Madhya Pradesh High Court
Babulal & Anr. vs The State Of Madhya Pradesh on 21 January, 2011
Author: Rakesh Saksena
Bench: T.K. Kaushal, Rakesh Saksena
1
AFR
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
DIVISION BENCH
Criminal Appeal No.326/2006
1. Babulal s/o Gangaram
Ahirwar, aged 24 years.
2. Kallibai, w/o Gangaram
Ahirwar, aged 55 years.
All residents of village
Kanchanpura, Police Station-
Hindoriya, district Damoh (MP).
versus
The State of Madhya Pradesh,
through Police Station Hindoriya,
district Damoh (M.P.).
------------------------------------------------------------------------------------------------
For the Appellants: Shri Ajay Kumar Jain, advocate.
For the Resp./State: Shri Pakash Gupta, Panel Lawyer.
------------------------------------------------------------------------------------------------
*****
------------------------------------------------------------------------------------------------
PRESENT: HONOURABLE SHRI JUSTICE RAKESH SAKSENA
HONOURABLE SHRI JUSTICE T.K. KAUSHAL
------------------------------------------------------------------------------------------------
Date of hearing: 11/01/2011
Date of Judgment: 21/01/2011
JUDGMENT
Per: Rakesh Saksena, J Appellants have filed this appeal against the judgment dated 20.1.2006, passed by Second Additional Sessions Judge, Damoh, in Sessions Trial No.1/2001, convicting them under Sections 302 and 304-B of the Indian Penal Code and sentencing them to imprisonment for life with fine of Rs.1000/- and rigorous imprisonment for 10 years with fine of Rs.500/- on each count respectively with default stipulation.
2
2. The prosecution case in nutshell is that Jyotibai, the deceased, was the wife of appellant Babulal and daughter-in-law of appellant Kallibai. About one and half years before the date of incident, which occurred on 1.10.2000, deceased was married to Babulal. Though no dowry was settled at the time of marriage, but the parents of deceased had given dowry in the marriage according to their capacity. After marriage, second time, when deceased came back to her parents' house, she informed that her husband, mother-in-law, father-in-law and Jethani used to demand Rs.10,000/- in dowry. They also used to pass comments on her for not bringing sufficient dowry. On later occasions also deceased told to her family members that for not giving Rs.10,000/- in dowry, appellants, Gangaram and Anita used to manhandle her. For about two months, deceased stayed at her parents house. When her uncle died, her father-in-law came there and asked her to go back with him. Despite opposition of her family members, he took her with him. On 13 th day ceremony also she was not sent to her parents' house and instead her husband Babulal attended the ceremony. After about two days, Nanna (PW-2), the father of deceased, received information that deceased got burnt and was admitted in Government Hospital, Damoh. Family members of deceased viz. Harishanker, Laxmirani, Parwatibai, Pujarani, Leeladhar and Janki Prasad went to see her at hospital. It is said that in the hospital deceased disclosed to them that in the morning at about 5.00 a.m. when she was in the courtyard, her mother-in-law poured kerosene on her and her husband set fire to her. Though Jethani Anitarani and father-in-law Gangaram were also present there, but they did not make any attempt to rescue her. On her crying, people of the neighbourhood reached there, extinguished fire and carried her to Damoh Hospital. In the hospital, Additional Tahsildar/Executive Magistrate recorded 3 the dying declaration (Ex.P/8) of the deceased. She was then referred to Jabalpur Hospital where on 8.10.2000 she breathed her last. Murg intimation report was recorded at Jabalpur and was transferred to Damoh. After Murg enquiry, police registered first information report (Ex.P/9) under Section 304-B of the Indian Penal Code. After investigation, charge sheet was filed under Section 304-B of the Indian Penal Code.
3. After committal, though trial court framed charges under Section 304-B of the Indian Penal Code against all the four accused persons, but, in addition to it charged appellants under Section 302 of the Indian Penal Code also.
4. Appellants abjured their guilt and pleaded false implication. According to them, deceased did not want to live with her husband, therefore, she used to elope from the house. Since her parents compelled her to live at her nuptial home, she committed suicide. In the trial, it was also suggested that deceased caught fire accidentally by a stove.
5. Learned Additional Sessions Judge, after trial and upon appreciation of the evidence adduced in the case, though acquitted the other two accused persons, however, found the appellants guilty of intentionally causing death of Jyotibai by pouring kerosene and setting her ablaze and convicted and sentenced them under Section 302 of the Indian Penal Code and at the same time found appellants guilty of the offence under Section 304-B of the Indian Penal Code also by the impugned judgment, which has been challenged in this appeal.
6. We have heard the learned counsel for the parties.
7. It was no longer disputed that deceased Jyotibai died of burn injuries. It was also reflected from the evidence of Dr. S.Nikhar (PW-16), who examined the injuries of the deceased and also by the evidence of Dr. A.K. Yadu 4 (PW-20), who conducted the postmortem examination of her body after death on 8.10.2000. According to Dr. S.Nikhar (PW-16), on 1.10.2000, when he was posted in District Hospital, Damoh, Jyotibai was brought to hospital in burnt condition by her husband Babulal. Smell of kerosene was emanating from her body. There were blisters over her body. She was conscious and was giving answers to the question put to her. He admitted her and wrote for getting her dying declaration recorded. According to him, she had 100% burn injuries. She was sent in the female surgical ward. He proved his Medico Legal Report (Ex.P/10). Dr. A.K. Yadu (PW-20) deposed that on 8.10.2000 when he was posted as CMO in Medical College, Jabalpur, the dead body of deceased was brought by constable Rajesh Mishra for postmortem examination. The body was identified by Nanna, the father, and Kallibai, mother-in-law of the deceased. The body of deceased was covered by bandages. There were 3rd and 4th degree ante mortem featured flame burn injuries on sides of her lower part of face, neck, abdomen, chest, external genitalia, thighs, legs, dorsum of feet, upper extremities, back and hips. Deceased died due to toxaemia from burn injuries. He proved the postmortem report (Ex.P/14), which was written and signed by him and Dr. Smt. K.B.Mishra. It was thus clearly evident that the deceased Jyotibai died of burn injuries.
8. Learned counsel for the appellants, however, submitted that the trial court gravely erred in placing implicit reliance on the dying declaration (Ex.P/8) of the deceased recorded by the Executive Magistrate Ashok Shukla (PW-13) and the evidence of other witnesses especially Parvatibai (PW-5) and Harishanker (PW-12) about the oral dying declaration allegedly given by the deceased to them. According to learned counsel, the dying declarations were inconsistent and doubtful. Appellants were falsely implicated. Learned counsel 5 for the State, on the other hand, justified and supported the conviction of the appellants.
9. We have gone through the entire evidence on record.
10. The dying declaration (Ex.P/8) of the deceased was recorded by Additional Tahsildar/Executive Magistrate Ashok Kumar Shukla (PW-13). He stated that on 1.10.2000 he was posted as Additional Tahsildar and Executive Magistrate in Damoh. He recorded the dying declaration of Jyotibai at 12.40 p.m., who was admitted in District Hospital, Damoh. The doctor, who was posted in the hospital, examined the deceased and found her fit to give the statement. Thereafter, he recorded her statement. At 1.00 p.m., after completion of recording, the doctor again examined Jyotibai. He certified that she was fully conscious and responded to all the questions put to her. He deposed that he recorded the dying declaration in question and answer form. He recorded the statement as was given by Jyotibai. He also obtained the thumb impression of Jyotibai and put his signature on Ex.P/8.
11. Dr. S.Nikhar (PW-16) also corroborated the fact of recording of dying declaration of the deceased before him. He deposed that the dying declaration was recorded by Additional Tahsildar, Damoh, at 12.40 p.m.. He had certified that the patient was fit for making dying declaration. Similar endorsements were also made by him at the end of the dying declaration (Ex.P/8).
12. Learned counsel for the appellants urged that since deceased was found to suffer hundred percent burn injuries, it was not possible for her to have made the dying declaration. Apart from it, the dying declaration was recorded on 1.10.2000, but no evidence was produced by the prosecution to show as to where it was kept until 24.10.2000 when the FIR (Ex.P/9) was recorded. Apart from it, learned counsel submitted that Executive Magistrate Ashok Kumar 6 Shukla (PW-13) did not reproduce the contents of the dying declaration before the Court and merely proved the document (Ex.P/8). Therefore, the dying declaration could not be held to be proved according to law.
13. After bestowing our anxious consideration to the submissions made by learned counsel for the appellants and having gone through the record, we find that there is nothing on record to indicate that Dr. S.Nikhar (PW-16), who made certification and endorsements on the dying declaration (Ex.P/8) to the effect that deceased was fit to give statement and Executive Magistrate Ashok Kumar Shukla (PW-13), who recorded the dying declaration (Ex.P/8) of the deceased had any animus or ill will against the appellants. There appear no reasons to suspect that these government officials would fabricate or manipulate the dying declaration (Ex.P/8) with false certification so as to falsely implicate the appellants. Mere fact that the condition of the deceased was found to be serious and critical by the doctors at the time of her admission in the hospital cannot lead to an assumption in absence of any such evidence that the deceased was not able to speak or give statement, particularly when Dr. S.Nikhar (PW-16) himself testified that he had examined her before recording her statement and found her fit to give statement. Apart from it, Dr. A.K. Yadu (PW-20), who conducted the postmortem of the body of deceased on 8.10.2000, categorically stated that a hundred percent burnt person can also speak and it will not effect his mental status. Even if the deceased remained alive for 4 days, she could be in the mental condition of thinking and speaking. It is also significant to note that in the instant case deceased suffered burn injuries on 1.10.2000 and died on 8.10.2000. She thus remained alive for about seven days. The Apex Court in case of State of Haryana vs. Harpal Singh and others-AIR 1978 SC 1530 held that even when the 7 pulse was not palpable and blood pressure was unrecordable, dying declaration could be recorded.
14. The Constitutional Bench of the Apex Court in case of Laxman vs. State of Maharashtra-AIR 2002 SC 2973 overruling its earlier decision rendered in the case of Paparam Baka Rosamma & Ors vs. State of AP- (1999) 7 SCC 695 held that if the person recording the dying declaration is satisfied that the deceased is in a fit state of mind, dying declaration can be acted upon even without examination of the doctor. In the instant case, Dr.S.Nikhar (PW-16) has categorically deposed that deceased was in fit state of mind to make a dying declaration.
15. We are unable to accept the arguments advanced by the learned counsel for the appellants that in the absence of oral reproduction of the dying declaration by the Executive Magistrate before the court, the dying declaration cannot be held proved. The dying declaration made by deceased is admissible under Section 32 of the Evidence Act. Section 32 provides as under:
"32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.- Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:-
(1) when it relates to cause of death.-When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes int question. ............"
The dying declaration even recorded by police officer can be proved before the Court. It is not expected of a Magistrate, doctor or any other person to have remembered the statement given by the deceased to him. Therefore, if such statement has been put into writing, proof of the document of dying declaration before the Court in accordance with law would be sufficient to 8 make it admissible under law. By no stretch of imagination it can be held that the document of recorded dying declaration would not be treated as evidence under law. In Section 3 of the Evidence Act, the word "Evidence" has been interpreted as under:
" "Evidence".- "Evidence" means and includes-
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, Such statements are called oral evidence;
(2) [all documents including electronic records produced for the inspection of the Court], such documents are called documentary evidence."
Apart from it, the contents of a document can be proved by the production and proof of the said document before the Court. It is relevant to refer to the provisions of Sections 59, 61 and 62 of the Evidence Act. It will be apposite to quote the aforesaid provisions:
"59. Proof of facts by oral evidence.-All facts, except the [contents of documents or electronic records], may be proved by oral evidence.
61. Proof of contents of documents.- The contents of documents may be proved either by primary or by secondary evidence. ...........
62. Primary evidence-Primary evidence means the document itself produced for the inspection of the Court. ............"
In view of the above, we hold that the document of dying declaration (Ex.P/8) proved by Executive Magistrate Ashok Kumar Shukla (PW-13) was admissible in evidence.
16. It is true that despite the fact that the dying declaration (Ex.P/8) was recorded by the Executive Magistrate, yet the offence was not registered and the said document was not obtained by the police until the Murg enquiry was 9 initiated by police Damoh. The death of deceased occurred in the Victoria Hospital, Jabalpur, on 8.10.2000. On receiving the intimation about the death of deceased, ASI of Police Station, Omti, Jabalpur, registered the Murg as 0/2000 and sent the body for postmortem examination to Medical College, Jabalpur. M.R. Ahire, SDO (P), Jabalpur, conducted the inquest proceedings in Victoria Hospital on 8.10.2000. On receiving the Murg intimation and the inquest proceedings on 24.10.2000, Murg No.51/2000 under Section 174 of the Code of Criminal Procedure was registered by Police Station, Indoria, district Damoh, vide Ex.P/9. Murg No.51/2000 (Ex.P/9) was proved by Station Officer R.S. Parmar (PW-15). According to R.S. Parmar, Murg enquiry was conducted by Additional Supdt. of Police, Damoh, Sudhir Lad (PW-18) and after recording statements of witnesses, Crime No.257/2000 was registered on 25.11.2000. From the evidence of Harishanker (PW-12), brother of deceased, it appears that he went to inform the police about the occurrence at Damoh, but his report was not recorded. It can be presumed that he being the brother of deceased would have got involved in the treatment of deceased. He deposed that though he lodged the report at police station after cremation of deceased, but for 2-3 months no action was taken and thereafter he approached to Collector. Thereafter his statements were recorded. In view of the aforesaid circumstances, it appears to us that conduct of the police in investigating the case remained indifferent. Though the Executive Magistrate was requisitioned for recording the dying declaration on the date of occurrence itself, but police did not take care to act upon the dying declaration.
17. After appreciating all the above circumstances, we are of the view that the dying declaration (Ex.P/8) recorded by the Executive Magistrate Ashok Kumar Shukla (PW-13) was a genuine document. Ashok Kumar Shukla had 10 recorded the said dying declaration correctly as was made by the deceased.
18. The next submission of the learned counsel for the appellants was that the account of incident given by deceased in the dying declaration (Ex.P/8) was not truthful. From the other evidence on record, it was doubtful that she was set on fire by appellants.
19. Nanna (PW-2), the father of deceased, stated that when he went to hospital, deceased told to him that she caught fire by stove and nobody set fire to her. This witness was declared hostile. Hari Shanker (PW-12), the brother of deceased, though deposed that when he asked the deceased in the hospital, she told to him that her mother-in-law poured kerosene on her and her husband set fire to her, but when he was confronted with his police statement (Ex.D/4), this fact was found missing. Apart from it, he was further confronted with A to A part of Ex.D/4 wherein he disclosed that on his asking his sister told to him that in the morning at about 5.00 a.m. when she was preparing tea, she caught fire. Another brother of deceased Janki Prasad (PW-3), though in chief examination stated that appellants set fire to deceased, yet in the cross-examination he admitted that a few days back his sister had run away from the house of appellants and stayed at the house of Munna Kachi, but Munna Kachi sent her back. Because of this incident, a Panchayat was convened. Accused persons had told that they would not keep the deceased, but the Panchas made deceased to understand that she should live in her nuptial home properly. If she repeated such act, it would result in breaking of marriage. She was then taken by the accused persons. After about 15-20 days, uncle of deceased died, but accused persons did not permit deceased to attend 13th day ceremony and on the same evening deceased set herself on fire. Leeladhar (PW-4), yet another brother of deceased, though stated that 11 appellants set fire to deceased, but this fact was found omission in his police statement (Ex.D/1). Similar was the position with Parvatibai (PW-5). She was also confronted with her police statement (Ex. D/2).
20. Learned counsel for the appellants drew our attention to the evidence of Munna (PW-11), a neighbour of appellants, who disclosed that deceased caught fire accidentally. Munna (PW-11) was cited as a witness of spot map (Ex.P/7). However, in the cross-examination he deposed that his house was situated in front of the house of accused persons. At the time of incident, when he was milking his cow, he saw deceased igniting stove. Suddenly flames erupted from the stove and the deceased caught fire. Hearing her shrieks, accused persons and other people from the neighbourhood reached at the spot. This witness was not declared hostile. Counsel submitted that his evidence had to be treated as part of the prosecution case. His presence was established by the spot map (Ex.P/7) wherein it was mentioned that he and other village people saw the deceased burning.
21. Learned counsel for the appellants further submitted that the dying declaration (Ex.P/8) was not truthful because it was inconsistent with the evidence of Dr. S.Nikhar (PW-16) on the point as to who carried the deceased to hospital. In dying declaration (Ex.P/8) deceased stated that no one of her house saved her and outside people brought her to hospital, whereas Dr. S.Nikhar (PW-16) categorically stated that deceased was brought to hospital by her husband Babulal. This fact was corroborated by the MLC report (Ex.P/10) wherein Dr. Nikhar recorded the above fact.
22. It is significant to note that after the deceased suffered burn injuries, she was taken to hospital by her husband. It has also come in the evidence of Dr. A.K. Yadu (PW-20), who conducted autopsy, that on 8.10.2000 when the 12 dead body of deceased was brought to Medical College, Jabalpur, it was identified by Kallibai, mother-in-law of the deceased. Thus, the presence of appellants, who are husband and mother-in-law of the deceased, during the treatment of deceased, is established. This gives some indications about the culpability of the appellants with respect to accusation of commission of murder by them. Had they set fire to deceased, naturally they would not have remained present with the deceased throughout.
23. After scanning and critically scrutinizing the evidence of dying declaration (Ex.P/8) recorded by the Executive Magistrate Ashok Kumar Shukla (PW-13), we find that although it was a truly recorded document, yet we feel not fully satisfied about the truthfulness of the account of incident given by deceased in the said dying declaration. The Apex Court in the case of P.V.Radhakrishna vs. State of Karnataka-AIR 2003 SC 2859 held that though a 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 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. Once the court is satisfied that the declaration was true and voluntary, undoubtedly it can base its conviction without any further corroboration. In Samadhan Dhudaka Koli vs. State of Maharashtra-(2008) 16 SCC 705 the Apex Court held that judgment of conviction can be recorded on the basis of the dying declaration alone, but the court must have satisfied that the same was true and voluntary. Indisputably for ascertaining the truth as regards the voluntariness of making such a dying declaration, the court is entitled to look into the other circumstances, but the converse may not be true. Since the 13 evidence of dying declaration recorded in Ex.P/8 does not appear consistent with the version given by the evidence of Hari Shanker (PW-12), Parvatibai (PW-5) and Nanne (PW-2), who happened to be the family members of the deceased, we feel compelled to not to place implicit reliance on the dying declaration. In our opinion, the conviction of the appellants under Section 302 of the Indian Penal Code deserves to be set aside.
24. As far as the offence under Section 304-B of the Indian Penal Code is concerned, from the evidence of Janki Prasad (PW-3), Leeladhar (PW-4), Parvatibai (PW-5) and Hari Shanker (PW-12), it is established that the deceased was married to appellant Babulal about 2-3 years before her death. It is undisputed that deceased died of burn injuries in her nuptial home. Leeladhar (PW-4), the brother of deceased, Parvatibai (PW-5) and Laxmi (PW-10), Bhabhi of deceased, categorically stated that accused persons demanded Rs.10,000/- from them in dowry. Accused persons intimidated that if the said amount of Rs.10,000/- was not given, they would have to face consequences. Parvatibai deposed that Jyoti used to tell her that whatever her father could give, he gave to accused persons, still they demanded Rs.10,000/-. Appellant Babulal told that if Rs.10,000/- were not paid, they would not keep her. Laxmi (PW-10) also deposed about the demand of Rs.10,000/- by the accused persons from Jyoti. We find no reason to disbelieve the evidence of aforesaid witnesses. Thus, it has been clearly established that appellants subjected deceased to cruelty and harassment in connection with demand of dowry. In view of the above evidence, a presumption under Section 113B of the Evidence Act can also be raised. Since it has been established that the appellants subjected deceased to cruelty and harassment in connection with demand of dowry, it can be presumed that they caused the 14 dowry death of deceased.
25. In view of the foregoing discussion, we are of the considered opinion that the trial court was not justified in holding the appellants guilty and convicting them under Section 302 of the Indian Penal Code for intentionally causing death of Jyotibai. Accordingly, the conviction of appellants under Section 302 of the Indian Penal Code is set aside and they are acquitted of that charge. However, their conviction and sentence, as awarded by the trial court under Section 304-B of the Indian Penal Code, is affirmed. Appellants are said to have been in custody for about ten years. If that be so, they be released forthwith, if not required in any other case.
26. Appeal partly allowed.
(RAKESH SAKSENA) (T.K. KAUSHAL)
JUDGE JUDGE
Shukla
15
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
DIVISION BENCH
Criminal Appeal No.326/2006
Babulal and another
versus
The State of Madhya Pradesh
JUDGMENT
For consideration
(Rakesh Saksena)
JUDGE
__/01/2011
Hon'ble Shri Justice T.K. Kaushal
JUDGE
__/01/2011
POST FOR /01/2011
(Rakesh Saksena)
Judge
___/01/2011