Garibdas @ Pappu Choudhari vs The State Of Madhya Pradesh Judgement ... on 20 September, 2013

[Cites 5, Cited by 11]

Madhya Pradesh High Court

Garibdas @ Pappu Choudhari vs The State Of Madhya Pradesh Judgement ... on 20 September, 2013

1. Feeling aggrieved by the judgment of conviction and order of sentence dated 7.9.2005 passed by learned Fourth Additional Sessions Judge, Jabalpur in S.T. No. 88/2004 convicting the appellant under Section 302 of the IPC and thereby sentencing him to suffer Life Imprisonment and fine of `5000/-; in default further R.I. for 5 months, the appellant has knocked the door of this Court by preferring this appeal under Section 374(2) of the Cr.P.C.

2. In brief, the case of the prosecution is that on 12.11.2003 in the afternoon at about 2.00 PM, an [2] Criminal Appeal No. 1993/2005 information was received in the Police Station Bhedaghat that one lady Ranta Bai (hereinafter to be referred to as 'the deceased') has been brought in burning condition. The said information was reduced in Roznamcha No. 473. Thereafter, D.K. Mishra (PW-10), ASI, P.S. Bhedaghat recorded Dehati Nalishi on 12.11.2003 at 19.45 hours according to which the deceased got married to her husband namely Garibdas @ Pappu (the appellant). On 3.11.2003, the father of deceased brought the deceased from her nuptial home to his own residence at Bhedaghat. It is further case of the prosecution that appellant had gone to his nuptial home at Bhedaghat, where deceased was residing with her parents, to bring her with him. The parents of the deceased told that after lunch, he may carry the deceased with him. On 12.11.2003, when the father of deceased had gone to discharge labour work and her mother had gone to take bath at Talaiya and the deceased was alone in the house along with two small daughters of her younger sister, at that juncture, it was told by the appellant that deceased is having some illicit relations with her brother-in-law (sister's husband), therefore, he will not take her back to his home but will kill her. Despite, the deceased told that she is not having any illicit relations with her brother-in-law, the appellant did not agree and brought [3] Criminal Appeal No. 1993/2005 a can of Kerosene and poured it upon the deceased and thereafter lit the fire with intention to kill her. On receiving the burn injuries, the deceased started screaming and came out of her house in the burning condition. On seeing the deceased in that condition, her mother Narmad Bai (PW-4), sisters Anita (PW-5) and Sunita (PW-6) rushed towards her and extinguished the fire. The appellant after setting up the fire fled away from the place of occurrence. The mother of the deceased brought her to the Medical College at Jabalpur, where she was treated.

3. Upon dehati nalishi, the investigation was made by the investigating agency. The dying declaration of the deceased and statement of witnesses were recorded. The deceased died after 3 days on 15.11.2003, as a result of which, initially the case which was registered under Section 307, was altered to Section 302 of the IPC.

4. After investigation was over, a charge sheet was submitted in the committal Court, who committed the case to the Court of Session and from where it was received by the trial Court for trial.

5. The learned trial Judge, on the basis of allegations made against the appellant, framed the charge under Section 302 of the IPC against appellant. Needless to say [4] Criminal Appeal No. 1993/2005 that the appellant has denied the charge and requested for trial fresh.

6. In order to bring home the charges, the prosecution examined as many as 24 witnesses (PW-1 to PW-24) and also proved the documents [Ex.P1 to P28(B)]. The defence of the appellant is of maladroit implication and the same defence he set forth in his statement recorded under Section 313 of the Criminal Procedure Code, however, he did not examine any witness in support of his defence.

7. The learned trial Judge, on the basis of evidence adduced on record, came to the conclusion that the charge under Sections 302 of the IPC has been proved against the appellant and eventually, convicted him under Section 302 of the IPC by sentencing him to suffer Life Imprisonment and fine of ` 5000/-, with default stipulation.

8. In this manner, this appeal has been filed by the appellant assailing the judgment of conviction and order of sentence. The contention of the learned counsel for the appellant is that there is no eye-witness to the incident and the entire case of prosecution rests upon the dying declarations of the deceased, which are not worth reliable. The possibility of tutoring the deceased to say against the appellant, cannot be ruled out because he was creating certain doubts about the character of the deceased with an [5] Criminal Appeal No. 1993/2005 understanding that she is having illicit relations with her brother-in-law.

9. On the other hand, learned Public Prosecutor appearing on behalf of the State has supported the impugned judgment of conviction and order of sentence passed by the learned trial Court and submitted that there are unimpeachable dying declarations on record, therefore, this appeal sans substance and it be dismissed.

10. Having heard the learned counsel for the parties at length, we are of the considered view that this appeal deserves to be allowed.

11. In the present case, there is no eye-witness to the incident. Although Shyama Bai (PW-7), who is the daughter of the sister of the deceased and a child witness, was examined but she was declared hostile. Not only this, all the witness who are the family members of the deceased were declared hostile and did not at all support the case of the prosecution. Thus, the entire case, rests upon the dying declarations of the deceased.

12. The prosecution's case itself is that the mother of the deceased brought the deceased to Medical College at Jabalpur. It is further the case of the prosecution that because the appellant was creating certain doubts about character of the deceased with an understanding that she [6] Criminal Appeal No. 1993/2005 was having some illicit relations with her brother-in-law, therefore, she was subjected to fire.

13. On going through a very material document, dehati nalishi (Ex.P-15), which was recorded by D.K. Mishra (PW-10), ASI, P.S. Bhedaghat on 12.11.2003 at 19.45 hours, it is gathered that the deceased told that after pouring Kerosene over her, the appellant lit the fire. This document (Ex.P-15) bears a clear thumb impression having clear curves and ridges of the deceased. Dying declaration (Ex.P-5), said to have been given by deceased, was recorded by same ASI, D.K. Mishra (PW-10). On this dying declaration also there is a very clear thumb impression of the deceased having very clear curves and ridges. One glaring fact appears in the dying declaration is that although the law of recording the dying declaration is that while recording the dying declaration, except the Doctor and the person, who is recording the dying declaration, no other person should remain present, but in the present case the parents of the deceased were also present because this document (Ex. P-5) bears signatures of Mohan Lal (PW-3), the father of the deceased and thumb impression of Narmad Bai, mother of the deceased. Thus, the possibility of tutoring the deceased cannot be ruled out. In the present case, because the genesis of the occurrence of the case is [7] Criminal Appeal No. 1993/2005 that appellant was creating doubts upon the character of the deceased with an understanding that she is having illicit relations with her brother-in-law, which was denied by the deceased, therefore, it is probable that in order to implicate the appellant falsely, he has been made accused.

14. There is one more dying declaration of the deceased (Ex.P-17), which is said to have been recorded by the Executive Magistrate Vivek Tripathi (PW-11). In this dying declaration also very clear thumb impression of deceased having ridges and curves was obtained. If these dying declarations as well as dehati nalishi are kept in juxtaposition with the evidence of Dr. Suresh Kumar (PW-8), we find that he has specifically admitted in his cross- examination that both the hands of the deceased were totally burnt and in further cross-examination he has stated in very specific terms that all the fingers including thumbs of the deceased were burnt. The evidence of this Doctor is corroborated by autopsy surgeon Dr. Nirpat Singh Kukrele (PW-24) also. This autopsy surgeon has also found that the deceased sustained 70% burn injuries and her hands were totally burnt. In Para-5 of his cross-examination, the autopsy surgeon has deposed in specific words that he did not find any mark of ink upon the fingers and thumb of the deceased while conducting the autopsy. He has further [8] Criminal Appeal No. 1993/2005 stated that if there would have been any mark upon the thumb, this fact would have been mentioned by him in the Post Mortem report. The question now, thus, arises as to when both the hands of the deceased were totally burnt including the fingers and thumbs, how thumb impression containing very clear curves and ridges could be obtained on the documents. We would like to further observe that if a thumb is soaked with the ink of the ink-pad and a thumb impression is obtained on some paper, a very dark mark remains on the entire thumb, which does not easily disappear, even if the hand is washed with a soap. In these facts and circumstances, when the deceased was having burn injuries and she was not able to take bath because she was swinging between life and death, if her thumb impression was obtained on the aforesaid dying declarations, how ink mark disappeared from her thumb.

15. We do not find any merit in the contention of learned Public Prosecutor that while undergoing the treatment, ink must have been disappeared from thumb because several ointments must have been applied on the burnt areas of the body including the thumb. At the first blush, this argument appears to be quite attractive, but on deeper scrutiny the same is found to be devoid of substance for the simple reason that until and unless there is specific evidence of [9] Criminal Appeal No. 1993/2005 Doctor that mark of the ink disappeared during the course of treatment and by providing medicines to the deceased, it cannot be inferred that the dark mark of the ink was vanished. It was incumbent upon the prosecution to prove that the mark of ink was vanished on account of applying the medicines, ointment etc., because the burden lies upon the prosecution to prove this fact. Since the prosecution evidence is totally lacking on this material point, the said argument of learned Public Prosecutor cannot be accepted.

16. That apart, on perusal of the dying declaration (Ex.P-17) dated 13.11.2003 recorded by Vivek Tripathi, (Executive Magistrate) no where this Court finds that there is endorsement that after recording the dying declaration, it was read over and explained to the deceased and after hearing the contents thereof, she accepted the same. Similarly in the dying declaration recorded by D.K. Mishra, ASI also, this fact is not mentioned. The Supreme Court in Shaikh Bakshu and others Vs. State of Maharashtra - (2007) 11 SCC 269 in Para-13 has categorically held that if there is no mention in the dying declaration that it was read over and explained to the deceased, the same cannot be accepted. In that case, the trial Court as well as the High Court held that even if it was not stated by the deceased, it will be presumed that it was read over and explained to the [10] Criminal Appeal No. 1993/2005 deceased. In that case also, the dying declaration was recorded in presence of the Doctor, but even in that situation, the same was not accepted by the Apex Court. We would like to quote the relevant part of Para-13 of the said decision, which reads thus :-

"There was no mention in the dying declaration that it was read over and explained to the deceased. The trial court and the High Court concluded that even though it is not so stated, it has to be presumed that it was read over and explained. The view is clearly unacceptable."

If the aforesaid dictum laid down by the Apex Court is considered upon the touchstone and anvil of the aforesaid dying declarations of the present case, we are of the view that because in the aforesaid dying declarations also this fact has not at all been mentioned, the said decision is squarely applicable in the present factual scenario and, therefore, it cannot be presumed that the dying declarations were read over and explained to the deceased and she accepted the same.

17. The Supreme Court in State of Punjab Vs. Gian Kaur and another - AIR 1998 SC 2809 has held that the thumb mark appearing on the dying declaration having clear ridges and curves of the deceased and the evidence of the Doctor, who conducted the post mortem, found that [11] Criminal Appeal No. 1993/2005 both thumbs of the deceased were burnt, the Apex Court by affirming the judgment of the High Court has held that this amounts to very suspicious circumstance to hold that the dying declaration was genuine. The said decision is fully applicable in the present case also. The aforesaid decision of the Apex Court was relied upon by a Division Bench of this Court in Naresh and another Vs. State of M.P. 2009(3) JLJ 374.

18. Thus, by extending the benefit of doubt to the appellant, this appeal succeeds and is hereby allowed. The impugned judgment of conviction and order of sentence is hereby set aside. The appellant is acquitted to the charge under Section 302 of the IPC. He is in jail. He be released immediately from the jail, if not required in any other offence.

           (A.K.Shrivastava)              (G.S. Solanki)
               Judge                        Judge


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Madhya Pradesh High Court