Madhya Pradesh High Court
Kamlesh Bai vs State Of M.P. on 5 April, 2022
Author: Rohit Arya
Bench: Rohit Arya
1 Cr.A.No.801/2000
THE HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
(DIVISION BENCH)
Criminal Appeal No.801/2000
Kamlesh Bai ..... Appellant
aged about 30 years
W/o Triloki Sharma alias Pappu Mishra
R/o Rajendra Nagar,
Basoda, District Vidisha
Versus
State of M.P. ..... Respondent
through P.S. Basoda,
District Vidisha
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CORAM
Hon. Mr. Justice Rohit Arya
Hon. Mr. Justice Satish Kumar Sharma.
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Presence
Shri N.P.Dwivedi, Senior Advocate with Shri Gagan Sharma
and Ms. Sudha Shrivastava, Advocates for the appellant.
Shri R.K.Awasthi, Public Prosecutor for the
respondent/State.
JUDGMENT
(DELIVERED ON THIS 5th DAY OF APRIL 2022) PER ARYA,J This appeal, under Section 374 (2) Cr.P.C., arises out of the 2 Cr.A.No.801/2000 judgment dated 8.11.2000 passed by Additional Sessions Judge, Ganj Basoda, District Vidisha in Sessions Trial No.162/99, whereby appellant Kamlesh Bai stands convicted for the offence punishable under Section 302 of IPC and sentenced to undergo rigorous imprisonment for life with fine of Rs.200/-, in default to suffer R.I. for one month.
2. Undisputedly appellant is Nanad (sister-in-law) of Munni Bai (since deceased).
Prosecution story, in short, is that appellant had come to Basoda to attend the marriage of her brother Pappu. On 24/2/1999, after the Baarat (wedding procession) had left, she asked Munnibai as to why she had solemnized the marriage of Pappu and that she had usurped the entire earnings of Pappu. Next day, at about 10 AM, when Munni Bai returned home after answering the call of nature, her Bhabhi (sister-in-law) Ramdulari told Munnibai to have Chapati as she had not eaten since the day before. On this, appellant snidely remarked that why would she like to have Chapati now as she had already gobbled the entire earnings of Pappu and now preteneding as if she is in dire need of loans moving here and there for the same. On being objected to by Munnibai, appellant not only beat her, but also poured kerosene oil on her body and threw her upon a burning stove, due to which 3 Cr.A.No.801/2000 her clothes caught fire and she suffered burn injuries. Munni Bai's son Pradeep Sharma (PW2), Bhabhi Ramdulari and Sharda Bai (PW8) rescued her. On 25/2/1999, Munni Bai along with her son lodged FIR (Ex.P/1) at Police Station Basoda,Vidisha which was registered at Crime No.77/99 for the offence punishable under section 307 of the IPC.
After registration of FIR, she was sent to Civil Hospital, Basoda where she was medically examined by Dr. Pradeep Jain (PW7), and her statement was recorded on the same day by Executive Magistrate. She was then referred to Bhopal Hospital, where, on 1/3/1999, she succumbed to the injuries so sustained. Panchyatnama Lash (Ex.P/7) was prepared by Singhraj Singh Jadon (PW5), ASI posted at Hamidia Outpost, Bhopal. Thereafter, her dead body was sent for post mortem examination vide letter (Ex.P/8). Upon receipt of morgue intimation (Ex.P/5), offence punishable under section 302, IPC was enhanced.
During investigation, Investigating Officer C.L.Malviya (PW10),ASI, seized one plastic Can containing kerosene oil, semi- burnt clothes of the deceased, bangles, simple and kerosene oil stained earth from the spot vide seizure memo (Ex.P/4). He also prepared spot map (Ex.P/14) and recorded statements of witnesses. After completion of the investigation, charge-sheet against the appellant was submitted in the Court of JMFC, Basoda, 4 Cr.A.No.801/2000 who committed the case to the Court of Sessions for trial.
3. On being charged with the offence punishable under section 302, IPC, the appellant abjured the guilt. In the examination under section 313 of the Code of Criminal Procedure, the appellant pleaded false implication at the hands of Baby, Jethani (sister-in- law) of deceased due to prevailing animosity.
4. To establish the charges, the prosecution examined as many as 11 witnesses including son of deceased Pradeep Sharma (PW2), her brother Ramgopal (PW6), eye-witness Sharda Bai (PW8), and Executive Magistrate Babulal Kochle (PW11) though Pradeep Sharma, Ramgopal and Sharda Bai have turned hostile, whereas evidence of three witnesses viz. Ramesh Chandra (DW1), Chain Singh (DW2) and Prem Narayan (DW3) were recorded in defence.
5. On 25/2/1999, MLC of Munni Bai (since deceased) was conducted by Dr. Pradeep Jain (PW7). He noted the following injuries on her body vide injury report (Ex.P/11) :-
1. 2nd to 3rd degree burns over whole face & neck. Singeing of hair and partially burns over left lateral ½ of scalp. About 7% burns.
2. 2nd to 3rd degree burns over whole of right upper limb sparring some part near axillary region & medial aspect of upper arm. Peeling of skin present at few places. About 8% burns.5 Cr.A.No.801/2000
3. 2nd to 3rd degree burns over left upper limb sparing some part of upper arm below blouse. Peeling of skin present. About 7.5% burns.
4. 2nd to 3rd degree burn over both scapular region of back and over lower half of back. About 10% burn.
5. 2nd to 3rd degree burn over chest sparring some part of skin over both breast below bra and 2nd to 3rd degree burn patch over right side of abdomen. About 9% burn
6. 2nd to 3rd degree burn with peeling of skin at places in left lower limb sparing some part of skin over posterolateral part of thigh & leg. About 13% burn.
7. 2nd to 3rd degree burn over right lower limb with peeling of skin at few places sparing some area of thigh over posterior part & calf region of leg. About 15% burn.
Doctor opined that the injuries were caused by burns caused within 24 hours of the examination and there were total about 69.5% burns.
Post mortem examination of deceased Munnibai was conducted by Dr. C.S.Jain (PW9). In the autopsy report (Ex.P/8- A), he found that frontal hair, eye-brows and eye-lashes were burnt. He also found blisters filled with serum fluid present on feet- dorsal aspect. He also found IInd - IIIrd degree burns present all over body leaving following healthy area spared of burns:-
1. Bra stripped area and ends of abdomen injured region
2. Lateral of left lower limb.
3. Medial of right lower limb
4. Both cubitus regions He opined that the death was caused due to cardio-respiratory failure as a result of burns and duration of death was within 24 hours of post mortem examination.6 Cr.A.No.801/2000
6. On consideration of the evidence on record, the learned trial Judge, for the reasons recorded in the impugned judgment, found the appellant guilty of the offence charged with. He, therefore, convicted and sentenced her as indicated hereinabove.
7. Learned counsel for the appellant while taking exception to the impugned judgment made the following submissions:-
(1) Material witnesses including eye-witnesses Pradeep Sharma (PW2), son of deceased and Sharda Bai (PW8) have turned hostile and not supported the prosecution version.
Likewise, Ramgopal (PW6), brother of the deceased has also not supported the prosecution story and has deposed in paragraph 8 that deceased had informed him that her Sari had caught fire while she was cooking on a Stove.
(2) The conviction is completely based on dying declaration of the deceased (Ex.P/12). However, the same is suspicious and could not have been relied upon in view of the fact that the endorsement of the doctor on the dying declaration does not certify that the deceased was in a fit state of mind to give the same. The doctor has merely certified in the beginning of dying declaration, that the deceased was fully conscious and was able to give her dying declaration and after the dying declaration, he has 7 Cr.A.No.801/2000 appended a certificate that the deceased was fully conscious and had remained conscious while recording of her dying declaration. In this behalf, learned counsel has placed reliance on decision of the Apex Court in the case of Paparambaka Rosamma & Others Vs. State of A.P. ((1999)7 SCC 695), wherein the larger Bench of the Apex Court has held that "conscious" and "fit state of mind"
are distinct. One may be conscious but not necessarily in a fit state of mind. It is submitted that the dying declaration also could not have been germane to conviction as it does not bear any endorsement of the Executive Magistrate that the dying declaration was read over and explained to the deceased and that after hearing the contents thereof, she had accepted the same. For this, reliance has been placed on decision of the Apex Court in the case of Shaikh Bakshu & Others Vs. State of Maharashtra ((2007)11 SCC 269). The same view has been reiterated by the Apex Court in Sampat Babso Kale and others Vs. State of Maharashtra ((2019)4 SCC 739)).
(3) Dr. Pradeep Jain (PW7) and Dr. C.S.Jain (PW9), in paragraphs 18 and 5 respectively, have admitted that hands, palm and fingers of the deceased were totally burnt. However, Executive Magistrate Babulal Kochle (PW11) has taken two clear thumb impressions of the deceased on the dying declaration, which has rendered the same doubtful. In similar circumstances, 8 Cr.A.No.801/2000 in the case of State of Punjab Vs. Gian Kaur and Others (AIR 1998 SC 2809), where the thumb mark of the deceased appearing on the dying declaration was found to be having having clear ridges and curves, the Apex Court, in the wake of medical evidence that both thumbs of the deceased were burnt, observed that the same amounted to very suspicious circumstance to hold that the dying declaration was genuine. That apart, it is submitted that thumb impressions of deceased are suspicious and not identified by any person or expert. There is no evidence of either blood or fluid in thumb impression. Besides, it is submitted that the dying declaration has not been recorded in question and answer form and the name of appellant has been added in a different ink in a different manner. The deceased was educated and used to sign, but her signatures have not been taken. It also creates doubt as to whether the dying declaration was recorded when the author was mentally fit to make the statement. It is further submitted that dying declaration is a weak type of evidence and the same cannot be relied upon for conviction unless corroborated by independent evidence.
(4) The learned trial Judge has erred in relying upon the recovery of one plastic Can, burnt clothes, oil stained soil etc. from the spot as independent witnesses have not supported such recovery. The articles could not have been linked with the crime 9 Cr.A.No.801/2000 because independent witnesses and close relatives of the deceased have stated that deceased was cooking food in front of stove when she caught fire.
(5) The plea of alibi taken by the defence has not been considered by the learned trial Court despite the same having been proved by prosecution witnesses. The son of the deceased has supported the version of the appellant.
(6) Alternatively it is submitted that mens rea is also not proved. The doctor has not opined that the injuries were sufficient in the ordinary course of nature to cause death. Neither intention nor knowledge has been proved by the prosecution. The incident has taken place all of a sudden, without any premeditation, in a sudden fight and in the heat of passion. As such, the same falls within Exception 4 to S.300, IPC and, at the most, the offence would fall under section 304 Part II of the IPC. For this, reliance has been placed upon decisions in the cases of Kulwant Rai Vs.State of Punjab (AIR 2008 SCW 1), Devnath Rai Vs. State of Bihar (2018 CRLR SC 272), Pappu Vs. State of M.P. ((2006)3 SCC (Cri) 283) and Ramjattan & Others Vs. State of U.P. (AIR 1994 SC 1130).
8. Per contra, learned Public Prosecutor has supported the impugned judgment and submitted that the conviction of the 10 Cr.A.No.801/2000 appellant has been recorded by the trial Court after proper appreciation of the evidence on record and there is nothing on record to discard the dying declaration of the deceased.
9. Having heard learned counsel for the parties, the following points emerge to conclude if the conviction and sentence awarded by the trial Court are justified and, if not, to what relief the appellant is entilted to:-
(i) Effect of absence of endorsement on the dying declaration that the deceased was not only conscious, but also in a fit state of mind to give the dying declaration.
(ii) Effect of absence of note of Executive Magistrate, who recorded the dying declaration, that the same was read over and explained to the deceased.
(iii) Whether on facts and in the obtaining circusmtances of the case, the thumb impression of the deceased said to have been affixed on the dying declaration, can be rendered suspicous or doubtful for the reason that Dr. Pradeep Jain (PW7), who conducted the MLC and Dr. C.S.Jain (PW9), who conducted the autopsy in paragraphs 18 and 5 of their depositions respectively have stated that "gFksfy;ksa dh peMh tyh gqbZ Fkh " and "e`frdk ds gkFk] gFksfy;ksa] vaxqfy;kWa tyh gqbZ Fkh" .
(iv) Whether the dying declaration has rightly been held 11 Cr.A.No.801/2000 to be valid in law without any coroboration
(v) Whether on facts and in the circumstances of the case, the appellant has rightly been convicted under section 302, IPC or is she entilted for conversion of conviction to one under section 304 Part II of the IPC.
10. Now averting to the facts in hand in the backdrop of the points formulated above, so far as absence of endorsement of doctor with regard to "fit state of mind" on the dying declaration is concerned, learned counsel has placed reliance on the decision of the Apex Court in the case of Paparambaka Rosamma (Supra) to contend that "conscious" and "fit state of mind" are two distinct things. One may be conscious but not necessarily in a fit state of mind. In the case in hand, since the dying declaration (Ex.P/12) does not contain any such endorsement of the doctor except that the deceased was conscious, the same could not have been relied upon by the trial Court for basing the conviction.
However, a Constitution Bench of the Apex Court in the case of Laxman Vs. State of Maharashtra ((2002)6 SCC 710), while answering identical question referred to it, has over-ruled the decision in the case of Paparambaka Rosamma (Supra) holding that the same does not propound correct enunciation of law and that it is indeed a hyper-technical view that the 12 Cr.A.No.801/2000 certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind specially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind where-after he recorded the dying declaration. Accordingly the said judgment was held to be not correctly decided while affirming the law laid down in Koli Chunilal Savji & Another vs. State of Gujarat ((1999)9 SCC 562). Besides, reliance in this behalf on the decision in the case of Sampat Babso Kale (Supra) is also of no avail to the appellant, inasmuch as, it was a case of 98% burn injuries with possibility of shock and delusion and it is in that regard that the Apex Court insisted upon the necessity of corroborative evidence. As such, the contention of learned counsel for the appellant on this count cannot be countenanced.
11. The contention of the learned counsel for the appellant, on the strength of decision of the Apex Court in the case of Shaikh Bakshu (Supra), that the dying declaration (Ex.P/12) is also vulnerable for want of endorsement to the effect that the same was read over and explained to the deceased also cannot be accepted, inasmuch as it was a case of two dying declarations with no 13 Cr.A.No.801/2000 explanation as to why there was necessity of recording two dying declarations. The defence had also alleged tutoring and suppression of station dairy entry therein. There was also discrepancy in timing of recording the dying declarations. It was in this context that the Apex Court ruled that the view of the trial court and High Court that even though it is not so stated, it has to be presumed that the dying declaration was read over and explained to the deceased, was clearly unacceptable. Apparently, the said case is clearly distinguishable on facts and is of no avail to the appellant. Besides, in the case of Laxman (Supra), it has been held that Magistrate being a distinterested witness and a responsible officer and there being no circumstances or material to suspect that the Magistrate had any animus against the accused or in any way interested for fabricating a dying declaration, question of doubt on the declaration recorded by the Magistrate does not arise.
12. The next contention of learned counsel for the appellant is to the effect that thumb impression of the deceased taken on dying declaration (Ex.P/12) is suspicious in the wake of evidence of Dr. Pradeep Jain (PW7), who conducted the MLC, in paragraph 18 that "gFksfy;ksa dh peMh tyh gqbZ Fkh" and that of Dr. C.S.Jain (PW9), who conducted the autopsy, in paragraph 5 that " e`frdk ds 14 Cr.A.No.801/2000 gkFk] gFksfy;ksa] vaxqfy;kWa tyh gqbZ Fkh".
However, it is to be seen that this is not a case of 100% burn. As per MLC, deceased suffered about 69.5 % burns. As such, reliance on decision in that behalf on the case of Gian Kumar (Supra), which was a case of 100% burns, cannot be of any assistance to the appellant as the same is starkly distinguishable on facts. Although Babulal Kochle (PW11), Executive Magistrate in paragraph 10 has stated that all the five fingers and palm of the deceased were burnt, yet, in paragraph 11, he has clarified that as the first thumb impression was not clear, he had obtained the second thumb impression and that both the impressions were not clear. His evidence is corroborated by dying declaration (Ex.P/12) which contains two unclear/incomplete thumb impressions. As such, his evidence further fortifies that the thumb impressions were of the deceased who had sustained burn injuries in her palm and fingers.
13. Now coming to the evidence of Pradeep Sharma (PW2), son of the deceased, Ramgopal (PW6), brother of the deceased and Sharda Bai (PW8), neice of the deceased, it can be seen that all these witnesses have turned hostile and not supported the case of the prosecution. However, their evidence cannot outweigh other incriminating res gestae evidence including FIR (Ex.P/1) promptly 15 Cr.A.No.801/2000 lodged by the deceased herself, dying declaration (Ex.P/12), evidence of Babulal Kochle (PW11), Executive Magistrate who recorded the dying declaration, evidence of Dr.C.S.Malviya (PW7), who conducted the MLC, evidence of Dr. C.S.Jain (PW9) who conducted the autopsy and evidence of Investigating Officer C.S.Malviya (PW10). Further, even in absence of any corroborative evidence, there can be a conviction relying upon the dying declaration. In this behalf, decision in the Munnu Raja & Anr. V. State of M.P. reported in (1976) 3 SCC 104 (para 6) and the subsequent decision in the case of Paniben (Smt) V. State of Gujarat reported in (1992) 2 SCC 474 are referred to, wherein it has been held that there is neither a rule of law nor of prudence to the effect that a dying declaration cannot be acted upon without a corroboration. It is observed and held that if the Court is satisfied that the dying declaration is true and voluntary it can base its conviction on it, without corroboration. Similar view has also been expressed in the cases of State of Uttar Pradesh V. Ram Sagar Yadav & Ors. (1985) 1 SCC 552 and Ramawati Devi V. State of Bihar, (1983) 1 SCC 211.
As such, this Court is of the considered view that the trial Court has not committed any illegality or perversity in relying upon the dying declaration (Ex.P/12) of the deceased for convicting the appellant.
16 Cr.A.No.801/2000
14. In view of the aforesaid, homicidal death of the deceased is proved beyond reasonable doubt. However, learned Public Prosecutor for respondent/State has not been able to point out a specific evidence of the prosecution that with premeditation of mind, the appellant in an organized manner has poured kerosene oil on the body of the deceased and set her on fire. The incident apparently occurred in a heat of passion and without any premeditation. Therefore, we are of the considered opinion that indeed the appellant, though had knowledge that the injuries caused were likely to cause death, yet had no intention to cause death. As a result, the appellant is held to be guilty of offence punishable under Section 304 Part-II IPC and not under Section 302 IPC.
15. Consequently, the impugned judgment is modified maintaining the findings of the trial Court. The appellant is held to have committed an offence of 304 Part II IPC.
16. Now coming to the question of sentence, learned counsel for the appellant submitted that appellant has suffered incarceration of about two years during trial. Considering the peculiar facts and circumstances of the case coupled with the fact that appellant is a 17 Cr.A.No.801/2000 woman aged about 55 years with rustic background, the incident occurred in a heat of passion on 25/2/1999; more than 23 years have already elapsed and during this period she has suffered the ordeal of trial and appeal, no useful purpose would be served by sending her back to jail. Instead, ends of justice would be subserved if the custodial sentence is reduced to the period already undergone and the fine amount is enhanced to Rs.1,00,000/- (Rupees one lac only).
17. Accordingly, this appeal is allowed in part. The conviction of the appellant under section 302, IPC is altered to one under section 304 Part II of the IPC and the custoidal sentence is reduced to the period already undergone by the appellant. However, fine amount is enhanced to Rs.1,00,000/- (Rupees one lac only). Appellant is on bail. She is directed to deposit the said fine amount with the trial Court within one month from today, failing which she shall undergo R.I. for one month.
Copy of the judgment be sent to the trial Court along with the record for compliance.
(ROHIT ARYA) (SATISH KUMAR SHARMA)
JUDGE JUDGE
(and)
ANAND
SHRIVASTA
VA
2022.04.05
16:59:40
+05'30'