Madhya Pradesh High Court
State Of M.P. vs Raghuveer Singh And Others on 22 March, 2017
Bench: N.K. Gupta, S.K. Awasthi
1 Criminal Appeal No. 610/1999
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH:
PRESENT:
HON'BLE SHRI JUSTICE N.K. GUPTA
&
HON'BLE SHRI JUSTICE S.K. AWASTHI
CRIMINAL Appeal NO. 610/1999
State of Madhya Pradesh
Vs.
Raghuveer Singh & others
For the appellant/State : Shri J.M. Sahni, Panel
Lawyer.
For respondents No. 1, : Shri Rajmani Bansal
2 and 4
JUDGMENT
(22/03/2017) Per Justice N.K. Gupta:
State has preferred present appeal against the judgment dated 30.10.1998 passed by Fourth Additional Sessions Judge, Vidisha in S.T. No. 5/91, whereby each of the respondents has been acquitted from the charge under Section 302 read with Section 34 of IPC.
2. Facts of the case, in short, are that, at about 8 O'clock in the morning on 30.09.1990 the deceased Krishna Bai was cleaning utensils in her house at village Pitholi, Police Station Kurwai, District Vidisha. There was a dispute of property between the deceased widow Krishna Bai and the respondents, therefore, they surrounded the deceased Krishna Bai and uttered the words "Is Rand Ko Batao Yahi 2 Criminal Appeal No. 610/1999 Khet Par Ratta Kar Rahi hai" . Thereupon, the respondents Raghuveer Singh and Laxman Singh caught the deceased and confined her in a room. Accused Kasturi Bai sprinkled kerosene on her and accused Raghuveer Singh by lighting A match stick, set her on fire. Accused Dashrath Singh who was standing out side, exhorted the co-accused to burn her dead. Thereafter, all the accused persons bolted the room from outside and ran away. Having heard the cries of the deceased Krishna Bai, Rameshwar (PW-7), Suraj Bai (PW-8) etc. came to the spot and took Krishna Bai out of the room. She was taken to the hospital. A dehati nalishi, Ex. P/14 was recorded on the information given by the deceased Krishna Bai. Her dying declaration was also recorded by Naib Tehsildar A.K. Badkul (PW-12). Doctor B.A. Pandey (PW-11) examined her and gave a report Ex. P/7. He found various burns on the body of the deceased Krishna Bai. She was admitted in the hospital, however, she succumbed to the injury on 17.10.1990. Dr. M.S. Rajput (PW-2) performed the post-mortem on the body of deceased Krishna Bai and gave a report Ex. P/2A. He found 60% burns on the deceased and she died due to burn injuries, secondary infection and tetanus.
3. The Investigating Officer, ASI S.G. Dubey (PW-13) went to the spot and prepared a spot map Ex. P/4. He also examined various witnesses. He arrested Kasturi Bai on 02.10.1990 and prepared the arrest memo Ex.P/10. Similarly, remaining respondents were arrested and the arrest memo Ex. P/11 was prepared. After due investigation, the charge-sheet was filed before the JMFC, Ganjbasoda who committed the case to the Court of Sessions and ultimately it was transferred to Fourth Additional Sessions Judge, Vidisha.
4. The respondents abjured their guilt. They took a plea that they were falsely implicated in the matter. In defence, 3 Criminal Appeal No. 610/1999 Lakhpat Singh (DW-1) and Dr. A.K. Kumar (DW-2) were examined to show the factual position at the time of incident and for medical view on the death of the deceased.
5. The Trial Court after considering the evidence adduced by the parties acquitted the respondents from the aforesaid charges. During pendency of this appeal, respondent Kasturi Bai expired and her name was deleted from the cause title of the appeal.
6. We have heard learned counsel for the parties at length.
7. First of all, it is to be considered as to whether the death of the deceased Krishna Bai was homicidal in nature or not. According to Dr. B.A. Pandey (PW-11) who recorded medico-legal report of the deceased as EX. P/7 and found 60% burn injuries to the deceased and, therefore, she was admitted in the hospital. Dr. M.S. Rajput (PW-2) performed post-mortem on the body of the deceased and gave a report Ex. P/2A and found that the deceased sustained 60% burn injuries, secondary infection and tetanus due to which she died. The defence witness Dr. A. K. Kumar (DW-2) has stated that he examined the deceased when she was admitted in the hospital. However, in the cross-examination, he has accepted that on 17.10.1990 he examined the deceased between 11:25 to 11:45 PM only i.e. he looked after her only for 20 minutes. However, he was examined to give the opinion about secondary infection and tetanus. Looking to his opinion, there was general consequence of such secondary infection and tetanus due to the injuries caused to the deceased. However, injuries were sufficient to cause her death at a subsequent stage. The opinion given by Dr. A.K. Kumar (DW-2) does not give any help to the respondents. However, neither Dr. B.A. Pandy nor Dr. M.S. Rajput has stated that the death of the deceased was homicidal in nature, however according to them her injuries 4 Criminal Appeal No. 610/1999 were sufficient to cause her death in natural course of life. Hence the question as to whether the death of the deceased Krishna Bai was homicidal in nature, shall be considered on the basis of factual position.
8. According to the prosecution's case, there was no eye witness in the case, whereas Suraj Bai (PW-8) has claimed that she had seen the respondents when they were committing the crime. However, when there is a story that respondents committed a crime and thereafter bolted the room from outside and whereafter the witnesses went to the spot and removed the deceased Krishna Bai from the room, then it was not possible to Suraj Bai (PW-8) that she could see the entire incident done by the respondents, therefore, testimony of Suraj Bai (PW-8) pertaining to her claim to be an eye witness was to be discarded and, therefore, her statement cannot be accepted as an eye witness. The case depends upon dying declaration recorded by Naib Tehsildar A.K. Badkul (PW-12) and dehati Nalishi Ex. P/14 recorded by ASI Padam Lal Dubey (PW-14). If these two dying declarations are considered in comparative manner then according to dying declaration Ex. P/8 and dehati Nalishi Ex. P/14, there is a common fact that the respondent Kasturi Bai sprinkled kerosene upon the deceased but there are lot of contradictions relating to allegations against the other respondents. According to the document Ex. P/8, it was the respondent Laxman Singh who set the deceased on fire by lighting a match stick whereas in dehati Nalishi Ex. P/14 it was alleged against the respondent Raghuveer Singh that he lighted the match stick and set the deceased Krishna Bai on fire. Similarly, in document Ex. P/8, it was mentioned that Laxman Singh and Raghuveer Singh pushed her in a room and thereafter entire crime was committed, whereas in the dehati Nalishi Ex. P/14 there is no description that she was confined to a room and thereafter 5 Criminal Appeal No. 610/1999 crime was done. In dying declaration Ex. P/8, it was not mentioned that the respondent Laxman Singh held the hand of the deceased whereas in the dying declaration in shape of dehati Nalisi, it was mentioned that Laxman Singh immediately came from the first floor and held her hand. Role of Dashrath Singh is different in both the dying declarations. In dying declaration Ex. P/12, it was mentioned that Dashrath Singh was standing outside of the room and had exhorted the co-accused persons to set the deceased on fire and in dying declaration Ex. P/8, nothing was stated against Dashrath Singh from the very beginning. However, in answer of question 3, she added that Dashrath Singh had also exhorted the other co-accused persons to kill the deceased whereas from very beginning she did not mention the name of Dashrath Singh in the list of culprits. If a statement is recorded of one person having so many contradictions then such statement should be examined on the basis of other circumstances. The trial Court has discarded these two dying declarations on flimsy grounds. It was opined by the trial Court that since there was no signature and thumb impression of the deceased on dying declaration Ex. P/8, hence it was discarded. However, in document Ex. P/14, an explanation was given by the Investigating Officer Padam Lal Dubey (PW-14) that since both the thumbs of the deceased were found burnt and the deceased was not in a position to append the thumb impression, therefore, no thumb impression could be taken. Under these circumstances, document Ex. P/8 could not be discarded on these flimsy grounds.
9. However, for consideration of these two documents, the background of the case should be examined. Suraj Bai (PW-8) has accepted that there was a dispute between the parties due to property. The deceased was a widow who was in possession of property of her husband whereas other 6 Criminal Appeal No. 610/1999 brothers of husband of the deceased were claiming the property. She has accepted in para 8 of her statement that 15 days prior to the date of incident, a quarrel had taken place between the deceased alongwith Gajraj Singh and Kasturi Bai alongwith Raghuveer Singh and they assaulted each other. The deceased has also stated in dying declaration Ex. P/8 that there was dispute of property and the respondents were claiming the property of the deceased and, therefore, there was a dispute between them. Under these circumstances, it appears that there was enmity between the parties relating to dispute of the property. The enmity is a double edged weapon. It is possible that a person may falsely implicate his enemy due to enmity or such crime can be committed by the enemy due to enmity and, therefore, remaining evidence should be examined cautiously.
10. According to the deceased, as stated by her in dying declarations Ex. P/8 and P/14, the respondent Kasturi Bai poured kerosene upon her. However, Suraj Bai (PW-8) in her statement did not mention anything against Kasturi Bai. No reason has been shown by Suraj Bai as to why she removed the overt act of respondent Karsturi Bai. She has accepted in para 15 of her statement that Kasturi Bai is her sister and obviously she was saving Kasturi Bai. In this connection, Niranjan Singh (PW-9) was also examined by the prosecution. Niranjan Singh was related to the deceased. He has stated that when Rajkumar son of the deceased came to him with the information that the deceased sustained burn injuries then he immediately went to the house of the deceased then the deceased Krishna Bai told to save her and informed that she sustained injuries due to an accident. Similarly, the witness Shankar Singh (PW-4) was examined by the prosecution to inform about the oral dying declaration of the deceased. Shankar Singh has partly 7 Criminal Appeal No. 610/1999 turned hostile. He has stated that on enquiry the deceased told that she had sustained injuries due to an accident when she was preparing tea. In this connection, it can be said that Shankar Singh and Niranjan Singh did not support the prosecution story and those were won over witnesses but in this connection, evidence of Dr. B.A. Pandey (PW-11) is important who has stated in his cross-examination that in MLC report Ex. P/7 he did not mention that any smell of kerosene was oozing from the dead body of the deceased when she was taken before him. He categorically stated in the cross-examination that if he had found kerosene then he would have certainly mentioned it in the report Ex. P/7 which clearly shows that no kerosene was found on the body or clothes of the deceased when she was examined by Dr. B.A. Pandey (PW-11). If kerosene was poured by Kasturi Bai on the deceased and thereafter she was set on fire by the respondents then though she was burnt on 60% however from her clothes and body, smell of kerosene must have been found by the concerned doctor, initially before her treatment. Hence, the evidence of Dr. B.A. Pandey (PW-11) is against these two dying declarations as well as statement given by Suraj Bai. Looking to the statement given by Dr. B.A. Pandey, it appears that witnesses Shankar Singh and Niranjan Singh are telling a truth that neither Suraj Bai nor anyone was present in the house of the deceased. Rajkumar Singh went to the witness Niranjan Singh and Niranjan Singh went to the spot and took the deceased on a bullock cart up to Massedpur and thereafter Gajraj Singh father-in- law of Kasturi Bai met and he took her to the hospital. Hence, by evidence of Dr. B.A. Pandey (PW-11), the story of dying declaration appears to be doubtful.
11. If aforesaid contradictions between the dying declarations Ex. P/8 recorded by Naib Tehsildar A.K. Badkul (PW-12) and dehati Nalishi Ex. P/14 recorded by Padam Lal 8 Criminal Appeal No. 610/1999 Dubey (PW-14) are considered then it should be considered as to whether the deceased was tutored before giving her dying declaration or not.
12. According to dehati nalishi, the incident had taken place at about 8:00 am in the morning whereas dehati nalisi was recorded at 8:45 pm in the night i.e. after twelve hours and there is no reason mentioned by Sub Inspector Padam Lal Dubey (PW-14) as to why he did not record dehati nalisi within a reasonable period. Similarly, dying declaration Ex. P/8 recorded by Naib Tehsildar A.K. Badkul (PW-12) was recorded at about 10:20 pm i.e. approximately after 14 hours of the incident. No reason has been shown as to why dying declaration was recorded after reasonable time. The deceased met her father-in-law and so many persons, therefore, possibility cannot be ruled out that she was advised or she herself thought to get the advantage of accident and to implicate the respondents falsely. It is possible that she would have cooked the story that the kerosene was poured upon her and she was set on fire. Since it was a cooked story, therefore, there are material contradictions in the dying declaration Ex. P-8 and Dehati Nalasi Ex. P-14, relating to context of Raghuveer Singh and Laxman Singh.
13. Under these circumstances, where there is a possibility that due to span of time she would have cooked a story or she was tutored or she would have given a dying declaration for encashment of the incident and enmity with the respondents. Hence, the dying declarations Ex. P/8 and Ex. P/14 were worth discarding on the ground of discrepancies with delay and not otherwise. If these dying declarations are considered with the evidence of Dr. B.A. Pandey (PW-11) who did not find any smell of kerosene from the clothes or body of the deceased Krishna Bai then story of pouring kerosene to set her on fire appears to be a cooked story and 9 Criminal Appeal No. 610/1999 it was not a true story.
14. On the basis of aforesaid discussion and evidence given by Shankar Singh (PW-4), Rameshwar Singh (PW-7) and Niranjan Singh (PW-9), possibility cannot be ruled out that the deceased Krishna Bai had sustained injury due to an accident while she was making tea. Therefore, it cannot be opined that the death Krishna Bai was homicidal in nature and thus none of the accused can be convicted of offence under Section 302 of IPC or any inferior offence of similar nature. Under these circumstances, the trial Court has rightly acquitted the respondents.
15. On the basis of aforesaid discussion, there is no substance or merits in this appeal. Consequently, the same is hereby dismissed by affirming the judgment passed by Fourth Additional Sessions Judge, Vidisha.
16. The respondents No. 1, 2 and 4 are already on bail and their presence is no more required. Hence, it is directed that their bail bonds shall stand discharged.
17. Copy of this judgment be sent to the trial Court for information.
(N.K. Gupta) (S.K. Awasthi)
Judge Judge
(22/03/2017) (22/03/2017)
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