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Madhya Pradesh High Court

The State Of Madhya Pradesh Thr vs Mahesh on 16 August, 2017

                                      1
                                                      M.Cr.C.7431/2017

                  State of M.P. Vs. Mahesh and Ors.

16 .08. 2017
         Dr. ( Smt.) Anjali Gyanani, Public Prosecutor for the petitioner /
State.
         None for the respondents.

1. The instant petition filed by the State seeks leave of this court u/s 378(3) of the Cr.P.C. to prefer an appeal against the judgment dated 07.04.2017 in S.T. No. 300013/2016 rendered by the Additional Sessions Judge, Sheopur to the extent it acquits the respondent No.1 Mahesh, brother-in-law (Devar) of the deceased, respondent No.2 Shakuntala, mother-in-law of the deceased and respondent No.3 Rinki, sister-in-law (Devrani) of the deceased, of charge u/s 302 read with Section 34 IPC.

2. It is pertinent to mention that the husband Kalla @ Narottam, who was the accused along with respondents, has been convicted u/s 302 IPC and sentenced to life imprisonment along with fine with default clause.

3. Learned counsel for the State is heard on the question of admission.

4. Record requisitioned from the court below is perused.

5. The undisputed fact giving rise to the present case are that on 19.05.2015 Ramlakhan (PW-1) father of the deceased lodged an FIR (Ex.P-5) at Police Aarakshi Kendra Dhodhar, District Sheopur that his daughter Laxmi who was married to Narrottam @ Kalla, has been taken in injured state to the Hospital. PW-1 further informed that he reached the hospital along with his son Naresh where the injured Laxmi disclosed that at 7:00 am in the morning when she was sleeping, her brother-in-law Mahesh and sister-in-law Rinki came to her matrimonial home and along with her mother-in-law Shakuntala started arguing with her husband Narottam on the issue of partition of property. During the arguments, brother-in-law, sister-in-law and mother-in-law instigated her husband that the deceased is the cause 2 M.Cr.C.7431/2017 of this dispute, and thus should be eliminated. The husband Narottam got enraged and poured kerosene over the deceased and set her on fire. The report Ex.P-5 further discloses that due to the physical state of deceased getting from bad to worse, she was shifted from Dhodhar to District Hospital Sheopur. It is also disclosed that the accused used to trouble the deceased for quite sometime as a result of which the father of the deceased had taken the deceased from her matrimonial home and made her stay at the parental home for nearly two years, thereafter she was taken back on the assurance of her father-in-law that no harm will commit to her. It is alleged in the report that said four accused have murdered the daughter of the informant by pouring kerosene . Initially crime u/s 307 read with Section 34 IPC was registered. Pre-MLC (Ex.P-10) was prepared disclosing 80%- 90% of burns with smell of kerosene coming from the injuries. R.S. Saimil (PW-5)Tehsildar Sheopur recorded the dying declaration Ex.P-7 disclosing the incident that during the argument about the issue of property between brother-in-law, sister-in-law and mother-in- law, the deceased tried to intervene which infuriated the husband, Narottam, who poured kerosene oil on the deceased and set her ablaze. Dying declaration further discloses that the mother-in-law, brother-in-law and sister-in-law used to treat the deceased with cruelty and also her turned out of the matrimonial home. 5.1 During investigation the deceased succumbed to her injuries on 20.05.2015 at A.B.S. Hospital Kota. The autopsy was got conducted by PW-17 Dr. Sanjay Verma opining existence of deep burn injuries on the body which resulted into shock and death. The incident was opined to have taken place 24-36 hours prior to death. The statement u/s 161 Cr.P.C. of various witnesses were recorded. The offence u/s 302 IPC was added. The seized articles were sent for chemical examination. On conclusion of investigation, the charge sheet was filed before the Additional Chief Judicial Magistrate who in turn committed the case to the Sessions Court.

6. The respondents and convicted husband Narottam denied having committed the offence alleged and sought trial.

7. To bring home the charge, the prosecution has examined Ramlakhan (PW-1), Banshi (PW-2), Sonu @ Gaurishankar (PW-3), Saurabh (PW-4), R.S. Saimil (PW-5), Sushil (PW-6), Dr. Rajesh Shakya (PW-7), Jai Singh (PW-8), Satish Kumar Dubey (PW-9), Dataram (PW-10), Naresh Sharma (PW-11), Satish (PW-12), Mahaveer Sharma (PW-13), D.S. Bisariya (PW-14), Krishna Gopal Sharma (PW-15), Vasudev (PW-16) and Dr. Sanjay Verma (PW-17) and proved and exhibited the documents vide Ex.P-1 to P-10. On the other hand, the accused has examined Kamal Kishore Gupta (DW-1) and Mahesh (DW-2) in defence.

8. The defence put forth by the accused Mahesh (brother-in-law) and Rinki (Sister-in-law) was that they were not present at the scene of crime whereas a joint defence put forth by all the four accused indicates that the incident was an accident which occurred when the deceased was cleaning the Angan where certain dry leaves were being burnt and by mistake Saree of the deceased caught fire.

9. The trial Court after recording and marshalling of the evidence of prosecution as well as defence witnesses, came to the conclusion that only three pieces of evidence led by the prosecution is worthy of consideration. The first being the testimony of eye-witness Saurabh (PW-4) son of deceased, oral dying declaration( Ex.P-5) where Ram Lakhan PW-1 discloses that his daughter being taken to the hospital told him about the complicity of all the four accused. The third piece of evidence is dying declaration Ex.P-7 recorded by Tehsildar R.S. Saimil (PW-5).

9.1 The remaining witnesses was not found to be trustworthy by the trial Court. So far as remaining evidences are concerned, except above three pieces of evidence, this Court is also of the view, after perusing the record including the testimonies, exhibits and the findings recorded, that the said other evidences are not worthy of 4 M.Cr.C.7431/2017 credence and thus, does not deserve to be dwell upon.

10. As regards testimony of Saurabh (PW-4) is concerned, the trial Court has discussed the same in detail. Testimony of Ram Lakhan (PW-1) father of the decased, Naresh Sharma and Mahaveer Sharma (PW-11 and PW-13) respectively both brothers of the deceased and Bansi (PW-2) father of the Narottam besides other evidence was taken into account by the trial Court. On comparative assessment of the said testimonies, the trial Court found from the statement of Saurabh (PW-4) that on witnessing the incident he telephoned one Bunty @ Satyanarayan and disclosed about the happening of the incident. It was thus Bunty @ Satyanaryan who broke the news about the incident to the father and brothers of the deceased. The trial Court found that the said Bunty @ Satyanarayan was not produced as witness and thus found that in the absence of examination of Bunty @ Satyanarayan, the veracity of eyewitness Saurabh (PW-4) cannot be ascertained, thereby rendering statement of Saurabh (PW-4) to be unreliable. The Court further held that in the absence of Bunty having been examined, the truthfulness of the versions of father and brothers of the deceased, who received information from Bunty about the incident, also becomes doubtful. The Court further found that in the statement of Ram Lakhan (PW-1) u/s 161 Cr.P.C, there was no reference of information about the incident having been received from Bunty @ Satyanarayan. The trial Court also found that PW-11 Naresh Sharma did not mention about Bunty being the source of information about the incident. All these lacunas in the prosecution story compelled the trial Court to acquit the accused.

11. The other piece of evidence Ex.P-5 is oral dying declaration in shape of statement of Ram Lakhan (PW-1) father of the deceased that he was told by the deceased, while she was taken in injured state to the hospital, that all the four accused i.e. respondents and her husband Narottam together set her ablaze. The trial Court after 5 M.Cr.C.7431/2017 testing the probity of this oral dying declaration on the anvil of evidence produced found several contradictions, embellishment and lacunas in the prosecution story.

12. The prosecution story projected in the charge sheet when compared with the testimonies before the Court discloses various loopholes in the shape of absence of such statement being made by the deceased to her father when she was being taken to the hospital in the prosecution story contained in charge-sheet. This fact came to light from para 12 of the cross-examination of Ram Lakhan (PW-1). Similar was the lacuna found in the testimony of PW-8 Jai Sing.

13. Thus, oral dying declaration Ex.P-5 which implicated the respondents and as well as Narottam husband of the deceased, was untrustworthy and could not be made foundation for finding respondents guilty of the offence of murder beyond reasonable doubt. 13.1 The last piece of evidence considered by the trial Court was Ex.P-7, the dying declaration left behind by the deceased recorded by Tehsildar in the hospital is to the effect that since three days Mahesh (brother-in-law) was argued with Narottam, husband of the deceased, over the issue of property when on the said date the said brother-in- law and sister-in-law Rinki came to matrimonial house of the deceased to assault the members of the matrimonial house. The dying declaration further discloses that when the deceased tried to intervene and stop the dispute between her brother-in-law and her husband, the husband Narrottam poured kerosene over the deceased and set her ablaze. When asked whether the deceased wants to say something else, she disclosed in her dying declaration that Shakuntala (mother-in-law), Mahesh (brother-in-law) and Rinki (sister-in-law) used to trouble the deceased and had earlier driven the deceased out of the matrimonial home. Ex.P-7, dying declaration, contained endorsement that the deceased was conscious during the time when she gave her dying declaration. The dying declaration is in question and answer form. The said dying declaration Ex.P-7 also 6 M.Cr.C.7431/2017 contained endorsement that the patient / injured is in a fit mental state to give statement. More so, the said dying declaration is proved by Tehsildar R.S. Saimil (PW-5) who was the scribe of the same. 13.2 The Apex court in the case of Khushal Rao Vs. State of M.P.; AIR 1958 SC 22 has laid down the broad principles on which the probative value of the Dying Declaration can be tested. Paragraphs 16 & 17 of this judgment is reproduced as under :-

16. On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control;

that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it-; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.

17. Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the court has come to the conclusion that the dying declaration was the truthful 7 M.Cr.C.7431/2017 version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the court, in a given case, has come to the conclusion that that particular dying declaration was not free from the infirmities, referred to above or from such other infirmities as may be disclosed in evidence in that case.

13.3 The principles laid down by the Apex Court in the above said case have more or less been followed in a recent case by the Apex Court in Asha Bai and Anr. Vs. State of Maharashtra; (2013) 2 SCC 224, para 15 of which is reproduced below :-

"15. About the evidentiary value of dying declaration of the deceased, it is relevant to refer Section 32(1) f the Indian Evidence Act, 1872, which reads as under:-

"32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.- Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:-

(1) when it relates to cause of death.- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

(2) ..... (8) * * *"

It is clear from the above provision that the statement made by the deceased by way of a declaration is admissible in evidence under Section 32(1) of the Evidence Act. It is not in dispute that her statement relates to the cause of her death. In that event, it qualifies the criteria mentioned in Section 32(1) of the Evidence Act. There is no particular form or procedure prescribed for recording a dying declaration nor it is required to be recorded only by a Magistrate. As a general rule, it is advisable to get the evidence of the declarant certified from a doctor. In appropriate cases, the satisfaction of the person recording the statement regarding the state of mind of the deceased would also be sufficient to hold that the deceased was in a position to make a statement. It is settled law that if the prosecution solely depends on the dying declaration, the normal rule is that the courts must exercise due care and caution to ensure genuineness of the dying declaration, keeping in mind that the accused had no opportunity to test the veracity of the statement of the deceased by cross-examination. As rightly observed by the High Court, the law does not insist upon the corroboration of dying declaration before it can be accepted. The insistence of corroboration to a dying declaration is only a rule of prudence. When the Court is satisfied that the dying declaration is voluntary, not tainted by tutoring or animosity, and is not a product of the imagination of the declarant, in that event, there is no impediment in convicting the accused on the basis of such dying declaration. When there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated and assess independently on its own merit as to its evidentiary value and one cannot be rejected because of certain variation in the other."

13.4 When dying declaration in question is tested on the anvil of law laid down by the Apex Court (supra), it is seen that it has been duly certified by Doctor in regard to fit physical and mental state of the deceased and has been recorded by competent Magistrate in proper manner and does not suffer from any of the infirmities known to law which would vitiate the admissibility of dying declaration.

14. From the above discussions, what comes out loud and clear is that out of three pieces of evidence which are worth consideration, only one i.e. Ex.P-7, the dying declaration recorded by Tehsildar, was rightly found to be trustworthy by the trial Court. 14.1 The said dying declaration Ex.P-7 which satisfies the pre-

requisites for being admissible piece of evidence solely implicates the husband of the deceased i.e. Narottam qua the charge of murder but does not allege any overt act on the part of respondents herein. Ex.P-7 may disclose that respondents subjected the deceased to cruelty but cannot by any stretch of imagination be used as clinching piece of evidence for finding respondents guilty of murder with the aid of Section 34 IPC.

14.2 The scope of Section 34 IPC stands explained by the Apex Court in the following cases, the relevant extracts for ready reference and convenience are reproduced below:-

In the case of Willie (William) Slaney Vs. State of Madhya Pradesh reported in AIR 1956 SC 116 the Apex Court has held as under :-

(77). ......there is much difference in the scope and applicability of sections 34 and 149, though they have some resemblance and are to some extent overlapping.

The two sections are again compared and contrasted in AIR 1954 SC 204 (J). Section 34 does not by itself create any offence, whereas it has been held that section 149 does. In a charge under section 34, there is active participation in the commission of the criminal act; under section 149, the liability arises by reason of 'the membership of the unlawful assembly with a common object, and there may be no active participation at all in the perpetration or commission of the crime."

(emphasis supplied) In the case of Dukhmochan Pandey Vs. State of Bihar reported in (1997) 8 SCC 405 the Apex Court has held as under :-

"6. ........The existence of a common intention between the participants in a crime is an essential element for attracting Section 34 of the Indian Penal Code and such intention could be formed previously or on the spot during the progress of the crime. Usually it implies a pre-arranged plan which in turn pre-supposes a prior meeting of mind. But in a given case such common intention which developed at the spur of the moment is different from a similar intention actuated a number of persons at the same time, and therefore, the said distinction must be borne in mind which would be relevant in deciding whether Section 34 of the 10 M.Cr.C.7431/2017 Indian Penal Code can be applied to all those who might have made some over attack on the spur of the moment. (See Kripal Vs. State of U.P. reported in AIR 1954 SC 706, Pandurang Vs . State of Hyderabad reported in AIR 1955 SC 216 and Mohan Singh Vs. State of Punjab reported in AIR 1963 SC 174 ) . The distinction between a common intention and a similar intention may be fine, but is nonetheless a real one and if overlooked, may lead to miscarriage of justice. ...."

In the case of Anil Sharma & Ors. Vs. State of Jharkhand reported in AIR 2004 SC 2294 the Apex Court has held as under :-

17. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence.

The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. ......".

15. The above discussion regarding scope of section 34 IPC reveals that meeting of minds in regard to intention to commit murder is an essential ingredient for invoking section 34 IPC. The evidence brought on record by the prosecution does not indicate towards meeting of minds of respondents for committing murder of the deceased. The mother-in-law is said to have exhorted the husband Narottam to eliminate the deceased but that by itself does not suffice the requirement of section 34 IPC. The exhortation made by the mother-in-law was not followed by any other overt act to indicate 11 M.Cr.C.7431/2017 towards common intention on her part along with husband - Narottam to commit murder. It appears that the husband in a fit of rage which arose out of the dispute over the property created by the altercation between brother-in-law, sister-in-law and mother-in-law impulsively poured kerosene oil over the deceased and set her ablaze. Even the dying declaration Ex.P-7 does not implicate the respondent mother- in-law of taking any other step after exhortation. It can safely be concluded that the act of the convicted husband Narottam was an individual act where the intention to commit murder was not shared by any of the respondents who were merely indulging in altercation. 15.1 It is settled principle of law that when two views are possible in a matter where doubt arises as to whether the offence is found to be established beyond all reasonable doubt, our criminal jurisprudence recognizes that the benefit should go to the accused. More so clinching evidence beyond all reasonable doubt is missing in the present case thereby eliminating the possibility of upsetting the verdict of acquittal rendered by the trial court.

16. In view of the above discussion, this Court is of the considered view that finding rendered by the trial Court in the impugned judgment acquitting the respondents herein from the charge u/s 302/ 34 IPC cannot be found fault with. The trial Court has rightly extended the benefit of doubt to the respondent herein.

17. In view of the above, this Court declines grant of leave to State to file appeal against acquittal of the respondents from the charge u/s 302 read with Section 34 IPC.

18. The present petition filed under Section 378(3) Cr.P.C. is accordingly dismissed.

                (Sheel Nagu)                            (Ashok Kumar Joshi)
sarathe           Judge                                       Judge
                16/08/2017                                 16/08/2017