was next contended that no weight ought to have been given to that statement as it was not attested by the doctor and no endorsement was made thereon to show that the statement was made by Sushma while she was mentally and physically fit to make such a statement. This submission is also misconceived as it proceeds on an erroneous assumption that what was recorded by the police officer was a dying declaration. As he recorded a complaint, it was not necessary for him to keep any doctor present or obtain any endorsement from him.
5. It was next submitted that when she was taken to the hospital at 7.30 a.m., she was not replying to the questions properly as deposed by the first doctor who had examined her. This submission has also no substance because thereafter she was given treatment and the evidence shows that thereafter she was in a fit condition to make a 25 Raghuvir Vs. State of M.P. (Cr.A. No. 667 of 2010) statement. It was not even suggested to the Police Officer that she was not able to speak clearly. No attempt was made in the cross-examination of the Doctor to show that her condition had not improved between 7.30 a.m. and 1.30 p.m. and, therefore, this submission also deserves to be rejected.
6. It was next contended by the learned counsel that the statement was not recorded in question and answer form and therefore no weight should be attached to it. It also deserves to be rejected as misconceived because a complaint is required to be recorded in question and answer form even though there is a possibility that later on it might be treated as a dying declaration. This dying declaration receives corroboration from the site inspection report and also by the application Ex. PL referring to the compromise arrived at on the previous day.
54. As the injured was in a fit state of mind and three different dying declarations were recorded and in absence of any circumstance which may indicate that either the injured was not in a position to speak or the dying declarations were tutored, it is held that Dehati Nalishi, Ex. P.3, Police Statement, Ex. P.4 and the dying declaration, Ex. P.5 are reliable piece of evidence.
55. It is next contended by the Counsel for the appellant, that at the time of incident, the appellant was not present in the house, as it has been admitted by Shobharam (P.W. 3) in his cross-examination that the appellant Raghuvir had also gone with him on duty. Considered the submissions made by the Counsel for the appellant.
56. Shobharam (P.W.3) is the husband of the deceased and brother of the appellant. This witness has turned hostile on the question of oral dying declaration made by his wife. However, the injured in her dying declarations had clearly stated that at the time of incident, this 26 Raghuvir Vs. State of M.P. (Cr.A. No. 667 of 2010) witness was not present on the spot and came at a later stage. It is not the case of this witness or the appellant that after getting the news that the injured Sonkali has got burnt, the appellant also came back along with this witness. Further, the plea of alibi is to be proved by the accused by leading cogent and reliable evidence. He could have examined his employer to prove that the appellant had also gone for doing labour work. The appellant has not examined any witness in his defence. Except the bald statement of a hostile witness i.e., Shobharam (P.W.3) there is nothing on record to suggest that at the time of incident, the appellant was not present on the spot. The Counsel for the appellant could not point out any prosecution document, which may show the presence of the appellant, after the incident. The appellant was not present even at the time of preparation of Lash Panchnama. Further, the appellant was arrested 3 days after the incident, i.e., 10-2-2009 and his memorandum, Ex. P. 12 was recorded and on the discovery made by the appellant, a container which was having 50 gms of Kerosene Oil and a match box were seized vide seizure memo Ex. P. 13. From the spot map, as well as seizure memo, Ex. P.11, it is clear that when the spot was inspected by V.V.S. Kushwaha (P.W.2) the container of Kerosene Oil was not found at the place of incident. If the deceased had committed suicide, then the container of Kerosene Oil should have been found on the spot itself, because the deceased after setting herself on fire, would not try to hide or remove the container of 27 Raghuvir Vs. State of M.P. (Cr.A. No. 667 of 2010) Kerosene Oil from the spot.
57. Thus, it is clear that the appellant has failed to prove his plea of alibi.
58. The Supreme Court in the case of Jitender Kumar v. State of Haryana, reported in (2012) 6 SCC 204 has held as under :
71. Once PW 10 and PW 11 are believed and their statements are found to be trustworthy, as rightly dealt with by the courts below, then the plea of abili raised by the accused loses its significance. The burden of establishing the plea of alibi lay upon the appellants and the appellants have failed to bring on record any such evidence which would, even by reasonable probability, establish their plea of alibi. The plea of alibi in fact is required to be proved with certainty so as to completely exclude the possibility of the presence of the accused at the place of occurrence and in the house which was the home of their relatives. (Ref. Sk.
Sattar v. State of Maharashtra.)
59. The Supreme Court in the case of Sk. Sattar v. State of Maharashtra, reported in (2010) 8 SCC 430 has held as under :
34. Except for making a bald assertion about his absence from his rented premises, the appellant miserably failed to give any particulars about any individual in whose presence, he may have read the namaz in the morning. He examined no witness from Chikalthana before whom he may have read the Koran in the evening prior to the incident. He examined nobody, who could have seen him in the masjid during the night of the incident. Therefore, the trial court as also the High Court concluded that this plea of being away from the rented premises at the relevant time was concocted.
35. Undoubtedly, the burden of establishing the plea of alibi lay upon the appellant. The appellant herein has miserably failed to bring on record any facts or circumstances which would make the plea of his absence even probable, let alone, being proved beyond reasonable doubt. The plea of alibi had to be proved with absolute certainty so as to completely exclude the possibility of the presence of the appellant in the rented premises at the relevant time. When 28 Raghuvir Vs. State of M.P. (Cr.A. No. 667 of 2010) a plea of alibi is raised by an accused it is for the accused to establish the said plea by positive evidence which has not been led in the present case. We may also notice here at this stage the proposition of law laid down in Gurpreet Singh v. State of Haryana as follows: (SCC p. 27, para 20) "20. ... This plea of alibi stands disbelieved by both the courts and since the plea of alibi is a question of fact and since both the courts concurrently found that fact against the appellant, the accused, this Court in our view, cannot on an appeal by special leave go behind the abovenoted concurrent finding of fact."
36. But it is also correct that, even though the plea of alibi of the appellant is not established, it was for the prosecution to prove the case against the appellant. To this extent, the submission of the learned counsel for the appellant was correct. The failure of the plea of alibi would not necessarily lead to the success of the prosecution case which has to be independently proved by the prosecution beyond reasonable doubt. Being aware of the aforesaid principle of law, the trial court as also the High Court examined the circumstantial evidence to exclude the possibility of the innocence of the appellant.
60. The Supreme Court in the case of Mukesh v. State (NCT of Delhi), reported in (2017) 6 SCC 1 has held as under :
247. Presently, we shall deal with the plea of alibi as the same has been advanced with immense conviction. It is well settled in law that when a plea of alibi is taken by an accused, the burden is upon him to establish the same by positive evidence after the onus as regards the presence on the spot is established by the prosecution. In this context, we may usefully reproduce a few paragraphs from Binay Kumar Singh v. State of Bihar: (SCC p. 293, paras 22-23) "22. We must bear in mind that an alibi is not an exception (special or general) envisaged in the Penal Code, 1860 or any other law. It is only a rule of evidence recognised in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. Illustration (a) given under the provision is worth reproducing in this context:
'(a) The question is whether A committed a crime at Calcutta on a certain date. The fact that, on that date, A was at Lahore is relevant.'
23. The Latin word alibi means "elsewhere" and that word is used for convenience when an accused takes 29 Raghuvir Vs. State of M.P. (Cr.A. No. 667 of 2010) recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is a basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi.
The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi. ..."
(emphasis supplied) The said principle has been reiterated in Gurpreet Singh v. State of Haryana, Sk. Sattar v. State of Maharashtra, Jitender Kumar v. State of Haryana and Vijay Pal.
61. It is not out of place to mention here that the appellant was arrested on 10-2-2009, whereas the incident took place at 8 P.M. on 7-2-2009. It is true that mere abscondence after the incident, may not be indicative of guilty mind, but if the said aspect is considered along with other circumstances, then it may become a relevant factor. 30
Raghuvir Vs. State of M.P. (Cr.A. No. 667 of 2010) However, still it would be a minor circumstance against the accused. The Supreme Court in the case of Sujit Biswas Vs. State of Assam reported in (2013) 12 SCC 406 has held as under :
22. Whether the abscondence of an accused can be taken as a circumstance against him has been considered by this Court in Bipin Kumar Mondal v. State of W.B. wherein the Court observed: (SCC pp. 98-99, paras 27-28) "27. In Matru v. State of U.P. this Court repelled the submissions made by the State that as after commission of the offence the accused had been absconding, therefore, the inference can be drawn that he was a guilty person observing as under: (SCC p. 84, para 19) '19. The appellant's conduct in absconding was also relied upon. Now, mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind.
Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime such is the instinct of self-preservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. Normally the courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused. In the present case the appellant was with Ram Chandra till the FIR was lodged. If thereafter he felt that he was being wrongly suspected and he tried to keep out of the way we do not think this circumstance can be considered to be necessarily evidence of a guilty mind attempting to evade justice. It is not inconsistent with his innocence.' * * *
28. Abscondence by a person against whom FIR has been lodged, having an apprehension of being apprehended by the police, cannot be said to be unnatural. Thus, in view of the above, we do not find any force in the submission made by Shri Bhattacharjee that mere absconding by the appellant after commission of the crime and remaining untraceable for such a long time itself can establish his 31 Raghuvir Vs. State of M.P. (Cr.A. No. 667 of 2010) guilt. Absconding by itself is not conclusive either of guilt or of guilty conscience."
While deciding the said case, a large number of earlier judgments were also taken into consideration by the Court, including Matru and State of M.P. v. Paltan Mallah.
23. Thus, in a case of this nature, the mere abscondence of an accused does not lead to a firm conclusion of his guilty mind. An innocent man may also abscond in order to evade arrest, as in light of such a situation, such an action may be part of the natural conduct of the accused. Abscondence is in fact relevant evidence, but its evidentiary value depends upon the surrounding circumstances, and hence, the same must only be taken as a minor item in evidence for sustaining conviction. (See Paramjeet Singh v. State of Uttarakhand and Sk. Yusuf v. State of W.B.)
62. Thus, if the fact of abscondence is considered in the light of the dying declarations and the failure on the part of the appellant to prove his plea of alibi, this Court is of the considered opinion, that abscondence after the incident, is also indicative of his guilty mind.
63. It is next contended by the Counsel for the appellant that Banwari who was the first person to reach on the spot has not been examined by the prosecution, therefore, an important link of chain of circumstance is missing. Considered the submissions made by the Counsel for the appellant.
64. Banwari was cited as a prosecution witness and he was also summoned. However, from order sheet dated 21-10-2009, it is clear that Banwari was given up by the prosecution. Even the appellant could have examined Banwari in his defence. It is true that the burden to prove the guilt of an accused is in on the prosecution and the weakness of the appellant/accused cannot be made basis for holding him guilty, but in the present case, there are three dying 32 Raghuvir Vs. State of M.P. (Cr.A. No. 667 of 2010) declarations coupled with the fact that the appellant has not examined any witness to prove his plea of alibi. Thus, this Court is of the considered opinion, that non-examination of Banwari will not give any dent to the prosecution case.
65. No other argument is advanced by the Counsel for the appellant.
66. In view of the fact that the Dehati Nalishi, Ex. P.3, Police Statement, Ex. P.4 and Dying Declaration, Ex. P.5 have been found to be reliable, coupled with the fact that the appellant has failed to prove his plea of alibi, coupled with the fact that the container of Kerosene Oil and match box were seized on the disclosure made by the appellant and he also absconded from the place of incident, it is held that the guilt of the appellant under Section 302 of IPC has been proved beyond reasonable doubt. Accordingly, the conviction of the appellant under Section 302 of IPC is hereby upheld.
67. So far as the question of sentence is concerned, the minimum sentence for offence under Section 302 of IPC is Life Imprisonment. Therefore, the sentence awarded by the Trial Court doesnot call for any interference.
68. Ex-Consequenti, the judgment and sentence dated 26-7-2010 passed by Sessions Judge, Morena in Sessions Trial No. 143 of 2009, is hereby affirmed.
69. The appellant is in jail. He shall undergo the remaining jail sentence.
33
Raghuvir Vs. State of M.P. (Cr.A. No. 667 of 2010)
70. A copy of this judgment be immediately provided to the appellant, free of cost.
71. The Registry is directed to sent back the record of the Trial Court for necessary information and compliance.
72. The appeal fails and is hereby Dismissed.
(G.S. Ahluwalia) (Deepak Kumar Agarwal)
Judge Judge
ARUN KUMAR MISHRA
2022.01.11 16:59:35 +05'30'