Madhya Pradesh High Court
Vishnu vs State Of M.P. on 18 June, 2018
Bench: S.C.Sharma, Rohit Arya
1 Cr. Appeal No.1372/2007
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
Cr. Appeal No.1372 of 2007
Vishunu
Vs.
State of Madhya Pradesh
CORAM
Hon'ble Justice S.C.Sharma
&
Hon'ble Justice Rohit Arya
---------------------------------------------------------------------------------------
Ms. Anushree Kaushik, learned counsel for the appellant.
Shri H.Y.Mehta, learned Public Prosecutor for the respondent/State.
Reserved on: 24/05/2018
JUDGMENT
(18/06/2018) Per Rohit Arya, J., This appeal under section 374 Cr.P.C., by the accused is directed against the judgment of conviction and order of sentence dated 14/11/2007 passed in sessions trial No.102/2006 by the Additional Sessions Judge, Shujalpur, District Shajapur, convicting the appellant under section 302 and sentenced to suffer life imprisonment with fine of Rs.200/- and in default of payment of fine to undergo one month rigorous imprisonment.
2. The undisputed fact is that the deceased Rekhabai was the wife of the appellant and died due to burn injuries in the hospital during treatment on the fateful day.
3. The prosecution story, in brief is that on 21/05/2006, Dr. Neelam Shukla, L.B.S.Hospital, Bhopal gave information to the Police Station Shahjanabad, Bhopal to the effect that Smt. Rekhabai resident of Pochaner was brought to the hospital for treatment in burnt condition. On receiving such information, the police personnel of Police Station, Shahjanabad, Bhopal reached the hospital and recorded the initial first information report at crime No.0X1 on 22/05/2006 under section 307 IPC (exhibit P/12) against the accused. However, looking to her serious condition, the requisite formalities have been completed for recording her dying declaration through Alok Pare, Naib Tehsildar (P.W.9).
2 Cr. Appeal No.1372/2007Thereafter, the Police Station, Shahjanabad Bhopal has forwarded the first information and the dying declaration to the Police Station A. Badodiya, District Shajapur whereat the original first information report at crime No.106/2006 was recorded (exhibit P/15). On 25/05/2006, an information was received from the hospital that the injured had died during treatment. Thereafter, after completing the necessary formalities her dead body was sent for post mortem to the Medico-legal Institute, Bhopal.
4. During investigation, S.N.Choudhari, Investigating Officer (P.W.11) has prepared the spot map (exhibit P/8), seized various articles, viz., gaslit cup (kuppi) of mirror, one chimney, one white thread, pieces of burnt clothes, simple earth and the blood stained soil (exhibit P/10). All the seized articles were sent for FSL examination. The statements of witnesses, Patehsingh, Lakhan-Kumbkar, Chandersingh Mewada, Chandersingh, Premnarayan, Sunitabai, Amritlal, Prembai, Shyamabai, etc., who were acquainted with the facts of the offence and arrested the appellant/accused. After completion of the investigation, a charge sheet was filed against the accused person before the concerned Court. Thereafter, cognizance of the matter was taken and committed the case to the Court of Session for trial.
5. The trial Judge on the basis of the material placed on record framed charge punishable under Section 302 against the accused person. The accused denied the charge and claimed to be tried. The defence of the accused is of false implication and the same defence he set forth in his statements recorded under Section 313 of the Code of Criminal Procedure, 1973.
6. The prosecution has examined as many as 11 witnesses and placed Exhibits P/1 to P/18, the documents on record.
7. The trial Judge on the basis of evidence placed on record came to hold that charge under Section 302 of the IPC has been proved against the appellant as a result of which convicted her and passed the sentence referred above.
8. This appeal has been preferred by the appellant assailing the judgment of conviction and order of sentence passed by the trial Court.
9. Learned counsel for the appellant while criticizing the impugned 3 Cr. Appeal No.1372/2007 judgment contends that there is mis-appreciation of the evidence on record and committed grave illegality having relied upon the testimony of the evidence led by cited witnesses. She has submitted that the appellant has been falsely roped in the case and there was no cogent evidence to establish the ingredients of offence under Section 302 of the IPC against the appellant.
The prosecution witnesses Lakhan Kumbhak (P.W.2), Chander Singh (P.W.3) and Shyambai (P.W.4) have in their statements have stated that the deceased was not in a condition to speak and there are variances in their statements. Hence, their statements cannot be relied upon to convict the appellant.
By putting a deep dent on the dying declaration (Exhibit P/14) recorded by Alok Pare, Naib Tehsildar (P.W.9), it has been argued that there are contradictions with the other circumstantial evidence and statements inasmuch as the deceased was not in a fit mental and physical condition to give the statement, and therefore, it would be highly unsafe to place reliance on the dying declaration (Exhibit P/14). It has been further argued by the learned counsel that in the dying declaration (Exhibit P/14), either her signature or thumb impression has not been obtained, therefore, the authenticity of the dying declaration is highly doubtful. Allegedly, Dr. Narvare stated to have certified that the deceased was in a fit condition to give the statement, however, the prosecution failed to examine the doctor. Hence, no reliance can be placed on such a dying declaration. She has placed reliance on the judgment of the Delhi High Court in the case of Shakuntala @ Shakoo & ors., Vs. State, CRL. Appeal No.615/2000 decided on 01/06/2017, A Division Bench of this Court at Principal Seat in Mis. Cr. Case No.21722/2015 (State of M.P., Vs. Bhawar Singh) decided on 17/06/2016, Jitendra Kumar Vs. State NCT of Delhi, 209(1) JCC 491, Khushal Rao Vs. State of Bombay, AIR 1958 SC 22, Bhagwan Tukaram Dange Vs. State of Maharashtra, (2014) 4 SCC 270, Surinder Kumar Vs. State of Haryana, 2011(10) SCC
173. Madras High Court in the case of Murugasami Vs. State, CrI.O.P.No.12148/2017, Arun Bhanudas Pawar Vs. State of Maharashtra, (2008) 11 SCC 232, Ashok Vs. State of Maharashtra, Cr. Appeal No.216/13 decided on 14/10/2016 and State of Maharashtra Vs. Hemant Kawaduchauriwal and others, Cr. Appeal No.1828-1829 decided on 16/12/2015 (MANU/SC/1466/2015) to bolster her submissions. Under such circumstances, the trial Court erred in convicting the appellant, hence, this appeal be allowed and the appellant be acquitted from the charge. In the alternative, the 4 Cr. Appeal No.1372/2007 appellant has suffered incarceration for a period of ten years, therefore, the period of sentence may be reduced to the period already undergone.
10. Learned Public Prosecutor supported the impugned judgment submits that the conviction in question is well merited. Accordingly, prayed for dismissal of the appeal.
11. We have heard learned counsel for the parties.
12. Sofar as first limb of argument of the learned counsel as regards the statements of P.W.2 Lakhan Kumbkar (brother of the deceased), P.W.3 Chandra Singh and P.W.4 Shyambai (mother of the deceased) are concerned, there is consistency as regards the humiliation meted out by the accused to the deceased off and on. Though there are minor variations as regards the alleged recording of the statements in the hospital by the police, the same shall not dilute the prosecution case in its entirety. Moreover, in the wake of the dying declaration of the deceased, the same loses its significance. Hence, the argument of the learned counsel for the appellant is negated.
13. In the present case, the conviction is based on dying declaration of the deceased, Rekhabai. It is settled principle of law that dying declaration is substantive piece of evidence and an order of conviction can be safely recorded on the basis of dying declaration. For relying upon the dying declaration, the Court must be conscious that the dying declaration was voluntary and further it was recorded correctly and above all the maker was in a fit condition mentally and physically to make such statement.
14. The deceased herself lodged the FIR (Exhibit P/12) immediately, after the incident at L.B.S. Hospital and Research Centre, Bhopal which reads as under:
** 1-ftyk Hkksiky Fkkuk 'kkgtgkukckn o"kZ 2006 iz0lw0e0 Ø0 0XI fnukad 22@05@2006 2- 1- fo/kku Hkknfo /kkjk,a 307 2- fo/kku /kkjk,a 3- fo/kku /kkjk,a 4- vU; fo/kku ,oa /kkjk,a 3- v- lanfHkZr jkstukepk lkUgk Ø-0 1451 c- ?kVuk dk fnu jfookj fnukad@le; 21@5@2006 8%00 djhc lqcg l- Fkkus ij lwpuk izkIr gksus dk fnukad@le; 22@5@2006 10%45 jks0lk0Ø- 1517 4- lwpuk dk izdkj fyf[kr 5 Cr. Appeal No.1372/2007 5- ?kVuk LFky % v- Fkkus ls fn'kk o nwjh chV uacj- 5 c- ?kVuk LFky dk irk xzke ikspkusj vkjksih dk edku Fkkuk cM+ksfn;k ftyk 'kktkiqj l- ?kVuk LFky vU; Fkkuk {ks=kf/kdkj gS rks Fkkuk cM+ksfn;k ftyk 'kktkiqj izFke lwpuk fooj.k % eSa Fkkuk 'kkgtgkaukckn esa lmfu ds in ij rSukr gwa fd fnukad 21-5-06 dks jkst-lk- Ø0 1451 ij ntZ ih-,e-,y-lh 443@06 ,y-ch-,l vLi- Hkksiky dh tkap dh xbZ nkSjkus tkap ih-e-,y-lh izkIr dj is'ksaV js[kk ckbZ ifr fo".kq izlkn mez 25 lky fu0 ikspkusj Fkkuk cM+kSfn;k ftyk 'kktkiqj dh tks fd tyus ds dkj.k ,y-ch-,l- vLi- esa ej.kklUu voLFkk esa bykt gsrq HkrhZ gS ftlds ej.kklUu dFku dk;Zikyd n.Mkf/kdkjh Jh vkyksd ikjs uk;c rglhynkj jkt/kkuh ifj;kstuk Hkksiky ls djk;s x;s tks vkt fnukad dks izkIr gq;s tks tkap ,oa ej.kklUu dFku ls ik;k x;k fd fnukad 21-5-06 dks lqcg djhc 8%00 cts Jherh- js[kk ds ifr fo".kq }kjk js[kk dks llqjky esa tku ls ekjus dh uh;r ls feV~Vh dk rsy 'kjhj ij Mkydj ekfpl ls vkx yxkbZ gS ftlls js[kk xaHkhj voLFkk esa bykt gsrq ,y-ch-,l- vLirky Hkksiky esa HkrhZ gS fd tkap ls izFke n`"V;k vijk/k /kkjk lnj dk ik;s tkus ls vijk/k iathc) dj foospuk esa fy;k x;k udy jkstukepk gLo tsy gS& jkstukepk lkUgk Øekad 1451 le; 15%35 cts lwpuk gS fd tfj;s VsyhQksu ,y-ch-,l- vLi- ds MkDvj uhye 'kqDyk us lwpuk fn;k fd is'ksaV js[kk ckbZ ifRu fo".kq vez 25 o"kZ vkj@vks xkao ikspuwj Fkkuk cM+ksfn;k rglhy dkyk ihiy ftyk 'kktkiqj fd is'ksaV ds dfd;k lqj bykt gsrq yk;k gS ftlus crk;k fd lqcg vkB cts xSl ls [kkuk cukrs le; ty xbZ gS ftldk ih-,y-,y-lh uacj 443@06 dh lwpuk dh vken yh xbZ tks lkUgk dk;Zokgh gsrq fn;k tkrk gSA B.L.Ahirwar, Assistant Sub Inspector (P.W.7) who recorded the Roznamcha on 21/05/2006 has proved the report (Exhibit P/12) of the deceased. After death of the deceased, this document would become her dying declaration, as contemplated under Section 32(1) of the Indian Evidence Act. It has been categorically stated by P.W.7, that on receiving the telephonic information on 21.5.2006 from Dr. Neelam Shukla from the hospital, he immediately reached the hospital and found Rekhabai was admitted there in burnt condition. On the basis of information given by Rekhabai he has recorded Roznamcha and looking to her state of health, sent the request letter to Naib Tehsildar for recording the dying declaration of the injured. Thereafter, the injured was certified to be in fit mental condition by Dr.C.K.Narware and the endorsement and signature in that behalf has been appended on the dying declaration itself made by the deceased before the aforesaid executive officer. Hence, the argument canvassed by the learned counsel that the Dr. C.K.Narware has not been examined by the prosecution is more of desperation than substance.
15. The trial Court after appreciating the evidence in detail found proved the statement of the deceased that the appellant poured kerosene on her (deceased) and lit the fire as a result she was burnt. On going through the reasonings assigned by the trial Court, we are of the view that the trial Court has rightly arrived at a conclusion that the 6 Cr. Appeal No.1372/2007 appellant has poured kerosene on the deceased, Rekhabai and lit the fire due to which she has received the burn injuries.
16. The MLC report of the deceased was Exhibit P/11 which was proved by Dr. B.K.Shrivastava (P.W.6). After death of the deceased, post mortem of the body was conducted by Dr. D.S.Badkur (P.W.1) and his post mortem report is at exhibits P/2 to P/4. After perusal of the testimony of the MLC Doctor B.K.Shrivastava (P.W.6), the Autopsy surgeon, Dr. D.S.Badkur (P.W.1) and the MLC report (Exhibit P/11) and the post mortem report (Exhibits P/2 to 4) as well as the certification/report of Dr. Farazan (P.W.8), we find the following injuries on the person of the deceased:
MLC REPORT (exhibit P/11):
"Burn while cooking food at home at about 8 AM on 21/05/06, at Pochanei village. Followed by burn area - abd, chest, face, both hands, both legs, buttocks and back."
POST MORTEM REPORT (exhibits P/2 to 4):
"Antemortem Burns:
(1) Second degree: Burns with soothing on all over the face. Natural folds of skin of eyelids & nostalgia folds are devoid of soothing.
(2) Third degree: Burns infected on all over the chest, abdomen both upper and lower limbs with epidermis missing. Dermis is soft and sloughing out at places except in the area of undergarments where the pattern of clothes seen with epidermis present. (3) Third and Second degree: Burns on both hands and feet and on both breast with patchy peeling of epidermis present.
(4) Second and Third degree: Burns on lower abdomen and vulva & perineum with patchy peeling of epid present.
Burns are caused by dry heat like flame & are fatal in ordinary cause of nature.
It was opined that death was due to cardiorespiratory failure as a result of burns and its complications. Duration of death was within 24 hrs. since the time post- mortem examination. Sings of hospitalization present. Annexed topographic diagram."
REPORT/CERTIFICATION dated 26/05/2006 (Exhibit P/13) "Patient name: Smt. Rekha Bai Age/Sex : 25 Yrs./F 7 Cr. Appeal No.1372/2007 Date of admission: 21/05/06 Date of death : 25/05/06 Diagnosis : 90% Burn The above mentioned patient was admitted in this hospital on 21/05/06 after the burn about 90% while working at her home, PMLC was informed at Shahjahanabad Thana and PMLC no. is 443/05/06. On 25/05/06 patient certified dead due to cardio-respiratory arrest and shifted at Hamidia Hospital for P.M.,"
17. According to Dr. D.S.Badkur (P.W.1), the cause of death was cardiorespiratory failure due to burns and its complications, therefore, FIR (Exhibit P/12) is corroborated by the medical evidence.
18. Exhibit P/14 is the dying declaration recorded by P.W.9, Alok Pare who has categorically stated that on 21/05/2006, he got a request letter from the Police Station, Shahjanabad,Bhopal for recording the dying declaration of Smt.Rekhabai wife of Vishnu, therefore, he went to the hospital. He found that the injured, Rekhabai was admitted in the hospital. Before proceeding to record the dying declaration, an enquiry was made about the condition of the patient then, the duty Doctor certified that the deceased was able to give her statement and thereafter upon his satisfaction regarding condition of the deceased, he has recorded her dying declaration. At the time of recording the dying declaration, the deceased was conscious and was able to give the dying declaration. P.W.9, Alok Pare while proving the dying declaration (Exhibit P/14) of the deceased has stated that he put questions and the deceased answered them wherein she has stated that her marriage took place 5-6 years prior to the date of incident and her husband off and on beat her, therefore, she used to go to her parental house. On the fateful day at about 7-8 am she was about to leave for forest and requested husband to keep the material inside brought for cooking. On this, he stated that he is not her servant (noukar) and picked up a quarrel with her. Thereafter, he opened the cup of chimney (gaslit cup) and poured kerosene and lit a matchstick and threw it on her as a result of which she burnt. She came out of the room and the outside people poured water on her. Her mother-in-law always harassed saying that if any wrong act has been done by her, your husband has authority to beat and gave answers to various other questions. After recording her statement, he again got certification about the condition of the deponent (deceased) from the Doctor who had certified that she was in good condition to give her statement. P.W.9 Alok Pare is totally independent witness. He has categorically 8 Cr. Appeal No.1372/2007 stated that the hands of the deceased tied with bandage (patti), therefore, neither her thumb impression nor signature has been obtained on the dying declaration. The question remains why he would tell a lie and why his statement should be disbelieved. There is no reason to disbelieve him.
19. The dying declaration (Exhibit P/14) is to the following effect:
"ej.kklUu dFku Mk- dh jk; LFkku & ,y-ch-,l vLirky ejht vius c;ku Hkksiky ns ldrh gS] c;ku nsrs le; le; & 11-35 PM ejht iwjs gks'k gokl esa gSA fnukad& 21-5-06 MkWa- lh-ds- ujojs uke & js[kk ifr fo".kq] mez & 23 o"kZ] fuoklh & ikspusj] Fkkuk cM+ksfn;k] 'kktkiqj iz0 D;k gqvk Fkk \ m0 esjh 'kknh 5&6 o"kZ iwoZ gqbZ Fkh] esjk ifr eq>dks ekjrk ihVrk Fkk] eS ek;ds pyh tkrh FkhA vkt lqcg 7&8 cts ds yxHkx eS taxy esa tk jgh Fkh rks eSus dgk Nksjh dks j[k yks] rks esjk ifr fo".kq dgus yxk eSa D;k rsjk ukSdj gWwA fQj mlus yM+kbZ o ekjihV dhA fQj mlus fpeuh dh fMCch mBkbZ mlus feV~Vh dk rsy esjs Åij Mky fn;k vkSj ekfpl ls vkx yxk nhA eSa Hkkx ckgj vkbZ] rks ckgj yksxks us eq> ij ikuh MkykA esjh lkl dgrh Fkh fd rsjk ifr gS] xyrh djsxh rks ekjsxk djsxkA iz0 ml le; ?kj ij dkSu dkSu Fkk \ m0 eSa ifr vkSj esjh Nksjh FkhA Nksjh ckgj [ksy jgh FkhA iz0 D;k igys Hkh rqEgkjs us ekjihV dh Fkh \ m0 gkWa] og esjs lkFk ekjihV djrk FkkA vkt Hkh vkx yxkus ls igys eq>dks ekjk FkkA esjk ifr lV~Vk cgqr yxkrk FkkA vkSj dqN dke ugh djrk FkkA iz0 rqEgs vkSj dqN dguk gS \ m0 esjk ifr lhgksj rd vk;k Fkk] ;gkWa ugh vk;kA Vhi& js[kk ds gkFk tys gksus rFkk iV~Vh gksus ds dkj.k nLr[kr ugh djk;k x;kA gLrk{kj 21-5-06 11%45 PM During the statement, she was conscious and fit.
Sd/-"
Dr. C.K. Narware 11.45 pm,
20. As the conviction under section 302 and sentence to suffer life 9 Cr. Appeal No.1372/2007 imprisonment with fine of Rs.200/- and in default of payment of fine to undergo one month rigorous imprisonment by the impugned judgment rests upon dying declaration of the deceased, Smt. Rekhabai, it is considered expedient to reiterate the law as laid down by the Hon'ble Supreme Court in catena of decisions explaining the philosophy in law underlying admissibility of dying declaration in evidence during the trial.
The Hon'ble Supreme Court in the case of Kundula Bala Subrahmanyam Vs. State of A.P., (1993) 2 SCC 684, it has been held as under:
"A dying declaration made by a person on the verge of his death as a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the courts, it becomes a very important and a reliable piece of evidence and if the court is satisfied that the dying declaration is true and free from any embellishment, such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration."
In similar circumstances, the same principle has been reiterated by the Hon'ble Supreme Court in the case of Jai Karan Vs. State of Delhi (NCT), (1998) 8 SCC 161.
21. The fact that the deceased was in a fit and conscious state of mind to make a statement, the Apex Court in Nallapati Sivaiah Vs. Sub-Divisional Officer, Guntur, Andhra Pradesh (2007) 15 SCC 465 observed in paragraph No.37 as under:
"The Constitution Bench in Laxman Vs. State of Maharashtra (2002) 6 SCC 710 resolved the difference of opinion between the decisions expressed by the two Benches of three learned Judges in Paparambaka Rosamma Vs. State of A.P., (2002) 6 SCC 710 and Koli Chunilal Savji Vs. State of Gujarat, (1999) 9 SCC 562 and accordingly held that there is no requirement of law that there should be always a medical certification that the injured was in a fit state of mind at the time of making a declaration and such certification by the doctor is essentially a rule of caution and even in the absence of such a certification the voluntary and truthful nature of the declaration can be established otherwise."
22. Upon close scrutiny of the dying declaration (Exhibit P/14), we 10 Cr. Appeal No.1372/2007 find that there is a certificate of the Doctor stating therein that the deceased was conscious and was able to give the dying declaration. As regards the signature or thumb impression of the deceased thereon, there is a categoric statement and withstood during the cross- examination of Alok Pare (P.W.9) who is totally an independent witness that the hands of the deceased have been tied with bandage (patti), therefore, physically she was not a position to put her signature or thumb impression can be beyond any reasonable doubt. Moreover, she has suffered 90% burn injuries on her person. Her, fingers mutilated due to the injuries and tied with bondage (patti). In that view of the matter, she naturally will not be able to append neither her signature nor thumb impression. According to us, trial Court did not commit any error in placing reliance on the dying declaration (Exhibit P/14) as well as the testimony of P.W.9, Alok Pare. Hence, the judgments relied upon are distinguishable on facts and are of no assistance to the appellant.
23. Bearing in mind the dying declaration and other material evidence on record, according to us, the trial Court has not committed any error in holding that the deceased had died as she had received 90% burn injuries and we do not find any infirmity in it. The judgment is based on correct appreciation of the evidence on record and further we see no reason to deviate ourselves from the reasonings assigned by the trial Court. Hence, we extend our stamp of approval on the reasonings, findings, conviction and sentence recorded and awarded by the trial Court.
24. Ex consequentia, this appeal is found to be bereft of any substance and the same is hereby dismissed.
(S.C.Sharma) (Rohit Arya)
Judge Judge
18-06-2018 18-06-2018
b/-
Digitally signed by M V R
BALAJI SARMA
Date: 2018.06.19 12:14:44
+05'30'