Sudama Bai vs The State Of M.P. on 23 April, 2018

[Cites 7, Cited by 21]

Madhya Pradesh High Court

Sudama Bai vs The State Of M.P. on 23 April, 2018

1. Appellant has filed this appeal against the judgment dated 17.11.1995 passed in Sessions Trial No.303/89 by the Court of Ist Addl. Sessions Judge, Mudwara Kani. Appellant was prosecuted for commission of offence punishable under Section 302 of IPC. Trial Court held the appellant guilty for commission of offence and awarded sentence of Life.

2. Prosecution story, in brief is that, deceased-Malti Bai, was sister-in- law (Nanad) of the appellant, she was living in the house of her parents. Appellant had given Rs.100/- to Malti Bai (since deceased) for treatment of her child. Appellant demanded back the aforesaid amount from the deceased, she was not able to repay the amount hence, appellant slapped her and poured kerosene and ablaze her. Dehati Nalishi (Ex-P-5) was

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recorded on the information of the deceased herself. Police also recorded her statement and thereafter, she was referred to Hospital where dying declaration (Ex-P-4) of the deceased was recorded. Subsequently, she was died. Police conducted investigation and filed charge-sheet. Appellant abjured her guilt and pleaded innocence. The trial Court after trial held the appellant guilty for commission of offence punishable under Section 302 of IPC and awarded a sentence of Life.

3. Conviction of the appellant is based on the basis of her dying declaration which was recorded by (PW-2) Executive Magistrate, Dehati Nalishi and her statement. Other prosecution witnesses including father, mother and sister-in-law Shakuntala turned hostile.

4. (PW-6) Munnaka Bai, is the mother of deceased. She deposed that deceased was living at my house. On the date of incident, she was cooking food. She was wearing a Saree of terrycot. Saree catch fire and thereafter, she received burn injuries. We had taken the deceased to the hospital where she was died.

5. (PW-12) Ramprasad is father of deceased. He also turned hostile. He deposed that at 10-11 O'clock in the morning, I came to my house and I found that my daughter was laying unconscious. She received burn injuries. I had taken her to Hospital. She was died on the same day.

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6. (PW-8) Shakuntala Bai is another sister-in-law (Babhi) of the deceased. She also turned hostile and deposed that she did not know about the incident.

7. (PW-2) Dr. S.K. Gupta, Naib Tahsildar deposed that on 23.04.1989, I was posted as Executive Magistrate at Katni. I received information (Ex- P-2) from the police to record dying declaration of deceased. Thereafter, I recorded dying declaration of the deceased. Doctor certified that deceased was in a fit and conscious mental condition to give dying declaration. Dying declaration is (Ex.P-4). Before recording dying declaration, I told the deceased that I am Executive Magistrate and I am recording her dying declaration. I recorded dying declaration (Ex-P-4), as per information given by the deceased. It is in the question answer form. Dying declaration is Ex.P-4. There is a certificate of the doctor that deceased was in a fit mental condition to give dying declaration. In answer to the question that how the deceased catch fire; deceased replied that appellant ablazed me her name is 'Sudama Bai'. She poured kerosene and ignited fire by match box. My child was sick. Appellant Sudama Bai had given me Rs.100/- thereafter, she made a demand of Rs.100/-. I had no money hence, I could not return the money then, she slept me by sleeper and ignited fire by match box. It is

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further mentioned in the dying declaration that no family member was present at the time of recording dying declaration.

8. (PW-13) N. Ajit Kumar certified that deceased was fit and in conscious condition to give dying declaration. He deposed that on the date of incident i.e on 23.04.1989, I was posted as Assistant Surgeon at Government Hospital Katni. I examined the deceased, she was brought to the hospital by neighbour. She received 90% burn injuries. Smell of kerosene was coming from her body. She was in a fit mental condition and she was replying the questions. I submitted a written report Ex.P-19. Before recording dying declaration, I examined the deceased and my certificate is Ex.P-4 and I signed the same. Deceased was able to give her statement. There is a lengthy cross-examination of the doctor, but there is no reason to disbelieve his statement.

9. Apart from dying declaration, Ex.P-4, there is Dehati Nalishi which was recorded by Investigating Officer. It is mentioned in the Dehati Nalishi that Mahabharat was exhibiting in the TV, at that time, appellant made a demand of Rs.100/- which she had given to me for treatment of my son. I could not return the money because I had no money. On this ground, appellant slept me by sleeper and poured kerosene and thereafter, ignited fire by match box. FIR (Ex.P-6) was recorded on the basis of aforesaid

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Dehati Nalishi [Ex.P-5]. There is also statement of deceased (Ex-P-20) which was recorded by (PW-10) R.S. Parihar under Section 161 of Cr.P.C.

In the aforesaid statement, she stated that Mahabharat was exhibited in the TV. My sister-in-law (Babhi) made a demand of Rs.100/- from me, however, I could not return the money hence, she slept me by sleeper and poured kerosene and ablaze me.

10. (PW-10) R.S. Parihar, is Investigating Officer, deposed that on 23.04.1989 I was posted at Police Station Tikhuri. I received information from the hospital and on the basis of Dehati Nalishi Ex.P-5, First Information Report (Ex.P-6) was registered. Thereafter, I prepared spot map which is Ex.P-2 and seized one Can of kerosene, one match box, trouser of Khakhi colour, one blouse of Kattha colour and piece of blouse which is Ex.P-1. I send a request to Executive Magistrate Ex.P-13 to record dying declaration of the deceased. Appellant was arrested vide arrest memo Ex.P-

16. After writing the report, I immediately visited the place of incident.

11. (PW-11) Dr. Y.S. Parihar, performed the post-mortem of the deceased. He deposed that he noticed that deceased received 92% burn injuries, she was died due to burn injuries.

12. (PW-15) Mrudul Kumar, Head Constable deposed that ward boy Hari Shanker came to the police station with a Tahrir and as per this, report was

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lodged at Roznamacha by A.S.I Mr. M.L. Dubey. Appellant produced the evidence of husband of deceased (DW-1) he deposed that deceased used to tell her that she would commit suicide and her behaviour was not proper.

13. Appellant in her statement before the trial Court recorded under Section 313 of the Cr.P.C., stated that she and other family members were watching TV serial Mahabharat. After hearing cry of the deceased, we reached at the place of incident and deceased was burning near Chula. We poured water on the deceased. She told that Chula was not burning hence she poured kerosene on it and thereafter, there was a flame of fire and her Saree catch fire. Version of the appellant and mother of deceased that deceased catch fire when she was preparing food at Chula, is unbelievable and is not true because (PW-13) Dr. N. Ajit, who examined the deceased specifically deposed that smell of kerosene was coming from the body of deceased. Hence, the version of the deceased that she received burn injuries because her Saree catch fire is incorrect.

14. The apex Court in the case of Pawan Kumar vs. State of Himachal Pradesh reported in (2017) 7 SCC 780 has held as under in regard to validity of dying declaration:

26. The hub of the matter is whether the dying declaration Ex. Pw-

10/A is to be treated as realiable or not. To appreciate the validity of

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the dying declaration, we have requisitioned the original record and had perused the same. On a careful scrutiny of the same, we find that the Head Constable had written what the deceased had spoken and thereafter the deceased had written that the accused alone was responsible for her death. The dying declaration, as has been recorded by the Head Constable, eloquently states about the constant teasing of the victim by the accused. PW-10, Dr. Sanjay, has stood firm in his testimony that the victim was in a fit condition to speak. Despite the roving cross-examination he has not paved the path of tergiversation. The trial court, as mentioned earlier, has disregarded the testimony of PW-10 on the ground that there is no certificate of fitness. In this context, reference to the Constitution Bench decision in Laxman v. State of Maharashtra[14] would be absolutely seemly. In the said case, the larger Bench, while stating the law relating to the dying declaration, has succinctly held:-

"3. ... A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. 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 the person who records a dying declaration

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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."

27. In Atbir v. Government of NCT of Delhi[15], the Court, after noting earlier judgments, has laid the following guidelines with regard to admissibility of the dying declaration:-

"22. The analysis of the above decisions clearly shows that:

(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.

(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.

(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.

(iv) 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.

(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.

(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.

(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.

(viii) Even if it is a brief statement, it is not to be discarded.

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(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.

(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration."

28. Recently, in Gulzari Lal (supra), the Court confirmed the conviction by placing reliance on the statement made by the deceased and recorded by the Head Constable on the basis of the principles stated in Laxman (supra). The analysis in the said case is as follows:-

"23. In reference to the position of law laid down by this Court, we find no reason to question the reliability of the dying declaration of the deceased for the reason that at the time of recording his statement by the Head Constable Manphool Singh (PW 7), he was found to be mentally fit to give his statement regarding the occurrence. Further, evidence of Head Constable Manphhol Singh (PW 7) was shown to be trustworthy and has been accepted by the courts below. The view taken by the High Court does not suffer from any infirmity and the same is in order.

24. The conviction by the High Court was based not only on the statements made by Maha Singh (deceased) but also on the unshattered testimony of the eyewitness Dariya Singh (PW 1) and the statement of the independent witness Rajinder Singh (PW 11)."

15. The principle of law is that conviction of the accused can be based on sole dying declaration of the deceased, if it inspire confidence of the Court.

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16. In the present case, the family members of the deceased including her father, mother and sister-in-law (Bhabhi) turned hostile. Statement of the mother of the deceased that deceased catch fire when she was preparing food and same statement given by the appellant under Section 313 of Cr.P.C. is unbelievable and unreliable because (PW-13) Dr. N. Ajitkumar, who had examined the deceased when she was brought to the hospital deposed that smell of kerosene was coming from the body of deceased. (PW-11) Dr. Y.S. Parihar, who performed the postmortem deposed that burn injuries on the body of the deceased were caused by kerosene.

17. Apart from dying declaration which was recorded by Executive Magistrate (PW-2) S.K. Gupta, there is certificate of the doctor that deceased was found fit and conscious mental condition to give dying declaration. There is also Dehati Nalish (Ex-P-5) on which there is thumb impression of the deceased and statement of the deceased recorded by the Police under Section 161 of Cr.P.C. In all the documents it is mentioned that present appellant ablaze the deceased.

18. In view of aforesaid evidence on record and the principle of law laid down by the apex Court in the case of Pawan Kumar vs. State of Himachal Pradesh (supra), in our opinion, the trial Court has rightly held the appellant guilty for commission of offence punishable under Section

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302 of IPC and awarded proper sentence. We do not find any merit in this appeal. It is hereby dismissed. Appellant is on bail, her bail bonds are hereby cancelled. She is directed to surrender before the trial Court to serve remaining part of jail sentence.

19. Let copy of judgment be send to the concerning trial Court for necessary compliance.

(S.K. Gangele)                                     (Smt. Anjuli Palo)
  Judge                                              Judge

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 Digitally signed by
 PRASHANT BAGJILEWALE
 Date: 2018.04.25 00:22:10
 -07'00'
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                           Cr. A No.1653 of 1995
23.04.2018
      None for the appellant.

Shri Vijay Soni, Govt. Adv. for respondent/ State. Appeal is of the year of 1995 and is on board since last many days. We have appointed Miss. Pushpanjali Dwivedi, as amicus-curiae to assist the Court.

With the assistance of Advocate Miss. Pushpanjali Dwivedi, appeal is heard finally.

Judgment passed, signed and dated.

Office is directed to send a copy of this order sheet to the office of Legal Service Committee of this Court for information and necessary action. Miss. Pushpanjali Dwivedi, counsel for the appellant will get remuneration from Legal Aid, as per rules.

(S.K. Gangele)                                        (Smt. Anjuli Palo)
  Judge                                                 Judge

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