Madhya Pradesh High Court
Arjun Jagannath Kushwah vs State Of M.P. on 11 February, 1999
Equivalent citations: 1999(2)MPLJ117
JUDGMENT S.P. Khare, J.
1. Appellant Arjun Kushwah has been convicted under Section 306, Indian Penal Code and sentenced to rigorous imprisonment for four years and to a fine of Rs. 1,000/-.
2. Deceased Rekha was wife of the appellant, who died on account of hundred percent burn injuries sustained by her on 16-2-1995 within three years of her marriage. The incident took place in the house of her husband.
3. The prosecution case is that the appellant was demanding a motorcycle from the parents of the deceased. He was paid Rs. 15,000/- and again an amount of Rs. 5,000/- was paid to him. He used to beat and torture his wife. On 16-2-1995 at 630 P.M. the mother-in-law of the deceased asked her to take her son aged about one year to the first floor of the house. Rekha replied that she has just come to the ground floor with the child. At that time, the accused asked the deceased why she was not obeying her mother-in-law. He started assaulting her with fisticuffs. She took up the kerosene can from the kitchen and poured kerosene on her. Her husband, the appellant provoked her to ignite fire. She set her ablaze then and there. She died in the hospital after two days as she had sustained hundred percent burn injuries.
4. The appellant pleaded not guilty. The trial Court after appreciation of the evidence on record found that the appellant has abetted the commission of suicide by his wife.
5. In this appeal it is argued that the death of Rekha was accidental and from the evidence on record it is not established that the appellant abetted the commission of suicide by his wife.
6. The evidence on record has been carefully scrutinised by this Court. The prosecution case is based mainly on the dying declaration Ex.P-3 recorded by T. S. Ahirwar (P.W.3), Naib Tahsildar and the Executive Magistrate on 16-2-1995 at 9.30 P.M. in Hamidia Hospital, Bhopal. He has deposed that before proceeding to record dying declaration of Rekha, he got the certificate of the doctor on duty on Ex.P-3 that the patient was fit to give the statement. At the close of this dying declaration the doctor on duty has again certified that the patient has given the statement in full consciousness. He took fifteen minutes to record the statement of Rekha, which is being reproduced in extenso as under:-
^^ej.kklUu dFku js[kk iRuh vtqZu vk;q 22 o"kZ fu- dkth dsEi dSls ty xbZ\ eSa [kqn gh ty xbZ] esjs ifr eq>s ekj jgs Fks] gkFk iSj ls ekj jgs Fks pkVs ?kwls ekj jgs FksA D;ksa ekj jgs Fks\ eSa vius lkl dks tokc ns jgh Fkh bl dkj.k ekj jgs Fks & esjs lkl llqj gS lc ,dlkFk jgrs gSa] eSa cPps dks Åij vVkjh ij ugha ys tk jgh Fkh lks lkl xqLlk gks jgh Fkh o dg jgh Fkh fd Åij ys tkvks eSaus dgk eSa ugha ys tk jgh vHkh rks ykbZ gw¡ os fgys rks dgus yxs tokc ns jgh gS o ekjus yxsA fQj rqeus D;k fd;k\ fQj os ekj jgs Fks lks eSus fdpu esa ls vn~nh mBkbZ o Åij rsy Mky fy;k] ?kklysV dk rsy Fkk rsy Åij Mky dj ekfpl ls vkx yxk yh] tc rsy My jgh Fkh rc esjk vkneh lkeus [kM+k Fkk & esjk vkneh dg jgk Fkk fd Mky&Mky rsy Mky rw ugha ej ldrh] lks eSus dgk fd eSa D;ksa ugha ej ldrh] eSus dgk fd eq>s ekjks er fdUrq os ugh ekus lks eSus rsy Mky dj vkx yxkyh FkhA ?kVuk dc dh Fkh\ ?kVuk vkt 'kke dh gSA vkSj dksbZ ckr ugha gSA eq>s vkSj dqN ugha dguk gSA**
7. The statement of the deceased shows that it gives full details of the incident. It is coherent and consistent. It furnishes an inbuilt assurance that the declarant was fully conscious and was not suffering from any confusion or hallucination.
8. It is now firmly well settled from a series of the decisions of the Supreme Court commencing from Khushalrao v. State of Bombay, AIR 1958 SC 22 to Najjam v. State of West Bengal, AIR 1998 SC 683 that dying declaration is admissible in evidence on the principle of necessity and can form the basis for conviction if it is found to be reliable. While it is in the nature of an exception to the general rule forbidding hearsay evidence, it is admitted on the premise that ordinarily a dying person will not falsely implicate an innocent person in the commission of a serious crime. It is this premise which is considered strong enough to set off the need that the maker of the statement should state so on oath and be cross-examined by the person who is sought to be implicated. In order that a dying declaration may form the sole basis for conviction without need for independent corroboration it must be shown that the person making it had the opportunity of identifying the person implicated and it is thoroughly reliable and free from blemish. If, in the facts and circumstances of the case, it is found that the maker of the statement was in fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by other and the court on strict scrutiny finds it to be reliable there is no rule of law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated. A dying declaration is an independent piece of evidence like any other piece of evidence-neither extra strong nor weak and can be acted upon without corroboration if it is found to be otherwise true and reliable.
9. The maxim is : "A man will not meet his maker with a lie in his mouth". A dying declaration made by the victim in a fit mental condition and on the verge of death has a special sanctity; at the solemn moment, a person is most unlikely to make an untrue statement; the shadow of impending death is itself the guarantee of the truth of his declaration as to the causes or circumstances leading to his death; a dying declaration is almost sacrosanct.
10. It is contended on behalf of the appellant that Dr. Mukul Mathur (P.W. 6) had examined Rekha on 16-2-1995 and he has stated that it was revealed by her that she sustained burn injuries from the stove. He had conveyed the first information report to the police as per Ex.P.-7. The husband-appellant was also with Rekha when she was taken to the hospital. It appears that he must have stated to the doctor that his wife had sustained injuries from the stove. The photographs were taken by L. P. Saxena (P.W.8). These photographs show that the stove was kept close to a wall and there was no evidence to show of its bursting or its being used by the deceased at the time of the incident. Dr. Sanjay Kumar Dadu (P.W. 7) had conducted the autopsy on the dead body of Rekha and he found that hair of her scalp and the ribbon were giving smell of kerosene. That has also been confirmed by the report of the Forensic Science Laboratory Ex.P-14. Therefore, burn injuries must have been caused after the kerosene was poured by the deceased on her head. In case she had sustained injuries from the stove there would not have been kerosene on her head and on her ribbon. Therefore, the finding of the trial court that Rekha committed suicide is unassailable. It is not at all a case of accidental death.
11. The next question is whether the appellant abetted the commission of suicide by his wife. The dying declaration shows that the deceased was asked by her mother-in-law to take the child to the first floor and she replied that she has just come on the ground floor. The husband intervened and said that why she was giving replies to her mother-in-law. If the accused had not crossed this limit it would have been a case of ordinary domestic quarrel or minor jerks and jars. But the husband exceeded that limit. He started assaulting his wife with fisticuffs. She took out the kerosene can from the kitchen while she was pouring kerosene on her, her husband who was standing in front of her said - "
^^Mky&Mky rsy Mky rw ugha ej ldrh**-
She also said that he should not further beat her but he continued to assault her. This brings the conduct of the appellant in the category of abetment. When there was already fuel in the hands of the wife, he should not have "added fuel to fire" by uttering provocative language. Such utterance amounts to instigation to commit suicide. (See Brijlal v. Premchand, AIR 1989 SC 1661.) She was goaded by the appellant to bring an end to her life. The words used by the appellant amounted to grave and serious provocation enough for an ordinary woman in the Indian set up, to do what the deceased actually did. Gurbachan Singh v. Satpal Singh, AIR 1990 SC 209. The wife was thus subjected to cruelty as defined in Section 113A of the Evidence Act.
12. In State of Punjab v. Iqbal Singh, AIR 1991 SC 1532, the Supreme Court has held that where the husband or his relative by his wilful conduct creates a situation which he knows will drive the woman to commit suicide and she actually does so, the case would squarely fall within the ambit of Section 306, Indian Penal Code. In such a case, the conduct of the person would tantamount to inciting or provoking or virtually pushing the woman into a desperate situation of no return which would compel her to put an end to her miseries by committing suicide. '
13. Two decisions have been cited on behalf of the appellant - Swamy Prahaladdas v. State of M. P., 1995 SCC (Cri) 943 and Mahendra Singh v. State of M.P., 1995 SCC (Cri) 1157. These decisions are distinguishable on facts. The first case did not relate to the abatement to commit suicide by the wife. Therefore, the remarks of the appellant in that case "go and die" were not construed as amounting to abatement. The decision in the second case was based on its own facts.
14. It was also argued that the burn injuries were found on the palms of the appellant and that shows that he tried to extinguish the fire. The appellant was too late in taking that step. Nine-tenth of the wisdom lies to be wise in time. There is evidence to this effect that the appellant was demanding a motorcycle and he was actually paid a total amount of Rs. 20,000/- for that purpose. It was expected from the appellant that he would behave with his wife with greater love and affection but he belied that hope of the parents of the deceased.
15. The conviction of the appellant under Section 306, Indian Penal Code by the trial Court is well merited. Coming to the question of sentence it has been stated that the appellant is in jail since 1995 after the conviction by the trial Court. He has spent sometime in jail as under-trial prisoner. It has also to be borne in mind that if the deceased had maintained her cool, this incident would have been averted. Considering all the facts and circumstances, the period spent by the appellant in jail is sufficient sentence for the crime which he has committed. Therefore, the sentence is modified to the period already undergone by the appellant in jail. Now he should be set at liberty if not required in any other case.