Madhya Pradesh High Court
Pawan Verma vs The State Of Madhya Pradesh on 29 February, 2020
Author: Sunil Kumar Awasthi
Bench: Sunil Kumar Awasthi
High Court of Madhya Pradesh: Bench at Indore
1
Division Bench: Hon'ble Justice Shri Virender
Singh and Hon'ble Shri Justice S.K. Awasthi
Criminal Appeal No.680/2010
Pawan
vs.
State of Madhya Pradesh
-------------------------------------------------------------------
Shri T.C. Jain, learned counsel for the appellant. Shri Sandeep Mehta, learned Public Prosecutor for the respondent/State.
----------------------------------------------------------------------------
J UD G E M E N T (Passed on 29 / 02 /2020) Per: Justice S.K. Awasthi The appellant/accused has preferred this appeal under Section 374 (2) of Cr.P.C. feeling aggrieved by the judgment dated 14.07.2010 passed by Additional Session Judge (Special Judge) Electricity Act No.7, Indore whereby the appellant has been convicted for the offence punishable under Section 302 of I.P.C. and sentenced to life imprisonment and fine of Rs. 1,000/-, in default further Rigorous Imprisonment of three months. (2). Brief facts of the case is that at 10:30 p.m on 23.03.2008, Chandabai wife of the appellant - Pawan got fired at her residence situated at Goma Ki Phel, Malwa Mill, Indore. She was brought to the M.Y. Hospital, Indore High Court of Madhya Pradesh: Bench at Indore 2 for treatment, where on 24.03.08 Executive Magistrate Mr. Alok Pare recorded her dying declaration (Ex. P/21) in which she deposed that her mother-in-law Kamla Bai, Father-in-law Ramprasad, brother-in-law Shekhar and Satish instigated her husband Pawan to kill her saying that they will solemnize his second marriage. Therefore, her husband Pawan after sprinkling kerosene on her, lit the fire, because of this she sustained burn injuries. She further stated that her husband wanted to re-marry, therefore, he committed the said act. On the basis of the aforesaid dying declaration, police registered the FIR bearing crime No. 300/2008 against the accused person for the offence under Section 498-A and 304-B/34 of I.P.C at Police Station- Tukoganj. Police visited the spot and prepared spot map Ex.P/23.
(3). The deceased scummed to the burn injuries on 26.03.2008. On receiving the information regarding the unnatural death of the deceased Chandabai merg No.05/2008 under Section 174 of Cr.P.C. was registered at Police Station Tukoganj, Indore. During the merg enquiry, police prepared lash panchnama of the deceased and her body was sent for postmortem. The statements of the parents of the deceased and other witnesses were recorded in which they stated that the appellant and his family members were torturing and harassing the deceased for dowry demand. Thereafter, High Court of Madhya Pradesh: Bench at Indore 3 police also added offence under Section 108,109 and 302 of I.P.C. Police seized the marriage card of the deceased and according to which her marriage was solemnized with appellant-Pawan on 13.12.2006. Police also seized various article and sent them to Regional Forensic Laboratory, Rau for chemical analysis. After completion of investigation, charge sheet was submitted in the court of Chief Judicial Magistrate Indore, who committed the case to the Session Court, ultimately it was transferred to Additional Session Judge, (Special Judge) Electricity Act No.7 Indore.
(4). The accused abjured their guilt and took a plea that they are innocent and they have falsely been implicated in the present crime. In defence they have examined two witnesses namely Dr. Manish Koushal (DW-1) and K.K. Dwivedi (DW-2).
(5). In order to prove the case, prosecution got examined 19 witnesses as PW-1 to PW-19 and marked 35 documents as Ex. P/1 to Ex.P/35 and also marked Ex. D/1 to Ex. D/4 on behalf of the accused.
(6). The trial court after considering the evidence came to the conclusion that charge under Section 302 of I.P.C. is proved against the appellant beyond reasonable doubt and therefore, he has been convicted for the aforesaid offence which has been challenged in the present appeal.
High Court of Madhya Pradesh: Bench at Indore 4 (7). We have heard learned counsel for the parties and perused the impugned judgment and record of the trial court.
(8). Ramrati (PW-3) is the mother of the deceased, who deposed that the marriage of her daughter was solemnized with the appellant on 13.12.2006. They have expensed Rs. 80,000/- in the marriage of Chandabai. When her daughter came to her house she told her that her husband and other family members are harassing and ill-treating her because the dowry has not been given in the marriage according to their expectation. In the cross-examination, she accepted that during the life time of the Chandabai, they have not made any complaint to the police against the appellant for making demand of dowry and ill-treating her daughter. Even she has not disclosed any specific demand made by the appellant. Basantilal (PW-4) who is the father of the deceased categorically stated in his examination -in- chief that the accused persons never demanded any dowry with his daughter or harassed her. Eventually, there is no evidence on record to show that soon before the death of Chandabai she was subjected to cruelty with regard to the demand of dowry, therefore, trial court acquitted the accused persons from the offence punishable under Section 498-A, 304-(B) of I.P.C. The trial court was also of the view that the parents and brothers of the appellant High Court of Madhya Pradesh: Bench at Indore 5 Pawan were residing separately at Bajrangnagar Indore, and at the time of incident, their presence at the place of incident has not been proved, therefore, they also been acquitted from the offence under Section 302 of I.P.C. (9). In the present case there is no eye witness to the incident. When incident takes place within the premises of a closed house then, there is no possibility to get any eye witnesses, unless any family member volunteers. In the present case, Chandabai was residing in her marital house alongwith appellant Pawan.
(10). This is a case where the base of conviction of the accused is the dying declaration. The situation in which a person is on death bed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason the requirements of oath and cross- examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eye-witness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence.
(11). It is well settled that 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 High Court of Madhya Pradesh: Bench at Indore 6 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 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. The Hon'ble Apex Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in the case of Smt. Paniben v. State of Gujarat (AIR 1992 SC 1817):
(12). In the instant case, it is to be noted that before recording the dying declaration the doctor examined the Chandabai and he has given the certificate that the deceased is fit to give her dying declaration and thereafter the executive magistrate Alok Pare had recorded her dying declaration. There is nothing on record to show that during the recording of dying High Court of Madhya Pradesh: Bench at Indore 7 declaration of the Chandabai any member of her family was present there, therefore, it is clear that the declaration is not the result of tutoring, prompting or imagination.
(13).Although Dr. Deepak Phadse (PW-1) stated that when the Chandabai was brought to the hospital for treatment, she told that on account of accident since a chimney fell over her, she received burn injuries. It appears that the uncle of the appellant Pawan was accompanied with the deceased and Dr. Deepak Phadse (PW-1) accepted in his cross-examination that the aforesaid history given by the person who brought the injured to the hospital, therefore, it cannot be said that Chanda Bai herself disclosed to the doctor that she caught fire accidentally.
(14). The dying declaration Ex. P/21 was recorded by the Naib Tehsildar Mr. Alok Pare. Dying declaration recorded by executive Magistrate much evidently value in the case. It is expected that the Executive Magistrate cannot be over powered by the family members of the deceased or the accused and his relative. The Hon'ble Apex Court in the case of State of U.P. Vs. Shishupal Singh, AIR 1994, SC 129 has held that conviction can be safely placed on dying declaration provided the said dying declaration is free from vice of infirmities and if that dying declaration commands acceptance at the hands of High Court of Madhya Pradesh: Bench at Indore 8 the Court.
(15). There is nothing on record to show that the deceased was unconscious from the time of her admission in hospital till her death, therefore, it cannot be said that she has not given oral dying declaration, to the executive magistrate. To the contrary, the certificate affixed in the statement clearly shows that the deceased was fit to give her statement and after conclusion of recording the dying declaration he further gave a certificate that she was fit condition even after recording dying declaration, therefore, the aforesaid submission of the learned counsel for the appellant is not acceptable. (16). Learned counsel for the appellant has submitted that the thumb impression put in the dying declaration examined by the District Finger print expert K.K. Dwivedi (DW-2) according to him the thumb impression put in the dying declaration is incomplete, therefore, on the basis of the aforesaid, the identity of the person cannot be determined, who put the thumb impression, therefore the possibility cannot be ruled out that such statement is prepared falsely and thumb impression of someone else was taken in the said statement. But such contention may not be accepted because in this connection the statement of para 7 of executive magistrate Alok Pare be considered in which he has denied that in the dying declaration Ex.P/21 he got the thumb impression of some High Court of Madhya Pradesh: Bench at Indore 9 child. There is no cogent evidence is available to prove the aforesaid dying declaration has been prepared falsely.
(17). The appellant is the husband of the deceased and his presence soon before the occurrence with his wife, has been established beyond doubt. It has also been established that he tried to extinguish the fire and during which he also got injured. The appellant has taken defence in his statement under Section 313 of Cr.P.C.
that at the time of incident, the power supply was all of sudden interrupted and when Chandabai was lighting lamp, accidentally chimni (lamp) fell over her because of that she received burn injuries. However, neither he disclosed this fact to the doctor nor the police when he was brought to the hospital. It is also worth to note that from the statement of Dr. Deepak Phadse (PW-1), it appears that the smell of kerosene coming from the body of Chandabai and she sustained 91% burn injury, which indicate that the burn injuries were caused due to some inflammable liquid, otherwise by catching fire from the flame of lamp (Chimni), such injuries could not be caused to the Chandabai. Hence the incident is not an accidental, it could be homicidal. Therefore, explanation given by the appellant regarding incident appears to be false and after thought. In case of Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 High Court of Madhya Pradesh: Bench at Indore 10 the Apex Court observed as under:
"In a case based on circumstantial evidence where no eye- witnesses account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decisions of this Court. [See State of T.N. v. Rajendran SCC Para 6; State of U.P. v. Dr. Ravindra Prakash Mittal SCC Para 39 : AIR Para 40; State of Maharashtra v. Suresh SCC Para 27; Ganesh Lal v. State of Rajasthan SCC Para 15 and Gulab Chand v. State of M.P. SCC Para 4]. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In Nika Ram v. State of H.P., it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with "khukhri" and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra, the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313, Cr.PC. The mere denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife."
(18). Keeping in view of the aforesaid discussion, this court is of the view that the dying declaration given by the deceased credible, reliable, cogent and acceptable and the accused failed to explain such circumstances under which the deceased caught fire, therefore, this court is of the considered opinion that that the trial court has not committed any error in convicting the appellant for the High Court of Madhya Pradesh: Bench at Indore 11 offence punishable under Section 302 of I.P.C. There is no ground available in warranting interference of the judgment of conviction passed by the trial Court. Thus, by affirming the conviction and sentence of the appellant for the offence punishable under Section 302 of I.P.C., present appeal is dismissed being devoid of any merits.
Let record of the trial court be sent back alongwith copy of judgment to the trial court for information.
(Virender Singh) (S.K. Awasthi)
Judge Judge
praveen
PRAVEEN Digitally signed by PRAVEEN KUMAR NAYAK DN: c=IN, o=DISTRICT AND SESSION KUMAR COURT INDOR, postalCode=452005, st=Madhya Pradesh, 2.5.4.20=e98f729464903facdd39c454715d 6eccc5a350c9111fb019b34dace6d05b8fd NAYAK 5, cn=PRAVEEN KUMAR NAYAK Date: 2020.03.02 14:25:02 -12'00'