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Madhya Pradesh High Court · body

2008 DIGILAW 582 (MP)

Kamal Kumar v. State of M. P.

2008-04-11

AJIT SINGH, RAKESH SAKSENA

body2008
JUDGMENT Saksena, J. -- 1. Appellant has filed this appeal against the judgment dated 30.11.1998, passed by the Second Additional Sessions Judge, Bhopal, in Sessions Trial No. 141/1998, convicting him under section 302 of the Indian Penal Code and sentencing him to imprisonment for life. 2. In short, the facts of the prosecution case are that Sunita (deceased) was living with appellant as his wife at Bairagarh. Earlier Sunita was known by name Sayda Bee. She was living at Shabhapur of district Hoshangabad. Around three years before the incident appellant had brought her with him on the pretext that he would marry her. Since then she was living as his wife at Bairagarh. She had also given birth to a female child. On 24.2.1998, Sunita was admitted in Hamidia Hospital at Bhopal in burnt condition. Intimation of her admission in the hospital was sent to Police Station, Bairagarh. Sub-Inspector K.D. Gupta (PW 11) went to hospital and recorded her statement and requisitioned Naib Tahsildar-Executive Magistrate Shri R.K. Singh Tomar (PW 3) for recording her dying declaration. Sunita stated that she was living with appellant as his wife and was pressing him to perform marriage with her. On 24.2.1998, at about 12:00 noon, he sprinkled kerosene on her and ignited her with a matchstick. Police registered a case under section 307 of the Indian Penal Code against the appellant vide First Information Report Ex. P-12. During investigation, Sub Inspector K.D. Gupta (PW 11) also recorded statement of Sunita under section 161 of the Code of Criminal Procedure. Dr. C.P. Tiwari (PW 13) medically examined Sunita and found 35 to 40 percent superficial sort of burn injuries on her body. She was conscious. According to him, Sunita gave history that her husband had set fire to her after sprinkling kerosene on her. MLC report is Ex. P15. During treatment in Hamidia Hospital, Sunita died on 25.3.1998. On her death, a Marg (Ex. C-l) was registered by the police. Her dead body was sent for postmortem examination. Dr. Vikas Kumar Dhruv, Medical Officer of Medico Legal Institute, Bhopal (PW 7) performed the postmortem examination. He found epidermal to dermal deep healing burns on the breast region, umbilicus region, anterior aspect of left limb, antero medical aspect of both things of back extending from upper part of shoulder up to the level of scapula and on gluteal region. Dr. Vikas Kumar Dhruv, Medical Officer of Medico Legal Institute, Bhopal (PW 7) performed the postmortem examination. He found epidermal to dermal deep healing burns on the breast region, umbilicus region, anterior aspect of left limb, antero medical aspect of both things of back extending from upper part of shoulder up to the level of scapula and on gluteal region. In his opinion, death of Sunita occurred due to cardio-respiratory failure as a result of burns and its complications. 3. After investigation, charge sheet was filed and the case was committed for trial. 4. On charge being framed under section 302 of the Indian Penal Code, appellant abjured his guilt and contended that at the time of occurrence he was driving minibus. In his defence he examined Dileep son of Reejumal (DW I) and Dileep son of Terumal (DW 2). 5. In order to substantiate its case, prosecution adduced direct evidence of eyewitnesses Lata (PW 8) and Laxmi (PW 10). On appreciation, the trial Court found their evidence unworthy of credence, but relying essentially on the evidence of dying declaration (Ex. P-2) recorded by Naib Tahsildar-Executive Magistrate Shri R.K. Singh Tomar, held the appellant guilty and convicted him as mentioned above. 6. Shri R.K. Singh Tomar (PW 3) testified that on being noticed by Police Station, Bairagarh, he went to Burn Ward of Hamidia Hospital at about 8:00 p.m. where Sunita was admitted. He sought opinion of the doctor about the fitness and capability of Sunita for her giving statement. When doctor certified that she was fit and capable to give statement, he recorded her statement (Ex. P-2). He recorded the statement as spoken by her without adding or subtracting anything. After recording statement, he again obtained, at the end, the certificate of the doctor that she was conscious throughout. He also obtained thumb impression of Sunita on Ex. P-2. In her dying declaration, Sunita stated that appellant had brought her from Shobhapur on the assurance that he would marry her. He had kept her in a rented house at Bairagarh. She was living there with her one and a half year old daughter. Appellant used to visit her off and on and generally lived with his wife and parents at Fish Market at Bairagarh. In the morning, she went to house of appellant at Fish Market and asked him to marry her. She was living there with her one and a half year old daughter. Appellant used to visit her off and on and generally lived with his wife and parents at Fish Market at Bairagarh. In the morning, she went to house of appellant at Fish Market and asked him to marry her. On her exerting pressure, he got annoyed and told that he would not marry and would not go with her to their house. He kept on talking for some time with her and then poured kerosene on her from a bottle and ignited her by matchstick. According to her, appellant burnt her deliberately with a view to get rid of her. 7. Dr. Devendra Naik (PW 2), who was posted as RSO in the Burn Unit of Hamidia Hospital, testified that Naib Tahsildar-Executive Magistrate Shri R.K. Singh Tomar had come to Burri Ward and had sought his opinion before recording the dying declaration of Sunita. On his request, he had medically examined Sunita and found that she was fit to give her statement. Thereafter, Shri R.K. Singh Tomar had recorded the dying declaration (Ex. P-2). He had endorsed his certificate at the beginning and at the end of the dying declaration. Evidence of Dr. Naik (PW 2), as well as the evidence of Naib Tahsildar-Executive Magistrate Shri R.K. Singh Tomar (PW 3), was not challenged in the cross-examination. Even otherwise, nothing appears in their statements to render them unreliable. 8. The dying declaration (Ex. P-2) recorded by Shri R.K. Singh Tomar (PW 3) further stands corroborated from the evidence of Dr. C. P. Tiwari (PW 13), who initially examined Sunita when she was brought to hospital. Dr. Tiwari stated that Sunita had informed him that her husband Kamal had set her to fire after pouring kerosene on her. Evidence of Dr. Tiwari was not challenged by cross-examination. 9. Besides above evidence, there is evidence of Gaffar Shah (PW 1), brother of Sunita, who testified that when he received information about the burning of his sister, he went to Hamidia Hospital. His sister told him that Kamal had ignited her. No doubt, the cause of incident, according to him, was the dispute about cooking of food, however, this does not render his evidence unreliable. He remained firm in saying that Sunita informed him that Kamal set fire to her. 10. His sister told him that Kamal had ignited her. No doubt, the cause of incident, according to him, was the dispute about cooking of food, however, this does not render his evidence unreliable. He remained firm in saying that Sunita informed him that Kamal set fire to her. 10. The apex Court in State of Maharashtra v. Sanjay D. Rajhans [ AIR 2005 SC 97 ], has held that ".... it is not the plurality of the dying declarations that adds weight to the prosecution case, but their qualitative worth is what matters. It has been repeatedly pointed out that the dying declaration should be of such nature as to inspire full confidence of the Court in its truthfulness and correctness (vide the observations of Five Judge Bench in Laxman v. State of Maharashtra [ (2002) 6 SCC 710 ]. Inasmuch as the correctness of dying declaration cannot be tested by cross-examination of its maker, "great caution must be exercised in considering the weight to be given to this species of evidence". When there is more than one dying declaration genuinely recorded, they must be tested on the touchstone of consistency and probabilities. They must also be tested in the light of other evidence on record." 11. On careful and cautious examination of the aforesaid dying declaration, we are satisfied that it is true and has been correctly recorded by Executive Magistrate Shri R.K. Singh Tomar (PW 3). Manifestly, no reason has been assigned by the appellant for the deceased to implicate him falsely. In these circumstances, we find no material on record to disbelieve the evidence of dying declaration. 12. The evidence of Dileep son of Reejumal (DW 1) and Dileep son of Terumal (DW 2) that the appellant had taken their bus since 6:00 a.m. and in the evening he was arrested while he was on duty of driving the bus does not appear reliable. The trial Court has discussed their evidence in detail in paragraphs 22 and 23 of the impugned judgment. The reasoning assigned by the trial Court, in our opinion, are just and proper and do not call for any interference. 13. For the foregoing reasons, we are of the view that the prosecution has fully established that the appellant committed murder of Sunita by setting fire to her. The reasoning assigned by the trial Court, in our opinion, are just and proper and do not call for any interference. 13. For the foregoing reasons, we are of the view that the prosecution has fully established that the appellant committed murder of Sunita by setting fire to her. We do not find any reason to take a different view from that taken by the trial Court in passing the judgment of conviction and sentence against the appellant. Accordingly, the conviction and sentence of the appellant are affirmed. 14. Appeal dismissed.