Madhya Pradesh High Court
Arvind Sharma vs The State Of M.P on 4 August, 2010
Bench: Rakesh Saksena, G.S. Solanki
1
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
DIVISION BENCH
Criminal Appeal No. 1488/1994
Arvind Sharma S/o.
Babulal Sharma, aged
about 26 years R/o. Village
Hirapur, P.S. Tendukheda,
District Narsinghpur (MP)
Versus
The State of Madhya Pradesh
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For the Appellant: Shri S.C. Datt Senior Advocate
with Shri Siddharth Datt,
Advocate.
For the State: Shri S.K. Rai, Government
Advocate.
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PRESENT :
HON'BLE SHRI JUSTICE Rakesh Saksena
HON'BLE SHRI JUSTICE G.S. Solanki
Date of hearing: 27/07/2010
Date of Judgment: 04/08/2010
JUDGMENT
As per G.S. Solanki,J.:
Learned First Additional Sessions Judge Bhopal has passed the impugned judgment dated 30.11.1994 in Sessions Trial No. 378/92 by which appellant has been convicted under Section 304-B of Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of eight years.
2. Being aggrieved, the appellant has preferred this appeal under Section 374 (2) of Code of Criminal Procedure.
23. The brief facts of the case are that marriage of Abha Sharma (since deceased), daughter of complainant Madan Mohan Dubey (PW2) was solemnized on 15.5.1991 with appellant/accused Arvind Sharma. It is undisputed that Halki Bai is mother and Raghunandan Sharma is elder brother (both acquitted) of appellant/accused. It is alleged that appellant along with his mother and brother ill treated to Abha Sharma in regard to demand of motor-cycle. When Madan Mohan not fulfilled the demand of dowry, the accused persons ill treated and harassed Abha Sharma. On 11.2.1992 Abha Sharma was admitted to Hamidia Hospital, Bhopal due to burn injuries. Complainant Madan Mohan (PW2) received an information about an accident, he reached to the Hamidiya Hospital. According to him, Abha Sharma disclosed that due to non-fulfillment of demand of motor- cycle of accused persons, accused Arvind poured kerosene oil on her and set her ablaze. She further narrated that Arvind threatened her and got a statement recorded in his favour. Ultimately, on 15.2.1992 Abha Sharma succumbed to her burn injuries. Complainant Madan Mohan Dubey tried to lodge a report in police station but appellant Arvind Sharma being an employee of traffic police, police did not record his report. On 24.2.1992, complainant lodged a written report Ex.P/2 to the Superintendent of Police, Bhopal and sent copy to the higher authorities. Thereafter the police registered the offence under Sections 498-A and 304-B of the Indian Penal Code against accused persons.
4. After investigation, appellant/accused along with co-accused were charge-sheeted. They abjured their guilty and pleaded false implication.
5. On appraisal of the evidence on record, learned trial Court acquitted, co-accused Halkibai and Raghunandan Sharma, of the charge levelled against them but convicted 3 and sentenced the appellant/accused as mentioned herein above.
6. Learned counsel for the appellant submitted that trial Court has failed to appreciate the evidence on record in its proper perspective.
7. On the other hand, learned counsel for the State justified and supported the impugned judgment and finding of the trial Court.
8. We have perused the impugned judgment, evidence and the other materials on record.
9. Naib Tehsildar Nisar Ahmed Rijvi (PW10) stated that on 11.2.1992 at 3.30 he recorded the dying declaration Ex.P/12 of Abha Sharma, after taking the certificate of her fitness and consciousness. She categorically stated that when she was preparing food, she pumped the burning stove then due to leakage of kerosene oil, suddenly fire erupted and her clothes caught fire. Her husband appellant Arvind, who was sitting nearby, tried to extinguish fire and in this process his hands were also burnt. She further stated that appellant/accused immediately rushed her to hospital. This statement of Nisar Ahmed Rizvi remained unchallenged. His version finds further support by the statement of investigating officer G.S. Rajput (PW13), who categorically stated that on 11.2.92 when he reached to Hamidia Hospital he found that Abha Sharma was admitted in Surgical Ward No.5. On receiving the MLC report, he called the Executive Magistrate N.M. Rizvi for recording the dying declaration of Abha Sharma.
10. Dr. S.K. Nigam (PW6), was the first person who examined Abha Sharma in hospital. He stated that in giving 4 her history, Abha Sharma disclosed to him that she was burnt by flames of stove, during preparation of food. Though this fact did not find place in his MLC report Ex.P/10, yet he has not been declared hostile by the prosecution, therefore, his version is binding on prosecution.
11. Learned counsel for the State contended that appellant Arvind being an employe of traffic police, pressurized Abha Sharma to depose in his favour. Due to pressure or fear she deposed in favour of the appellant/accused. He further contended that in spot map Ex.P/16 there is no mention regarding material which was necessary for preparing food. Therefore Trial Court rightly arrived at a conclusion that surrounding circumstances were not suggestive of the fact that Abha was preparing food at the time of incident.
12. On the contrary, learned counsel for the appellant contended that the finding of the trial Court is mere conjectural, not based on evidence on record.
13. In the light of argument advanced by learned counsel for the parties, we perused the evidence on record. G.S. Rajput (PW13) admitted that he seized the pieces of skin and burnt Sari along with other materials from the scene of occurrence vide seizure memo Ex.P/17. This circumstance is indicative of fact that incident took place there.
14. Dr. V.P. Dubey, (PW5), who performed the autopsy of the body of deceased Abha Sharma admitted that lower part of the body of Abha, below belly, found unburnt, which is indicative of the fact that at the time of incident she was in sitting posture. All these circumstances narrated by independent witnesses are suggestive of fact that incident took place inside the room where deceased was sitting and 5 preparing food.
15. Prosecution examined three witnesses regarding oral dying declaration of deceased Abha Sharma. Madan Mohan Dubey (PW2), father of the deceased, stated that on 12.2.92, his son Rajkumar (PW3) informed him at Hirapur that Abha was burnt. He reached to Bhopal on 14.2.1992 and met Abha in the night. At that time she disclosed that due to non-fulfillment of demand of motor-cycle, appellant Arvind had beaten her and poured kerosene oil on her and set her to fire. He admitted in cross-examination that after the death of Abha when police came to hospital, he informed to police that accused Arvind Sharma burnt his daughter, but police has not recorded his statement.
16. According to Madan Mohan Dubey (PW2), oral dying declaration was made in presence of his son Rajkumar (PW3) and Prem Narayan (PW7). Rajkumar (PW3) though corroborated the fact in his examination-in-chief but this very fact did not find place in his police statement (Ex.D/1). On the contrary, his police statement (Ex.D/1) shows that Abha only disclosed that she herself poured kerosene oil and set fire.
17. Prem Narayan (PW7) stated that on 14.2.92, he was at Hamidia Hospital, at that time, father Madan Mohan Dubey (PW2), mother Geeta Bai, brother Rajkumar (PW3) and husband Arvind Sharma were present. According to him at this point of time Abha disclosed that appellant Arvind poured kerosene oil and set to her fire. Prem Narayan was contradicted with his police statement, in which he stated that he was at hospital on 13.2.1992. This witness is landlord of Rajkumar. According to him, appellant Arvind was also present at the time when Abha Sharma narrated the incident. It seems very unnatural that deceased Abha could 6 have stated the facts in presence of appellant/accused. Secondly, according to police statement (Ex.D/2), Prem Narayan visited the hospital, a day before i.e. on 13.2.92. In these circumstances, reliance cannot be placed on statement of Prem Narayan.
18. According to Madan Mohan Dubey (PW2), Abha was beaten just before she was set on fire. This fact is belied by medical evidence of Dr. S.K. Nigam (PW6), who examined Abha on 11.2.92 and prepared the MLC report Ex.P/10 in which he only found the burn injury on the body of Abha as stated herein above. According to him, Abha stated that she was burnt during preparation of food. It is unnatural that Madan Mohan Dubey (PW2) {father} received the information on 12.2.92 and came to Bhopal only on 14.2.92. It is also unnatural that he had informed the police regarding murderous act of Arvind and police had not recorded his statement. Though, Arvind was an employee of traffic police, but he was not holding such a higher post that by misusing his position, he might pressurize other police officers.
19. With above mentioned quality of evidence of Madan Mohan Dubey (PW2), Rajkumar (PW3) and Prem Narayan (PW7) regarding oral dying declaration, when we compare it with the dying declaration Ex.P/12 recorded by the Executive Magistrate Nisar Ahmed Rizvi (PW10), supported by Dr. S.K. Nigam (PW6), story of dying declaration made by Madan Mohan Dubey (PW2) seems to be an after thought and concocted.
20. In our considered opinion, dying declaration recorded by Naib Tehsildar, Nisar Ahmed Rizvi (PW10) stands on a much higher footing then the dying declaration depending on oral testimony. We find it reliable and trustworthy.
721. Regarding pressure exerted by appellant/accused during dying declaration, in our opinion, Naib Tehsildar Nisar Ahman Rizvi (PW10) is an independent and competent officer as well as Dr. S.K. Nigam (PW6) is also an independent witness therefore, it cannot be said that they were under influence of the appellant/accused. In AIR 1990 SC 1357, Kishan Lal Sethi Vs. Jagan Nath and another, the Hon'ble Apex Court observed that where dying declaration is recorded by competent Magistrate then it cannot be presumed that deceased was under fear or pressure at the time of making statement.
22. We carefully perused the statement of Madan Mohan Dubey (PW2), father of the deceased, Rajkumar (PW3), brother of deceased, and Chandrabhan Dubey (PW11), uncle of the deceased, in regard to demand of dowry and subjecting the deceased to cruelty in connection with the dowry. Admittedly all are related witnesses and they stated only general facts that after marriage when Abha came to the matrimonial house, she narrated about the demand of motor-cycle by appellant and his relatives.
23. According to Madan Mohan Dubey (PW2), Arvind took Abha with him to Bhopal on 25.11.91 with the promise that he would not harass/trouble her but after fifteen days when he visited Bhopal, Abha complained him regarding the demand of motor-cycle and torturing. Rajkumar (PW3) corroborated this fact by stating that his father narrated to him these facts on return from the house of Abha. Chandrabhan Dubey (PW11) stated in his examination -in- chief that after two months of marriage when Abha came to her matrimonial house she complained about the demand of motor-cycle by appellant/accused, but in cross examination he could not explain the exact date and time, when Abha complained him.
824. As discussed herein above that complainant Madan Mohan Dubey and Rajkumar both of them were present in hospital at the time of inquest of dead body. They did not disclose this fact to police and they made a complaint Ex.P/2 only after a lapse of time to Superintendent of Police.
25. In these circumstances, where a general statement regarding demand of motor-cycle and subjecting deceased to cruelty in connection with the dowry by only interested witnesses like father, brother and uncle of the deceased is made then considering the fact that no such allegation was disclosed by deceased in her dying declaration Ex.P/12 recorded by competent Magistrate Nisar Ahmed Rizvi (PW10), we are of the considered opinion that prosecution failed to prove that Abha was subjected to cruelty for or in connection with demand of dowry, soon before her death, which is condition precedent to raise presumption for dowry death.
26. As a result of discussion herein above, we are of the considered opinion that trial Court failed to appreciate the evidence on record in its proper perspective and committed error in recording the conviction against the appellant/accused under Section 304-B of IPC.
27. Thus, the appeal is allowed and conviction and sentence recorded against the appellant/accused is set aside. He is acquitted to the charge under Section 304-B of IPC.
28. Appellant/accused is on bail, his bail bonds stand cancelled.
(Rakesh Saksena) (G.S. Solanki)
JUDGE JUDGE
04/08/2010 04/08/2010
ravi