Madhya Pradesh High Court
Kadwa vs The State Of Madhya Pradesh on 1 February, 2018
Author: J.K. Maheshwari
Bench: J.K. Maheshwari, Nandita Dubey
HIGH COURT OF MADHYA PRADESH : JABALPUR.
DIVISION BENCH
BEFORE: JUSTICE J.K. MAHESHWARI
JUSTICE SMT. NANDITA DUBEY
Criminal Appeal No. 1252/2007
Kadwa & another
Vs.
The State of Madhya Pradesh
For Appellants: Shri S.C. Datt, Senior Advocate,
Assisted by Shri Siddharth Datt, Adv.
For Respondent: Shri Vaibhav Tiwari, Govt. Advocate.
Date of hearing: 20/01/2018
Date of Judgment: 01/02/2018
JUDGMENT
Per- J.K. Maheshwari, J.
This appeal under Section 374(2) of the Code of Criminal Procedure has been filed by the appellants/accused challenging the judgment dated 12.4.2007 passed by the Third Additional Sessions Judge (Fast Track), Khandwa in ST No. 272/2005 convicting them for the charge under Section 302/34 and 449 of the Indian Penal Code (in short 'IPC') and sentencing them to undergo imprisonment for life for the charge under Section 302/34 of IPC and rigorous imprisonment for ten years for the charge under Section 449 of IPC and to pay fine of Rs.200/- each for each offence with default stipulation. The sentences are directed to run concurrently.
2. As appellant No.1 Kadwa son of Bapu Bheel died on 15.2.2013, however, this appeal so far as it relates to him stands dismissed as abated. Thus, with respect to appellant No.2 Basubai and No.3 Mamta, it is heard on merit and decided by this judgment.
3. The prosecution story, as alleged, is that on 26.8.2005 at about 10-11 O'clock in the day, appellants Kadwa, Basubai and Mamta were 2 beating deceased Seemabai in front of her house at village Bakhatgarh. When Banarasbai (PW-2) went to save the deceased, appellants threatened her to go away then she went back to her home. At about 1 O'clock, when Banaras Bai (PW-2) came back after taking bath from river, she heard the hue and cry, however, came out of her house and saw that the accused persons were running from the house of deceased. When she reached at the place of scene, she saw that Seema Bai was set ablaze. Her Jeth Gajraj Singh rushed to the spot and put a Godri on the body of Seema bai and sprinkled the water to extinguish the fire. Thereafter, deceased got unconscious. Husband of deceased and Jeth took deceased to Badwah Hospital for treatment, after primary treatment she was referred to M.Y. Hospital, Indore. As the proper treatment was not offered in the M.Y. Hospital, however, she was shifted to Arvindo Hospital, Indore where in the alleged dying declaration, deceased told that accused Kadwa poured kerosene on her and accused Mamta lit the match and thereafter all the three accused ran away. Some other persons also reached on the spot. During treatment at Arvindo Hospital Seemabai died. The information Ex. P/18 regarding burn of the deceased was given by the Civil Hospital Badwah. Thereafter, the information about the said incident was sent to Mandhata Police Station by wireless at about 9.00 pm. After receiving the information regarding the incident, Investigating Officer Narendra Singh Bhadoriya (PW-8) reached on the place of incident at Bakhatgarh on the same day in the evening, but he came back as no one was present in village. At Indore in Arvindo Hospital the statement of deceased was recorded on 29.8.2005 by Narendra Singh Bhadoriya (PW-8) in presence of Prem Bai which is treated as her dying declaration. On 30.8.2005, initially the offence under Section 307/34 was registered against the accused persons at Crime No. 156/2005 vide FIR Ex. P/10, but when Seemabai died on 2.9.2005, the offence under Section 302 of IPC was added. The investigation officer prepared the spot map Ex. P/11 and vide Ex. P/12 seized plastic cane 3 and a bottle of Lal Dant Manjan. The seizure of Godri, sari, petticoat, blouse, broken bangles and match box were also made vide Ex. P/13. Thereafter, the statements of PW-1 Sundarlal, PW-2 Banaras Bai and PW-3 Asharam were recorded. Statements of various other persons were also recorded by the SHO Police Station Mandhata. Thereafter, seized articles were sent for FSL examination. The postmortem was conducted by Dr. Ravindra Choudhary PW-13. As per postmortem report, the deceased died due to asphyxia and the cause of death was cardio-respiratory failure due to burn and its complications.
4. After completion of investigation challan was filed in the competent court. As the case was triable by the court of sessions, therefore, it was committed to the court for trial. The sessions court framed the charge against the appellants under Section 302/34 and 449 of the IPC. The accused persons abjured their guilt and took a defence of false implication.
5. Learned trial court found that the prosecution witnesses PW-1 Sundarlal, PW-2 Banaras Bai, PW-4 Mahesh, PW-6 Pappu, PW-7 Premlata Parmar, PW-11 Kishan have not supported the prosecution story. But, relying upon the oral dying declarations given by the deceased to PW-3 Asharam and PW-5 Mansaram and also to the investigating officer PW-8 convicted the appellants for the aforesaid charges and directed them to undergo the sentence as described hereinabove.
6. Learned senior counsel Shri S.C. Datt representing the appellants submitted that in the facts of the case neither the statement of PW-3 Asharam nor the statement of PW-5 Mansaram to whom the oral dying declaration is given, can be relied upon. Similarly, the dying declaration recorded by ASI Narendra Singh Bhadoriya (PW-8) is also not trustful. It is further his contention that the incident took place on 26.8.2005 at about 10-11 O'clock in the day. The deceased was immediately sent to the Civil Hospital Badwah and after primary treatment she was referred to M.Y. Hospital, Indore, but, as the proper treatment was not available there, 4 however, she was shifted to Arvindo Hospital, Indore. From the date of incident i.e. 26.8.2005 Investigating Officer Narendra Singh Bhadoriya (PW-8) had sufficient time to request the Executive Magistrate to record the dying declaration of the deceased, but no steps have taken by him and he himself reaching in the hospital at Indore recorded the dying declaration of the deceased. On the dying declaration, certification of the doctor is not obtained. The certificate of doctor Ex. P/9 is on a separate paper which cannot be relied upon. On the dying declaration, the signature of PW-7 Premlata Parmar was obtained as witness, but she has not supported the prosecution story. No explanation is brought on record why the Executive Magistrate was not called though the deceased died after seven days. In absence of any explanation, and looking to the case history filed in defence Ex. D/2, the dying declaration cannot be said to be trustworthy. In support of the said contention, reliance has been placed by the learned senior counsel on the judgments of Apex Court in the case of Atbir V. Government of NCT of Delhi - (2010) 9 SCC 1 and also on the recent judgment in the case of Pawan Kumar V. State of Himachal Pradesh - (2017) 7 SCC 780. It is said that the testimony of PW-3 and PW-5 cannot be relied upon. In view of the said submissions, it is urged that the conviction of appellants for the charge under Section 302/34 of IPC is unsustainable in law and it may be set aside. It is further his contention that no evidence to prove the guilt of the appellants for the charge under Section 449 of IPC has been brought by cogent evidence as the prosecution witness PW-2 Banaras Bai herself has not supported the prosecution case, therefore, the conviction of the appellants under Section 449 of IPC and sentence thereof is also liable to be set aside.
7. Per contra, learned Government Advocate Shri Vaibhav Tiwari appearing on behalf of respondent-State submitted that the dying declaration recorded by the Investigating Officer Narendra Singh Bhadoriya PW-8 is voluntary and truthful. In addition thereto, the 5 oral dying declaration was also given by the deceased to PW-3 Asharam and PW-5 Mansaram which corroborates the dying declaration recorded by the Investigating Officer Narendra Singh Bhadoriya PW-8, however, the conviction as directed by the trial court based on the said dying declaration does not suffer from any perversity and illegality warranting interference in this appeal.
8. After having heard learned counsel appearing on behalf of both the parties and on perusal of the record, it is seen that mainly the conviction of appellants is based on the dying declaration recorded by the investigating officer N.S. Bhadoriya PW-8 corroborate with the oral dying declaration given by the deceased to her brother Asharam PW-3 and the father Mansaram PW-5. In this regard, Section 32 of the Evidence Act specifies that the statement written or verbal of the relevant facts by a person who is dead may be a relevant fact if it relates to the cause of death of the said person or to the circumstances of the transaction which resulted to his death if the said question is to be decided.
9. As per Police Regulation 742(c) it is apparent that when the deponent is in moribund condition and his or her statement would be practically a dying declaration, it may be recorded by a police officer, in presence of two independent witnesses, unconnected with the department, which should be signed by the person who is making the same, but it ought to be ascertained by him that before securing presence of the Magistrate the death of such person may be possible. The deponent ought to be examined by the medical officer with a view to ascertain that he or she may make a credible statement. In case the credible witness cannot be obtained without risk of such person's death before his statement is recorded, it will be recorded by one or more police officers. The exception of the said Rule is to the gazetted officer. Rule 742(c)(4) also prescribes the manner in which the statement ought to be written. In this regard, it is hereby observe that the aforesaid is the procedure to be observed casting duty on incharge officer though not mandatory, but it is relevant for 6 the guidance when the police officer records the dying declaration.
10. The law relating to dying declaration has been considered by the Apex Court in the case of Laxman V. State of Maharashtra - (2002) 6 SCC 710. The five judges Bench of the Apex Court in para-3 of the said judgment has held as under:
"3.........A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."
11. Hon'ble the Apex Court in the case of Atibir (supra) has also laid down certain guidelines regarding admissibility of the dying declaration. In para-22 of the said judgment, the Apex Court has formulated the guidelines to consider the legality and propriety of the dying declaration, which are as under:
"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 7 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 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 eye-witness 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 basis of conviction, even if there is no corroboration."
12. In the case of Balbir Singh and another V. State of Punjab reported in (2006) 12 SCC 283, the Apex Court relying upon the Judgment of Ram Bihari Yadav Vs. State of Bihar reported in 1998 (4) SCC 517 and also relying upon the case of Laxman (supra) held that there was no requirement of law that a dying declaration must necessarily be made before a Magistrate. In the case of State of Rajasthan V. Wakteng reported in (2007) 14 SCC 550 similar view has been reiterated by the Apex Court and held that the conviction can be based solely on the dying declaration, but, the court has to be careful and ensure that the statement was not the result of either tutoring, prompting or a product of imagination. It is, therefore, essential that the court must satisfy that the deceased was in a fit state of mind to make statement and had clear capacity to observe and identify the assailant and that he was 8 making the statement without any influence or anger. On recording the satisfaction by the court, the dying declaration may be voluntary and truthful. Recently, the Apex Court in the case of Pawan Kumar (supra) has reiterated the same principles, therefore, in such circumstances, the validity of the dying declaration is required to be adjudged in view of the principles laid down above.
13. In the present case, the incident took place on 26.8.2005 at about 10-11 O'clock in the day. The deceased was directly brought to Civil Hospital Badwah from Bakhatgarh wherefrom the information was given to the Police Station Badwah by the duty doctor at 5.30 pm vide Ex. P/18. Because the place of incident was under the jurisdiction of Police Station Mandhata, however, information was given to Police Station Mandhata by wireless. The entry in that regard was recorded in Rojnamcha Sanha No. 715 on 26.8.2005 at 9.00 pm. The FIR Ex. P/10 was recorded in Police Station Mandhata on 30.8.2005 on the information of ASI Narendra Singh Bhadoriya (PW-8). It is not in dispute that the place of incident was under the jurisdiction of Police Station Mandhata and the said place is popularly known as Omkareshwar. The receiving of information by Police Station Badwah on 26.8.2005 and referral of the deceased from Civil Hospital Badwah to Indore is apparent from Ex. D/2. The said MLC was done at Civil Hospital Badwah. In the MLC it was opined by the doctor that the deceased was burnt by the flame of stove. She was unconscious, pulse were 60 per minutes and blood pressure was not recordable. Whole face, ear, neck, chest, upper arms both and abdomen were burnt by fuel. The entire upper body of the deceased was burnt except the lower limb. As per the case indoor history of the deceased Ex. P/1, in the Arvindo Hospital, Indore from 27.8.2005 her position remained the same. As per the indoor case history sheet, the general condition of the patient was very poor, she was taking general command. From 26.8.2005 to 29.8.2005 ASI Narendra Singh Bhadoriya (PW-8) did not take any care to record her statement by the Executive Magistrate and on the said date he himself went to the 9 hospital and recorded the dying declaration of the deceased. The condition as reported on the case history sheet of the said date indicates that general condition of patient was very poor. She was conscious but in drowsiness. On the said date, the alleged dying declaration was recorded in presence of Premlata Parmer (PW-7) at 6.30 pm. but she does not support in the court statement. The document Ex. P/9 is a letter written by the SHO Mandhata to the Incharge of Burn Unit, Arvindo Hospital, Indore asking the opinion of the doctor as to whether the deceased was able to give statement, however, at the bottom of the said letter the doctor has certified that the patient was fit to give the statement. But the said document is undated and it appears to have been procured subsequently. In case the dying declaration was recorded by the ASI then certification of the doctor may be obtained by him on the dying declaration Ex. P/8 itself and after recording the statement the attestation must also be by the doctor, therefore, Ex. P/9 the certification of the condition of the patient given by the doctor separately was not required. Thus, it is clear that the dying declaration Ex. P/8 does not bear certification of the doctor at the time of its recording, and to show that the deceased was in a fit state of mind to make statement. No explanation is on record as to why from 26.8.2005 to 29.8.2005 any Executive Magistrate was not called by the ASI Narendra Singh Bhadoriya (PW-8) for recording the dying of the deceased. The deceased was died after three days from the date of giving the dying declaration on 2.9.2005, therefore, it is clear that after having burn injuries the deceased survived for about seven days and died on the 8th day. During such period steps have not been taken by the investigating officer to record the dying declaration by the Executive Magistrate. No explanation is brought on record in this regard. Therefore, in the present case, the death of the person, who gave dying declaration was not possible soon.
14. Although this Court is conscious of the fact that recording of the dying declaration by the Executive Magistrate is not always 10 necessary, but when sufficient time was available to call the Executive Magistrate for recording the dying declaration in absence of possibility of death and without having any explanation or showing compulsion for immediate recording the dying declaration, by the Investigating Officer N.S. Bhadoriya (PW-8), that too without certification of the doctor and authentication on the dying declaration creates suspicion. In view of the foregoing, it can safely be concluded that the dying declaration recorded by N.S. Bhadoriya is suspicious and it should not be acted upon without corroborative evidence.
15. The other corroborative evidence brought on record by the prosecution and relied to convict the appellants by the trial court is the oral dying declaration given by the deceased to brother Asharam PW-3 and father Mansaram PW-5. Both were informed by Gajraj Singh, but the statement of Gajraj Singh has not been recorded. Asharam PW-3 deposed that when he was in Omkareshwar, he received the information of incident at 1.30 pm by Gajraj Singh while Mansaram PW-5 deposed that he received the information at 4.00 pm by Gajraj Singh, though they both were working in the same place i.e. Omkareshwar. The deceased was carried by a jeep from Bakhatgarh to Civil Hospital Badwah. The judicial notice of the fact can be taken that the distance of Bakhatgarh to Badwah is about 12 kilometers, but in case a person want to go Badwah from Omkareshwar where these two persons were working, he has to go from a different route and the distance of the said route by Omkareshwar is about 25 kilometers from Badwah. As per the statements of PW-3 Asharam and PW-5 Mansaram various other persons were also sitting in the jeep and the injured had given the oral dying declaration to them in front of said persons, but the persons, who were sitting in the said jeep, have not been examined in the Court. The most unnatural conduct of these two witnesses is that though they are brother and father of the deceased respectively but even then they returned back to their home from Badwah though the deceased was shifted to Indore where on hospitalization she 11 survived for about seven days, but they did not come back to know about her well being. Considering the aforesaid, the testimony of Asharam PW-3 and Mansaram PW-5 to whom oral dying declaration was given are not creditworthy to rely upon.
16. The prosecution witness PW-2 Banaras Bai who reached on the spot and heard hue and cry and also seen the present appellants running from the place of occurrence has not supported the prosecution case. The other witnesses Sundar Lal (PW-1), Mahesh (PW-4) and Pappu (PW-6) also reached on the spot, but they have also not supported the prosecution case. Premlata Parma (PW-7) before whom the dying declaration was recorded by Narendra Singh Bhadoriya, Investigating Officer (PW-8) has not supported the fact that the dying declaration was recorded in her presence. In such circumstances, the prosecution has failed to prove the charge against the two appellants under Section 302/34 of IPC beyond reasonable doubt and the conviction for the said charge stands set aside.
17. So far as the conviction under Section 449 of IPC is concerned, it is based on the testimony of PW-2 Banaras Bai, but she has not supported the case of the prosecution in the court. More so, the finding of conviction under Section 302/34 of IPC has been set aside, therefore, the conviction of appellants for the charge under Section 449 of IPC also stands set aside.
18. In view of the foregoing discussion, in our considered opinion, the conviction of appellant No.2 Basubai and No.3 Mamta directed by the trial court is without considering the incriminating circumstances and the credibility of dying declarations as discussed hereinabove. As discussed above, the dying declaration is suspicious, however, the conviction of the appellants cannot be sustained in the eyes of law, therefore, the conviction and the sentence of both the above appellants stands set aside.
19. As the appellant No.1 has already died, however, his appeal is dismissed as abated. This appeal so far as it relates to appellant No.2 Basubai and No.3 Mamta succeeds and is hereby allowed. The 12 conviction and sentence as directed by the trial court is hereby set aside. Appellants No. 2 and 3 are acquitted of the charge under Sections 302/34 and 449 of IPC. Appellant No.2 Basu Bai is on bail. Her bail bond and surety bond are discharged. Appellant No.3 Mamta is in jail, however, she be released immediately, if not required in any other case.
20. A copy of this judgment be sent to jail authorities as well as to the court concerned for necessary compliance.
(J.K. Maheshwari) (Nandita Dubey)
Judge Judge
rs shukla
Digitally signed by RAGHVENDRA
SHARAN SHUKLA
Date: 2018.02.12 11:22:36 +05'30'