Madhya Pradesh High Court
Rajesh Mali vs State Of M.P. on 29 June, 2022
Author: Subodh Abhyankar
Bench: Subodh Abhyankar, Satyendra Kumar Singh
1
Cr.Appeal No.1162 of 2009
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
&
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
ON THE 29th OF JUNE, 2022
CRIMINAL APPEAL No. 1162 of 2009
Between:-
RAJESH MALI S/O MUNNALAL JI , AGED ABOUT 23 YEARS,
NARSINGH GHAT COLONY,UJJAIN (MADHYA PRADESH)
.....APPELLANT
(BY SHRI AJAY KUMAR MIMROT, ADVOCATE)
AND
STATE OF M.P. THRU.PS.MAHANKAL,UJJAIN (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI A.S. SISODIA, GOVT. ADVOCATE)
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Reserved on : 16.06.2022
Delivered on : 29.06.2022
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This appeal coming on for judgment this day, JUSTICE
SATYENDRA KUMAR SINGH passed the following:
JUDGMENT
Satyendra Kumar Singh, J., The appellant has preferred this appeal under Section 374(2) of 2 Cr.Appeal No.1162 of 2009 the Code of Criminal Procedure, 1973(2 of 1974) [in short Cr.P.C.] against the judgment dated 22.09.2009 passed by the Court of Additional Sessions Judge(Fastrack), Ujjain in S.T.No.656/2008, whereby appellant has been convicted under Section 302 of Indian Penal Code, 1860 (in short IPC) and sentenced to undergo life imprisonment with fine of Rs.5,000/- and in default of payment of fine, additional rigorous imprisonment for one year.
2. Prosecution story in brief is that:
(i) On 02.09.2008, at about 8:30 a.m., complainant Sunil Jaiswal's wife Teju Bai was fetching water from public tap situated near her house at Narsingh Ghat Colony, Ujjain, then appellant alongwith co-
accused persons namely Santosh Nath, Jitendra Nath, Rajesh Nath, Deepu Mali, Rahul Mali came there and asked her not to fetch water from there. When complainant Sunil Jaiswal intervened, appellant and co-accused persons started assaulting him as well as his wife Teju Bai with kick and fist blows. Appellant took kerosene oil and poured the same on complainant's body and set him on fire with match stick due to which he sustained burn injuries on his neck, shoulder, chest, abdomen, back and both legs.
(ii) On the same day, at about 9:30 a.m., complainant Sunil Jaiswal alongwith his wife Teju Bai went to Police Station Mahakal and 3 Cr.Appeal No.1162 of 2009 reported the matter to S.I. Shailenda Jadon, who on the basis of complainant's oral statement lodged FIR(Ex. D-1) against the appellant and co-accused persons for the offences punishable u/S 147, 148, 323 and 307 r/W 149 of IPC. Thereafter, complainant Sunil Jaiswal and his wife both were sent to Civil Hospital, Ujjain for medical examination and treatment, where at about 10:00 a.m, Dr. G.S. Dhawan medically examined the complainant and found him in 40% burnt condition. He found burn injuries on his face, neck, chest, abdomen, back and both legs. He prepared MLC report(Ex. P-2) and vide admission slip (Ex. P-
4), admitted the complainant for treatment.
(iii) On the same day, at about 2:20 p.m., Executive Magistrate/Additional Tehsildar Shri P.L. Malviya after getting the fitness certificate from Dr. Rameshwar Vyas recorded complainant's dying declaration (Ex. P-14), wherein he stated that at the time of incident, appellant alongwith co-accused persons assaulted him and his wife and thereafter, co-accused Deepu and Santosh caught hold of him, appellant Rajesh took kerosene and poured the same on his body and set him on fire.S.I. Shailendra Jadon also recorded his statements u/S 161 of Cr.P.C. wherein he repeated the same version. S.I. Shailendra Jadon thereafter went to the place of incident, prepared spot map (Ex.P-
4) and recorded the statements of other prosecution witnesses. 4 Cr.Appeal No.1162 of 2009
(iv) During the course of treatment, on 08.09.2008, at about 7:00 a.m,, complainant Sunil Jaiswal died to burn injuries sustained by him. H.C. Ravindra Singh after getting the information about death of the complainant, registered merg intimation report (Ex. P-16). S.I. Shailendra Jadon called the witnesses issuing safina form, prepared nakshapanchayatnama (Ex. P-16) and sent the body to Civil Hospital, Ujjain for post-mortem examination. On the same day, at about 11:05 a.m. Dr. B.B. Purohit conducted the post-mortem examination of the body of deceased and found as follows:
Extreme burns of the body - Head , Neck, Chest, Abdomen, Both upper limbs, Whole back. Total burn area approximately 60%. Sloughing and granulation seen in these burns. Pus formation also evident in these burns (infected burns).
Dr. B.B. Purohit prepared post-mortem report (Ex. P-15) and opined that burn injuries found on deceased's body were anti-mortem and he died due to septicemia as a result of extreme burn injuries sustained by him.
(v) S.I. Shailendra Jadon arrested the appellant vide arrest memo (Ex. P-8), recorded his memorandum statement (Ex. P-11) and on his instance, seized kerosene cane (Article 'A') from his possession as per 5 Cr.Appeal No.1162 of 2009 seizure memo (Ex. P-12). He also seized complainant's pant (Article 'B') as per seizure memo (Ex. P-19) and vide letter (Ex. P23) sent all the seized articles (A & B) to FSL Sagar for forensic examination. After completion of investigation filed chargesheet against appellant as well as co-accused persons before the Court of Judicial Magistrate First Class, Ujjain, who committed the same vide order dated 05.12.2008 to the Court of Sessions Judge, Ujjain
4. Learned trial Court considering the material prima-facie available on record, framed the charges u/S 147,302/149 and 323/149 of IPC against the appellant and other co-accused persons, who abjured their guilt and prayed for trial. In their statement recorded u/S 313 of Cr.P.C., the appellant alongwith other co-accused persons pleaded their false implication in the matter. Appellant took the defense that in the intervening night of 1-2/09/2008, his close relative Kailash was died at Neemuch, due to which he had gone there and was not present on the spot at the time of incident. He has examined Kailash's son Bhupendra (DW-1) in his defence.
5. Learned Trial Court after appreciating the oral as well as documentary evidence available on record, recorded the findings that prosecution proved his case beyond reasonable doubt against the appellant for the offence punishable u/S 302 of IPC. Therefore, vide 6 Cr.Appeal No.1162 of 2009 judgment dated 22.09.2009 convicted him u/S 302 of IPC and sentenced him to suffer life imprisonment alongwith fine of Rs.5,000/-
with default stipulation. However, acquitted him from rest of the charges and co-accused persons namely Rajendra Nath, Santosh Nath, Deepak, Rahul, Raju Bai and Deepa Bai from the charges punishable u/Ss 302/149, 147, and 323/149 of IPC. Being aggrieved with the said judgment of conviction and order of sentence, appellant has preferred this appeal for setting aside the impugned judgment and discharging him from the charge of murder.
6. Learned counsel for the appellant submits that learned trial Court has committed a legal error while appreciating the evidence available on record. Learned counsel further submits that prosecution case in itself is that complainant Sunil Jaiswal was 40-60% burn at the time of incident, therefore, he was unfit for getting his statement recorded. Dr. Rameshwar Vyas admitted in para 6 of his cross-examination that he gave information about fitness of complainant only on the basis of observations made by him and he did not conducted any test in that regard. Complainant in his dying declaration (Ex. P-14) did not specifically stated as to which Rajesh poured kerosene oil on him and set him on fire as there are two Rajesh involved in the crime i.e. appellant Rajesh Mali S/O Munnalalji and Rajesh Nath s/O Vishnu 7 Cr.Appeal No.1162 of 2009 Nath. Complainant's wife Teju Bai (PW-1) in her statement recorded during trial states entirely different story and deposed that Rahul brought kerosene oil and Deepu poured the same on her husband, thereafter Rajesh set him on fire. None of the prosecution witness has supported the prosecution case while defense witness Bhupendra (DW-
1) deposed that appellant was present at Neemuch at the time of incident., therefore learned trial Court has committed error in holding the appellant guilty for offence punishable u/s 302 of IPC.
7. Per contra, learned counsel for the respondent/State while supporting the impugned judgment of conviction of sentence submits that judgment passed by the trial Court is based on proper appreciation of evidence and material available on record and the same is well reasoned establishing guilt of appellant beyond reasonable doubt. Dying declaration made by the deceased is free from any doubt. The deceased succumbed to burn injuries, due to the act of appellant who had poured kerosene on his body and set him ablaze. Therefore, by affirming the impugned judgment of conviction and order of sentence, the appeal filed by the appellant may be dismissed.
8. Heard learned counsel for the parties at considerable length and perused the record in depth.
9. Prosecution case is based on direct as well as circumstantial 8 Cr.Appeal No.1162 of 2009 evidence. Prosecution has examined complainant/deceased's wife Teju Bai (PW-1) and Sunita (PW-4) as eye-witnesses. Teju Bai (PW-1) deposed that on the date of incident, at about 8:00 a.m., when she was fetching water from the public tap situated near her house at Narsingh Ghat Colony, appellant alongwith co-accused Santosh Nath, Jitendra Nath, Rajesh Nath, Deepak, Rahul Mali came there and started assaulting her saying that they will not allow her to fetch water. She further deposed that when her husband deceased Sunil came there and tried to intervene, appellant and aforesaid co-accused persons assaulted him also with kick and fist blows and thereafter co-accused Rahul took kerosene oil from his house, co-accused Deepak poured the same on the deceased and appellant set him on fire. She further deposed that she immediately took her husband to Police Station Mahakal, where on the basis of his oral complaint, FIR was lodged and they were sent to hospital, where after about 06 days of the incident, her husband died during treatment.
10. Another eye-witness Sunita (PW-4) has not supported the prosecution case and has turned hostile, but S.I. Shailendra Jadon (PW-
11) deposed that on the date of incident, complainant/deceased Sunil Jaiswal alongwith his wife came to P.S. Mahakal and made oral complaint against the appellant and co-accused persons, stating therein 9 Cr.Appeal No.1162 of 2009 that appellant alongwith co-accused assaulted his wife and when he intervened, appellant poured kerosene on his body and set him ablaze. He further deposed that on the basis of his above oral complaint, he lodged FIR (Ex. D-1) against appellant and co-accused persons and sent complainant/deceased alongwith his wife Teju Bai both to Civil Hospital, Ujjain for medical examination. He, in para 23 of his cross- examination specifically deposed that he after lodging the aforesaid FIR (Ex. D-1) at 9:30 p.m., immediately sent the copy of the same to concerned Magistrate.
11. Dr. G.S. Dhawan (PW-2) deposed that on the date of incident, he examined the deceased and found him in 40% burnt condition with burn injuries on his face, neck, chest, abdomen and both legs. He prepared MLC report (Ex. P-2) and admitted him in the hospital for further treatment. Executive Magistrate/Additional Tehsildar, P.L. Malviya (PW-8) deposed that on the same day, he after getting the fitness certificate of the complainant from concerned duty doctor Dr. Rameshwar Vyas recorded his dying declaration (Ex. P-14) wherein he stated that co-accused Deepu and Santosh caught hold of him and Rajesh poured kerosene oil on him and set him on fire. Dr. Rameshwar Vyas (PW-5) deposed that on the date of incident at about 2:20 p.m., he after finding deceased in conscious condition, gave fitness certificate 10 Cr.Appeal No.1162 of 2009 before and after recording of his dying declaration (Ex. P-14). From the aforesaid evidence, this fact is established that on the date of incident, a quarrel took place between complainant's wife and appellant and co- accused persons wherein complainant/deceased was set ablaze after pouring kerosene oil on his body.
12. As complainant/deceased died during his treatment, therefore FIR (Ex. D-1) lodged by him will also be treated as his dying declaration wherein, it has specifically been mentioned that at the time of incident, appellant alongwith other co-accused persons assaulted him and thereafter appellant Rajesh poured kerosene oil on his body and set him on fire. Aforesaid FIR finds support from the statements of complainant/deceased's wife Teju Bai (PW-1) and also from dying declaration (Ex. P-14) recorded by the Executive Magistrate/Additional Tehsildar P.L. Malviya (PW-8). It has been argued on behalf of the appellant that as per prosecution case, complainant/deceased was found in 40-60% burnt condition and Dr. Rameshwar Vyas (PW-5), in para 6 of his statement admitted that he gave his fitness certificate without any examination, therefore, it cannot be said that complainant was in fit condition to get his statement recorded and hence dying declaration (Ex. P-14) cannot be relied upon.
13. Hon'ble Supreme Court in the case of Purushottam Chopra and 11 Cr.Appeal No.1162 of 2009 Ors. Vs. State (Govt. Of NCT Delhi) in Cr.A. No194-195 of 2012 has held as under:
Para 21 - (vii) As regards a burns case, the percentage and degree of burns would not, by itself, be decisive of the credibility of dying declaration; and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement.
14. In the instant case, deceased was found in 40-60% burnt condition, but Dr. Rameshwar Vyas (PW-5) and Executive Magistrate P.L. Malviya (PW-8), both have specifically deposed that complainant/deceased was fully conscious and normal at the time of making his dying declaration (Ex. P-14) and nothing has come in their cross-examination on the basis of which, it can be inferred that deceased was not in a fit condition to get his statement recorded at that time. In this regard observation made by Hon'ble Apex Court in the case of Laxman Vs. State of Maharashtra (2002) 6 SCC 710 can be relied upon. Relevant para of the judgment is as follows:
"Normally, therefore, 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 eye-witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any 12 Cr.Appeal No.1162 of 2009 adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the Court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."
15. Learned counsel for the appellant has seriously challenged the presence of complainant/deceased's wife Teju Bai on the spot at the time of incident saying her inconsistent statements about the act of appellant and co-accused person in itself shows that she was not present on the spot at the time of incident as prosecution witness Kundanlal (PW-7) himself admitted in his cross-examination. He has also challenged the identity of appellant as there were two accused persons, whose names were Rajesh and no where it is specifically mentioned that appellant was the person who poured kerosene on deceased and set him on fire.
13Cr.Appeal No.1162 of 2009
16. Prosecution witness Kundanlal (PW-7) although in para 5 of his cross-examination deposed that complainant/deceased's wife was living separately from deceased for last 2-3 months of the incident and after incident she reached the hospital directly, but he was the witness of nakshapanchayatnama of the deceased's dead body and he after admitting his signature on safina form (Ex. P-15) and nakshapanchayatnama (Ex. P-16) denied the fact that aforesaid proceedings were done before him. He has been declared hostile by the prosecution, therefore his statement with regard to the presence of Teju Bai can be said to be not reliable at all. Statements of Teju Bai (PW-1) are not consistent on the point of acts of other co-accused person, but she specifically deposed that appellant Rajesh is a car driver while his brother Rahul is a labourer and his mother Raju Bai used to go for cooking with her. She in same para 29 of her cross-examination, deposed that on earlier occasions also quarrel took place between them four times. She has deposed that at the time of incident, Rajesh was having match box and he set the deceased on fire. Therefore, inconsistency in her statement about the acts of co-accused persons and about the person who took kerosene on the spot at the time of incident does not make her statement unreliable about the culpability of the appellant in the crime.
14Cr.Appeal No.1162 of 2009
17. Complainant/deceased's dying declaration made before S.I. Shailendra Jadon in FIR(Ex. D-1) and also dying declaration (Ex. P14) made before Executive Magistrate P.L. Malviya are consistent on the point that Rajesh poured kerosene on the body and set him on fire. S.I. Shailendra Jadon (PW-11) deposed that during investigation, deceased in his statement recorded u/S 161 of Cr.P.C. had stated surname of the person who set him on fire as 'Mali', therefore on the basis of evidence produced on record, learned trial Court has not committed any mistake in holding the appellant guilty for committing the murder of deceased.
18. It has been argued on behalf of the appellant that as defense witness Bhupendra (DW-1) deposed that on the date of incident, appellant reached Neemuch at about 11:30 a.m. and as it would take about 5-6 hours to reach Neemuch from Ujjain, therefore, presence of appellant at about 8:30 a.m., at the time of incident becomes doubtful. As Bhupendra (DW-1) statements about the time of cremation of his father's dead body are not consistent and there is nothing on record except his oral statement about the time when appellant reached Neemuch, therefore defense of alibi taken by the appellant is not acceptable at all.
19. Hence, the circumstances proved are unerringly pointing towards guilt of the appellant and we found no fault in the impugned judgment 15 Cr.Appeal No.1162 of 2009 of conviction and order of sentence passed by learned trial Court. There is no merit in the appeal, the appeal thus is liable to be dismissed.
20. In view of aforesaid discussions, the impugned judgment of conviction and order of sentence passed by learned trial Court is hereby affirmed.
21. Accordingly, this appeal filed on behalf of the appellant is hereby dismissed.
(Subodh Abhyankar) (Satyendra Kumar Singh)
Judge Judge
29-06-2022 29-06-2022
sh/-
SEHAR HASEEN
2022.07.01
17:24:31
+05'30'