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2004 DIGILAW 763 (MP)

Chhotelal v. State of Madhya Pradesh

2004-09-13

A.K.SHRIVASTAVA, DIPAK MISRA

body2004
Judgment ( 1. ) THE appellant, Chhotelal, and Girjabai the accused have been charged under Section 302 of the Indian Penal Code (in short the IPC) in Sessions Trial No. 322/93 on the allegation that Chhotelal had poured kerosene oil on his first wife Sharda Bai in which his second wife Girjabai had abetted, before the learned Second Additional Sessions Judge, Sihor in Sessions Trial No. 104/93 and the learned Trial Judge being satisfied with the material brought on record found the accused persons guilty of the charge and sentenced them to undergo rigorous imprisonment for life. ( 2. ) BRIEFLY stated, the prosecution case is that on 5-6-93 Sukhram (P. W. 1), the brother of the deceased had left the deceased Sharda Bai in the house of Chhotelal, husband of the deceased, as it was thought apposite by him that the deceased should remain with her husband. The deceased has left the matrimonial life for a period of eight months and came back to stay with Chhotelal. After departure of Sukhram from the scene the accused Chhotelal took out kerosene oil from the store and poured it on the deceased Sharda Bai. At this stage, Sharda Bai tried to escape but Girjabai, the other accused, caught hold of her and facilitated the accused Chhotelal to put the deceased ablaze with the help of a match stick. The deceased was taken to the hospital and from the hospital information was sent to the Police Station, Budhini. The investi gating agency registered Crime No. 34/93 for an offence punishable under Section 307/34 and thought it seemly to get the dying declaration recorded by the Executive Magistrate. Thereafter, the dying declaration was recorded by Abdul Rashid Khan (P. W. 3), Naib Tehsildar-cum-Executive Magistrate in presence of Dr. Pradeep Shrivastava (P. W. 8 ). After the dying declaration the deceased expired as a consequence of which the case was converted to one under Section 302 of the IPC. The investigating agency examined certain witnesses, took photographs of the material aspects, seized certain articles from the spot of occurrence, did panchnama of the dead body, got the autopsy done and after completing all other formalities placed the charge-sheet before the Competent Court which in turn committed the matter to the Committal Court. ( 3. The investigating agency examined certain witnesses, took photographs of the material aspects, seized certain articles from the spot of occurrence, did panchnama of the dead body, got the autopsy done and after completing all other formalities placed the charge-sheet before the Competent Court which in turn committed the matter to the Committal Court. ( 3. ) THE accused abjured his guilt and disputed his indictment and pleaded that he has been falsely implicated in the crime in question. ( 4. ) THE prosecution to bring home and establish the charge against the accused persons examined eight witnesses. P. W. 1 is Sukhram who is the brother of the deceased and had come to leave her to the house of Chhotelal P. W. 2 is Zareena Begum the landlady of house of Chhotelal who has turned hostile after being examined by the prosecution to some extent; P. W. 3 is Abdul Rashik Khan, the Executive Magistrate who recorded the dying declaration of the deceased; P. W. 4 and P. W. 5 are formal witnesses; P. W. 6 is Mohanlal who is another brother of the deceased who had spoken about the marriage that was solemnized in 1982-83 and how there was incompatible relationship between husband and wife and how there was eventual compromised; P. W. 7 is the Investigating Officer; and P. W. 8 is Dr. Pradeep Shrivastava who had given the certificate at the time of dying declaration and who had conducted autopsy on the dead body. ( 5. ) THE defence in order to prove its case examined two witnesses. D. W. 1 is Ramcharan who is the neighbour of the accused and had deposed that the accused Chhotelal after having leaving Girjabai to his house had gone to the Police Station to report the matter, and D. W. 2 is Gudiya, the daughter of the accused Chhotelal who is borne in the wedlock of the accused and the deceased and deposed in favour of Chhotelal. ( 6. ( 6. ) THE learned Trial Judge analyzed the evidence on record, placed reliance on the dying declaration as well as the testimony of certain witnesses and came to hold that the prosecution has been able to bring home the charge in entirety and there was no reason to find any kind of loopholes in the prosecution version and being of this view he found the accused persons guilty of the charge and eventually convicted and sentenced them as has been indicated hereinabove. ( 7. ) QUESTIONING the sustainability of the conviction it is submitted by Mr. Amod Gupta, learned Counsel for the accused, that the reliance placed on the dying declaration by the learned Trial Judge is unacceptable inasmuch as the deceased had sustained so many injuries she could not have been in a position to give dying declaration. It is urged by him that the deceased had left the matrimonial home for 8-9 months and there was no justification on her part to land up in the house of the accused on one fine morning as such an action on the part of the deceased does not inspire credence. It is his further submission that the evidence of Sukhram (P. W. 1) and Mohanlal (P. W. 6), brothers of the deceased are far from the truth and do not deserve acceptance and, therefore, it can safely be concluded that the dying declaration in the remotest sense does not get any corroboration from any of the witnesses. Learned Counsel has submitted that D. W. 2, the daughter of the deceased, has spoken in a categorical manner that her mother committed suicide and there is no justification to disbelieve the child witness. ( 8. ) MR. S. K. Rai, learned Government Advocate supporting the judgment of conviction has contended that the dying declaration as recorded by the Executive Magistrate can not be found fault with as it inspires confidence from all spectrums and on the basis of the dying declaration alone the conviction can be based. It is also contended by him that two brothers of the deceased, P. W. 1 and P. W. 6, have testified in an unequivocal manner about the torture met out to the deceased by the accused, Chhotelal, and that goes a long way to show the conduct of the accused and his action in committing the murder of his first wife. It is urged by Mr. Rai that it is but natural that when the husband had left the first wife and got into a matrimonial relationship with another lady who has been staying with him, to eliminate any kind of impediment, she thought it appropriate to get hold of her and, therefore, the dying declaration in the facts and circumstances of the case by no stretch of imagination can be regarded as not believable or credible. Learned Counsel for the State has submitted that Zareena Begum (P. W. 2), who has been declared hostile at a later stage, has also deposed that the accused used to quarrel with his first wife. Learned Counsel has also read out the portion of the evidence to bolster the factum that Chhotelal was not ready to keep Sharda Bai in his house. It is contended by him that even if the witness is declared hostile the relevant part of it can be relied upon by the prosecution as well as by the defence and if a studied scrutiny is made of the evidence of P. W. 2 it would tilt in favour of the prosecution. ( 9. ) TO appreciate the rival submissions raised at the Bar we have bestowed our anxious consideration and perused the judgment of the Trial Court. We have also gone through the evidence on record. The crux of the matter is that whether in a case of this nature the dying declaration recorded vide Ex. P-4 should be given credence and on that basis alone the conviction should be founded or there should be seeking of any kind of further corroboration. That being the thrust of the matter we have scanned the dying declaration contained in Ex. P- 4. On a perusal of the same it is manifest that Dr. Shrivastava (P. W. 8) has given the certificate at the bottom of the dying declaration that the deceased was in a state of total consciousness till the statement was recorded. The statement has been recorded by Naib Tehsildar (P. W. 3), who has maintained immense equanimity and stood embedded in his version. The thumb impression of the deceased has also been taken on the dying declaration and there is nothing to suggest that thumb impression could not have been taken. Submission of Mr. The statement has been recorded by Naib Tehsildar (P. W. 3), who has maintained immense equanimity and stood embedded in his version. The thumb impression of the deceased has also been taken on the dying declaration and there is nothing to suggest that thumb impression could not have been taken. Submission of Mr. Gupta is that there is no document indicating police requisitioning the Naib Tehsildar to record the dying declaration and if there is any, the same has not been brought on record and, therefore, the whole testimony of P. W. 3 should be thrown over board. On a scrutiny of the evidence of P. W. 3 it is luminescent that he has stated that police had informed and requested him to record the statement and he had come in quite promptitude. Non bringing of the requisition on record would not affect the prosecution case. There is no suggestion either to P. W. 8 or to the Executive Magistrate about the non-acceptability of the dying declaration and about the fitness of mind of the deceased. Both of them are Public Officers. Nothing has been shown that they had any axe to grind against the accused. In the dying declaration the deceased has stated that when she came to the house of Chhotelal the deceased directed him to leave the house but she instead of leaving the house, stayed back in the house and at that juncture Chhotelal poured kerosene on her body and when she tried to escape Girjabai, the accused No. 2, caught hold of her and Chhotelal, as has been stated by the deceased, lit the fire by matchstick. It is submitted that she became unconscious and later on found herself in the hospital. It has also come in the dying declaration that Chhotelal has solemnized second marriage with accused Girjabai only a month and half prior to the incident and, therefore, he poured kerosene oil on the body of the deceased as he did not desire to keep her at home. Nothing has been suggested cither to P. W. 3 or to P. W. 8 that there has been erroneous recording of dying declaration. Thus, we are of the considered opinion the dying declaration has been recorded absolutely correctly and there is nothing to persuade us to disbelieve or discard the same. Nothing has been suggested cither to P. W. 3 or to P. W. 8 that there has been erroneous recording of dying declaration. Thus, we are of the considered opinion the dying declaration has been recorded absolutely correctly and there is nothing to persuade us to disbelieve or discard the same. Quite apart from the above the factual background, testimony of two brothers and deposition of Zareena Begum who has become hostile lend some corroboration to the act committed by the accused persons. True it is, Mr. Amod Gupta, learned Counsel for the accused appellant would like us to give reliance and credence to the evidence of D. W. 2, the daughter of the deceased. But on a perusal of the said evidence we are of the considered opinion that nothing has been stated in her testimony to ignore the dying declaration. The dying declaration is free from any kind of reproach or impeachability and there can be no trace of doubt that the same can be accepted and on the foundation of the same conviction can be recorded. In this context, we may refer with profit to a two Judge Bench decision of the Apex Court rendered in the case of Shanmugm v. State of T. N. , (2002) 10 SCC 4 , wherein in Paragraph 8 it has been ruled thus : "8. We find no good reason to discard the dying declaration (Ex. P-16) recorded by the Judicial Magistrate within a few hours after the victim was admitted in the hospital. The Judicial Magistrate, who was examined as P. W. 11, categorically stated that he satisfied himself that the victim was conscious and was in a position to make the statement when he made the statement. The medical officer of the hospital was present at the time when he recorded the statement and he also made an endorsement on Ex. P-16 about the consciousness of the patient. The mere fact that the doctor, in whose presence Ex. P-16 was recorded, was not examined does not affect the evidentiary value to be attached to the dying declaration. The medical officer of the hospital was present at the time when he recorded the statement and he also made an endorsement on Ex. P-16 about the consciousness of the patient. The mere fact that the doctor, in whose presence Ex. P-16 was recorded, was not examined does not affect the evidentiary value to be attached to the dying declaration. The proposition laid down in Paparambaka Rosamma v. State of A. P. (at SCC P. 701, Para 8) that "in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate" is no longer good law in view of the recent Larger Bench decision in Laxman v. State of Maharashtra. Commenting that the said proposition does not reflect the correct enunciation of law, this Court observed thus: (SCC p. 715, Para 5 ). "it is indeed a hypertechnical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind especially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient and from the an swers elicited was satisfied that the patient was in a fit state of mind. . . . . . . " Thus, the theoretical distinction that was made in P. Rosamma case, consciousness and state of mind was not accepted by the five Judge Bench. In this case too, the Magistrate before proceeding to record the statement throwing light on the actual incident had put some preliminary questions to satisfy himself that the injured was conscious enough to give the statement. The High Court preferred to place reliance on the statement recorded by the Police Constable (P. W. 9), which is Ex. P-14. It is worthy of note that the doctor was not present while recording the said statement, yet the High Court chose to place reliance on Ex. P-14 while discarding Ex. P-16 on a ground which no longer holds good in view of the recent decision of this Court. That the dying declaration in Ex. P-16 contains the questions and relevant details of the incident. P-14 while discarding Ex. P-16 on a ground which no longer holds good in view of the recent decision of this Court. That the dying declaration in Ex. P-16 contains the questions and relevant details of the incident. There are no suspicious features which affect the credibility of the dying declaration. There is no apparent reason why the deceased should think of wantonly roping in his brother in the murderous attack. The mere fact that the victim did not make any reference to the injuries received by the accused is not a ground that merits rejection of dying declaration vide : State of Maharashtra v. Krishnamurti Laxmipati Naidu (AIR Para 19), especially when in the present case the victim could not have had an opportunity to observe the lip injury, if any, received by the accused. " In view of the aforesaid pronouncement of law we are of the considered view that the judgment rendered by the learned Trial Judge is absolutely presentable and does not require any interference. ( 10. ) CONSEQUENTLY, the criminal appeal, being devoid of merit, stands dismissed.