Madhya Pradesh High Court
Girja Shankar vs The State Of Madhya Pradesh on 22 March, 2018
Author: Nandita Dubey
Bench: Nandita Dubey
Cr.A. No. 684/2008.
1
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT
AT JABALPUR
(Division Bench: Hon'ble Shri Justice S.K. Gangele &
Hon'ble Smt. Justice Nandita Dubey)
Criminal Appeal No. 684/2008.
Girja Shankar
Versus
The State of Madhya Pradesh.
Shri Ramesh Tamrakar, learned counsel for the appellant.
Shri Vijay Soni, learned Government Advocate for the
respondent-State.
Whether approved for reporting:
Law laid down:
Significant paragraphs:
JUDGMENT
(22/03/2018) Per S.K. Gangele J Appellant has filed this appeal against the judgment dated 27/02/2008 passed in Sessions Trial No. 283/2007.
2. Prosecution story in brief is that on 11/07/2007 at around 10.45 in the night, deceased was in her house alone, appellant entered in the house after breaking doors. He caught hold her hand and when the deceased resisted, appellant poured kerosene and ablaze her. After hearing cry neighbours of the deceased came there and report of the incident was Cr.A. No. 684/2008.
2lodged at the Police Station. Deceased was admitted in Civil Hospital, Beena. She was died after seven days of the incident i.e. on 18/07/2007 due to septicemia and other complications developed due to burn injuries. Police conducted investigation and filed charge-sheet. Appellant abjured his guilt and pleaded innocence. The trial court after trial held the appellant guilty for commission of offence punishable under Sections 450, 354 and 302 of IPC and awarded sentence of five years, one year and life with fine of Rs. 500/- (two counts).
3. Learned counsel for the appellant has submitted that conviction of appellant is based on sole dying declaration of the deceased, however, evidence is not sufficient to hold appellant guilty for commission of offence of murder beyond reasonable doubt. In alternate learned counsel for the appellant has submitted that deceased was died after seven days of the incident due to septicemia as per evidence of doctor who performed postmortem, hence, offence committed by the appellant would fall under Section 304 Part I of IPC.
4. Learned counsel for the State has submitted that appellant had entered in the house of the deceased in the night. He tried to outrage her modesty and thereafter ablaze her, hence, the trial court has rightly convicted the appellant for commission of offence of murder and other offences and awarded proper sentence.
Cr.A. No. 684/2008.
3
5. Conviction of appellant is based on dying declaration of the deceased and PW/3.
6. PW/1 Savitri Bai deposed that when I reached at house of the deceased, the deceased was unconscious. All other persons had taken the deceased to the police station. I signed spot map Ex. P/1. PW/2 Jeetu @ Jitendra turned hostile. He deposed that I noticed that the deceased received burn injuries thereafter I came back to my house.
7. PW/3 Sabbobai, is the aunt of the deceased. She deposed that at around 12 O'clock, appellant had broken the doors and he had ablaze the deceased. Deceased had told me that appellant had ablaze her. Neighbours had taken the deceased to the Police Station and thereafter to Hospital. PW/4 is the son of the deceased, turned hostile. He deposed that when I reached at the hospital I noticed that my mother was unconscious. She was not able to speak. PW/5 is the witness of seizure Ex. P/5. PW/6 also turned hostile. PW/8 is the witness of seizure Ex. P/9.
8. PW/9 Dr. Balveer Kaithoriya, deposed that on 12/07/2007 I was posted as Medical Officer at P.H.C. Mandibamora. I examined the deceased and noticed that there were burn injuries caused by kerosene oil on the person of the deceased. I submitted report.
9. PW/14 Dr. A.L. Parihar, is another doctor. He deposed Cr.A. No. 684/2008.
4that on 12/07/2007 I was posted as Assistant Surgeon at Civil Hospital Beena and I had examined the deceased on the aforesaid date and noticed that there were 80% burn injuries which were caused by kerosene oil. PW/15 is the Investigating Officer who conducted investigation.
10. Dying declaration of the deceased is Ex. P/14. It was recorded by Tehsildar PW/10 Avinash Rawat. He deposed that on 12/07/2007 I was posted as Tehsildar at Beena. On the aforesaid date I recorded dying declaration of the deceased at 3.45 in the night. Deceased in her dying declaration stated that appellant Girja Shankar had poured kerosene on her. She further deposed that appellant had come after breaking door of my house and forcibly sprayed kerosene oil on me and ablaze me. It is further stated by the witness that doctor had given certificate that deceased was in fit mental condition to give dying declaration. Condition of the deceased was proper to give dying declaration.
11. Dying declaration of the deceased is Ex. P/14 which reads as under:-
^^iz'u@& rqEgs D;k gks x;k gS\ mRrj&fxjtk'kadj us rsy Mky nvks feV~Vh dks Åij lsA iz'u2& mlus dc] dSls rqEgkjs Åij rsy Mkyk] iwjh ?kVuk crkvks\ mRrj& jkr 11 cts dh ckr gS ge ?kjs grs yM+dk Hkksiky esa gS fodykax gS] ifr xkao esa grsA rHkh fxjtk'kadj vk;k Åus fdokM+ HkM+HkM+k;s tcju [kksy fy;sA geus jksdhA ges xkyh nbZA fQj gekjs Åij ls feV~Vh dk rsy Mky nvks vkSj vkxh yxk nbZA ge fpYykr j;sA fQj irk ugha ;gka vk x;sA iz'u3& mlls rqEgkjh dksbZ yM+kbZ Fkh\ D;ksa tyk;k mlus rqEgs\ mRrj& ge vius yM+dk ds ikl Hkksiky x;s Fks mldk Qksu ogka vkvks Cr.A. No. 684/2008.5
Fkks mlus ges cqykvks okfilA 2&3 lky ls tcjnLrh laca/k dj jvks rksA vkt ge yksVks rks tcju /kql vkvksA ijs'kku djr grksA iz'u4& vkSj dqN dguk gS\ mRrj& ughaA^^
12. PW/17 Dr. Deepak Tiwari who performed autopsy of the deceased on 18/01/2017. He deposed that cause of death of the deceased was shock which was caused due to septicemia and infection of burn injuries suffered by the deceased. I submitted report which is Ex. P/15.
13. There is dying declaration of the deceased recorded by Executive Magistrate. Executive Magistrate specifically deposed that deceased was in fit mental condition to give dying declaration. PW/3 deposed that she reached on the spot soon before the incident. The deceased told her that present appellant poured kerosene on her and ablaze her.
14. It is well settled principle of law that a dying declaration is admissible in evidence and conviction can be based on dying declaration if it inspires confidence of the Court. The Apex Court in the case of Pawan Kumar vs State of Himachal Pradesh, (2017) 7 SCC 780 has held as under in regard to admissibility of dying declaration:
27. In Atbir v. Government of NCT of Delhi (2010) 9 SCC 1, the Court, after noting earlier judgments, has laid the following guidelines with regard to admissibility of the dying declaration:-
"22. The analysis of the above decisions clearly shows that:
(i) Dying declaration can be the sole basis of conviction if it Cr.A. No. 684/2008.6
inspires the full confidence of the court.
(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.
(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.
(iv) 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.
(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be discarded.
(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false Cr.A. No. 684/2008.
7statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration."
28. Recently, in Gulzari Lal (supra), the Court confirmed the conviction by placing reliance on the statement made by the deceased and recorded by the Head Constable on the basis of the principles stated in Laxman (supra). The analysis in the said case is as follows:-
"23. In reference to the position of law laid down by this Court, we find no reason to question the reliability of the dying declaration of the deceased for the reason that at the time of recording his statement by the Head Constable Manphool Singh (PW 7), he was found to be mentally fit to give his statement regarding the occurrence. Further, evidence of Head Constable Manphhol Singh (PW 7) was shown to be trustworthy and has been accepted by the courts below. The view taken by the High Court does not suffer from any infirmity and the same is in order.
24. The conviction by the High Court was based not only on the statements made by Maha Singh (deceased) but also on the unshattered testimony of the eyewitness Dariya Singh (PW 1) and the statement of the independent witness Rajinder Singh (PW 11)."
29. Tested on the anvil of the aforesaid authorities, we find that there is no reason to disregard the dying declaration. The Head Constable has recorded it as narrated by the deceased and the deceased has also written few words about the accused. The same has been recorded in presence of the doctor, Cr.A. No. 684/2008.
8PW-10, who had appended his signature. A certificate of fitness is not the requirement of law. The trial court has been swayed away by the burn injuries. It is worthy to note that there cannot be an absolute rule that a person who has suffered 80% burn injuries cannot give a dying declaration. In Vijay Pal v. State (Government of NCT of Delhi (2015) 4 SCC 749), the Court repelled the submission with regard to dying declaration made by the deceased who had sustained 100% burn injuries stating that:-
"22. Thus, the law is quite clear that if the dying declaration is absolutely credible and nothing is brought on record that the deceased was in such a condition, he or she could not have made a dying declaration to a witness, there is no justification to discard the same. In the instant case, PW 1 had immediately rushed to the house of the deceased and she had told him that her husband had poured kerosene on her. The plea taken by the appellant that he has been falsely implicated because his money was deposited with the in-laws and they were not inclined to return, does not also really breathe the truth, for there is even no suggestion to that effect.
23. It is contended by the learned counsel for the appellant that when the deceased sustained 100% burn injuries, she could not have made any statement to her brother. In this regard, we may profitably refer to the decision in Mafabhai Nagarbhai Raval v. State of Gujarat, (1992) 4 SCC 69 wherein it has been held that a person suffering 99% burn injuries could be deemed capable enough for the purpose of making a dying declaration.
The Court in the said case opined that unless there existed some inherent and apparent defect, the trial court should not have substituted its opinion for that of the doctor. In the light of the facts of the Cr.A. No. 684/2008.
9case, the dying declaration was found to be worthy of reliance."
In view of the principle of law laid down by the Hon'ble Apex Court, dying declaration of the deceased and evidence of PW/3, in our opinion, the trial court has rightly held that the appellant had killed the deceased.
15. The incident had taken place in the night at around 10.30 O'clock on 11.07.2007. The deceased was died on 18.07.2007 i.e. after a period of seven days from the incident. The doctor PW-17, who performed postmortem of the deceased, deposed that the deceased was died due to complexity of burn injuries. The deceased received 80% burn injuries at initial stage as deposed by the doctor PW/14 who examined the deceased immediately after the incident.
16. The Apex Court in the case of Maniben vs State of Gujarat, (2009) 8 SCC 796 has held that the offence committed by the accused would fall under Section 304 part II if deceased died after 8 days after the incident of burning on account of septicemia, it reads as under:
"20. There is also evidence on record to prove and establish that the action of the appellant to throw the burning tonsil was preceded by a quarrel between the deceased and the appellant. From the aforesaid evidence on record it cannot be said that the appellant had the intention that such action on her part would cause the death or such bodily injury to the deceased, which was sufficient in the ordinary course of nature Cr.A. No. 684/2008.10
to cause the death of the deceased. Therefore, in our considered opinion, the case cannot be said to be covered under clause (4) of Section 300 IPC. We are, however, of the considered opinion that the case of the appellant is covered under Section 304 part II IPC."
A Division Bench of this Court in the case of Ganesh Ram vs State of Madhya Pradesh, 2010 (2) M.P.H.T. 350 has held as under:
"Due to some minor quarrel in between the husband and wife with regard to preparation of tea, the appellant/accused without any intention poured kerosene on the wife deceased Pinki and thereafter set her on fire, due to which, she sustained 50 to 55 percent burn injuries and died near about 5 days after the incident due to complication of the burn injuries and in such circumstances, the appellant/accused can be convicted for the offence punishable under Section 304 Part I of IPC and not under Section 302."
17. In the present case, the deceased stated in her dying declaration that she had relationship with the appellant from 2 to 3 years. Looking to the aforesaid circumstances and evidence on record, in our opinion, the offence committed by the appellant would fall under Section 304 Part I of IPC in place of Section 302 of IPC. There is evidence that the appellant had caught hold hands of the deceased and he entered into the house of the deceased in the night after breaking doors, hence Cr.A. No. 684/2008.
11in our opinion, the trial court has rightly held the appellant guilty for commission of offence punishable under Section 450 and 354 of IPC.
18. Consequently, the appeal filed by the appellant is partly allowed. His conviction and sentence awarded by the trial court for commission of offence punishable under Section 302 of IPC is hereby set-aside. Appellant is convicted for commission of offence punishable under Section 304 Part-I of IPC and he is awarded sentence of ten years with fine of Rs. 500/-. Rest of the sentence and conviction awarded by the trial court are hereby upheld. All the sentences run concurrently because the appellant is in jail since 13/08/2007. He has completed more than 11 years of actual jail sentence including remission, which may be more than 14 years, hence the appellant be released forthwith if he is not required in any other case.
(S.K. GANGELE) (SMT. NANDITA DUBEY)
JUDGE JUDGE
Digitally signed by ARVIND KUMAR MISHRA
Date: 2018.03.26 15:36:08 +05'30' MISHRA