Madhya Pradesh High Court
Khilan Singh vs State Of M.P. on 25 April, 2017
Bench: N.K. Gupta, S.K. Awasthi
1 Criminal Appeal No.419/1999
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH:
HON'BLE SHRI JUSTICE N.K. GUPTA
&
HON'BLE SHRI JUSTICE S.K. AWASTHI
CRIMINAL APPEAL NO. 419 of 1999
Khilan Singh
Vs.
State of Madhya Pradesh
For the appellant : Shri Madhukar Kulshreshtha,
Advocate
For respondent/State : Shri J.M. Sahnni, Panel
Lawyer
JUDGMENT
(25/04/2017) Per Justice N.K. Gupta:
The appellant has preferred the present appeal being aggrieved by the judgment dated 13.08.1999 passed by the Additional Sessions Judge, Ganjbasoda, District Vidisha (M.P.) in S.T. No.24/1999 whereby the appellant has been convicted of offence under Section 302 of IPC and sentenced to life imprisonment. (2) The prosecution's case, in short, is that on 19.12.1998 at about 09:00 pm, the deceased Kiran Bai wife of witness Tulsiram (PW-4) had been brought at Civil Hospital, Ganjbasoda in 95% to 97% burnt condition. Dr. R.K. Jain (PW-7) admitted her in the
2 Criminal Appeal No.419/1999 hospital and gave an intimation Ex.P-11 to the SHO, police station Ganjbasoda. The SHO Ganjbasoda arranged for recording of dying declaration of the deceased Kiran Bai. The Additional Tahsildar Leeladhar Sahu (PW-2) recorded the dying declaration Ex.P-3. Also, the case diary statement Ex.P-14 of the deceased Kiran Bai was recorded. Thereafter, the deceased Kiran Bai succumbed to the injuries and her body was sent for post mortem. Dr. (Smt.) Arnit Arora (PW-9) performed the post mortem on the body of the deceased Kiran Bai and gave a report Ex.P-8A. She found 95 to 97% burn injuries to the deceased and she died due to such injuries. According to Dr. (Smt.) Arnit Arora, death of the deceased was caused due to burn injuries. (3) ASI Mr. S.G. Dubey (PW-6) prepared the spot map Ex.P-2. He took burnt clothes, plain soil and kerosene mixed soil from the spot and a recovery memo Ex.P-1 was prepared. He also arrested the appellant Khilan Singh and a memo Ex.P-10 was prepared. The SHO Devendra Singh Yadav (PW-8), thereafter, registered a case by FIR Ex.P-12 and counter of that FIR Ex.P-13 was sent to the concerned Magistrate. He examined various witnesses and various articles received from the hospital and recovered from the spot were sent for their forensic science analysis with a letter Ex.P-15. However, no report from the forensic science laboratory could be filed during the pendency of the trial. After due investigation, the charge-sheet was filed before the Judicial Magistrate First Class, Ganjbasoda who committed the case to the Court of Session, Vidisha and thereafter it was transferred to Additional Sessions Judge, Ganjbasoda, District Vidisha (M.P.).
3 Criminal Appeal No.419/1999 (4) The appellant abjured his guilt. He took a plea that two days prior to the incident, he had lodged a report against the deceased Kiran Bai and therefore she was annoyed. She caused burn injuries on her own and thereafter the appellant was falsely implicated in the matter. Witness Sander Singh (DW-1) was sitting out of the house who had seen the incident and it was a case of suicide. In defence, Sander Singh (DW-1) and constable Yadvendra Prasad Dubey (DW-2) were examined to prove the report Ex.D-1.
(5) The trial court after considering the evidence adduced by the parties convicted and sentenced the appellant as mentioned above.
(6) We have heard the learned counsel for the parties at length.
(7) In the present case, the evidence of Dr.(Smt.) Arnit Arora (PW-9) is important who performed the post mortem on the body of the deceased and gave a report Ex.8A. According to her, various burn injuries were found on the body of the deceased and she was burnt at various places of her body. She died due to burn injuries and the consequential complications. She did not give any opinion as to whether the death of the deceased was homicidal in nature or not because it was to be decided on the basis of circumstantial evidence led by the prosecution. However, it is proved by Dr. Arnit Arora (PW-9) that the deceased died due to burn injuries. (8) In this connection, the evidence given by Dr. R.K. Jain (PW-7) is also important. Though Dr. R.K. Jain (PW-
7) was mainly examined to prove the dying declaration recorded by Additional Tahsildar Leeladhar Sahu (PW-2) but he has stated that on 19.12.1998, the deceased 4 Criminal Appeal No.419/1999 Kiran Bai was brought in a burnt condition and she was admitted in the hospital by him. He has stated that she was burnt 95% to 97%. He gave an intimation to the Police vide letter Ex.P-11. Looking to the statement given by Dr. R.K. Jain (PW-7), it would be apparent that the deceased Kiran Bai was brought to the hospital in a burnt condition. The prosecution has examined Vinita (PW-3) and Tulsiram (PW-4) daughter and husband of the deceased Kiran Bai, respectively as eyewitnesses who have stated about the cause of quarrel and the overt act of the appellant. These witnesses have stated before the police that the deceased Kiran Bai told her daughter Vinita (PW-3) to put some Hirmachi (a kind of green grass) to cattle and thereafter the appellant blamed that as to why his Hirmachi was given to the cattle of deceased Kiran Bai by Vinita and then quarrel was started. Vinita (PW-3) and Tulsiram (PW-4) turned hostile. If cross-examination of these witnesses is minutely considered then it would be apparent that eyewitness Vinita (PW-3) has stated in para 9 of her statement that at the time of giving statement she was accompanied by her father and other relatives and therefore she was bound to give statement according to their wishes and she does not want that her uncle to be punished. She has accepted that she did not tell anyone either in village or to the parents that her mother deceased Kiran Bai had committed suicide. Similarly, from perusal of the evidence of Tulsiram (PW-4), it would be apparent that Tulsiram (PW-4) saved his wife from fire and when he asked his wife as to how she got burnt, she did not tell the story of suicide on the contrary she told him that she was preparing tea in the 5 Criminal Appeal No.419/1999 kitchen and sustained burn injuries due to fire. However, it is proved by ASI Mr. S.G. Dubey (PW-6) that he recovered the burnt clothes from the spot and smell of kerosene was coming out from the clothes. He also recovered plain and kerosene mixed soil from the spot. He also recovered a can of kerosene containing one liter of kerosene. In para 6 of his statement, he has specifically mentioned that from burnt clothes smell of Kerosene was coming out. If the deceased had died due to fire caused either by suicide or by any other method by using kerosene then statement of Tulsiram (PW-4) is incorrect that his wife sustained burn injuries when she was preparing tea. If she had sustained such injuries in making tea then such smell of kerosene could not have been found on her burnt clothes. Tulsiram (PW-4) did not state that his wife had committed suicide by pouring kerosene and setting herself ablaze. Hence, his statement clearly indicates that he was telling a falsehood before the court to save the appellant who was his brother.
(9) One defence witness, namely, Sander Singh (DW-
1), brother-in-law of Tulsiram (PW-4) was examined as eyewitness. According to him, the deceased was under
tension. She was collecting so many clothes. Thereafter, when he saw the smoke, he reached the spot and found that the deceased Kiran Bai had committed suicide by fire with the help of huge quantity of clothes. Since kerosene was found on burnt clothes of the deceased, hence, evidence of Sander Singh (DW-1) cannot be accepted. He did not mention anything about use of kerosene in the incident. If he had seen the incident or he had helped in taking the deceased Kiran Bai to the
6 Criminal Appeal No.419/1999 hospital then it should have been known by him that Kiran Bai sustained injuries due to burning with kerosene. The trial court has rightly discarded the evidence given by Sander Singh (DW-1).
(10) It is clear from the record that Vinita (PW-3) and Tulsiram (PW-4) daughter and husband of the deceased Kiran Bai have stated before the court to save the appellant, because the appellant was the brother of witness Tulsiram (PW-4) and Tulsiram had already lost his wife, he wanted to save his brother, however, if eyewitnesses have turned hostile then in the absence of ocular evidence, it is the duty of the court to consider the remaining circumstantial evidence. (11) First circumstance in the case is motive. In this connection, the appellant Khilan Singh himself has proved his FIR as Ex.D-1 to show that he had lodged one FIR two days back against the deceased Kiran Bai as well as her husband Tulsiram (PW-4). Looking to the text of that FIR, a small quarrel had taken place between the parties. According to the prosecution, the deceased Kiran Bai told her daughter to give some Hirmachi (a kind of green grass) to the cattle and after such compliance made by Vinita, daughter of deceased Kiran Bai, appellant objected as to why Vinita gave his Hirmachi to the cattle. Thereafter, appellant Khilan Singh quarreled with the deceased Kiran Bai, took her into the room, poured kerosene and set her on ablaze. Under these circumstances, looking to the previous FIR Ex.D-1, it is clear that when the appellant was annoyed with the activities of deceased Kiran Bai and her husband and therefore when he saw that his Hirmachi was given to cattle of the deceased, he turned furious 7 Criminal Appeal No.419/1999 and therefore there was a motive with the appellant to commit such an offence. However, there was no enmity between the parties so that the deceased Kiran Bai would have falsely implicated the appellant in the matter. It is proved by Dr. (Smt.) Arnit Arora (PW-9) and ASI Mr. S.G. Dubey (PW-6) that the deceased died due to burn injuries and she sustained burn injuries as there was the presence of kerosene on her body and thus she was injured by 95% burn injuries.
(12) The appellant could not prove that the deceased had committed suicide. The statement in this respect given by Vinita (PW-3) is not corroborated by her father Tulsiram (PW-4). According to her father Tulsiram (PW-
4), the incident took place due to an accident whereas Vinita (PW-3) has stated about the suicide committed by her mother. Since testimony of these two witnesses was rightly discarded by the trial court and no other evidence was adduced by the appellant to show that the deceased Kiran Bai died after committing suicide then the circumstances indicate that death of the deceased Kiran Bai was homicidal in nature and she sustained burn injuries due to inflammable substance i.e. Kerosene.
(13) It is also apparent that there was no-one except the appellant who could commit such a crime with the deceased and therefore it cannot be said that the appellant would have falsely been implicated by the deceased. The main circumstance in this case is that Additional Tahsildar Leeladhar Sahu (PW-2) proved the dying declaration Ex.P-3 in which the deceased Kiran Bai has stated against the appellant that he committed the crime. In cross-examination Additional Tahsildar 8 Criminal Appeal No.419/1999 Leeladhar Sahu (PW-2) was given various suggestions relating to mental condition of the deceased. However, what was the object relating to mentioning the word "mental condition" was not explained by the Additional Tahsildar Leeladhar Sahu (PW-2) and ultimately when a clear question was asked to Additional Tahsildar Leeladhar Sahu (PW-2) then he stated that the term "mental condition" denotes the capability of the deceased to give evidence which shall be explained by the concerned doctor. On dying declaration Ex.P-3, Dr. R.K. Jain (PW-7) has given a certificate before recording of the evidence that the deceased was fit to give the evidence and after completion of that dying declaration he again gave such certificate. Dr. R.K. Jain (PW-7) has accepted that the deceased was weak and she was under agony due to pain but he found that she was fit to give her statement and therefore it cannot be said that she was not in a fit mental condition to give statement. The Additional Tahsildar Leeladhar Sahu (PW-2) has stated about the mental condition of the deceased Kiran Bai but he stated under the impression that the question was asked about her mental condition due to pain, hence, if he has accepted in the cross-examination that mental condition of the deceased Kiran Bai was not good then he did not mean that she was not competent to give evidence. There is no reason to disbelieve the testimony of Dr. R.K. Jain (PW-7) and Additional Tahsildar Leeladhar Sahu (PW-2). In this connection, the judgment passed by the Apex Court in the case of "State of M.P. Vs. Mohan Lal and others" [(1996) SCC (Cri.) 906] is worth mentioning in which it is held that weight to be attached to the dying declaration and 9 Criminal Appeal No.419/1999 it can be the sole basis of conviction if it is found true and voluntary. Dying declaration made by the deceased when he was in a fit state of mind then such dying declaration can be relied. Similarly, in the case of "Kamlesh Rani Vs. State of Haryana" [1998 Cri.L.J. 1251], it is held that the deceased died due to burn injuries and she gave a dying declaration that her mother-in-law poured kerosene and burnt her. The said dying declaration was recorded by one doctor treating her and it was attested by another doctor, therefore, their positive statements were reliable that the deceased was conscious at the time of giving statement then it is held that there is nothing to disbelieve their evidence. Under these circumstances, in the light of the aforesaid judgments passed by the Apex Court where the testimony of Dr. R.K. Jain (PW-7) and Additional Tahsildar Leeladhar Sahu (PW-2) is believable, it is proved beyond doubt that the deceased gave a dying declaration that the appellant poured kerosene upon her and set her ablaze.
(14) In this connection, the judgment passed by the Apex Court in the case of "Kusa & Others Vs. State of Orissa" [AIR 1980 SC 559] may be referred in which it is held that when can a dying declaration be said to be incomplete. The court has observed that reply which was given in the dying declaration could not be given in semi-conscious state and therefore if act of the accused is told by the deceased then such dying declaration cannot be considered as incomplete. In the present case, if dying declaration Ex.P-3 is considered then the deceased gave complete story of the incident and it is a complete dying declaration. Also, the learned counsel 10 Criminal Appeal No.419/1999 for the State has invited the attention of this Court to the document Ex.P-14 which is the case-diary statement of deceased Kiran Bai recorded by SHO Devendra Singh Yadav (PW-8). He has also stated that when he examined the deceased Kiran Bai she was in a position to give the statement and in case diary statement Ex.P- 14 which has now become the dying declaration in which the deceased had also given the description of entire incident, in detail. If the deceased was not smeared after pouring kerosene from top to bottom then it was not possible that she would have sustained 95% burn injuries. Under these circumstances, in the light of the aforesaid judgments, the dying declarations given by the deceased i.e. Ex.P-3 and Ex.P-14 are acceptable and on the basis of other circumstances the death of the deceased was homicidal in nature. The appellant was also annoyed with the deceased due to past event in which his Hirmachi (a kind of green grass) was given to cattle of the deceased Kiran Bai and thereby a minor loss was caused to the appellant. There was no-one in the house except the appellant and therefore it cannot be said that the deceased shifted the guilt of anyone else upon the appellant. Under these circumstances, the submissions made by the learned counsel for the appellant about mental status of the deceased cannot be accepted.
(15) If all the circumstances are considered simultaneously then it would be apparent that a minor quarrel took place between the appellant and the deceased Kiran Bai and two days prior to the incident appellant had lodged an FIR pertaining to non- cognizable offence against the deceased. Again, when 11 Criminal Appeal No.419/1999 Vinita (PW-3), daughter of the deceased, gave Hirmachi to the cattle and the appellant suspected that his Hirmachi was given to the cattle of deceased Kiran Bai he lost his temper, took the deceased Kiran Bai in the room, poured kerosene upon her and set her on ablaze. ASI Mr. S.G. Dubey (PW-6) found smell of kerosene from burnt clothes whereas the deceased Kiran Bai gave her dying declaration to Additional Tahsildar Leeladhar Sahu (PW-2) as Ex.P-3 in which she told the complete story of the incident. As discussed above, in the light of the various judgments of Hon'ble the Apex Court, the accused can be convicted on the sole basis of dying declaration. The trial court has rightly concluded that the appellant was the culprit who killed the deceased Kiran Bai by pouring kerosene on her and setting her on fire.
(16) The learned counsel for the appellant has also submitted that the appellant did not intend to kill the deceased and his case may fall within the purview of Section 304 of IPC. However, such submission cannot be accepted. It is proved beyond doubt that Hirmachi was given to cattle by Vinita (PW-3) not by the deceased. The appellant thought that quarrel was again started by the deceased Kiran Bai and therefore he held her hand, took into the room, then poured kerosene and set her on fire. Sufficient time was available with the appellant to take the deceased Kiran Bai in a room and to pour kerosene upon her, hence, it cannot be said that he committed the crime in sudden passion. On the contrary, his overt act clearly indicates that he intended to kill the deceased. His overt act falls within the purview of Section 302 of IPC. The trial court has 12 Criminal Appeal No.419/1999 rightly convicted the appellant for offence under Section 302 of IPC.
(17) So far as the sentence is concerned, the trial court has already recorded the minimum sentence for the offence under Section 302 of IPC and therefore no further dilution can be done by this Court. Under these circumstances, the appeal filed by the appellant is not acceptable. Hence, On the basis of the aforesaid discussion, the appeal filed by the appellant, namely, Khilan Singh is hereby dismissed.
(18) It appears that the appellant is on bail. His bail bonds are now cancelled. He is directed to surrender before the trial court without any delay so that he may be sent for execution of remaining part of his jail sentence.
(19) The Registry is directed to send a copy of the judgment to the court below along with its record for information and compliance. Also a copy of this judgment be provided to the appellant through his counsel according to the rules.
(N.K. Gupta) (S.K. Awasthi)
Judge Judge
(25/04/2017) (25/04/2017)
pd