Madhya Pradesh High Court
Dinesh@Pappu vs The State Of Madhya Pradesh on 7 March, 2022
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
1
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
Cr. A. No.1209 of 2012
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
D.B. : Hon'ble Shri Subodh Abhyankar
and Hon'ble Shri Satyendra Kumar Singh, J.J.
Criminal Appeal No.1209 of 2012
Dinesh @ Pappu S/o. Munnalal Kori (Daneriya)
Versus
The State of Madhya Pradesh
***************
Shri Nisha Jaiswal, Counsel for the appellant from the Legal
Aid.
Shri R. S. Bais, Government Advocate for the respondent/State.
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JUDGEMENT
(Delivered on 07/03/2022) Per:- Subodh Abhyankar, J.
1] This criminal appeal has been filed under Section 374(1) of Cr.P.C. against the judgement dated 12.06.2012, passed in Sessions Trial No.436/2010 by Sessions Judge, Indore District - Indore whereby finding the appellant guilty, the learned Judge of the trial Court has convicted him as under:-
Conviction Sentence
Section Act Imprisonment Fine Imprisonment in
lieu of Fine
302 IPC Life Rs.500/- 3 months
Imprisonment additional RI.
2] In brief, the facts giving rise to the present appeal are that
deceased Sapna got married to the appellant Dinesh, out of this 2 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.1209 of 2012 wedlock, they had three children and it is alleged that the appellant was in the habit of drinking excessive liquor and the deceased Sapna who was earning some amount by stitching clothes was also beaten by the appellant due to his bad habit of drinking the liquor. On 21.03.2010, the mother of Sapna was informed by one Ashok, a resident of same area that her daughter is burnt by her husband and when she went to the spot, she found that her daughter was lying outside her house. She was taken to the M. Y. Hospital in an Auto Rickshaw. The intimation regarding which was also given by the telephone operator to the police Station Banganga vide Ex.P/7. Her dying declaration, Ex.P/5 was also recorded. In her postmortem report Ex.P/11, Dr. A. K. Lanjewar PW-7 has mentioned that the deceased had died due to complications arising out of the 100% burn injuries. A case under Section 302 of IPC was registered against the appellant vide FIR Ex.P/12 and after the investigation, charge-sheet was filed and the case was committed to the Court of Sessions and the learned Judge of the trial Court, after recording the evidence has convicted the appellant as aforesaid.
3] Counsel appearing for the appellant has submitted that the appellant has been falsely implicated in the case as the dying declaration recorded in the present case cannot be relied upon as the same has not been recorded after following the due procedure. Firstly, 3 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.1209 of 2012 it has not been recorded by any Executive Magistrate and secondly it also does not have the endorsement of the doctor indicating that the deceased was in a fit state of mind to give dying declaration. It is further submitted that in the M.L.C. Ex.P/D-1, the doctor has also noted the history of the case as "Swayam Ne Ghaslet Dal Kar Aag Laga li" (she herself poured kerosene over her body and set her ablaze). Thus, it is submitted that when the examining doctor, who is an independent witness himself, has written the history of the case as an attempted suicide, the appellant cannot be convicted under Section 302 of IPC. It is further submitted that the appellant is in jail since 24.03.2010 and has completed more than 11 years and 11 months of sentence and thus, the appeal be allowed. In support of her contentions, Ms. Nisha Jaiswal, counsel appearing for the appellant has relied upon the decision of the Supreme Court in the case of Sham Shankar Kankaria vs. State of Maharashtra reported as (2006)13SCC 165.
4] Counsel for the respondent/State, on the other hand, has opposed the prayer.
5] On perusal of the record, it is found that admittedly, there is no eye witness account available on record and the conviction is based on the dying declaration of the deceased and the oral testimonies of the witnesses who have stated that they were informed by the 4 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.1209 of 2012 deceased that the appellant set her on fire. So far as the acceptability of a dying declaration is concerned, in the case of Sham Shankar Kankaria the Supreme Court has held as under:-
"11. 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. The court has to be on guard that the statement of deceased was not as a result of either tutoring or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. 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. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Paniben v. State of Gujarat: (SCC pp. 480-81, para 18):-
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of M.P.)
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of U.P. v. Ram Sagar Yadav and Ramawati Devi v. State of Bihar.)
(iii) The Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy v. Public Prosecutor.)
(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P.)
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P.)
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P.)
(vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. (See 5 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.1209 of 2012 State of Maharashtra v. Krishnamurti Laxmipati Naidu.)
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha v. State of Bihar.)
(ix) Normally the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of M.P.)
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan.)
(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v.
State of Maharashtra.)
12. In the light of the above principles, the acceptability of alleged dying declaration in the instant case has to be considered. The dying declaration is only a piece of untested evidence and must like any other evidence, satisfy the court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. 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 statement and if it is coherent and consistent, there shall be no legal impediment to make it a basis of conviction, even if there is no corroboration. (See Gangotri Singh v. State of U.P., Goverdhan Raoji Ghyare v. State of Maharashtra, Meesala Ramakrishan v. State of A.P. and State of Rajasthan v. Kishore.)."
(emphasis supplied) 6] On the anvil of the aforesaid dictum of the Supreme Court, this court is required to see the admissibility of the dying declaration. On due consideration of submissions and on perusal of the record, it is found that the incident took place at around 9:30 PM on 21.03.2010 on which date itself the dying declaration Ex.P/5 of the deceased was recorded by PW/3, Head Constable, Rameshwar. Sapna died at 3.30 6 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.1209 of 2012 am of 22.03.2022 on account of suffering 100% burn injuries. So far as the dying declaration Ex.P/5 is concerned, it has all the trappings of a suspicious document. There is no explanation provided for not recording the same through any Executive Magistrate, in the dying declaration, there is no endorsement of the doctor that the deceased was conscious and oriented at the time of recording the same. Strangely enough, the aforesaid endorsement is given on a separate sheet Ex.P/4, to the In-charge Post Bhagirathpura, Police Station - Banganga, wherein he had sought the opinion of the doctor if the deceased is in position to give statement to which, on the said sheet Ex.P/4 the doctor has written that the patient is conscious and oriented and she can make a statement. In the considered opinion of this Court such an endorsement on a separate sheet and not on the dying declaration itself clearly gives rise to reasonable doubt as to the veracity of the dying declaration.
7] Dying declaration has been recorded by PW-3, Head Constable Rameshwar, who has stated that he obtained the certificate from the doctor vide Ex.P/4 that the deceased is fit to give statement and thereafter he was informed by the deceased that her husband demanded money for liquor, however, as she refused to pay him any amount, he started abusing her and also told her to die so that he would bring another lady, and led her to pour kerosene over herself, 7 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.1209 of 2012 however, at that time her husband put her on fire with a matchstick. PW/3 has also stated that he tried to contact the Gazetted Officer a Tehsildar, but he did not come. He has also admitted that in the M.L.C. Ex./D-1, it is mentioned in the history of the case that that the deceased hersel try to commit suicide by setting herself on fire,"Swayam ne Ghaslet Dal Kar Aag Laga Li". In such circumstances, it is difficult to hold that the dying declaration can be relied upon on its own.
8] PW-1 Ramesh Jevariya has supported the case of the prosecution, who is the maternal uncle of the deceased. He has also stated that on earlier two-three counts also the appellant had tried to kill the deceased and when he reached to the spot, Sapna also told him that she has been burnt by the appellant only. He has also stated that the appellant used to beat her every now and then for not giving her savings, which she used to earn through stitching. In his cross- examination, he has admitted that that the deceased got married in the year 2001 and they have never reported any other incident to the police between the appellant and the deceased. PW-2 Sarojbai is the mother of the deceased. She has also alleged that the appellant Dinesh used to drink a lot and used to spent the income which the deceased used to keep for their children and he also used to beat her. She has also stated that when she reached to the house of the deceased as she 8 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.1209 of 2012 was informed by one Ashok that the deceased has been burnt by her husband , she saw that the appellant was pulling the skin of her daughter and then she took her to the M. Y. Hospital. She has also stated that the deceased informed her in front of police personnel that the appellant has poured kerosene on her and set her ablaze. In her cross-examination, she has also denied that her daughter herself immolated her. Other witness PW-4 Deepak Choudhary who is a neighbor has also stated that when he went to the house of the deceased he asked the deceased as to what has happened to which she replied that her husband has burnt her after consuming liquor. However, in his cross-examination he has admitted that he has given his statement after hearing from the other person. Thus, this witness is a hearsay witness and cannot be relied upon. Thus, the depositions of the family members of the deceased, who are unison in alleging that the appellant used to beat the deceased after consuming liquor, when tested in the light of Ex.D/1, the MLC of the deceased wherein it is noted that "Swayam ne Ghaslet Dal Kar Aag Laga Li" in no uncertain terms, this finds it self unable to come to a conclusion that the deceased was burnt by the appellant. However, it is also apparent that the appellant drove the deceased to commit suicide. 9] In such circumstances, the conviction as awarded to the appellant under Section 302 of IPC cannot be sustained , however, the 9 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.1209 of 2012 same is hereby converted into one under Section 306 of IPC i.e. for abatement for suicide punishable for a period which may extend up to 10 years, and as the appellant has already suffered more than 11 years imprisonment, he is directed to be released forthwith, if not required in any other case.
10] Accordingly, the appeal stands partly allowed.
(Subodh Abhyankar) (Satyendra Kumar Singh)
Judge Judge
Pankaj
Digitally signed by PANKAJ PANDEY
Date: 2022.03.08 15:55:03 +05'30'