Madhya Pradesh High Court
Hemchand vs The State Of Madhya Pradeshs on 8 February, 2018
Author: J.P.Gupta
Bench: J.P.Gupta
1
HIGH COURT OF MADHYA PRADESH AT JABALPUR
Criminal Appeal No.1864/2007
BEFORE DIVISION BENCH JUSTICE J.K.MAHESHWARI
&
JUSTICE J.P.GUPTA
1.Hemchand
S/o.Ram Kumar Yadav
Aged about 27 years
2.Ram Kumar
S/o.Mansukh Lal Yadav
Aged about 52 years
3.Smt.Bai Yadav
W/o.Ram Kumar Yadav
Aged about 48 years
All R/o.Village-Padwar
Police Station-Salimnabad
District Katni (MP) APPELLANTS
VERSUS
State of Madhya Pradesh
Through Police Station-Salimnabad
District-Katni (MP) RESPONDENT
******
For Appellants : Shri R.S.Shukla, Amicus Curiae.
For respondent: Shri Saurabh Shrivastava, Government Advocate.
******
JUDGMENT
8.2.2018 This appeal under Section 374(2) of the Code of Criminal Procedure (hereinafter shall be referred to as ''Cr.P.C'') has been filed being aggrieved by the judgment of conviction and the sentence dated 31.7.2007 passed by the 1st Additional Sessions Judge, District Katni in Sessions Trial No.154/2006 convicting the appellants for the charge of 2 Section 304B in the alternative Section 302/34 of the Indian Penal Code (hereinafter shall be referred to as ''I.P.C'') for committing the murder of Rekhabai Yadav and sentencing them to undergo rigorous imprisonment for life and to pay a fine of Rs.1000/- in default to undergo rigorous imprisonment for three years and also convicting them for the charge of Section 498A of the I.P.C and sentencing them to undergo rigorous imprisonment for three years and to pay a fine of Rs.500/- in default to undergo rigorous imprisonment for six months.
2. It is not in dispute that Rekhabai Yadav is the deceased and the appellant No.1 Hemchand is her husband while appellant No.2 Ram Kumar and appellant No.3 Smt.Bai Yadav are her father-in-law & mother- in-law respectively. As alleged, on 12.7.2006, deceased Rekhabai Yadav was at home alongwith her husband Hemchand. On demand of dowry, the accused Hemchand poured the kerosene oil and lit the match on her person resulting into the burn injuries. Rekhabai Yadav was shifted to the hospital for treatment where she died on 29.7.2006. On the basis of the information of Nasir Husain, the merg was registered vide Annexure P/17. The Police investigation commenced. The dying declaration of Rekhabai Yadav was recorded by the Executive Magistrate Bhagirathi Lahrey (PW.1) vide Exhibit P/1. The first information report was registered by the Police vide Exhibit P/20 on 1.8.2006 at 9:00 pm for the offence under Sections 302, 498A, 34 of the I.P.C and Section 3/4 of the Dowry Prohibition Act.
3. After completion of the investigation, the Challan was filed in the Court of Judicial Magistrate but as the case was triable by the Court of Sessions, therefore, it was committed to the Court of Sessions from-where it was received by the 1 st Additional Sessions Judge, District Katni for trial where the charges of Sections 304B, 302/34, 306, 498A of the I.P.C were framed against the appellants.
34. The appellants have abjured their guilt and taken a defence of false implication. The prosecution examined as many as fourteen witnesses in support of their case but the accused persons did not examine any witness in support of their defence.
5. The Trial Court relying upon the testimony of Executive Magistrate Bhagirathi Lahrey (PW.1) who recorded the dying declaration of deceased Rekhabai Yadav vide Exhibit P/1 and corroborating the same with the medical evidence of Dr.P.D.Soni (PW.5) who conducted the autopsy of deceased Rekhabai Yadav, Dr.B.B.S.Dixit (PW.7) who certified and attested the dying declaration, Dr.Yashwant Verma (PW.9) who performed the MLC at the time of admission of the injured Rekhabai Yadav in the District Hospital, Katni, convicted the appellants for the charge of Section 304B, in the alternative Section 302/34 and Section 498A of the I.P.C and directed them to undergo the sentence as hereinabove described.
6. Learned counsel representing the appellants has strenuously urged that the conviction of appellants is not based on due appreciation of the evidence brought on record by the prosecution. On going the testimony of Dr.P.D.Soni (PW.5), who conducted the autopsy of deceased Rekhabai Yadav vide Exhibit P/5, it is apparent that the deceased Rekhabai Yadav was not having the left hand but on her dying declaration (Exhibit P/1), left thumb impression was taken by the Executive Magistrate Bhagirathi Lahrey (PW.1), which has been certified by him. The said fact also finds support from the testimony of Tarabai (PW.3), therefore, the dying declaration recorded by the Executive Magistrate Bhagirathi Lahrey (PW.1) vide Exhibit P/1 having left thumb impression of the deceased Rekhabai Yadav cannot be relied upon. However, the conviction of appellants based on the said dying declaration supported by the testimony of the Executive Magistrate so 4 also the doctor who certified the same is not sustainable in the eyes of law.
7. Learned counsel for the appellants contends that if the said dying declaration is taken into consideration then it is apparent that the name of appellant No.1 Hemchand alongwith the family members was shown to set the deceased ablaze but their role has not been specified. No question has been asked by the Executive Magistrate Bhagirathi Lahrey (PW.1) as to who were the persons included in the family members and except the appellant No.1 Hemchand, nothing is alleged against appellant No.2 Ram Kumar and appellant No.3 Smt.Bai Yadav in the dying declaration Exhibit P/1. The said fact finds support from the testimony of Tarabai (PW.3) and Dasairam (PW.4), who are the mother & father of the deceased Rekhabai Yadav respectively, therefore, the conviction of appellant No.2 Ram Kumar & appellant No.3 Smt.Bai Yadav deserves to be set aside. Insofar as the conviction for the charge of Section 304B of the I.P.C is concerned, there is no allegation of cruelty & harassment soon before her death and in absence thereto, such conviction cannot be sustained and similarly in absence of having any demand of dowry, the conviction of the appellants for the charge of Section 498A of the I.P.C also cannot be sustained.
8. Now insofar as the conviction of the appellants for the charge of Section 302/34 of the I.P.C is concerned, it is contended by learned counsel for the appellants that looking to the testimony of the Dr.P.D.Soni (PW.5), who conducted the autopsy of the deceased Rekhabai Yadav, it is apparent that 40-45% burn was there and the deceased died due to septicemia & toxemia, therefore, there cannot be any intention of the accused persons to commit the murder of deceased Rekhabai Yadav looking to the fact that the husband and family members got her admitted to the hospital for treatment. In view of the aforesaid, it is urged that setting aside the conviction for the charge 5 of Section 302/34 of the I.P.C insofar as it relates to appellant No.1 Hemchand, it may be converted for the charge of Section 304 Part-II of the I.P.C. In support of the said contention, reliance has been placed on the judgment of the Hon'ble Supreme Court rendered in the case of Maniben Versus State of Gujarat reported (2009) 8 SCC 796.
9. On the other hand, learned Government Advocate for the State has opposed the prayer as made by learned counsel for the appellants and argued in support of the findings as recorded by the Trial Court interalia contending that the dying declaration (Exhibit P/1) recorded by the Executive Magistrate Bhagirathi Lahrey (PW.1) does not appear to be suspicious and, therefore, the conviction of appellants for the charge of Section 304B & Section 498A of the IPC does not warrant any interference in the facts and circumstances of this case.
10. After having heard learned counsel for the parties and on perusal of the record of this case, the basis of conviction of the appellants is the dying declaration recorded by the Executive Magistrate Bhagirathi Lahrey (PW.1) vide Exhibit P/1 after due certification & attestation by the doctor on its completion. It is true that the left thumb impression of the deceased was shown on the dying declaration (Exhibit P/1) although she was not having the left palm from the wrist but this itself is not sufficient to create a suspicion on the dying declaration or to make the truthfulness of the said dying declaration doubtful. The Executive Magistrate Bhagirathi Lahrey (PW.1), who recorded the dying declaration of the deceased Rekhabai Yadav & Dr.B.B.S.Dixit (PW.7) who certified the condition of the deponent to make the dying declaration and to show her willingness do not make such dying declaration doubtful or suspicious, therefore, the argument as advanced by learned counsel for the appellants is of no substance.
611. Now the effect of the dying declaration given by the deceased Rekhabai Yadav before the Executive Magistrate Bhagirathi Lahrey (PW.1) is required to be analyzed. Perusal of the dying declaration (Exhibit P/1) would make clear that it is in question-answer form. Certain questions were posed to the deceased and in the reply it is said that her husband Hemchand alongwith family members poured kerosene and lit the match. No question was put as to who were included in the family members rather it was merely asked as to who was at home and in the reply, she revealed the names of appellant No.2 Ram Kumar and appellant No.3 Smt.Bai Yadav but did not disclose their participation in the said questionnaire.
12. It is seen that after setting her ablaze, Rekhabai Yadav was shifted by the accused persons to the hospital as revealed from the MLC and the treatment was provided to her in their presence. Perusal of the testimony of Dr.P.D.Soni (PW.5) would make it clear that the deceased Rekhabai Yadav was having 40-45% burn and on account of septicemia & toxemia, she developed the complication & died. More so, nothing has been alleged in the dying declaration (Exhibit P/1) or in the testimony of the Tarabai (PW.3) & Dasairam (PW.4) regarding the demand of dowry, cruelty & harassment soon before her death. In absence of having any ingredient of an offence under Section 304B & Section 498A of the I.P.C, the conviction of the appellants as directed by the Trial Court is unsustainable therefore, the conviction of the appellants for the charge of Section 304B & Section 498A of the I.P.C is hereby set aside.
13. Insofar as the conviction of the appellants for the charge of Section 302/34 of the I.P.C is concerned, it is apparent that no specific role has been assigned to appellant No.2 Ram Kumar and appellant No.3 Smt.Bai Yadav in the dying declaration (Exhibit P/1) and it is only the appellant No.1 Hemchand against whom it was said that he poured the kerosene oil and lit the match. However, the said dying declaration can 7 be relied upon to bring the charge at home only against appellant No.1 Hemchand and not against the appellant No.2 Ram Kumar and appellant No.3 Smt.Bai Yadav, therefore, the conviction of appellant No.2 Ram Kumar and appellant No.3 Smt.Bai Yadav for the charge of Section 302/34 of the I.P.C is also liable to be set aside.
14. Now reverting to the argument of learned counsel for the appellants that the charge of Section 302 of the I.P.C itself is not established; in our considered opinion, looking to the nature of the injuries sustained by the deceased Rekhabai Yadav and the conduct of appellant No.1 Hemchand, who shifted his wife Rekhabai Yadav to the hospital, hardly it may be a case of knowledge of burn of her wife/deceased Rekhabai Yadav but the accused/appellant No.1 Hemchand might not have any intention to commit her murder, would also reflect from the opinion of the doctor because due to complication of the wounds and on account of septicemia & toxemia, the deceased Rekhabai Yadav died. It further reveals from the conduct of appellant No.1, who shifted his wife to the hospital and made all endeavour to provide treatment to her until she died on account of septicemia. In such circumstances, the conviction of appellant No.1 Hemchand for the charge of Section 302 of the I.P.C deserves to be set aside instead he is liable to be convicted for the charge of Section 304 Part-II of the I.P.C and it is ordered accordingly.
15. Resultantly, this appeal succeeds and is hereby allowed in part. The conviction of appellant No.2 Ram Kumar and appellant No.3 Smt.Bai Yadav for the charge of Sections 302, 304B, 498A of the I.P.C stands set aside. The conviction of appellant No.1 Hemchand for the charge of Sections 302, 304B, 498A of the I.P.C also stands set aside instead he is convicted for the charge of Section 304 Part-II of the I.P.C. Appellant No.1 Hemchand was in custody during the course of the trial with effect from 2.8.2006 to 31.6.2007 and after passing the impugned 8 judgment, he is in custody since 31.7.2007. Thus, appellant No.1 Hemchand has already served more than eleven and a half years of the actual jail sentence. The said jail sentence would be sufficient for appellant No.1 Hemchand for his conviction under Section 304 Part-II of the I.P.C. Appellant No.1 Hemchand be set at liberty if he is not required in any other case. Insofar as the conviction of the appellant No.2 Ram Kumar and appellant No.3 Smt.BaiYadav for the charge of Sections 302, 304B, 498A of the I.P.C is concerned, theirs conviction also stands set aside for the aforesaid charges. As the appellant No.2 Ram Kumar and appellant No.3 Smt.Bai Yadav are on bail, their bail bonds are discharged.
16. At the end, it is our duty to record the words of appreciation in favour of the amicus curiae, who assisted the Court in the disposal of this appeal, which is pending since 2007 and in which appellants are in jail for last more than eleven years.
(J.K.Maheshwari) (J.P.Gupta)
Judge Judge
amit
Digitally signed by AMIT
JAIN
Date: 2018.03.22 11:23:48
+05'30'