Madhya Pradesh High Court
Premsingh And Anr. vs State Of Madhya Pradesh on 19 July, 2006
JUDGMENT S.L. Kochar, J.
1. By this appeal, the appellants have challenged their conviction under Sections 460 and 302 read with Section 34 of the Indian Penal Code and consequent sentence of R.I. for five years and imprisonment for life respectively passed by the learned Sessions Judge, Ujjain in S.T. No. 332/95 on 25-9-96.
2. The facts of the prosecution case in brief as unfolded before the Trial Court were that on 27-5-95, the deceased Kusumbai had lodged a report at Police Station, Bhat Pachlana against the appellants for abusing and beating her on account of land dispute (Ex. P-22/A). On 31-5-95, she again lodged a report with regard to demanding of copy of the report by the accused/appellants and assaulting her by knife and lathi (Ex. P-23/A). The accused were pressurizing the deceased for compromise and on 17-5-95 when she refused to enter into compromise, the accused abused her. In the intervening night of 17th and 18th July, 1995, at 12 o'clock the deceased Kusumbai was sleeping in the verandah of her house and her husband Sohanasingh was sleeping in the adjoining room in fever. Feeling pressure on her mouth, the deceased woke up and saw accused Pre-msingh gagging her mouth and accused Yeshwant was having a bottle of kerosene oil. As a result of refusal to enter into a compromise by the deceased, the accused Yeshwant sprinkled kerosene oil at her chest and the clothes below her chest and lit fire with a match stick. Appellant Premsingh continued gagging her mouth. However, she managed to raise cry. Sohansingh saw both the accused persons running away at that time. Deceased Kusumbai narrated the incident to her husband and ran towards a pit of water in front of her house and jumped therein and became unconscious. The next day the incident was narrated to Village Chowkidar Sitaram (P.W. 4) and other also. Kusumbai was got admitted in Barnagar Hospital for treatment. There she was medically examined by Dr. L.N. Kapadia (P.W. 1). Her MLC reports are Exs. P-1 and P-2 disclosing 49 per cent burn injuries. In the injury report Ex. P-1, she had disclosed that her relations have set her to fire. The hospital authorities sent a report to this effect at Police Station Barnagar and managed to record her dying declaration. On 18-7-95, a case under Section 307/34, IPC was registered vide Ex. P-8. Dying declaration of Kusumbai was recorded by the Executive Magistrate Shri Tulsiram Koshtha (P.W. 11) Ex. P-4. At Police Bhat Pachlana the crime was registered vide FIR Ex. P-9 on the basis of the report Ex. P-8. During investigation statement of the deceased under Section 161, Cr.PC was recorded and spot map Ex. P-14 was prepared. From the spot, a burnt GODADI (bedding), bed-sheet, petticoat (GHAGHRA), and pieces of half burnt saree and the earth from which smell of kerosene was present, were seized vide Ex. P-6. The accused persons were arrested vide Memos Exs. P-10 and P-1 1. On memorandum statement of appellant Yeshwant (Ex. P-12) from his house one kerosene bottle having some drops of kerosene and one match box were seized through memos Ex. P-13 and Ex. P-13/A. The seized articles were sent to the Forensic Science Laboratory, and his report is Ex. P-25. Contrary to the advice of the doctors, the husband of the deceased took her to his house where she expired on 29-7-95. Therefore, offence under Section 302, IPC was added. Information of death is Ex. P-24/A. Autopsy on the dead body of Kusumbai was conducted by Dr. Azad Kumar Jain (P.W. 2) and gave P.M. Report Ex. P-3, according to which the mode of death of Kusumbai was coma and death was due to burn injuries and septicemia/infection. Duration of death was within six to twelve hours from the time of P.M. Examination.
3. After usual investigation, the accused persons were charge-sheeted for the offences as aforementioned. They denied their guilt and pleaded that the deceased was not of their caste. She was not married with their elder brother Sohansingh, but she was his Natra-wife (customary marriage). According to them, the deceased was not of sound mind and oftenly she used to implicate them falsely and due to her conduct, the villagers were under fear and feeling terrorized. They have also submitted that because of mental weakness she has committed suicide. The appellants did not examine any witness in defence whereas the prosecution has examined 13 witnesses and also proved 25 documents in order to establish its case.
4. The learned Trial Court after considering the rival contentions convicted and sentenced the appellants as indicated hereinabove.
5. We have heard learned Counsel for the parties and perused the entire record carefully.
6. learned Counsel for the appellants Shri S.K. Vyas has vehemently submitted that the first statement of the deceased recorded by P.W. 8 K.S. Parihar of P.S. Barnagar on the basis of which he registered the FIR on zero number vide Ex. P-8, has not been filed by the prosecution because the same was not in the line of the prosecution case and later on dying declaration Ex. P-4 is said to have been recorded by the Executive Magistrate P.W. 11 Tulsiram Koshtha and her statement Ex. P-21 by Police. According to him, both the documents are not reliable and the learned Trial Court has wrongly based the conviction on the basis of the dying declarations Ex. P-4 and P-21. In the alternative he has submitted that at the most offence under Section 304 (Part II) would be made out against the appellants.
7. In oppugnation, the learned Dy. Advocate General Shri Girish Desai submitted that the dying declaration Ex. P-4 is a genuine document recorded by the Executive Magistrate P.W. 11 Shri Tulsiram Koshtha in presence of P.W. 2 Dr. Azad Kumar Jain who had given certificate of fitness before and after recording of the dying declaration. There is nothing on record to doubt their version in regard to the recording of the dying declaration Ex. P-4. Ex. P-21 was recorded by ASI P.W. 10 Rajkumar Katiar during the course of investigation, which has been rightly considered as a dying declaration of the deceased by the Trial Court. Over and all, the learned Dy. Advocate General has supported the judgment and finding of the learned Trial Court.
8. The moot question to crops up before us is whether the dying declaration Ex. P-4 recorded by the Executive Magistrate P.W. 11 Tulsiram Koshtha is reliable piece of evidence or not ? We have been taken through the statement of the witnesses as well as the statement of Dr. P.W. 2 Azad Kumar Jain by the Counsel for the parties and we are of the opinion that there is absolutely no material available in their statements to discard their testimony in regard to recording of the dying declaration Ex. P-4 of the deceased. P.W. 11 Shri Tulsiram Koshtha has testified that on 18-7-95, he was requested by the Station House Officer of P.S. Bhat Pachlana for recording the dying declaration of Smt. Kusumbai admitted in the Government Hospital, Barnagar. He reached along with the doctor on duty in the ward where the patient Kusumbai was admitted. She was checked by the doctor and thereafter the doctor gave certificate of her fitness on dying declaration Ex. P-4 at 12.15 noon. Thereafter he recorded the statement of Kusumbai in question and answer form in the presence of the doctor. After recording the statement, he read over the statement to her which was accepted by her. Thereafter her thumb impression at portion D to D was taken on Ex. P-4. The doctor also gave certificate of her fitness after completion of the dying declaration. During the course of recording of the dying declaration, she was fully conscious and was able to give statement. He proved the dying declaration Ex. P-4 and his signature at portion marked E to E.
9. learned Counsel for the appellant has submitted that the prosecution has not filed and proved the request letter sent to this witness for recording the dying declaration. Therefore, reaching of the Tehsildar in the hospital is rendered doubtful. We are not impressed by this argument. There is no reason available on record as to why the Executive Magistrate P.W. 11 Tulsiram Koshtha, by his own would reach in the hospital and recording the dying declaration of Kusumbai. This witness has specifically stated that he was requested by the Station House Officer of P.S. Bhat Pachlana. In cross-examination Para 3, the say of this witness is that he could not remember whether with request letter for recording the dying declaration ASI Parihar had reached to him or not, but he was sure that some police official had approached him. This witness has denied the defence suggestion and before recording the dying declaration the Police Officer had shown the case diary to him and he went to the hospital in police vehicle and the same police officer took him to Kusumbai. This witness deposed specifically that he reached the hospital in his own vehicle and at the time of recording the dying declaration in the ward, he himself, the patient Kusumbai and the doctor as well as the other admitted patients were present and near the patient Kusumbai, except himself and the doctor, none else was present. He has denied the suggestion that at the time of recording of the dying declaration ASI Parihar and husband of Kusumbai named Sohansingh were present. He has also denied the defence suggestion that when he reached for recording the dying declaration, Kusumbai started crying saying that she was not ready to give any statement and she was again and again running away from her bed. This witness has further denied the defence suggestion that he copied out the statement recorded by the ASI. This witness has also clarified the ambiguity in recording the date of incident mentioned in the dying declaration Ex. P-4, i.e., 16-7-95. According to him, the deceased did not mentioned the date. She disclosed that "PARSON KE DIN MERE SAATH YEH GHATANA GHATI". On this basis he mentioned the date in the dying declaration.
10. We have given our anxious consideration to appreciate the statement of the Executive Magistrate P.W. 11 Tulsiram Koshtha and do not find any substantial material which may corrode the prosecution case. Recording of dying declaration Ex. P-4 by the Executive Magistrate is also fully corroborated by Dr. P.W. 2 Azad Kumar Jain. The say of this witness in Para 5 is that on 18-7-95, at 12.15 PM the Tehsildar, Barnagar started recording the dying declaration of Kusumbai and he, after her examination, gave certificate of her fitness to give statement. After recording of the dying declaration, he again certified on Ex. P-4 that during the course of recording of the dying declaration, the patient was fully conscious. He proved the certificate mentioned at portion A to A and B to B. He also proved the signature at portion C to C. In cross-examination, he denied the defence suggestion that at the time of recording of the dying declaration, the patient Kusumbai was not in a fit state of mind. He voluntarily stated that the patient was fully conscious and in a fit state of mind.
11. We have perused the dying declaration Ex. P-4 wherein the deceased has deposed that she was sleeping in the verandah and her husband Sohansingh was sleeping inside the house suffering from fever. In the night between 12 and 2.00 o'clock, her brother-in-laws Yaswantsingh and Premsingh sons of Lalsingh reached near her, Premsingh gagged her mouth and Yaswantsingh poured kerosene oil on her body by a bottle and lit fire. Before setting fire, both asked her to enter into compromise in a case for which she lodged the report at the Police Station. She refused to enter into compromise. Thereafter, Yaswantsingh lit fire by a match stick and both ran away. On the cry being raised by her, her husband Sohan Singh came out of the house. She was not saved by anybody. She herself jumped into a pit of water situated in front of her house for extinguishing the fire. After some time she was brought to the hospital by Village Chowkidar, her husband and the villagers. The contents of this dying declaration are fully corroborated by her case diary statement Ex. D-21 recorded by the ASI P.W. 10 Rajkumar Katiar, who proved this statement in the Court also. This statement is also admissible under Section 32 of the Evidence Act, as a dying declaration. In our considered view the non-production of the statement of Kusumbai stated to have been recorded by P.W. 8 K.S. Parihar, ASI of P.S. Barnagar who registered the crime on zero number on the basis of the said statement vide Ex. P-8 and sent the same for further investigation to the Police Station, Bhat Pachlana in whose jurisdiction, the place of incident was situated, would not be fatal to the prosecution as it appears that because of transfer of investigation from P.S. Barnagar to P.S. Bhat Pachlana police failed to put the statement in the diary while handing over the same to the Bhat Pachlana Police Station. P.W. 2 Dr. Azad Kumar Jain and P.W. 11 Shri Tulsiram Koshtha Executive Magistrate are the independent persons and there is no reason available in the record for them to create false dying declaration Ex. P-4.
12. In view of 49 per cent burn injuries sustained by deceased Kusumbai, and her death on 29-7-2005 after 11 days would indicate that she could remain conscious during the course of recording of the dying declaration and police got the same recorded by the Executive Magistrate P.W. 11 Tulsiram Koshtha.
13. This dying declaration Ex. P-4 is free from doubt. The appellants were also having motive for committing the crime. Against them, the deceased lodged report at the Police Station Ex. P-23, proved by P.W. 12 Head Constable Brijlal regarding abusing, threatening and beating to her on account of land dispute by the appellants.
14. In view of the aforementioned two dying declarations Ex. P-4 and P-21, there is absolutely no doubt about complicity of the appellants in committing the crime in question. But, now we have to consider on the basis of material available on record as to what offence is made out against the appellants.
15. The medical evidence of Dr. P.W. 2 Azad Kumar Jain is disclosing that the deceased suffered 49 per cent burn injuries. Her face, head, neck and chest were not at all affected and major injuries were on the right and left arms, front side of abdomen, private part, buttock and thighs. She remained hospitalized for about 11 days and thereafter died because of septicaemia/infection. She was got discharged from the hospital by her husband against the permission of the doctor at his own risk and thereafter she died at her house. In the light of the medical evidence the cause of death of the deceased was not because of direct result of injuries sustained by her, but the death was because of septicaemia/infection developed during the course of treatment. Therefore, relying on the judgments of the Supreme Court and that of our own High Court, we are of the opinion that the offence in question would be short of murder: See:Dev Raj v. State of Punjab , Kislian Chand and Anr. v. State of Punjab , Bhagwansingh and Anr. v. State of Bihar AIR 1998 SC 119, Pirthi v. State of Haryana , Stale of M.P. v. Phoolsingh M.P. Weekly Notes 1993 (II) Note No. 177 and Sumer Sai v. Stale of M.P. |M.P. Weekly Notes 1994 (I) Note No. 159).
Bearing in mind the facts and circumstances of the case and the legal position as discussed hereinabove, the appellants are liable for conviction under Section 304(Part II), Indian Penal Code culpable homicide not amounting to murder.
15A. In the result, this appeal stands allowed in part. The conviction and sentence of the appellant for the offence under Section 302/34, Indian Penal Code are hereby set aside. Instead thereof the appellants are convicted under Section 304(Part II) read with Section 34, Indian Penal Code and each of them is sentenced to R.I. for seven years. The conviction and sentence of the appellants under Section 460 of the Indian Penal Code as awarded by the Trial Court are hereby affirmed. Both the substantive sentences shall run concurrently. The appellants are on bail. They are directed to surrender to their bail bonds before the Trial Court on 10-8-2006 for undergoing the remainder part of their sentences.