Madhya Pradesh High Court
Preetam Pal vs The State Of Madhya Pradesh on 2 April, 2018
Author: J.P. Gupta
Bench: J.P. Gupta
1
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
(DB : HON'BLE SHRI JUSTICE J.P. GUPTA &
HON'BLE JUSTICE (SMT) NANDITA DUBEY)
Criminal Appeal No.948 of 2008
Preetam Pal and two others
vs.
State of Madhya pradesh
Ms. Manju Khatri, Advocate as Amicus Curiae.
Shri Ajay Shukla, G.A. for the Respondent/State.
Whether approved for reporting :(Yes/No).
JUDGMENT
(Delivered on 3rd April,2018) Per J.P. Gupta, J:
1. This appeal has been preferred by the appellant assailing the judgment dated 11.4.2008 passed by the Sessions Judge, Damoh in Sessions Trial No. 10/2007 whereby the appellant has been convicted under Section 302 of IPC for committing murder of Kanti Bai by setting her ablaze and sentenced him to undergo for life imprisonment along with fine of Rs.2000/- and in default further RI of two months.
2. In brief, the relevant facts of the case are that the deceased Kunti Bai was wife of appellant No.1 Preetam and 2 appellant No.2 and 3 are mother and father of the appellant No.1. The prosecution story as emerged from the finding of the learned trial Court is that on 6.7.2007, Kunti Bai was admitted in the Primary Health Center, Patharia on account of sustaining burn injuries to the extent of 60 to 70% and thereafter shifted to the District Hospital, Damoh. On 9.7.2007, Executive Magistrate, Rupesh Singhai (PW-6) recorded the dying declaration of Kunti Bai in District Hospital, Damoh under the of certification of Dr. Anuj Jain (PW-11) about the fitness of Kunti Bai to get the statement record. The dying declaration of Kunti Bai is Ex-P/11 wherein injured Kunti Bai has disclosed that four days prior to the incident, efforts were made to kill her by electric current. Thereafter, the appellants and sister-in-
law of the deceased poured kerosene oil on her and when she tried to escape from the staircase, they threw an ignited match stick on her and burnt her. As the doors were closed, she could not escape and became unconscious. Later on, she was shifted to Jabalpur for treatment and died on account of the aforesaid injuries on 26.7.2007. Her postmortem was conducted on 27.7.2007 at Medical College, Jabalpur by Dr.Ashok Jain, (PW-9). The cause of death was cardio respiratory failure due to extensive antemortem infected burn and its complications. The postmortem report is (Ex-P/18). On getting information about the death of the deceased an FIR (Ex-P/20) was registered at Police Station Lordganj, Jabalpur and at Police Station Patharia district Damoh, Crime No.202/07 under Section 304-B and 302/34 of the IPC was registered and after investigation, charge-sheet was filed before the Court of Judicial Magistrate, I Class, Damoh who committed the case before the Sessions Judge, Damoh.
33. The trial Court, during the trial framed charges for commission of offence under Section 304-B and 302/34 of the IPC against the accused persons. They abjured their guilt. Their defence is that the deceased committed suicide on account of acute stomach ache. After completion of the trial, the learned trial Court acquitted the appellants of the charges under Section 304-B of the IPC and convicted for commission of offence punishable under Section 302 of the IPC and the sentence has been mentioned earlier.
4. The aforesaid finding has been assailed on the ground that the dying declaration (Ex-P-11) is not reliable as it was not recorded in accordance with law and the parents of the deceased who met the deceased before her death have denied the fact that deceased told them that the appellants poured kerosene oil and set her ablaze. Hence, the appellants are entitled to get the benefit of doubt and be acquitted. In addition, it is also contended that looking to the other circumstances of the case, appellants cannot be convicted for commission of murder of Kunti Bai. Their conviction required to be modified for commission of culpable homicide not amounting to murder under Section 304 Part-II of the IPC. As the prosecution has failed to establish that the appellants had intention to kill the deceased and the deceased has not died immediately, she expired after 20 days and the burn injuries were not excessive as initially she was burnt 60 to 70% and after the incident she was shifted to hospital for treatment by the appellants and later on for better treatment she was shifted to Damoh and from Damoh to Jabalpur Medical 4 Hospital. This conduct of the appellants show that they have no intention to cause the death of the deceased. However, their act show that they had the knowledge that their act likely to cause the death of the deceased. Accordingly, the conviction and the sentence be modified.
5. On the other hand, learned Govt. Advocate appearing on behalf of the Respondent-State opposed the aforesaid contention and submitted that the evidence with regard to dying declaration is unimpeachable and the act of the appellants categorically came within the purview of commission of murder of the deceased. Hence, the appeal be dismissed.
6. Having considered the contentions of the learned counsel for the parties and perusal of record, it is evident that it is not in controversy that the death of the deceased Kanti Bai was taken place on 26.7.2007 on account of burn injuries sustained by her on 6.7.2007 in which she was burnt to the extent of 60 to 70% and smell of kerosene oil was found by Dr. Ashok Baronia (PW-1) who examined the deceased on 6.7.2007 at Primary Health Center, Patharia and the aforesaid cause of the death proved by Dr. Ashok Jain (PW-9) who conducted the autopsy on the body of the deceased.
7. In the considered opinion of this Court the prosecution has succeeded to prove the dying declaration (Ex-P/11) to be true beyond reasonable doubt. Dr. Anuj Jain (PW-11) has submitted that on 9.7.2007 in District Hospital, Damoh, in his presence and on certification that the deceased was capable to give her statement, dying declaration Ex-P/11 was recorded by the Executive Magistrate/ Naib Tahsildar (PW-6) Rupesh 5 Singhai. Similarly, Rupesh Singhai, Executive Magistrate/Naib Tahsildar (PW-6) has stated that in his presence and on certification of the Doctor he recorded the statement of the deceased on 9.7.2007 at District Hospital, Damoh which is Ex- P/11, in which she has stated that before to this incident, appellants also tried to kill her by applying electric current and on the date of incident the appellants pored kerosene oil on her and then threw an ignited match stick on her when she was standing at the staircase and as the door was closed, she could not escape and got burnt and became unconscious. There is nothing in the cross-examination of the aforesaid witnesses which may be considered to discard their testimonies. They are public servants and have observed the formalities and the norms and precautions of recording of the dying declaration. Hence, their evidence is believable. Merely on the ground that the parents of the deceased denied the fact that the deceased did not told them about the aforesaid act of the appellants and told them that she made efforts to commit suicide on account of acute stomach ache, the dying declaration of the deceased cannot be said to be false, fabricated or unbelievable as parents may be won over. They are not reliable because their statement are contradictory to police statement Ex-P/4-5 & 6-7. Hence, in view of this Court, the learned trial Court has not committed any error in believing that the evidence of dying declaration and arriving at the conclusion that the burn injuries to the deceased were caused by the appellants. Thus the findings are confirmed.
8. Now, the question that arise for consideration is as to what offence has been committed by the appellants ? Father of 6 the deceased Halkai (PW-2) and Maya Bai (PW-3) mother of deceased have stated in their cross-examination that after the incident, the deceased was shifted to the hospital at Damoh and thereafter to Jabalpur by the appellants and they attended her and taken care of the deceased. This statement has not been challenged by the prosecution and this conduct of the appellants show that they had no intention to kill the deceased. This inference is further strengthened by the nature of the burn injuries. Dr.Ashok Baronia (PW-1) has stated that the deceased was burnt by 60 to 70 %. Undoubtedly, it was dangerous to life but cannot be said to be very extensive, which may be considered to be sufficient to cause death in ordinary course of nature.
9. In the circumstances, it cannot be said that the appellants caused burn injuries with an intention to cause the death of the deceased or acted to cause such injuries which were sufficient to cause death in the ordinary course of nature. Hence, appellants cannot be convicted for commission of offence for murder of the deceased under Section 302 of the IPC. However, it can be held that the appellants had the knowledge that by the aforesaid act they are likely to cause death of the deceased.
10. In the circumstances, the appellants can be convicted in the commission of culpable homicide not amounting to murder punishable under Section 304 Part-II of the IPC.
11. Having considered the aforesaid discussions, we partly allow the appeal and set aside the conviction and sentence of 7 the appellants under Section 302 of the IPC and instead convict them for the commission of the offence under Section 304 Part II of the IPC and sentence them to already undergone maximum period of RI for 10 years as from the record it appears that the appellants are in custody since 13.8.2007. Hence, they are directed to be released forth with, if not required to be detained in any other case.
11. We also express our words of gratitude for the assistance rendered by Amicus Curiae.
12. A copy of this judgment be sent to the concerned trial Court and jail authorities for information and necessary action.
C.C.as per rules.
(J.P. Gupta) (Smt. Nandita Dubey)
JUDGE JUDGE
vj
Digitally signed by
VIJAY LAKSHMI JHA
Date: 2018.04.09
13:21:39 +05'30'
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