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Madhya Pradesh High Court · body

2007 DIGILAW 855 (MP)

Bhajju @ Karan Singh v. State of M. P.

2007-08-07

ARUN MISHRA, K.S.CHAUHAN

body2007
JUDGMENT : ARUN MISHRA, J. 1. The appeal has been preferred by the accused appellant aggrieved by judgment dated 9th February, 1998 passed by Sessions Judge, Tikamgarh in S.T. No. 146/1995 thereby convicting him under section 302 of Indian Penal Code, sentencing him to undergo Rigorous Imprisonment for life. 2. As per prosecution case when Medabai, the wife of accused Bhajju @ Karan Singh, resident of Niwadi, district Tikamgarh, on 12-9-1995 at about 7:00 a.m. was cleaning the kitchen, accused Bhajju poured kerosene oil on her and set her ablaze with the help of match stick. On raising hue and cry by Medabai, Ayub (PW-3) and Pratap (PW-2) reached on the spot, they took her to hospital. The Dehati Nalishi (Ex.P.16) was recorded, on the basis of the FIR (Ex.P.17) was recorded and the case was registered under section 302 of Indian Penal Code. The dying declaration (Ex.P.4) of Medabai was recorded by Executive Magistrate cum Tehsildar at 9:10 a.m. Dehati Nalishi (Ex.P.16) was also recorded, beside the police statement (Ex.P.18) under section 161, Criminal Procedure Code. Medabai died owing to the burn injuries on 17-10-1995. On her death case was converted into section 302 of Indian Penal Code. As per the prosecution story the accused Bhajju @ Karan Singh doubted the character of deceased used to level the allegation of illicit relationship and that the children were born out of illicit relationship and used to disown their paternity. In the evening and night before the incident Medabai was beaten by slippers by the accused. Accused poured kerosene oil at about 7:00 a.m. when Medabai was in the kitchen and set her ablaze. She was taken to the hospital by Ayub (PW-3) and Pratap (PW-2) in the taxi. Dr. Suresh Sharma (PW-9) has medically examined her and submitted the report (Ex.P.14) that she suffered 60% burn injuries. Doctor opined that it was a case of kerosene burn. Blouse also smelled of kerosene oil. The deceased was referred to Medical College, Jhansi for further treatment where she was admitted on 12-9-1995 at 12:10 hours. Inquest was prepared. Post-mortem was performed. The cause of death was opined to be extensive burn injuries. 3. During the course of investigation statements of witnesses Pratap, Ayub and Lakhanlal were recorded. Spot map was prepared. The deceased was referred to Medical College, Jhansi for further treatment where she was admitted on 12-9-1995 at 12:10 hours. Inquest was prepared. Post-mortem was performed. The cause of death was opined to be extensive burn injuries. 3. During the course of investigation statements of witnesses Pratap, Ayub and Lakhanlal were recorded. Spot map was prepared. From the house of accused 10 broken bangles of Medabai, match box, half burnt match stick and clothes of Medabai were seized and kerosene oil container was also seized. 4. The accused abjured the guilt and contended that he was not present in the house at the time of incident. He took the defence that Medabai had illicit relationship with Ramdas. When she was scolded by her father Mukundi and by accused, she had left one month old child on a platform and had gone to her parental house along with her son Harendra, aged 4 years. Report of the said incident was lodged by the accused at P.S. Niwadi on 2-9-1995. It was also submitted that deceased caught accidental fire while she was preparing the food and he was innocent. 5. The trial Court has convicted the appellant for commission of offence under section 302 of Indian Penal Code and sentenced him for rigorous life imprisonment. Aggrieved by conviction and sentence imposed upon the appeal has been preferred. 6. Shri Amanullah Usmani, learned counsel for appellant, has submitted that accused-appellant has been falsely implicated in the instant case. Appellant was not present in the house at the time when accident took place. The deceased had executed an affidavit (Ex.D.1) before her death at Jhansi. In that she has admitted that she caught fire due to accidental fire while she was cooking the food. He has further relied on the statement of Vishal (PW-4), brother of deceased, who has stated that deceased had stated to him that she had caught accidental burn injuries while cooking the food in the morning. He has further submitted that other witnesses examined by the prosecution Pratap (PW-2), Mohd. Ayub (PW-3) and Akhilesh Yadav (PW-7) have not supported the prosecution case. Consequently it would not be safe to rely upon the untested dying declaration in the absence of corroboration. He has also relied upon certain decisions to be referred later. 7. Shri T.K. Modh, learned Dy. Ayub (PW-3) and Akhilesh Yadav (PW-7) have not supported the prosecution case. Consequently it would not be safe to rely upon the untested dying declaration in the absence of corroboration. He has also relied upon certain decisions to be referred later. 7. Shri T.K. Modh, learned Dy. Advocate General, appearing on behalf of respondent-State, has submitted that as many as 3 dying declarations had been recorded in short duration immediately after the incident. The dying declaration (Ex.P.4) had been recorded by Vijay Kumar (PW-5), Executive Magistrate cum Tehsildar. It has been supported by Dr. Suresh Sharma (PW-9) and he has mentioned that deceased was in the fit condition when her dying declaration was recorded. He has further submitted that dying declarations (Ex.P.4, P.16 and P. 18) are reliable and contain untested version of incident. It appears that husband was arrested in connection with commission of offence under section 307 of Indian Penal Code. An affidavit was obtained in order to secure the release of accused Bhajju @ Karan Singh on bail. Affidavit has been found to be a suspicious document. Apart from that it may be that deceased Medabai had wanted to save her husband and to secure his release on bail at a subsequent stage considering the interest of children, consequently affidavit (Ex.D.1) was executed. In view of initial 3 versions, in the dying declarations, in case dying declarations were reliable no corroboration was necessary. Consequently, the trial Court has rightly relied upon the dying declarations, thus, conviction recorded calls for no interference in this appeal. 8. First we have to consider the value of dying declarations (Ex.P.4, P.16 and P.18). It appears that relationship of deceased Medabai with accused Bhajju @ Karan Singh was full of strains. The accused doubted her character and used to level allegation of illicit relationship with others and he even disowned the child. After birth of daughter difference and altercation increased between husband and wife. A day before the date of incident accused had given beating to the deceased Medabai with slippers and neighbours had to intervene in order to save Medabai. She was beaten in the night also. Thereafter incident took place next very day at 7:00 a.m. when she was in the kitchen. Accused has taken the plea that it was the case of accidental fire caught by deceased Medabai while she was cooking the food. She was beaten in the night also. Thereafter incident took place next very day at 7:00 a.m. when she was in the kitchen. Accused has taken the plea that it was the case of accidental fire caught by deceased Medabai while she was cooking the food. She was taken in the taxi by Pratap (PW-2) and Ayub (PW-3). Her first dying declaration (Ex.P.4) was recorded in between 9.10 to 9.26 a.m. Dr. Suresh Sharma (PW-9) has certified at the beginning of the statement in portion “B” to “B” that Medabai was conscious and she was not in the influence of drug or any kind of intoxication, thereafter her statement had been recorded by Executive Magistrate cum Tehsildar Niwadi namely Vijay Kumar (PW-5). On being asked how she caught the fire? she answered that her husband set her ablaze, he was beating her for the last 3 days, she herself had not put the fire. On being questioned, whether someone else had helped her husband in setting her ablaze? She answered in negative. On being questioned, when she was set ablaze? She answered that kerosene oil was poured on her and at about 7.00 a.m. she was set ablaze, she was beaten in the night and also in the morning with slippers. On being questioned, she wanted to say anything else? She has stated that husband had doubted the paternity of the children, he was not doing any work nor her husband permitted her to do the work. In “C” to “C” portion her thumb mark has been affixed. Portion “A” to “A” bears the signatures of Tehsildar along with time and date of recording the statement. In portion “E” to “E” Doctor has certified that Medabai remained conscious at the time when her statement was recorded. Bottom portion of “B” to “B” and “C” to “C” bears the signatures of Dr. Suresh Sharma (PW-9). Vijay Kumar (PW-5), Executive Magistrate cum Tehsildar, Niwadi, has stated that he had recorded the dying declaration (Ex.P.4), Dr. Suresh Sharma was also present. Statement (Ex.P.4) was recorded in his hand-writing. Medabai was in the agony of pain due to burn injuries. He has supported the statement given by Medabai. There was burn injury on part of thumb also, that was why thumb mark was not full in portion “C” to “C.” Dr. Suresh Sharma was also present. Statement (Ex.P.4) was recorded in his hand-writing. Medabai was in the agony of pain due to burn injuries. He has supported the statement given by Medabai. There was burn injury on part of thumb also, that was why thumb mark was not full in portion “C” to “C.” Dr. Suresh Sharma (PW-9) has also stated that he had examined Medabai and found injuries as mentioned in the report (Ex.P.14). It was a case of kerosene burn. There were 60% burns on the body of Medabai. She was fully conscious when he had examined Medabai and referred her to medical college, Jhansi. He has owned the certificate of fitness on dying declarations at two places at the beginning and at the end. Her dying declaration was recorded in between 9.10 to 9.25 A.M. Thus, we find that dying declaration (Ex.P.4) has been proved by adducing cogent evidence. In our opinion, Medabai was fully conscious at the time when her statement was recorded and there was no reason to disbelieve the statement of Vijay Kumar (PW-5), Executive Magistrate cum Tehsildar and Dr. Suresh Sharma (PW-9). It being a first version immediately after within two hours of the incident, there were no deliberation of consultations or chance of tutoring Medabai. She was young, aged 22 years, she had been ill-treated by her husband and was beaten in the night and even in the morning and thereafter he had poured kerosene oil as stated by her. It was not the case of accidental burn as apparent from report (Ex.P.14) prepared by Dr. Suresh Sharma (PW-9) that it was a case of kerosene burn. Bruise 2” x 2” just below right eye caused by hard and blunt object within 24 hours was also found, the bruise, abrasion, sub-conjectural, haemorrhage were caused by hard and blunt object. Burns were to the extent of 60% on the body. It was the case of kerosene burn, dangerous to life. She was referred to medical college, Jhansi for further treatment. The said report was prepared at 9:45 a.m., before that her dying declaration had been recorded by Vijay Kumar (PW-5). Dr. Burns were to the extent of 60% on the body. It was the case of kerosene burn, dangerous to life. She was referred to medical college, Jhansi for further treatment. The said report was prepared at 9:45 a.m., before that her dying declaration had been recorded by Vijay Kumar (PW-5). Dr. Suresh Sharma (PW-9) has also stated that blouse of Medabai smelt of presence of kerosene, injuries were dangerous to life, thus, version of deceased in dying declarations finds medical corroborations, the presence of kerosene oil on the blouse and the burns were found to be caused by kerosene indicated that it was not the case of accidental burn while cooking food. From the spot also semi burnt clothes, match box and the Chimni were recovered, thus, it was not at all the case of accidental burn injuries while cooking the food. 9. We find on record two other documents, Dehati Nalishi (P.16) and statement of Medabai recorded under section 161 of Criminal Procedure Code (P.18), these statements are to be treated as dying declarations, no doubt about it in Dehati Nalishi time had been mentioned as 9:15 a.m., there appears to be some mistake in recording of the time on it, as at that time Medabai's dying declaration was recorded by Vijay Kumar (PW-5), but this discrepancy could not be given so much importance so as to disbelieve the dying declarations made by the deceased Medabai, as dying declarations are found to be truthful and immediately made after the incident. It appears that Dehati Nalishi had been recorded before she was referred to Jhanshi. In Dehati Nalishi as well as in police statement recorded before she was referred at 9.45 a.m. to medical college, Jhansi for further treatment. In these two statements also Medabai had been consistent and she has supported her first version recorded in her dying declaration (Ex.P.4) recorded by Tehsildar. Dehati Nalishi (Ex.P.16) was reduced in writing by Bhagwan Singh (PW-11) and he has also recorded police statement (Ex.P.18) under section 161 of Criminal Procedure Code. 10. It is settled law that when dying declaration is found to be reliable, it requires no corroboration and the conviction can be based on it. Dehati Nalishi (Ex.P.16) was reduced in writing by Bhagwan Singh (PW-11) and he has also recorded police statement (Ex.P.18) under section 161 of Criminal Procedure Code. 10. It is settled law that when dying declaration is found to be reliable, it requires no corroboration and the conviction can be based on it. The Apex Court in Muthu Kutty and Another vs. State by Inspector of Police, Tamil Nadu, (2005) 9 SCC 113 , has summarized the law and has laid down in several judgments the principles governing dying declaration thus: “15. Though a dying declaration is entitled to great weight, it is worth while to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Paniben vs. State of Gujarat, (1992) 2 SCC 474 : 1992 SCC (Cri) 403 : AIR 1992 SC 1817 (SCC pp. 480-481, Paras 18-19) (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [See: Munnu Raja vs. State of M.P. (1976) 3 SCC 104 : 1976 SCC (Cri) 376 : (1976) 2 SCR 764 ]. (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. [See: Munnu Raja vs. State of M.P. (1976) 3 SCC 104 : 1976 SCC (Cri) 376 : (1976) 2 SCR 764 ]. (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. [See: State of U.P. vs. Ram Sagar Yadav, (1985) 1 SCC 552 : 1985 SCC (Cri) 127 : AIR 1985 SC 416 and Ramawati Devi vs. State of Bihar, (1983) 1 SCC 211 : 1983 SCC (Cri) 169 : AIR 1983 SC 164 ]. (iii) The Court has to scrutinize, the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. [See: K. Ramachandra Reddy vs. Public Prosecutor, (1976) 3 SCC 618 : 1976 SCC (Cri) 473 : AIR 1976 SC 1994 ]. (iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. [See: Rasheed Beg vs. State of M.P. (1974) 4 SCC 264 : 1974 SCC (Cri) 426]. (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. [See: Kake Singh vs. State of M.P. 1981 Supp. SCC 25 : 1981 SCC (Cri) 645 : AIR 1982 SC 1021 ]. (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. [See: Ram Manorath vs. State of U.P. (1981) 2 SCC 654 : 1981 SCC (Cri) 581]. (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. [See: State of Maharashtra vs. Krishnamurti Laxmipati Naidu, 1980 Supp. SCC 455 : 1981 SCC (Cri) 364 : AIR 1981 SC 617 ]. (viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. [See: Surajdeo Ojha vs. State of Bihar, 1980 Supp. SCC 769 : 1979 SCC (Cri) 519 : AIR 1979 SC 1505 ]. (ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. On the contrary, the shortness of the statement itself guarantees truth. [See: Surajdeo Ojha vs. State of Bihar, 1980 Supp. SCC 769 : 1979 SCC (Cri) 519 : AIR 1979 SC 1505 ]. (ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. [See: Nanhau Ram vs. State of M.P. 1988 Supp. SCC 152 : 1988 SCC (Cri) 342 : AIR 1988 SC 912 ]. (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [See: State of U.P. vs. Madan Mohan, (1989) 3 SCC 390 : 1989 SCC (Cri) 585 : AIR 1989 SC 1519 ]. (xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. [See: Mohanlal Gangaram Gehani vs. State of Maharashtra, (1982) 1 SCC 700 : 1982 SCC (Cri) 334 : AIR 1982 SC 839 ].” 11. We are also required to consider the statement of Vishal (PW-4), value of affidavit (Ex.D.1) and the statements of witnesses namely Pratap (PW-2), Ayub (PW-3), Akhilesh Yadav (PW-7); these 4 witnesses had been declared hostile as they resiled from their earlier version and did not support the case of prosecution. 12. First we consider the statement of Pratap (PW-2). He has stated that Medabai had informed him while she was cooking the food, Chimni fell down and she caught the fire. The case set up of this witness Pratap that accidentally Chimni fell down and she caught fire, could not be said to be reliable as it was 7.00 a.m. in the morning and there was no reason for the lightening of Chimni in the morning at 7:00 a.m. He has also not stated that he had taken Medabai to the hospital. Mohd. Ayub (PW-3) has also resiled from earlier version, he was declared hostile. Mohd. Ayub (PW-3) has also resiled from earlier version, he was declared hostile. He had also not stated that he had taken the deceased Medabai to the hospital, whereas Medabai was taken to the hospital by these two persons as stated in her dying declaration, thus, the statements of these two witnesses are of no value as they had been declared hostile also. Akhilesh Yadav (PW-9) has given yet another story that he heard that Medabai set herself ablaze, due to that she died, he has also not supported his earlier statement and has contradicted it, he was declared hostile, thus, his statement was of no evidential value. 13. Now we come to the statement of Vishal (PW-4) and affidavit (Ex.D.1) purported to have been executed by the deceased at Jhansi. In the affidavit (Ex.D.1) it has been mentioned that while she was cooking the food, Chimni fell down, due to that she caught fire. It has also been mentioned that her husband had been arrested by police Niwadi for offence under section 307 of Indian Penal Code and had been sent to judicial custody. It appears that one of relative of accused was an Advocate, he prepared the draft of affidavit and thumb marks of Medabai had been obtained. The affidavit has been obtained at Jhansi. Firstly, it was not having the value of a dying declaration and secondly it had been executed in order to save the accused-husband and to secure his release from the judicial custody. This affidavit was of no evidential value in view of earlier version of deceased, that had been found to be reliable. Procuring of the affidavit in the manner and method in which it had been obtained in order to save the accused by way of private arrangement could not be said to be the proper mode, it was clearly an attempt made by exercising the influence on the deceased and may be that deceased had entertained a false hope that is she would survive the trauma of burn injuries, consequently her affidavit had been obtained after 19-20 days of the incident, whereas she died after one month 7 days of the date of incident. Similarly, we do not find the statement of Vishal (PW-4) to be reliable with respect to cause of death and how Medabai caught fire. Similarly, we do not find the statement of Vishal (PW-4) to be reliable with respect to cause of death and how Medabai caught fire. He has stated that Medabai had stated to him that she caught accidental fire while she was preparing the food but presence of kerosene oil and 3 dying declarations of Medabai negate the case set up by Vishal of accidental fire, it appears that to welfare of children he has resiled from his earlier version and had been declared hostile by the prosecution. The dying declarations had been found to be untainted version recorded without deliberations or consultations, dying declarations (P.4), (P.16) and (P.18) were consistent. There was neither tutoring nor any such circumstances has been brought on record so as to make them doubtful, thus, we find the same worthy of credence so as to fasten the guilt on the appellant. 14. Reliance has been placed by Shri Amanullah Usmani, learned counsel for appellant upon two decisions of Bombay High Court in State of Maharashtra vs. Vimlabai and Others, 2006 Cr. L.J. 3118 and Burakhbee vs. State of Maharashtra, 2006 Cr. L.J. 3128. In State of Maharashtra vs. Vimlabai and Others (supra) there was inconsistency in the dying declarations which were recorded, no case of harassment was made out. It was found in the circumstances to be improbable that mother-in-law would set her on fire. Each case has to be dealt with on the evidence. In the instant case, dying declarations made were reliable and accused had doubt on the character of his wife was not in dispute. He used to often beat the deceased was apparent from the prosecution evidence. In Burakhbee vs. State of Maharashtra, it has been laid down that proof of recording of dying declaration was one thing and evidentiary value and truthfulness of the dying declaration was another matter. We have found not only that dying declarations have been proved but they are found to be of evidentiary value and truthful so as to base the conviction of accused. In Suresh Hazra vs. State of West Bengal, 2007 Cr. L.J. 1321, benefit of doubt has been given in the circumstances of the case. We do not find any circumstances in the instant case so as to give the benefit of doubt to the accused. 15. In Suresh Hazra vs. State of West Bengal, 2007 Cr. L.J. 1321, benefit of doubt has been given in the circumstances of the case. We do not find any circumstances in the instant case so as to give the benefit of doubt to the accused. 15. In the instant case, accused has stated that he was not present in the house but we find that in the dying declarations his presence was mentioned and incident took place at 7.00 a.m. Accused had given beating to the deceased Medabai with the slippers in the night and in the morning, thus, he was present in the house as stated by Medabai in the dying declaration which has been found to be truthful. Thus, we find that conviction of appellant under section 302 of Indian Penal Code to be sustainable. 16. In view of the aforesaid, we find the conviction and sentence imposed on the appellant by the trial Court under section 302 of Indian Penal Code to be proper. No case is made out to interfere in the appeal, consequently appeal is dismissed.