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Madhya Pradesh High Court · body

2008 DIGILAW 1236 (MP)

LAKHAN SINGH RAJPOOT v. SATE OF M P

2008-10-21

K.S.CHAUHAN, R.S.GARG

body2008
Judgment ( 1. ) THIS criminal appeal under Section 374 (2) Cr. P. C. has been preferred by the appellants being aggrieved by the judgment, finding and sentence dated 21. 02. 2000 passed by the Additional Sessions Judge, Gadarwara, District narsinghpur in Sessions Trial No. 74/99 whereby the appellants have been convicted under Section 498-A and 304-B of I. P. C. and sentenced to 3 years R. I. and to pay a fine of Rs. 500/-, in default of payment of fine to undergo R. I. for 3 months and R,i. for 10 years and to pay a fine of Rs. 500/-, in default of payment of fine to undergo R. I. for 3 months respectively. Appellant No. 4 Shashi Bai Rajpoot @ Guddi has also been convicted under Section 302 I. P. C. and sentenced to R. I. for life and pay a fine of Rs. 500/-, in default of payment of fine to undergo R. I. for 3*months. The jail sentences to run concurrently. ( 2. ) THE brief facts of the case in short are that Dhanwanti Bai lodged Dehati nalish on 3rd March, 1999 to the effect that she was married with Manoj Kumar rajpoot. Her husband, father-in-law, brother-in-law and sister-in-law used to harass her on account of insufficiency of dowry articles. On 2nd March, 1999 at about 12 noon her husband came after consuming liquor. Some quarrel took place in between Dhanwanti Bai, her husband and sister-in-law Shashi Bai Rajpoot @ guddi. At night she was sleeping in her room. There was light of the electric bulb. At about 1. 30-2. 00 a. m. her sister-in-law Shashi Bai Rajpoot @ Guddi came into her room, poured kerosene oil and burnt her. She made alarm. Fire was extinguished. She was admitted in Gadarwara Hospital. Crime No. 0/99 under Section 307/498-A/34 of I. P. C. was registered. Her medical examination was done. Her dying declaration Ex. P-12was recorded by Dr. T. D. Choudhary. On the next day marg was registered. She died later on. Inquest report was prepared. Panchanama of dead body was also prepared. According to the opinion of autopsy surgeon, the cause of death was shock due to burns. Offence under Section 304-B and 302 of I. P. C. were added. Map was prepared. The statements of the witnesses were recorded under Section 161 of Cr. She died later on. Inquest report was prepared. Panchanama of dead body was also prepared. According to the opinion of autopsy surgeon, the cause of death was shock due to burns. Offence under Section 304-B and 302 of I. P. C. were added. Map was prepared. The statements of the witnesses were recorded under Section 161 of Cr. P. C. After completing the usual investigation, charge sheet was filed in the Court of J. M. F. C. , Gadarwara who committed the case to the Sessions Court for trial. ( 3. ) THE appellants stood charged under Sections 498-A and 304-B, I. P. C. and appellant No. 4 was also charged under Section 302 of I. P. C. The appellants abjured the guilt and claimed to be tried mainly contending that they have been falsely implicated. Prosecution examined as many as 6 witnesses and appellants also examined 3 witnesses in their defence. After appreciating the evidence, trial court found them guilty under Section 498-A and 304-B of I. P. C. and appellant no. 4 Shashi Bai Rajpoot @ Guddi under Section 302 I. P. C. and sentenced thereto as stated hereinabove in para no. 1 of the judgment. Being aggrieved by the impugned judgment, finding and sentence the instant appeal has been preferred on the grounds mentioned in the memo of appeal. ( 4. ) LEARNED counsel for the appellants submitted that the trial Court has not appreciated the evidence in the proper perspective. Dhanwanti Bai was not in a position to speak hence she was unable to give dying declaration. There is no any other evidence except dying declaration. Her father has given evidence that no demand of dowry was made by appellants, therefore, the offences under Section 498-A and 304-B of I. P. C. are not made out. Learned counsel further submitted that trial Court has committed an illegality in relying upon the dying declaration of deceased Dhanwanti Bai and convicting appellant no. 4 under Section 302 of i. P. C. therefore, the finding of guilt is erroneous which deserves to be set aside and the appellants are entitled for acquittal. ( 5. Learned counsel further submitted that trial Court has committed an illegality in relying upon the dying declaration of deceased Dhanwanti Bai and convicting appellant no. 4 under Section 302 of i. P. C. therefore, the finding of guilt is erroneous which deserves to be set aside and the appellants are entitled for acquittal. ( 5. ) ON the contrary, Shri R. S. Patel, learned Additional Advocate General appearing on behalf of the State supported the impugned judgment, finding and sentence passed by the trial Court mainly contending that prosecution has proved the case beyond reasonable doubt against the appellants and they have been rightly convicted and sentenced, therefore, no interference is called for. ( 6. ) THE main point for consideration in this appeal is that whether the trial court has committed any error in convicting and sentencing the appellants under sections 498-A and 304-B of I. P. C. and further the appellant No. 4 under Section, 302 of I. P. C? ( 7. ) THE case of the prosecution hinges on the Dehati Nalish (Ex. P/15) and dying declaration (Ex. P/12 ). In Dehati Nalish (Ex. P/15) she has clearly stated that her husband and relatives used to harass her on account of bringing insufficient dowry articles. On 02. 03. 1999 at 12 noon her husband Manoj Kumar Rajpoot came after consuming liquor and some quarrel took place in between the deceased, her husband Manoj Kumar Rajpoot and sister-in-law Shashi Bai Rajpoot @ Guddi. At night she was sleeping in her room. There was light of electric bulb. At about 1. 30- 2:00 a. m. her sister-in-law Shashi Bai Rajpoot @ Guddi entered into her room, poured kerosene and burnt her. This Dehati Nalish was taken down by d. S. Pandey (PW-6) who has clearly stated in para 3 of his deposition that such dehati Nalish was lodged by Dhanwanti Bai. Thus the contents of Dehati Nalish have been proved by D. S. Pandey (PW-6 ). ( 8. ) HER dying declaration Ex. P/12 was recorded by Dr. T. D. Chaudhary (PW-3 ). He has clearly stated that she was in a position to give statement. He has so certified on dying declaration itself. On perusal of dying declaration Ex. P/12 it is manifestly clear that it has been recorded in question and answer form. ( 8. ) HER dying declaration Ex. P/12 was recorded by Dr. T. D. Chaudhary (PW-3 ). He has clearly stated that she was in a position to give statement. He has so certified on dying declaration itself. On perusal of dying declaration Ex. P/12 it is manifestly clear that it has been recorded in question and answer form. At the last the certificate has also been given by doctor that she remained in her full senses throughout the recording of the dying declaration. ( 9. ) IN dying declaration she has clearly stated that her sister-in-law Shashi Bai rajpoot @ Guddi poured kerosene oil and burnt her. It has also been mentioned that her husband and her relatives used to harass her on account of insufficiency of dowry articles. The lengthy and piercing cross-examination has been done to dr. T. D. Chaudhary but nothing is elicited as to discredit his testimony. Thus the facts which she mentioned in Dehati Nalish EX. P/15 has also been mentioned in her dying declaration EX. P/12. The dying declaration has been made voluntarily and hence trustworthy. The conviction may be based on such dying declaration alone and no further corroboration is required. ( 10. ) NO doubt, the appellants by producing the defence evidence have tried to prove that deceased burnt herself but the same is not acceptable in the light of dehati Nalish Ex. P/15 and dying declaration Ex. P/12. Ganpat Soni (DW-2) has himself admitted in his deposition that deceased was indicating that she has been burnt by the persons belonging to her in-laws house. Thus the defence of self burning is not acceptable. ( 11. ) MULLU Singh (PW-I) is the father of deceased who has stated that there was no demand of dowry and she was not being harassed. He has been declared hostile by the prosecution thus he does not support the afore said facts. ( 12. ) SO far as the offence under Section 498-A I. P. C. is concerned, deceased herself stated in Dehati Nalish (Ex. P/15) and dying declaration (Ex. P/12) that she was being harassed on account of bringing insufficient dowry articles. Therefore, the offence under Section 498-A I. P. C. is proved. ( 13. ) SO far as the offence under Section 304-B I. P. C. is concerned, there is no evidence that soon before her death she was subjected to cruelty. P/15) and dying declaration (Ex. P/12) that she was being harassed on account of bringing insufficient dowry articles. Therefore, the offence under Section 498-A I. P. C. is proved. ( 13. ) SO far as the offence under Section 304-B I. P. C. is concerned, there is no evidence that soon before her death she was subjected to cruelty. Her father mullu Singh (PW-I) has not supported such facts. . The offence of Section 304-B i. P. C. is proved on the basis of circumstantial evidence. So far as the present case is concerned, the prosecution case is that Shashi Bai Rajpoot @ Guddi poured kerosene oil and ablazed her, therefore this is not the case where death has occurred in the abnormal circumstances. This is a case based on direct evidence which is in the form of Dehati Nalish (Ex. P/15) and dying declaration (Ex. P/12 ). The conclusion of dowry death is drawn on the basis of circumstantial evidence whereas this case is based on the direct evidence relating to intentional killing by appellant No. 4 Shashi Bai Rajpoot @ Guddi. Therefore, all the ingredients required to prove offence under Section 304-B I. P. C. are not made out. Therefore, the finding regarding guilt under Section,304-B I. P. C. is erroneous which deserves to be set aside. ( 14. ) SO far as the conviction under Section 302 I. P. C. is concerned, there is sufficient evidentiary material available against appellant No. 4 Shashi Bai Rajpoot @ Guddi who poured the kerosene oil and burnt Dhanwanti Bai. Therefore, the finding of guilt under Section 302 I. P. C. is well merited and is hereby maintained. ( 15. ) THE sum and substance of the aforesaid discussion is that the trial Court has committed an illegality in convicting the appellants under Section 304-B of I. P. C. hence the same is hereby set aside. But so far as the conviction under Section 498-A and that of appellant No. 4 Shashi Bai Rajpoot @-Guddi under Section 302 of I. P. C. is concerned, the same is well merited hence hereby affirmed. 16 -. But so far as the conviction under Section 498-A and that of appellant No. 4 Shashi Bai Rajpoot @-Guddi under Section 302 of I. P. C. is concerned, the same is well merited hence hereby affirmed. 16 -. We have been apprised that appellant No. 1 Lakhan Singh Rajpoot has suffered 4 months and 4 days R. I. , appellant No. 2 Gopal Singh Rajpoot has suffered 9 months, Manoj has suffered 4 years R. I. Thus the period already undergone by them would meet the ends of justice. ( 16. ) CONSEQUENTLY, the appeal is partly allowed. The conviction and sentence passed by trial Court under Section 304-B I. P. C against appellants is hereby set aside but their conviction under Section 498-A I. P. C. is maintained and appellants no. 1 to 3 are directed to be released on the period already undergone. So far as the appellant No. 4 Shashi Bai Rajpoot @ Guddi is concerned, her conviction and sentence under Section 3021. P. C. is also hereby maintained. Therefore, the appeal of appellant No. 4 Shashi Bai Rajpoot @ Guddi is hereby dismissed. ( 17. ) SINCE the appellant Nos. 1 to 3 are on bail, their bail bonds are discharged and they be set at liberty. Appeal partly allowed.