Madhya Pradesh High Court
Puran Singh & Anr. vs State Of M.P. on 16 May, 2016
Author: S.A. Dharmadhikari
Bench: S.A. Dharmadhikari
1 Cr.A. No. 178/2003
HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR
CRIMINAL APPEAL NO. 178/2003
Pooran Singh and another
Vs.
State of Madhya Pradesh
For the appellants : Shri A.K. Jain, Advocate
For the State : Shri Vishal Mishra, Deputy Advocate
General
PRESENT : HON'BLE MR. JUSTICE N.K. GUPTA
&
HON'BLE MR. JUSTICE S.A. DHARMADHIKARI
JUDGMENT
(16.05.2016) Per Justice N.K. Gupta:
The appellant Pooran Singh has preferred the present appeal being aggrieved with the judgment dated 24.02.2003 passed by the Sessions Judge, Shivpuri in S.T. No. 166/2002, whereby the appellant Pooran Singh has been convicted of offence under Section 302 read with Section 34 of IPC and sentenced to life imprisonment with fine of Rs.500/-
(2) Facts of the case, in short, are that on 26.04.2002 at about 10:10 PM the deceased Haria @ Hargovind Kori had lodged an FIR Ex. P-15 at Police Station Magroni, District 2 Cr.A. No. 178/2003 Shivpuri that at about 09:00 PM in the evening, he went back to his house after taking a dinner in a party. When he was lying on a cot, his brother Munshi (PW-8) came to meet him. When both were talking, the appellant Pooran and his wife Munni went near the cot, the appellant Pooran Singh had a Cane of kerosene, he blamed Haria that he had a bad eye over his wife and thereafter Pooran poured kerosene upon him, lit a matchstick and set fire upon him. On shouting of Hariya, Munshi poured some water upon him. On his shouting, various witnesses namely Pratap Gurjar, Prakashchandra Kori and Ghanshyam etc. came to the spot but the appellant Pooran and his wife ran away. The deceased Haria was taken to the hospital. Dr. Ashish Vyas (PW-7) examined the deceased Hargovind and gave his report Ex. P-10. He also recorded the dying declaration Ex. P-11. The FIR Ex. P-15 was also lodged. Investigation Officer had requested the Executive Magistrate Kumari Mamta Shakya (PW-10) to record the dying declaration of the deceased. Dr. S.P.S. Raghuvanshi (PW-11) gave a certificate that the deceased Hargovind was in a fit condition to give the dying declaration and, thereafter, the Executive Magistrate Kumari Mamta Shakya (PW-10) had recorded the dying declaration Ex. P-14. However, after some time, the deceased Hargovind had expired. His body was sent for the postmortem. After due investigation, the charge-sheet was filed before the CJM, Shivpuri, who committed the case to the Court of Sessions.
(3) The appellant abjured his guilt. He took a plea that 3 Cr.A. No. 178/2003 the witness Munshi, brother of Hargovind was interested to get the house of the deceased Hargovind and, therefore, he had falsely implicated the appellant. In defence, Rambabu Arya (DW-1) was examined.
(4) The Sessions Judge, Shivpuri after considering the evidence adduced by the parties convicted and sentenced the appellant as mentioned above.
(5) We have heard the learned counsel for the parties at length.
(6) In the present case, it is almost admitted that the deceased Hargovind died due to his burn injuries and, therefore, it is not to be mentioned much that his death was homicidal. That fact may be further discussed when intention of the appellant will be under consideration. Initially it was stated that so many witnesses like Rakesh (PW-1), Pratap Singh (PW-2), Prakash Chandra Shakya (PW-4), Ghanshyam (PW-5) and Hakim Singh (PW-9) came to the spot and they heard the oral dying declaration given by Hargovind and some of them have seen the appellant, who was running from the spot. However, when all these witnesses examined before the trial court, they have turned hostile. They did not support the prosecution story as such and, therefore, only eyewitness Munshi (PW-8) remains in favour of the prosecution, otherwise the entire case depends upon the circumstantial evidence. Munshi (PW-8) has claimed that he was present at the spot and he was talking to the deceased Hargovind. His presence is mentioned in the FIR Ex. P-15. Nothing 4 Cr.A. No. 178/2003 contradictory could be brought in the cross-examination of the witness Munshi so that his testimony could be disbelieved. However, if statements of Munshi (PW-8) are compared with the dying declarations Ex. P-11 and Ex. P-14 recorded of the deceased Hargovind, then it would be apparent that Munshi (PW-10) was not present at the spot and he was a concocted eyewitness. According to the deceased Hargovind, in dying declarations Ex. P-11 and Ex. P-14, he was lying on the cot and he was all alone. He has categorically mentioned in both the dying declarations that on his shouting, none came to the spot and, therefore, he himself poured the water upon him. It would be apparent that when dying declaration Ex. P-11 was recorded by Dr. Ashish Vyas (PW-7), the witness Munshi was present and he appended his signature on that dying declaration. The deceased Hargovind did not intimate Dr. Ashish Vyas about the presence of Munshi and Munshi did not object while appending his signature on the dying declaration. Under these circumstances, it appears that after recording dying declaration, Munshi had started claiming to be an eyewitness, but looking to the documents Ex. P-11 and P-14, Munshi was not an eyewitness and his testimony could not be believed in favour of the prosecution.
(7) The entire case depends upon the circumstantial evidence. The trial Court has found various circumstances proved against the appellant, firstly the death of the deceased was homicidal in nature. He was solely lying on a cot and there was no possibility that he would have sustained burn injuries due to an accident or he would have committed suicide. If he 5 Cr.A. No. 178/2003 would have tried to commit suicide, then certainly he should not have tried to save himself and with the help of other eyewitness, he could not go to the hospital. Hence, the first circumstance proved against the appellant is that the death of the deceased was homicidal in nature. It is submitted by the learned counsel for the appellant that there was no enmity between the appellant Pooran Singh and the deceased Hargovind. Hence, there was no reason with the appellant to kill the deceased Hargovind. However, it is settled view of the Apex Court that motive is not an essential ingredient for conviction under Section 302 of IPC. Sometimes, it appears that no motive could be proved against the accused and he could have a motive, which was beyond imagination, hence, if motive is not proved then it makes no difference. However, in the present case, it is mentioned in the dying declaration Ex. P- 11 that the appellant wanted to kill the deceased Hargovind so that he could grab the house of the deceased Hargovind and, therefore, it cannot be said that there was no object behind the crime and that version of the deceased Hargovind clearly indicates that there was a motive and a reason for the appellant to kill the deceased Hargovind.
(8) Third circumstantial evidence is the dying declaration Ex. P-11 recorded by Dr. Ashish Vyas (PW-7) and dying declaration Ex. P-14 recorded by Executive Magistrate Kumari Mamt Shakya (PW-10). Learned counsel for the appellant has submitted that the deceased was not in a fit mental condition to give the dying declaration and Dr. Vyas did 6 Cr.A. No. 178/2003 not give any opinion about his mental status. If the dying declarations Ex. P-11 and Ex. P-14 are examined, then it would be apparent that before recording the document Ex. P-14, the Executive Magistrate had obtained a certificate from Dr. Raghuvanshi (PW-11) that the deceased was in a fit condition to give statement. Dr. Raghuvanshi was given a suggestion that in cases, where patient is 90 % burnt then he should be unconscious but that was a hypothetical suggestion given to Dr. S.P.S. Raghuvanshi in the present case because he was present when the dying declaration was recorded and after examining the patient, he gave a certificate that he was fit to give his evidence and thereafter the Executive Magistrate Kumari Mamta Shakya had recorded the dying declaration Ex. P-14. Dying declaration Ex. P-11 was recorded by the doctor himself and, therefore, it was not for the doctor to make a note separately that the deceased was fit to give the statement, hence, if there is no certificate of evidence given on document Ex. P-11, then it makes no difference.
(9) Learned counsel for the appellant has invited the attention of this Court to the judgment passed by the Apex Court in case of "Sheikh Bakshu and others Vs. State of Maharashtra" [ (2008) 1 SCC (Cri) 679], and submitted that if there are contradictions and discrepancies in the dying declaration then same cannot be relied upon and he has invited the attention of this Court to the fact that Dr. Ashish Vyas has accepted that presence of water was not found on the body of the deceased Hargovind, whereas in his dying 7 Cr.A. No. 178/2003 declaration, the deceased has stated that he poured some water upon him. However, such argument cannot be accepted because it is not a discrepancy. If someone pours some oily substance then remains of oil may be found at that time when patient was examined medically but if a patient, who was burnt and some water was poured upon him, then in small period of time, the water will be evaporated. The deceased Hargovind was taken to the hospital and some time was passed in taking him to the hospital. Under such circumstances, if doctor found no water on his body, then it makes no difference because due to heat of the body, water was evaporated.
(10) It is also submitted by the learned counsel for the appellant that Dr. Vyas has accepted that he got the entire case history from the deceased Hargovind and thereafter he wrote it in question answer form and prepared a document Ex. P-11. However, such admission of Dr. Vyas makes no difference because he did not record the answer on his own. He wrote each answer as given by the deceased. If document Ex. P-11 is perused then it would be apparent that the answers as recorded by Dr. Vyas were not in such form so that it can be said that the answers were pre-planned. It is possible that he would have prepared the question on the basis of the fact disclosed by the deceased Hargovind and, thereafter he recorded the answers. It is further submitted by the learned counsel for the appellant that the alleged dying declarations Ex. P-11 and Ex. P-14 were not read over before the deceased 8 Cr.A. No. 178/2003 after their recording and, therefore, these dying declarations lose their evidentiary value. However, it would be apparent that the deceased appended his thumb impression on the documents Ex. P-11 as well as Ex. P-14. If the statements were not read over to him, he could not append his thumb impression on the statement. It is important to note that no question has been asked either to Dr. Vyas or to Kumari Mamta Shakya that after recording of the statement, it was not read over to the deceased. Hence, such objection raised before the appellate stage cannot be accepted.
(11) Also a document Ex. P-11 as recorded by Dr. Vyas was again confirmed by the document Ex. P-14, which was recorded by the Executive Magistrate Kumari Mamta Shakya and, therefore, it cannot be said that Dr. Vyas did not record the dying declaration in appropriate manner. After considering the objections raised by the learned counsel for the appellant, there is no reason to disbelieve the dying declarations Ex. P-11 and Ex. P-14 recorded by Dr. Vyas and Executive Magistrate Kumari Mamta Shakya. If both the dying declarations are minutely considered then it would be apparent that overt act of Munni wife of the appellant was not mentioned in those dying declarations, whereas in FIR Ex. P- 15 and statement of witness Munshi, Munni was also implicated in the crime. If dying declaration of Hargovind was recorded due to instigation of Munshi then certainly such fact would have been introduced in the dying declaration. The deceased Hargovind has fairly expressed that he was all alone 9 Cr.A. No. 178/2003 in the house at the time of incident and when he saw the appellant Pooran Singh, when he set fire upon him and at that time, Munni was standing near the appellant Pooran Singh. Under these circumstances, there is no discrepancy visible in the dying declarations recorded by Dr. Vyas as well as Executive Magistrate Kumari Mamta Shakya.
(12) If minor contradictions are visible in these two dying declarations, then on the basis of such minor contradictions, dying declarations cannot be discarded. In case of Sheikh Bakhsu (supra), the Apex Court found important discrepancies in the dying declarations and, therefore, dying declaration was discarded, whereas in both the dying declarations Ex. P-11 and Ex. P-14, the deceased had clearly stated that it was the appellant, who poured kerosene upon him and set him on fire. He did not try to exaggerate his statement about the facts. He did not try to implicate the accused Munni or he did not try to introduce some eyewitnesses at the time of recording of dying declarations. Under these circumstances, the law laid by the Apex Court in the case of Sheikh Bakhsu (supra) cannot be applied in the present case. Dying declarations of the deceased Hargovind as recorded by Dr. Vyas and Executive Magistrate Kumari Mamta Shakya are believable and trustworthy and, hence, the third circumstance is proved beyond doubt against the appellant that the deceased Hargovind gave a statement before his death that the appellant Pooran Singh was the person who poured kerosene with help of a Cane upon him and set him on fire by 10 Cr.A. No. 178/2003 liting a matchstick.
(13) In this connection, learned counsel for the State has invited attention of this Court to the judgment passed by the Apex Court in case of "Bhajju Vs. State of Madhya Pradesh" [ (2012) 4 SCC 327], in which it is held that in offence of murder, the accused can be convicted on the sole evidence of dying declaration. If all circumstances are considered simultaneously then only one conclusion will be obtained, i.e., the appellant Pooran Singh was the person, who killed the deceased Hargovind by setting fire on him. The appellant Pooran Singh did not take any plea of right of private defence or any other reason. It was not a case of sudden quarrel. The appellant went in the house of the deceased Hargovind, through a common courtyard and when he found that he was sleeping, he committed the crime and, therefore, it is a pre- planned murder and it cannot be said that overt act done by the appellant may fall within the purview of culpable homicide not amounting to murder. The trial Court has rightly convicted the appellant Pooran Singh of offence under Section 302 of IPC.
(14) So far as the sentence is concerned, the trial Court has given a minimum sentence provided for the offence and, therefore, no further dilution can be done at the point of sentence.
(15) On the basis of the aforesaid discussions, there is no substance in the appeal filed by the appellant Pooran Singh. Consequently, the appeal filed by the appellant - Pooran 11 Cr.A. No. 178/2003 Singh is hereby dismissed. Conviction as well as the sentence recorded by the trial Court against the appellant Pooran Singh is hereby confirmed.
(N.K. GUPTA) (S.A. Dharmadhikari)
Vacation Judge Vacation Judge
(16/05/2016) (16/05/2016)
Abhi