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Madhya Pradesh High Court · body

2001 DIGILAW 957 (MP)

Himmat Singh v. State of M. P.

2001-12-20

S.L.KOCHAR

body2001
JUDGMENT 1. This appeal has been directed by the appellants against the judgment and finding dated 15.2.1993 passed by the learned II Additional Sessions Judge, Khargone in Sessions Trial No. 46/92, convicting and sentencing the appellants under sections 304-II read with S. 34 of the Indian Penal Code, sentence to RI for 5 years and fine of Rs. 500/-, each in default of payment of fine, further RI for six months. 2. Appellant Himmatsingh has also been convicted for offence u/s 452, IPC sentence to RI for six months and fine of Rs. 250/-, in default of payment of fine, further RI for one month. The learned trial Court ordered that the sentence of appellant Himmatsingh shall run concurrently. 3. The prosecution case in short was that on 20.11.1991 in the night at about 8.00 P.M. in village Birul deceased Jaswantsingh was sleeping inside his house. At that time both the appellants came to his house, assaulted him and thereafter dragged him out of the house. It was also alleged by the prosecution that appellant Himmatsingh had taken out a bottle containing kerosene lying underneath the cot of the deceased Jaswantsingh and poured the same on his body. Thereafter, appellant No.2 Mansingh, lit the fire through a match stick, because of which the deceased Jaswantsingh received bum injuries. He was immediately taken to the Bhikangaon Hospital and thereafter to Khargone Hospital. He died in the Khargone Hospital on 27.11.1991. 4. The Police of Bhikangaon Police Station had received information about the incident from the Government Hospital, Bhikangaon, on which Crime No. 610/91 was registered for the offence u/ss 307/34 IPC, thereafter, it was converted after the death of the deceased u/s 302/34, IPC. After due investigation, charge-sheet was filed for the offences u/s 302, 452/34 of the IPC. 5. The learned trial Court framed the charges against the appellants for the offences u/s 452, 302/34, IPC but the same have been denied by the appellants. According to them they have been falsely implicated in the case. 6. The learned counsel for the appellants submitted that the conviction of the appellants is based on the solitary testimony of eye witness PW 4 Bhagwansingh aged 15 years, who is the son of the deceased, hence he is interested witness. Apart from this, he was a child witness as at the time of the incident he was aged 15 years. The learned counsel for the appellants submitted that the conviction of the appellants is based on the solitary testimony of eye witness PW 4 Bhagwansingh aged 15 years, who is the son of the deceased, hence he is interested witness. Apart from this, he was a child witness as at the time of the incident he was aged 15 years. The testimony of child witness should not have been relied upon by the trial Court because there is no sufficient independent corroboration to his version. It has also been submitted by the learned counsel for the appellants that the dying declaration recorded by the Naib-Tehsildar Ku. Vandana Parashar (PW 2) is not a reliable document because there is no proper medical certificate given by the doctor on this document. The learned counsel has also assailed the dying declaration recorded by Dr. S.S. Bais (PW 13) in the Bhikangaon Hospital, which was the first dying declaration. According to the prosecution, therefore, thereafter there was no need for the prosecution to get recorded another dying declaration. This situation shows that the prosecution itself was not satisfied with the first dying declaration recorded by Dr. S.S. Bais (PW 13). The learned counsel has also attacked the conviction of the appellants on the ground that the incident has not been supported by independent witnesses though they were present on and near the scene of occurrence. 7. Combating the above arguments, learned Panel Lawyer for the State has asserted that right from the beginning the prosecution case is consistent about participation of the appellants in the incident of setting fire to deceased Jaswantsingh. The story narrated by the deceased before the doctor S.S. Bais (PW 13) for the first time in the Bhikangaon Hospital, which was first recorded as a dying declaration is fully supported by the ocular version given by the eye witness PW 4 Bhagwansingh as well as the dying declaration recorded by the Naib Tahsildar Ku. Vandana Parashar PW 2 in Khargone Hospital. Both these dying declarations were recorded at different places and different point of time. Both the places were under the jurisdiction of different Police Stations. There is no evidence on record that the Police Station Bhikangaon and Naib Tahsildar Khargone Ku. Vandana Parashar PW 2 in Khargone Hospital. Both these dying declarations were recorded at different places and different point of time. Both the places were under the jurisdiction of different Police Stations. There is no evidence on record that the Police Station Bhikangaon and Naib Tahsildar Khargone Ku. Vandana Parashar PW 2 were aware of recording of the first dying declaration at Bhikangaon Hospital, therefore, by recording more than one dying declaration, it could not be said that the prosecution was doubtful about the verasity of the first dying declaration. The learned Panel Lawyer has vehemently argued that the learned trial Court in its detailed judgment has considered thoroughly each and every factual and legal position submitted by the defence as well as prosecution and rightly convicted the appellants for the aforesaid offences. 8. Having heard the learned counsel for the parties and after perusing the entire record, I am of the opinion that there is absolutely no scope in the appeal to interfere with the considered judgment passed by the learned trial Court. 9. The first dying declaration recorded by Dr. S.S. Bais PW 13 was recorded immediately after the arrival of the deceased in the Hospital, in which the deceased has narrated the story about the pouring of kerosene oil by accused Himmatsingh and lighting the fire by matchstick by appellant no. 2 Mansingh. This story has also been narrated by the eye witness PW 4 Bhagwansingh, whose presence cannot be doubted because the incident has taken place at and before his house. If, other witnesses of the locality have not supported the case, would not mean that this witness has spoken lie. He is the son of the deceased and he has no reason to leave the real culprit and implicate some other person. 10. The deceased Jaswantsingh had also no reason for implicating the appellants falsely. His statement before PW 13 Dr. S.S. Bais, thereafter before the police and again before PW 2 Ku. Vandana Parashar Naib-Tahsildar are consistent, which makes it clear that the appellants were the only and only perpetrator of the crime, none else. The learned trial Court has rightly found them guilty for the aforesaid offences. 11. His statement before PW 13 Dr. S.S. Bais, thereafter before the police and again before PW 2 Ku. Vandana Parashar Naib-Tahsildar are consistent, which makes it clear that the appellants were the only and only perpetrator of the crime, none else. The learned trial Court has rightly found them guilty for the aforesaid offences. 11. The learned counsel for the appellants have submitted that this appeal is of the year 1993 and the incident is also old one, hence, looking to the age of the appellants and facts and circumstances of the case a lenient view for imposing Jail sentence should be taken by this Court. This Court is not ready to accept this submission because the way in which the appellants have committed the crime in the cruel manner and they have already been leniently dealt with by the learned trial Court, hence, the conviction and sentence imposed by the learned trial Court is maintained. There is no substance in the appeal, hence the same is dismissed. The appellants, who are on bail, they are directed to surrender before the trial Court for serving out the remaining jail sentence. Their bail-bonds are hereby cancelled.