Madhya Pradesh High Court
Kisna & Ors. vs The State Of M.P on 11 September, 2012
Author: Rakesh Saksena
Bench: T.K. Kaushal, Rakesh Saksena
1
AFR
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
DIVISION BENCH
Criminal Appeal No.2089/2000
1. Kisna son of Nandua Ahirwar
aged about 33 years.
2. RukmanBai, w/o Nandua Ahirwar,
aged about 60 years.
3. Gendabai, w/o Kisna Ahirwar,
aged about 29 years.
All residents of village Jamata, Police
Station Patera, Tahsil Hata, district
Damoh.
Versus
The State of Madhya Pradesh through
Police Station Patera, district Damoh.
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For the Appellants: Shri Siddharth Datt, Advocate.
For the Respondent: Shri Amit Pandey, Panel Lawyer.
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PRESENT: HONOURABLE SHRI JUSTICE RAKESH SAKSENA
HONOURABLE SHRI JUSTICE T.K. KAUSHAL
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Date of hearing: 06/09/2012
Date of Judgment: 11/09/2012
JUDGMENT
Per: Rakesh Saksena, J.
1. Appellants have filed this appeal against the judgment dated 28th July 2000, passed by Sessions Judge, Damoh, in Sessions Trial No.183/1999, convicting the appellants under Section 302 of the Indian Penal Code and sentencing them to imprisonment for life with fine of Rs.500/-. In default of payment of fine, further rigorous imprisonment for six months.
2. In short the facts of the case are that Savitribai, the deceased, 2 alongwith her husband Dunnu Ahirwar and children lived in a hut. In the adjacent house, accused/appellants, who happened to be her husband's cousin, his mother and the wife, resided. It is said that accused Kisna had an evil eye on deceased. Frequently he made indecent overtures to her, but she always discarded and abused him. On 13.6.1999, in the morning, when deceased was in her hut, her husband had gone to answer the call of nature and her children were playing outside, accused Kisna alongwith his mother Rukman and wife Gendabai reached there. Kisna and Rukmanbai caught deceased and Gendabai, after dousing her with kerosene, set fire to her with a matchstick and ran away. When her husband reached there, she narrated the incident to him, who took her to Community Health Centre, Patera for treatment and then went to police station to inform the incident. This information was recorded in general diary (Ex.P/13-C) at 9.45 am.
3. In Community Health Centre, Patera, the injuries of deceased were examined by Dr. S.N. Mewafarosh (PW-13), but in view of serious nature of injuries, she was referred for further treatment to District Hospital, Damoh. During treatment, on 12.7.1999 Savitribai died.
4. While alive, a dying declaration of deceased (Ex.P/18) was recorded by Executive Magistrate S.K. Garg (PW-14). Her statement under Section 161 Cr.P.C. (Ex.P/6) was also recorded by Head Constable Ram Kumar (PW-4).
5. On the death of deceased, an intimation was sent by the doctor to Police Station Damoh, whereupon, a Murg No.0/1999 was recorded. In presence of witnesses, Police Damoh conducted inquest proceedings and recorded memorandum (Ex.P/3). On receiving the Murg intimation, a fresh Murg (Ex.P/14) was registered at Police Station, Patera. On the basis of dying declaration recorded by the Executive Magistrate, Investigating Officer, Virendra Bahadur (PW-15) registered the case under Section 302 of the Indian 3 Penal Code against the accused persons. He inspected the spot, prepared spot map and seized burnt clothes of deceased. He also arrested accused persons and on their information seized a kerosene Kuppi and matchstick.
6. After completion of investigation, charge sheet was filed in the court of Judicial Magistrate First Class, Hata. The case was thereafter committed to the court of session for trial.
7. On charge under Section 302 of the India Penal Code being framed against accused persons, they abjured their guilt and pleaded false implication due to ill will on the part of deceased. According to them, deceased suffered burn injuries accidentally by fall of kerosene lamp while cooking. They also examined Badi Bahu (DW-1) and Laltabai (DW-2) in their defence.
8. The prosecution, to substantiate its case, examined as many as 17 witnesses in the court. Main witnesses viz. Dunnu (PW-6), the husband of deceased, Nonelal (PW-7), Nunni (PW-8) and other witnesses of seizure etc. did not support the prosecution case. However, learned trial judge, believing the dying declaration (Ex.P/18) recorded by Executive Magistrate (PW-14) and the police statement of deceased (Ex.P/6) recorded by Head Constable Ram Kumar (PW-4), held the accused persons guilty of commission of murder of deceased and convicted and sentenced them as aforesaid.
9. Aggrieved by their conviction and sentence appellants have filed this appeal.
10. Shri Siddharth Datt, learned counsel for the appellants, submitted that the evidence of dying declaration was not supported by the evidence of husband and other relatives of the deceased. Husband of deceased Dunnu (PW-6) did not disclose the fact of setting fire by the accused persons in the earliest report (Ex.P/13-C) tendered by him to police. Another dying declaration, the police statement of deceased (Ex.P/6), was recorded by head 4 constable on 21.6.1999. In these circumstances, the evidence of dying declarations was not believable, but the learned trial judge misappreciated the aforesaid evidence and convicted the accused persons. On the other hand, Shri Amit Pandey, larned Penal Lawyer for the State, submitted that the evidence of dying declarations was fully reliable. The Executive Magistrate had no reason to fabricate an incriminating dying declaration of deceased against accused persons. He justified the impugned judgment of conviction passed by the trial court.
11. We have heard the learned counsel for the parties and perused the impugned judgment and the evidence on record carefully.
12. It has not been disputed that Savitribai died of burn injuries in District Hospital, Damoh. Dunnu (PW-6), the husband of Savitribai, deposed that Savitribai suffered burn injuries and died in the hospital. His evidence on this point was supported by Nunni (PW-8). Head Constable Motilal (PW-10) stated that on 13.6.1999 at about 9.45 am Dunnu gave information at Police Station, Patera that his wife suffered burn injuries. This information was recorded in general diary (Ex.P/13). Dr. S.N. Mewafarosh (PW-13), Assistant Surgeon of Community Health Centre, Patera deposed that on 13.6.1999 he examined the injuries of Savitribai and found burn marks on her face, chest, abdomen, back, both hands and both legs. There were about 80% burn injuries. Smell of kerosene emanated from her body. These injuries were around four hours old and appeared to have been caused by dry flame. He recorded the injuries of Savitribai in his report (Ex.P/17) and referred to her for further treatment and admission in District Hospital, Damoh. The injury report was written and signed by him. Head Constable Krishnakant Pradhan (PW-1), on 12.7.1999 received information at Police Station, Damoh that Savitribai died in the hospital. He recorded Murg intimation. The inquest of the dead body of Savitribai was 5 conducted by ASI Gokal Singh (PW-2) and the dead body was sent for postmortem examination. Dr. P.K. Jain (PW-12), Assistant Surgeon of District Hospital, Damoh conducted postmortem examination of the dead body of Savitribai and found deep burn marks of burn injuries on her neck, face, arms, chest, back side of trunk and both lower arms. Heeling wounds with pus were present on the body. About 60% part of the body was affected by burn injuries. The cause of death of Savitribai was shock due to secondary infection. The postmortem report (Ex.P/15) was written and signed by him.
13. From the aforesaid evidence, we find it established that deceased died out of burn injuries.
14. The next question before us is whether the trial court was justified in holding the accused persons guilty of causing death of deceased on the basis of alleged dying declarations Ex.P/6 recorded by Head Constable Ram Kumar (PW-4) and Ex.P/18 recorded by Naib Tahsildar S.K. Garg (PW-14).
15. Learned counsel for the appellants submitted that since the aforesaid dying declarations were not corroborated by any independent evidence, trial court committed error in placing reliance on them.
16. Naib Tahsildar S.K. Garg (PW-14) stated that on 13.6.1999 at about 10.00 am he recorded the dying declaration of Savitribai who was admitted in Primary Health Centre, Patera. Before recording her statement, Dr.Mewafarosh (PW-13), who was posted in the said Health Centre, examined Savitribai and certified her to be fully conscious and fit to give her statement. He himself found Savitribai capable of speaking. Savitribai stated that accused Kisna and Bau (Rukman Bai) caught hold of her and Kisna's wife ignited her. They caught her when she was all alone in her house. Kerosene was brought by Kisna, which was poured on her by his wife. Since nobody was in the house, she herself extinguished the fire. No serious challenge has been made to this 6 dying declaration on the ground that it was not correctly recorded or it was not made by the deceased. There was nothing on record to indicate that deceased made the aforesaid statement on being prompted by somebody else. Otherwise also, the doctor being an independent and impartial government officer, there could be no reason for him to have concocted the aforesaid dying declaration. As far as the capability of deceased of making dying declaration is concerned, admittedly she remained alive till 12.7.1999. Otherwise also, Dr.S.N.Mewafarosh (PW-13) stated that at the time of making the dying declaration deceased was in a fit condition to give statement. As such, we have no doubt that the dying declaration (Ex.P/18) recorded by Naib Tahsildar (PW-14) was genuine record of the statement made by the deceased.
17. As far as the statement of deceased (Ex.P/6) recorded under Section 161 Cr.P.C. by Head Constable Ram Kumar (PW-4) is concerned, it has been stated by Ram Kumar that when deceased was admitted in District Hospital, Damoh, he had recorded her statement on 21.6.1999. He was sent by the Station Officer of Police Station, Patera to record the said statement. His departure from the police station was recorded in general diary of the police station. At the time of making statement, deceased was in her full senses and her husband was also present. According to him, deceased stated that accused Krishna Chamar of her village used to come to catch her, therefore, she used to abuse him. In the morning, at about 6-7 am, when her husband had gone to answer the call of nature and her children were playing outside, because of the aforesaid animus, Krishna Chamar, his mother and his wife came to her Tapariya. Krishna and his mother caught hold of her and his wife Bhagbai, after pouring kerosene, ignited her. No other house is present in the vicinity. After 10-12 minutes, when her husband came back, she narrated the incident to him, to her mother-in-law and other people. Her relations with 7 Krishna Chamar were strained because he looked at her with covetous eyes.
18. The aforesaid statement of deceased recorded by police constable can be accepted as a dying declaration, provided it is found trustworthy. The evidence of Head Constable Ram Kumar (PW-4) finds corroboration from the evidence of Head Constable Motilal Mishra (PW-17) who stated that he made entry in general diary on 20.6.1999 about the departure of Head Constable 508 for recording the statement of injured in Crime No.57 registered under Section 307/34 IPC. The said general diary is Ex.P/25. After recording the statement of Savitribai in District Hospital, Damoh, Head Constable Ram Kumar had come back on 21.6.1999. His arrival was recorded in general diary (Ex.P/26).
19. From the above evidence their remains no doubt that Ram Kumar (PW-4) recorded the statement of deceased on 21.6.1999.
20. No doubt we technically find the aforesaid two dying declarations genuinely recorded by their authors as stated by the deceased, as they appeared not to suffer with any infirmity in recording the same, yet in view of the fact that neither the husband of deceased Dunnu (PW-6) nor any of her relatives supported the version given by her in the dying declarations, it is necessary to be critically scrutinized whether the statement made by the deceased was truthful or reasonably probable. It is all the more important since truthfulness of a statement made in a dying declaration cannot be tested by subjecting its maker to cross-examination in the court. Dunnu (PW-6) stated that at the time of occurrence his brother Kisna, his wife and mother were not present in their house. He had gone to answer the call of nature. His wife closed the doors of her room from inside. When his children shouted, he came and saw smoke coming out of the room. He pushed the doors of the room but they did not open, then he alongwith Nunni and Nona pushed open the doors and found deceased sitting in burnt condition. Her fire had already 8 slacked off. She did not give any answer as to why she ignited herself. When she came out of the room, he took her to Patera hospital. He then went to Police Station, Patera and made a report to police. Since this witness did not tow the line of prosecution, he was declared hostile, but his evidence, to some extent, stood corroborated by the evidence of Head Constable 213 Motilal (PW-10), who deposed that on 13.3.1999 at 9.45 am Dunnu gave an intimation at Police Station, which was recorded as R.No.367 in general diary. On perusal of this report (Ex.P/13-C) it is revealed that Dunnu informed that on hearing the cries of his children, when he, Nunni and Nona reached his house, they saw smoke coming out of thatch. The doors of the hut were closed from outside. When he pushed the doors, they did not open, then with the help of a Sabbal they opened the doors and saw his wife sitting burnt and weeping. When he asked why did she do it, she only asked for the treatment. A kerosene Dibia was also lying there. He then took her to hospital Patera and made the report to police. It is significant to note that this information was made by the husband of deceased at the earliest. Had accused persons ignited deceased, she would have definitely disclosed that to her husband. Even otherwise, it does not appear probable that deceased would not have resisted or shouted, when she was being forcibly ignited, to attract the attention of the people living in the neighbourhood. It is also suspicious that if the doors of the room in which deceased suffered burn injuries were bolted from outside why they could not be opened unless a 'Sabbal' was used to break open the doors. It gives some indication that doors were closed from inside.
21. it is also important to note that in the dying declaration (Ex.P/18) recorded by Naib Tahsildar (PW-13) deceased did not disclose as to why accused persons set fire to her whereas in her police statement (Ex.P/6) she 9 disclosed that accused Kisna kept an evil eye on her and also made attempts to catch her. Admittedly, accused Kisna is the cousin of her husband Dunna. Though Savitribai in Ex.P/6 stated that she narrated all these facts to Dunnu immediately after the occurrence, but these facts were not disclosed by Dunnu in Rojnamcha report (Ex.P/13-C). It is also improbable that accused Rukman Bai and Gendabai, the mother and the wife of accused Kisna would help Kisna to kill deceased because she did not yield his ugly demands.
22. Other witnesses Nonelal (PW-7), Nunni (PW-8) also stated that deceased either set fire herself or suffered burn injuries accidentally by fall of kerosene lamp. Badi Bahu (DW-1) and Laltabai (DW-2) respectively the mother-in-law and daughter of the deceased also stated that deceased caught fire by the fall of kerosene lamp.
23. It is true that these witnesses are close relatives of accused persons, therefore, they might have deposed in their favour, but, at the same time, from the probabilities emerging out from the evidence of Dunnu (PW-6) and other circumstances, a suspicion is created about the truthfulness of the statement made by deceased in the aforesaid dying declarations. It has been stated by Dunnu that deceased had told to him about the frequent skirmishes between her and accused persons about water, food or any other matter. As, a motive for committing an offence may lie hidden in the heart of accused, a motive for making false accusation against an accused may remain enshrouded in the heart of a victim. Since in the above circumstances we feel not satisfied about the truthfulness of the story given out by the deceased in her dying declarations, we find ourselves unable to accept the evidence of aforesaid dying declarations worthy of reliance. We, therefore, hold that prosecution failed to establish beyond a reasonable doubt that accused/appellants set fire to deceased and caused her death.
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24. Accordingly, impugned judgment of conviction and sentence of appellants under Section 302 of the Indian Penal Code is set aside. Appellants are acquitted.
25. Appellants No.1 Kisna and No.3 Gendabai, who are in jail, shall be released forthwith, if not required in any other case. Bail bond and surety bond of appellant No.2 Rukman Bai shall stand discharged.
26. Appeal allowed.
(RAKESH SAKSENA) (T.K. KAUSHAL)
JUDGE JUDGE
shukla
11
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Criminal Appeal No.2089/2000
Kisna and others
vs.
The State of Madhya Pradesh
JUDGMENT
For consideration
(Rakesh Saksena)
JUDGE
__/09/2012
Hon'ble Shri Justice T.K. Kaushal
JUDGE
__/09/2012
POST FOR /09/2012
(Rakesh Saksena)
Judge
___/09/2012