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Madhya Pradesh High Court · body

2007 DIGILAW 1268 (MP)

RAJESH v. STATE OF M. P.

2007-12-07

AJIT SINGH

body2007
Judgment Ajit Singh, J. ( 1. ) Appellant, Rajesh, stands convicted under Section 304-B of the Indian Penal Code and sentenced to rigorous imprisonment for eight years by the impugned judgment dated 16.4.1993 passed in Sessions Trial No 131/1990 by the First Additional Sessions Judge, Hoshangabad. ( 2. ) The facts giving rise to this appeal are as under: The appellant hails from village Karanpur, District Hoshangabad. He was married to Sunanda Bai on 27.6.1989 of village Saikheda, District Narsinghpur. On 29.8.1989, sometime during afternoon, Sunanda Bai sustained burn injuries in the house of appellant. She was taken for treatment to the District Hospital, Hoshangabad. On the same day the police recorded her statement, Ex. D3, in the hospital wherein she stated that she accidentally caught fire from a stove while preparing tea and at that time her husband and in-laws were not present in the house. Sunanda Bai also stated that she had no quarrel with them. On receiving the information about the incident, mother Saroj Bai (P.W.1), brother Satish (P.W.4) and father Ram Sewak (P.W.5) also reached the hospital to attend her. Unfortunately, Sunanda Bai could not sustain the burn injuries and died in the hospital on 3.9.1989 while undergoing treatment. The police prepared a Panchayatnama dated 3.9.1989, Ex. P4, with Saroj Bai (P.W.1), Satish (P.W.4) and Ram Sewak (P.W.5) as witnesses which clearly states that they had no suspicion against anyone in relation to the death of Sunanda Bai and that she died on account of receiving burn injuries from a stove. Dr. S. N. Kataria (P.W.3), after performing the post mortem examination on the body of Sunanda Bai, in his report, Ex. P7, opined that her cause of death was shock and septicemia due to extensive burn injuries. ( 3. ) On 6.9.1989 Saroj Bai (P.W. 1) submitted atyped complaint at Police Station, Sohagpur, against the appellant and his parents namely, Atar Singh and Choti Bai, alleging that they treated Sunanda Bai with cruelty for demand of Luna, T.V. and Gold and set her on fire after pouring kerosene and tying her legs. The typed complaint was later registered as first information report, Ex. P2. The police, after investigation, charge sheeted the appellant and his parents named above for offences under sections 306, 302 and 304-B of the Indian Penal Code. ( 4. The typed complaint was later registered as first information report, Ex. P2. The police, after investigation, charge sheeted the appellant and his parents named above for offences under sections 306, 302 and 304-B of the Indian Penal Code. ( 4. ) The defence of appellant was that Sunanda Bai accidentally caught fire from a stove in his house when no one was present. He relied upon the dying declaration, Ex. D3, of Sunanda Bai and examined witnesses Ram Krishna (D.W. 1). Neemchand (D.W.2), Pannalal (D.W.3) and Mohan (D.W.4) in support of his defence. ( 5. ) The trial court rejected the defence of appellant and mainly relying upon the evidence of Saroj Bai (P.W.I), Ram Sewak (P.W.5) and Dr. S. N. Kataria (P.W.3) convicted and sentenced him as aforesaid. It, however, acquitted the parents of appellant in the absence of any trustworthy evidence against them. ( 6. ) The question which calls for determination in this appeal is whether Sunanda Bai died accidentally or she was subjected to cruelty in connection with demand of dowry resulting into her death by burns. ( 7. ) There can be no dispute as to how Sunanda Bai sustained burn injuries could have been best disclosed by her alone. Ex. D3 is a carbon copy of the police statement of Sunanda Bai recorded on the date of incident. It also bears her thumb impression. Order sheet dated 20.3.1993 of the trial court reveals that the public prosecutor did not dispute that the said statement was recorded by the police and admitted the same whereupon it was exhibited. In Ex. D3 Sunanda Bai has clearly stated that she accidentally caught fire from a stove while preparing tea when neither her husband nor in- laws were present in the house and that she had no quarrel with them. Ram Sewak (P.W.5) has also admitted in paragraph 5 of his evidence that in the hospital, on his asking. Sunanda Bai disclosed that she accidentally caught fire from a stove while preparing food This admission by Ram Sewak (P.W.5) about oral dying declaration by Sunanda Bai further confirms the defence of appellant that Sunanda Bai accidentally caught fire. Ram Sewak (P.W.5), Saroj Bai (P.W.I) and Satish (P.W.4) also knew that Sunanda Bai accidentally caught fire or else they would not have signed Panchayatnama, Ex. P4, regarding her accidental death clearly mentioning that there was no suspicion against anyone. Ram Sewak (P.W.5), Saroj Bai (P.W.I) and Satish (P.W.4) also knew that Sunanda Bai accidentally caught fire or else they would not have signed Panchayatnama, Ex. P4, regarding her accidental death clearly mentioning that there was no suspicion against anyone. Ram Sewak (P.W.5) and Saroj Bai (P.W.I), however, tried to explain about this in their evidence on the plea that they were under depression but they have not stated that they so acted under any direct or indirect influence from the accused persons. ( 8. ) The trial court rejected the dying declaration, Ex. D3, of Sunanda Bai by holding that it was suspicious as there was no evidence to show as to where and how it was recorded. In Gaffar Badshaha Pathan Vs. State of Maharashtra (2004) 10 SCC 589 the Supreme Court has held that it was one thing for an accused to attack a dying declaration in a case where the prosecution seeks to rely on a dying declaration against an accused but it is altogether different where an accused relies upon a dying declaration in support of the defence of accidental death. The burden on the accused is much lighter. He has only to prove reasonable probability. The Supreme Court also held that when the dying declaration relied upon by the accused shows that it is a case of accident, as has been recorded in the present case, it would be for the prosecution to explain the circumstances under which the same was recorded and establish by leading satisfactory evidence as to why it should be discarded and not acted upon. Nothing of this kind was done by the prosecution to explain the circumstances under which the dying declaration, Ex. D3, of Sunanda Bai was made. The trial court was, therefore, wrong in rejecting the dying declaration, Ex. D3, and ignoring similar oral dying declaration of Sunanda Bai made to none other than her father Ram Sewak (P.W.5). ( 9. ) It is also worth noting that Saroj Bai (P.W. 1) has categorically admitted in her evidence that during the entire period of treatment of Sunanda Bai at the hospital, appellant and his parents attended her and incurred all the necessary expenses. Similar is the evidence of Ram Sewak (P.W.5). ( 9. ) It is also worth noting that Saroj Bai (P.W. 1) has categorically admitted in her evidence that during the entire period of treatment of Sunanda Bai at the hospital, appellant and his parents attended her and incurred all the necessary expenses. Similar is the evidence of Ram Sewak (P.W.5). This is yet another reason to believe that appellant did not set Sunanda Bai on fire or else he and his parents would not have attended her and incurred expenses for her treatment. The trial court too has substantially disbelieved their evidence that Sunanda Bai was tied with a rope and thereafter set on fire by the accused persons and that she made an oral dying declaration against the appellant in the hospital. As already stated above, the trial court has also acquitted the parents of appellant of all the charges by disbelieving the evidence of Saroj Bai (P.W. 1) and Ram Sewak (P.W.5) against them. The evidence of Anil Kumar (P.W.2) is only to the extent that appellant had made a customary demand of T.V. at the time of "Tika" ceremony. His evidence does not help the case of prosecution against the appellant at all. ( 10. ) Dr. S. N. Kataria (P.W.3) in his report, Ex. P7, did not mention that the death of Sunanda Bai was not accidental. He, however, in his cross-examination by the counsel of accused persons, opined that the nature of burn injuries on Sunanda Bai possibly could not have been on account of accident. This opinion of the doctor is not conclusive and is based on probabilities. It would be, therefore, unsafe to convict the appellant solely on such an opinion of the doctor in the absence of any corroboration. ( 11. ) For these reasons, I hold that Sunanda Bai died accidentally and the allegations made against the appellant and his parents by Saroj Bai (P.W.I) and Ram Sewak (P.W.5) that they treated her with cruelty for demand of dowry were afterthought and false. The conviction and sentence of appellant are, therefore, set aside and he is acquitted. ( 12. ) The appeal succeeds and is allowed.