Madhya Pradesh High Court
Jagdev Rajak vs The State Of Madhya Pradesh on 26 March, 2018
Author: Nandita Dubey
Bench: Nandita Dubey
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THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
DIVISION BENCH
Criminal Appeal No. 1124 of 2008
APPELLANT : Jagdev Rajak S/o Jamuna Rajak
Vs.
RESPONDENT : The State of Madhya Pradesh
________________________________________________________________
Shri Siddharth Sharma Advocate for the appellant as
Amicus Curiae .
Shri Aditya Jain, learned Deputy Government Advocate
for the respondent/State.
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PRESENT : Hon'ble Shri Justice S.K. Gangele
Hon'ble Smt. Justice Nandita Dubey
___________________________________________________________
Whether approved for reporting :
Law laid down :
Significant paragraph numbers :
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JUDGMENT
26.03.2018 As per S.K. Gangele, J.:
The appellant has filed this appeal against the judgment dated 07.01.2008, passed by the Additional Sessions Judge, Shahdol in S.T. No.89/2006, whereby the appellant has been found guilty for the offence punishable under Section 302 of IPC and has been sentenced to life imprisonment and fine of Rs.1,000/-, in case of default rigorous imprisonment for six months.2
02. The prosecution story, in brief, is that the deceased, who was the wife of the appellant, was living with the appellant in his house. On 17.1.2006 she was making preparations for food, her son Mithoo had gone outside of the house. At around 8.00 o'clock the appellant came in the house along with his friend Raju Kewat. He was in a drunken state, he inquired about his child, and thereafter, he had beaten the deceased by fists and legs. Raju tried to save the deceased, the appellant had sprinkled kerosene oil on the deceased and ablaze her by a match stick. She received burn injuries. She came out from the house. The brother of the appellant had taken the deceased to the hospital at Kotma. Thereafter, a report of the incident was lodged at the police station. Police conducted investigation and filed charge-sheet against the appellant. The appellant abjured his guilt during trial and pleaded innocence.
03. The trial Court held the appellant guilty for commission of offence punishable under Section 302 of IPC and awarded sentence of life.
04. Learned counsel for the appellant has contended that the prosecution witnesses, even though the family members turned hostile, the conviction of the appellant is based on 3 the dying declaration of the deceased which was recorded by the doctor. There is no mention in the dying declaration that the deceased was in a fit mental condition to give the dying declaration, hence the trial Court has committed an error in holding the appellant guilty beyond reasonable doubt for commission of offence of murder.
05. In alternate, the learned counsel has further submitted that the incident is dated 17.1.2006 and the deceased was died on 23.1.2006. The appellant himself received burn injuries on his hands when he tried to save the deceased, there was no intention of the appellant to kill the deceased, hence the offence of the appellant would fall under Section 304-I of the IPC.
06. Contrary to this, Learned Deputy Government Advocate for the respondent/State has submitted that the deceased was died when the appellant was at the house.
The dying declaration of the deceased was recorded by the doctor. Conviction can be based on the evidence of sole dying declaration. Looking to the evidence, the trial Court has rightly held the appellant guilty for offence punishable and awarded the proper sentence.
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07. Family members of the deceased i.e. father and brother have turned hostile. Lallaram (PW1), father of the deceased deposed that the appellant used to keep the deceased very well. There was no dispute between the deceased and the appellant. He admitted his signature on Ex.P/1. Same evidence is of Daurajak (PW2), who is the brother of the deceased. He deposed that there was no quarrel between the appellant and the deceased and the appellant used to keep his sister very well.
08. Raju @ Ramadhar Kewat (PW3) is the neighbour. He deposed that he was sitting with the appellant out side of his house and the deceased herself ablaze her. Dr. S. Kori (PW5) who recorded the dying declaration of the deceased stated that on 17.1.2006 the deceased was brought at the hospital at around 9.50 in the night. I examined the deceased and noticed 70% burn injuries on the body of the deceased. I also examined the appellant and noticed that there were 2 to 3 percent burn injuries on his right hand. The injuries were simple in nature. I submitted a report Ex.P/9. He further deposed that on 17.1.2006, I received a letter from Police Station, Kotma to record the dying declaration on behalf of the deceased. I recorded the dying declaration of the deceased which is Ex.P/10. She stated in 5 her dying declaration that the appellant quarreled with her, he had beaten her and thereafter sprinkled kerosene oil on her and ablaze her. In the cross-examination, the witness denied the fact that the deceased was not in a fit mental condition to give the dying declaration although he admitted the fact that he has not mentioned the aforesaid fact in the dying declaration.
09. Dr. T.C. Motwani (PW6), who conducted autopsy of the deceased on 23.1.2006, deposed that the deceased was died due to the burn injuries suffered by her. R.N. Aamor (PW7) Investigating Officer deposed that I was posted on 18.1.2006 as Sub Inspector at Police Station Kotma. I conducted investigation of the case and prepared the spot map which is Ex.P/13 and seized Jeri-cane, sari vide seizure memo Ex.P/14. The appellant was arrested on 20.1.2006 vide Ex.P/15, thereafter, I recorded statements of the witnesses.
10. No other evidence has been produced by the prosecution except this. The family members of the deceased PW1 and PW2 turned hostile. The conviction of the appellant is based on the dying declaration of the deceased. It is well settled principle of law that the dying declaration is 6 admissible in evidence and the conviction can be based on the dying declaration of the deceased if inspires confidence of the Court as held by the Apex Court in case of Pawan Kumar Vs. State of Himachal, (2017) 7 SCC 780:
"27. In Atbir V. Govt. (NCT of Delhi), (2010) 9 SCC 1, the Court, after noting earlier judgments, has laid the following guidelines with regard to admissibility of the dying declaration: (SCC pp.8-9, para 22) "22. The analysis of the above decisions clearly shows that:
(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.
(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.
(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.
(iv) 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.
(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be discarded.
(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.
(x) 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 the basis of conviction, even if there is no corroboration."
28. Recently, in Gulzari Lal vs. State of Haryana, (2016) 4 7 SCC 583, the Court confirmed the conviction by placing reliance on the statement made by the deceased and recorded by the Head Constable on the basis of the principles stated in Laxman vs. State of Maharastra, (2002) 6 SCC 710. The analysis in the said case is as follows:- (Guljari Lal case (supra), SCC p. 589, paras 23- 24) "23. In reference to the position of law laid down by this Court, we find no reason to question the reliability of the dying declaration of the deceased for the reason that at the time of recording his statement by the Head Constable Manphool Singh (PW 7), he was found to be mentally fit to give his statement regarding the occurrence. Further, evidence of Head Constable Manphool Singh (PW 7) was shown to be trustworthy and has been accepted by the courts below. The view taken by the High Court does not suffer from any infirmity and the same is in order.
24. The conviction by the High Court was based not only on the statements made by Maha Singh (deceased) but also on the unshattered testimony of the eyewitness Dariya Singh (PW 1) and the statement of the independent witness Rajinder Singh (PW
11)."
In the present case the dying declaration was recorded by Dr. S. Kori (PW5). The deceased specifically deposed that the appellant had poured kerosene oil on her and ablaze her. The doctor in his evidence deposed that she was in a fit mental condition to give the dying declaration, although, this fact has not been mentioned by the doctor S. Kori (PW5) in the dying declaration Ex.P/10. However, in our opinion the dying declaration recorded by the doctor is proper, hence the trial Court has rightly convicted the appellant for killing of the deceased.
11. The next question is that what offence the appellant has committed. Dr. S. Kori (PW5) also examined the 8 appellant deposed that the appellant has received 3 to 5 percent burn injuries on his right hand. It means that the appellant tried to save the deceased. Same fact has been deposed by the Investigating Officer (PW7) in para-8 of his deposition. The investigating officer has further admitted that the appellant received burn injuries when he tried to douse the fire.
12. The Apex Court in the case of Willie (William) Slaney vs State of Madhya Pradesh, AIR 1956 SC 116 has held as under about the intention of the accused:
"Where the accused causing the death of another had no intention to kill, then the offence would be murder only if (1) the accused knew that the injury inflicted would be likely to cause death or (2) that it would be sufficient in the ordinary course of nature to cause death or (3) that the accused knew that the act must in all probability cause death."
15. The Hon'ble Apex Court further in the case of Nankaunoo vs State of Uttar Pradesh, (2016) 3 SCC 317 has held as under in regard to difference between intention and motive:
"11. Intention is different from motive. It is the intention with which the act is done that makes a difference in arriving at a conclusion whether the offence is culpable homicide or murder. The third clause of Section 300 IPC consists of two parts. Under the first part it must be proved that there was an intention to inflict the injury that is present and under the second part it must 9 be proved that the injury was sufficient in the ordinary course of nature to cause death. Considering the clause thirdly of Section 300 IPC and reiterating the principles in Virsa Singh's case, in Jai Prakash v. State (Delhi Administration) (1991) 2 SCC 32, para (12), this Court held as under:-
"12. Referring to these observations, Division Bench of this Court in Jagrup Singh case, (1981) 3 SCC 616 observed thus: (SCC p. 620, para 7) '7. ... These observations of Vivian Bose, J. have become locus classicus. The test laid down in Virsa Singh case, AIR 1958 SC 465 for the applicability of Clause Thirdly is now ingrained in our legal system and has become part of the rule of law.' The Division Bench also further held that the decision in Virsa Singh case AIR 1958 SC 465 has throughout been followed as laying down the guiding principles. In both these cases it is clearly laid down that the prosecution must prove (1) that the body injury is present, (2) that the injury is sufficient in the ordinary course of nature to cause death, (3) that the accused intended to inflict that particular injury that is to say it was not accidental or unintentional or that some other kind of injury was intended. In other words Clause Thirdly consists of two parts. The first part is that there was an intention to inflict the injury that is found to be present and the second part that the said injury is sufficient to cause death in the ordinary course of nature. Under the first part the prosecution has to prove from the given facts and circumstances that the intention of the accused was to cause that particular injury. Whereas the second part whether it was sufficient to cause death is an objective enquiry and it is a matter of inference or deduction from the particulars of the injury. The language of Clause Thirdly of Section 300 speaks of intention at two places and in each the sequence is to be established by the prosecution before the case can fall in that clause. The 'intention' and 'knowledge' of the accused are 10 subjective and invisible states of mind and their existence has to be gathered from the circumstances, such as the weapon used, the ferocity of attack, multiplicity of injuries and all other surrounding circumstances. The framers of the Code designedly used the words 'intention' and 'knowledge' and it is accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences should ensue. Firstly, when an act is done by a person, it is presumed that he must have been aware that certain specified harmful consequences would or could follow. But that knowledge is bare awareness and not the same thing as intention that such consequences should ensue. As compared to 'knowledge', 'intention' requires something more than the mere foresight of the consequences, namely the purposeful doing of a thing to achieve a particular end."
12. The emphasis in clause three of Section 300 IPC is on the sufficiency of the injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary course of nature. When the sufficiency exists and death follows, causing of such injury is intended and causing of such offence is murder. For ascertaining the sufficiency of the injury, sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused and sometimes both are relevant. Depending on the nature of weapon used and situs of the injury, in some cases, the sufficiency of injury to cause death in the ordinary course of nature must be proved and cannot be inferred from the fact that death has, in fact, taken place." In view of the aforesaid principle of law laid down by the Hon'ble Apex Court, it is to be considered that whether there was an intention of the appellant to cause death of the deceased. The Apex Court has held that "as compared to 11 'knowledge', the intention requires something more than the the mere foresight of the consequences, namely, the purposeful doing of a thing. In the present case, the appellant tried to save the deceased, he doused the fire and he himself received burn injuries on his right hand. The incident is dated 17.1.2006 and the deceased was died on 23.1.2006, hence in our opinion the offence committed by the appellant would fall under Section 304-I of the IPC.
13. Consequently, the appeal filed by the appellant is partly allowed. The conviction and sentence of the appellant under Section 302 of IPC, as awarded by the trial Court, is hereby set aside. The appellant is convicted for commission of offence punishable under Section 304-I of the IPC. The appellant is in jail since 2006. He has completed 12 years of actual jail sentence, hence, the appellant is awarded the jail sentence as already undergone by him. He be released forthwith, if not required in any other case.
(S.K. Gangele) (Nandita Dubey)
JUDGE JUDGE
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Digitally signed by RAVI SHANKAR SHRIVASTAVA
Date: 2018.03.28 13:25:50 +05'30'