Chattisgarh High Court
Tumendra Kumar Gahare @ Vijay Kumar ... vs State Of Chhattisgarh on 18 March, 2016
Author: P. Diwaker
Bench: Pritinker Diwaker, Inder Singh Uboweja
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 1068 of 2012
1. Tumendra Kumar Gahare @ Vijay Kumar Gahare S/o Thanuram Satnami
aged about 27 years R/o Village Akaltara, Thana Simga, Distt. C.G.
---- Appellant (In Jail)
Versus
1. State Of Chhattisgarh S/o Through - The P.S. Simga, Distt. Raipur C.G.
---- Respondent
For Appellant: Shri Ashish Shrivastava, Advocate
For Respondent: Shri Ashish Surana, Panel Lawyer.
Hon'ble Shri Justice Pritinker Diwaker
Hon'ble Shri Justice Inder Singh Uboweja
Judgement
Per P. Diwaker, J
18/03/2016
1. This appeal arises out of the judgment of conviction and order of sentence dated 21.11.2012 passed by the Additional Sessions Judge, Bhatapara, District Raipur in S.T. No.38/10 convicting the accused/appellant under Section 302 of the Indian Penal Code (for short 'the IPC') and sentencing him to undergo imprisonment for life & fine of Rs.500/-, in default to undergo additional SI for 1 month.
2. The brief facts of the case are that on 12.11.2009 at about 9.45 p.m. Latabai, wife of appellant, suffered burn injuries. She was immediately taken to the Community Health Centre, Simga where her MLC was done by Dr. Mamta Thakur (PW-8) vide Ex.P-6 who noticed 90% burn injuries on her person. Considering the serious condition of Latabai, she was referred to the Government Hospital, Raipur where on the basis of her statement recorded by A.P. Prajapati (PW-12), Dehati Nalishi (Ex.P-12) under Section 307 & 498A of IPC was registered against accused/appellant on 14.11.2009. During the course of treatment, it was noticed by the doctor at Raipur that Latabai had suffered 83% burn injuries. On 15.11.2009 dying declaration (Ex.P-8) of the deceased was recorded by the Executive Magistrate-cum-Naib Tahsildar Prabhat Kumar Bakshi (PW-9) wherein she has stated that she was set aflame by her husband. On 18.11.2009 the deceased succumbed to the burn injuries in the hospital during treatment. Merg intimation (Ex.P-9) was recorded on 19.11.2009. Inquest was prepared vide Ex.P-1. Body was sent for post- mortem examination which was conducted on 19.11.2011 by Dr. S.N. Manjhi (PW-16) who opined the cause of death to be cardio respiratory failure as a result of burns and its complications. After investigation, charge sheet under Sections 498A, 307, 304B & 201of the IPC was filed against the accused/appellant, however, the charges under Section 302 & 304-B of IPC were framed against the appellant by the trial Court.
3. To substantiate the charge against the accused, the prosecution has examined 16 witnesses. When the accused was questioned under Section 313 Cr.P.C. about the incriminating evidence and circumstances, he denied the same and pleaded innocence and false implication.
4. Upon consideration of evidence, the trial court while acquitting accused/appellant from the charge under Section 304B of IPC, convicted and sentenced him as described above.
5. Counsel for the accused/appellant submits that; • in the dying declaration (Ex.P-7) recorded by Dr. Mamta Thakur (PW-
8) she has categorically stated that she caught fire while cooking food on stove. Subsequent dying declaration (Ex.P-8) recorded by the Executive Magistrate-cum-Naib Tahsildar (PW-9) not being in question-answer form appears to be recorded at the instance of relatives of the deceased and therefore no reliance can be placed on it.
• At the time of incident the appellant was not present in the house and having come to know about the incident, he immediately took the deceased to the hospital.
6. On the other hand, supporting the impugned judgment learned counsel for the State submits that;
• apart from dying declaration (Ex.P-8) recorded by the Executive Magistrate, in the dehati nalishi (Ex.P-12) recorded at the instance of the deceased, which can also be treated as dying declaration of deceased after her death, she has categorically stated that the accused/appellant after pouring kerosene oil on her body, set her on fire. The deceased also made oral dying declaration before Budheshwar (PW-1) & Kamlesh (PW-7) and there is no reason for this Court to disbelieve these dying declarations. • Had it been the case of accidental burn, smell of kerosene oil would not be emanated from the burnt clothing of the deceased.
7. Heard learned counsel for the parties and perused the evidence available on record.
8. Budeshwar (PW-1) is the brother of deceased. He has stated that on coming to know about the incident, he along with his brother Kamlesh (PW-7) went to the Government Hospital, Raipur where the deceased informed him that it is her husband who set her on fire after pouring kerosene oil on her. This witness has made several other allegations against the accused/appellant for subjecting the deceased to cruelty. He is also a witness of inquest Ex.P-1.
9. Nandkumar (PW-2) is the witness of seizure memo Ex.P-4 by which clothing of deceased & jerrycane was seized from the spot. This witness has duly supported the prosecution case.
10. Thanuram (PW-3) is the father of accused/appellant and he has not supported the prosecution story and turned hostile.
11. Vinay (PW-4) is the minor son of deceased and accused/appellant. He has stated that while the deceased was cooking food on stove, her saree caught fire and she sustained burn injuries. He has further stated that at the time of incident she was not present on the spot and this fact was disclosed to him by one Thanwar, brother of his grandfather. He has further stated that his father tried to extinguish fire and in that process he also received burn injuries in his hands.
12. Kamlesh (PW-7) is another brother of the deceased before whom she had made oral dying declaration that accused/appellant set her on fire. This witness has stated that the deceased made oral dying declaration before him and Budeshwar (PW-1).
13. Dr. Mamta Thakur (PW-8) is the doctor who treated the deceased at Simga and noticed 90% burns on her body except foots, legs & genitalia. This witness has stated that she has recorded dying declaration of the deceased vide Ex.P-7 wherein she disclosed to her that while cooking meals on the stove, her saree caught fire and she sustained burn injuries. She has further disclosed that at that time her husband was not present in the house.
14. Prabhat (PW-9) is the Tahsildar-cum- Executive Magistrate who recorded the dying declaration (Ex.P-8) of the deceased on 15.11.2009. He has stated that the deceased disclosed to him that accused/appellant used to quarrel with her for demand of dowry and on the date of incident after bolting the door from inside he poured kerosene oil on her and set her on fire. Since the room was bolted from inside, she could not escape, however, subsequently the accused/appellant himself poured cold water on her. This witness has accepted that he has not obtained fitness certificate but stated that the deceased was fully conscious at the time of recording of her dying declaration and even she has put her thumb impression on it.
15. L.R. Giri (PW-10) is the person who recorded merg intimation (Ex.P-9).
16. A.P. Prajapati (PW-12) is the person who recorded dehati FIR (Ex.P-12). He has stated that while recording Ex.P-12, the deceased informed him the manner in which she was set on fire by accused/appellant.
17. Neeluram Diwan (PW-13) is the witness of inquest (Ex.P-1).
18. Santosh Kumar (PW-14) is the Patwari who prepared the spot map (Ex.P-19).
19. K.S. Parihar (PW-15) is the investigating officer who has duly proved the prosecution case.
20. Dr. S.N. Manjhi (PW-15) is the person who performed post-mortem on the body of deceased and gave his report (Ex.P-20). This witness has opined the cause of death due to cardio respiratory failure on account of burns and its complications.
21. Dr. D. Shah (PW-17) is the person who prepared summary of the treatment on 13.11.2009 when she was brought to the hospital at Raipur for treatment.
22. We have given our thoughtful consideration to the contentions urged by the counsel for parties and perused the impugned judgment and the materials on record.
23. It has neither been disputed before us nor was disputed in the trial that deceased had met with her death on account of 87% burn injuries sustained in the matrimonial home. This even otherwise stands proved from her post-mortem report (Ex.P-20) and evidence of Dr. S.N. Manjhi (PW-16), who had performed post-mortem on her body and has opined that her death was due to cardio respiratory failure as a result of burn injuries sustained by her and its complications.
24. As regards the complicity of accused/appellant in crime in question, conviction is substantially based on the dying declaration (Ex.P-8) recorded by the Executive Magistrate (PW-9). However, in the present case the deceased made two dying declarations one before the doctor and another before the Executive Magistrate, which read thus;- 1st dying declaration (Ex.P-7) recorded by PW-7:
"1- uke D;k gS \ yrk
2- vkneh dk uke \ rqesUnz
3- fdrus cPps gS\ pkj] ,d yM+dk rhu yM+dh
4- rqe dSls tyh \ LVkso esa [kkus cukrs oDr tyh
5- ml le; ?kj esa dkSu&2 Fks\ NksVs&NksVs cPPks Fks
6 ml le; rqEgkjs ifr dgka Fks\ ?kj esa ugh Fks dke ij x;s Fks
7- vkSj lkl llqj ?kj esa Fks] vkokt lqudj vk;s Fks
8- ;g fdrus le; dh ?kVuk gS\ djhc vkB&ukS cts
9- bruh nsj dSls gqbZ \ xkM+h ugh feyh] njpqjk ls eksVjlkbZfdy esa ysdj
vk;s"
2nd dying declaration (Ex.P-8) recorded by PW-9:-
"---------?kVuk fnukad dks esjs ifr mesUnz ls >xM+k ngst ckcr gqvk Fkk ngst esa leku ugh yk;s gks cksyrk Fkk ges'kk ngst dh ckr ysdj >xM+k gksrk Fkk A ngst dh ckr ij >xM+k gksrk jgk ?kVuk fnukad dks dejs dk njokts esa nksuksa rjQ lkady can dj fn;k esjs dejs esa feV~Vh rsy j[kk Fkk mls esjs mij Mky fn;k eSa bl ij b/kj m/kj Hkkxh] lkady yxk fn;k Fkk ftlds dkj.k Hkkx ugh ikbZ] ekfpl ls vkx yxk fn;k vkSj ckn esa gM+k ikuh esjs mij Mky fn;k ?kj esa ge nksuksa gh jgrs Fks vkokt lqudj lkl vkbZ og nwj ds dejs esa jgrh Fkh lkl ls dksbZ >xM+k ugh gksrk Fkk--------A"
25. In a case where there is more than one dying declaration, it is the duty of the court to consider each one of them in its correct perspective and satisfy itself which one of them reflects the true state of affairs.
26. From perusal of above dying declarations it is evident that in the first dying declaration, deceased made no allegation against anyone but termed the incident as an accident, whereas in the second dying declaration the deceased accused her appellant husband of pouring kerosene oil and then setting her on fire, but this did not contain the certificate of the doctor that the deceased was in a fit state of mind to make a declaration. However, the Magistrate, who recorded the second declaration, clarified in his evidence that since the police had already obtained opinion of the doctor as to fitness of mind of the deceased to make statement, he himself did not enquire in this regard. Besides the aforesaid two declarations, there is yet another statement of the deceased recorded by a police officer in a routine manner as Dehati FIR (Ex.P-12) and not as a dying declaration wherein she accused her husband of pouring kerosene oil on her and then setting her on fire. According to evidence of A.K. Prajapati (PW-12), after getting certificate from the doctor that the deceased was in a fit condition to give her statement, he recorded Dehati FIR Ex.P-12 in the manner as was told by her. Though various suggestions have been put to this witness to make Ex.P-12 doubtful, he has denied all those adverse suggestions and remained very firm. Thus, this version of the deceased in Dehati FIR (Ex.P-12) can also be treated as dying declaration after her death and for this view I am fortified from the judgment of the Supreme Court in the matter of Paras Yadav vs. State of Bihar reported in (1999) 2 SCC 126 wherein it has been held by the Supreme Court that "a statement of the deceased recorded by a police officer in a routine manner as a complaint and not as a dying declaration can also be treated as dying declaration after the death of the injured and relied upon if the evidence of the prosecution witnesses clearly establishes that the deceased was conscious and was in a fit state of health to make the statement". On comparison of Ex.P-8 & Ex.P-12, we find that Ex.P-12 is consistent with Ex.P-8 i.e. second dying declaration recorded by the Executive Magistrate. More so, it also stands corroborated by the oral declaration made by the deceased to her brothers Budheshwar (PW-1) & Kamlesh Kumar (PW-7) in the hospital. The defence has not been able to elicit anything in the cross-examination of aforesaid witnesses to discredit their testimonies to the extent that the deceased has not made any dying declaration before them.
True it is that first dying declaration of the deceased was totally tilted in favour of appellant husband and the version put forward was that she had caught fire from the stove while cooking, but the settled position is that in case there are more than one dying declaration and there are inconsistencies between them, then the dying declaration recorded by the higher officer like a Magistrate can be relied upon as the same would stand on a much higher footing than the declaration recorded by officer of lower rank. Furthermore, evidence available on record reflects that the deceased was admitted in the hospital by the appellant husband and thus the possibility of the deceased making first statement in favour of the accused under threat, duress or compulsion by her husband that she would be admitted in hospital only if she would give a statement in his favour, cannot be ruled out.
27. Besides all this, the accused had admitted the deceased to be his wife and they were living together and that she caught fire. It was expected of him to explain to the Court as to how she had caught the fire. Strangely, he did not state the story of his wife catching fire from the stove in his statement under Section 313 Cr.P.C., though the trend of cross- examination of the prosecution witnesses on his behalf clearly indicates that stand.
28. Thus, in our considered opinion the dying declaration (Ex.P-8) of the deceased recorded by the Executive Magistrate, who has no axe to grind against the accused/appellant, is true, voluntary and free from any suspicious circumstances and it has not been made under any tutoring/duress/prompting.
29. As a result of the above discussions, we find no infirmity in the appreciation of evidence and law in judgment of the trial Court. Hence, we dismiss this appeal.
Sd/- Sd/-
(Pritinker Diwaker) (I.S. Uboweja)
Judge Judge
roshan/-