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2008 DIGILAW 639 (MP)

DILIP v. STATE OF M. P.

2008-04-30

ARUN MISHRA, SUSHMA SHRIVASTAVA

body2008
JUDGMENT : ARUN MISHRA, J. The appeal has been preferred by the accused appellants aggrieved by judgment dated 6-4-1998 passed by the Court of Sessions Judge, Bhopal in ST. No. 211/97 convicting the appellants for commission of offence under section 302 of the Indian Penal Code and sentencing them to undergo rigorous life imprisonment for committing murder of Babita wife of accused Dilip on 22-4-1997. 2. As per the prosecution case marriage of deceased Babita was performed with Dilip on 13-12-1996. Tulsa Bai was mother-in-law of the deceased. She was living along with him. Accused were not happy as sufficient dowry was not given in the marriage. In the intervening night of 21st and 22nd April, 1997 there was quarrel between deceased with accused persons and at about 2 a.m. in the night accused Dilip poured kerosene oil and accused Tulasa Bai threw burning CHIMNI on Babita. She suffered severe burns, but, nobody came to her rescue. Next day in the afternoon the parents of the deceased were informed, Jitendra her brother reached the residence of the accused at about 4 p.m. and took deceased Babita to a private Nursing Home and on refusal by private Nursing Home she was taken to Hamidia Hospital, Bhopal where Dr. K. D. Sahu examined. Dr. Sahu's examination medico-legal report is (P/13). On 26-4-1997 Naib Tehsildar Sunilraj Nair recorded the dying declaration of Babita in present of Dr. Sahu. On 1-5-1997 Babita died in Himidia Hospital. Inquest (P/12) of dead body was prepared. Sub-Inspector R. K. Dwivedi investigated the case, visited the scene of occurrence and the house was found washed and cleaned. Spot map (P/5) was drawn. Accused were arrested and as per information (P/6) and P/7) one CHIMNI and one glass were seized at their instance as per seizure "memos (Ex.P/8 and P/9). After investigation accused were charge-sheeted and put to trial. 3. Accused abjured the guilt and contended that they have been falsely implicated in the case. In defence they have examined Naib Tehsildar; A. K. Shobhne (DW-1) who had recorded the dying declaration (Ex.D/1) of Babita on 22-4-1997 at Hamidia Hospital. 4. The trial Court has convicted the appellants and has found the dying declaration (Ex.D/1) to be doubtful, consequently, appeal has been preferred. 5. In defence they have examined Naib Tehsildar; A. K. Shobhne (DW-1) who had recorded the dying declaration (Ex.D/1) of Babita on 22-4-1997 at Hamidia Hospital. 4. The trial Court has convicted the appellants and has found the dying declaration (Ex.D/1) to be doubtful, consequently, appeal has been preferred. 5. Shri Ahdulla Usmani, learned counsel appearing on behalf of the appellants has submitted that there was nothing to disbelieve the dying declaration (Ex.D/1) recorded by Shri A.K. Shobhne, Naib Tehsildar on 22-4-1997. It was mentioned in the subsequent dying declaration (P/12) of the deceased that earlier a dying declaration was recorded by the Executive Magistrate, thus recording of dying declaration (D/1) could not have been disbelieved. Besides that brother Jitendra (PW-8) and Rajendra Kumar (PW-7) had taken the deceased to hospital in Auto-Rickshaw, both of them have stated that it was disclosed to them by the deceased after 2-3 days of the incident that the accused persons had committed the offence. She did not disclose the fact on 22-4-1997 that the accused persons were responsible for causing death to the aforesaid witnesses who have taken her to private nursing home and thereafter to Hamidia Hospital. Dr. K. D. Sahu has also stated that the deceased had given the history that she set herself ablaze and it was suicidal attempt by her. She has not named the accused persons while she narrated the history how she was burnt. In the police statement of father; Guttulal (PW-5) it was not mentioned that the deceased made any oral dying declaration to her father, thus, the statement made by Guttulal (PW-5) in the Court that the deceased made oral dying declaration to him cannot be said to be reliable. Besides mother of the deceased Kaushalya (PW-6) had not stated the date or how many days after incident oral dying declaration was made to her by the deceased Babita. In the circumstances the first version appears to be that it is case of suicidal attempt by the deceased that the accused poured kerosene oil and she was set ablaze by them was not stated by her to anybody. The first version could not have been discarded in the instant case as brother of the deceased accompanied her to Hospital. In the circumstances the first version appears to be that it is case of suicidal attempt by the deceased that the accused poured kerosene oil and she was set ablaze by them was not stated by her to anybody. The first version could not have been discarded in the instant case as brother of the deceased accompanied her to Hospital. It was only after tutoring that second dying declaration was made as an afterthought on 26-4-1997, When two views are possible the one favourable to the accused should have been adopted by the trial Court, thus, the benefit of doubt ought to have been extended by the Court-below. 6. Shri R. S. Patel, Addl. A.G. has submitted that the recording of dying declaration (Ex.D/1) is shrouded in the mystery. Dr. K. D. Sahu had not signed it, 3 dates were put on it; 23-4-1997, 24-4-1997 and 25-4-1997. Thus, it has been rightly discarded by the Court-below though it was filed along with charge-sheet by the prosecution, but, it appears to be a spurious document. Dying declaration (P/12) appears to be truthful, incident had taken place at about 2'O clock in the night. Thus, it is submitted that the accused were responsible for causing death of Babita within two months of marriage. Thus, no case is made out to make interference in the appeal. 7. First we consider what was initial version given by the deceased. It appears that the incident had taken place in the night of 22-4-1997. She was taken to Hamidia hospital in the evening at 5:35 pm. At that time brother of the deceased Jitendra (PW-8) and Rajendra Kumar (PW-7) neighbour was friend of Jitendra accompanied Babita to the Hospital. Dr. K. D. Sahu (PW-11) recorded the history (Ex.P/30) in which it was mentioned that "it was suicidal burn caught by the deceased by lighting match stick to cloth". Dr. K. D. Sahu has stated that the aforesaid history was given by the deceased. There is yet another document on record filed by the prosecution written by RSO that the history given by the deceased was that she set ablaze to herself in her house. Thus, the statement made by deceased to Dr. R. K. Bajpai (PW-12) and Dr. K. D. Sahu (PW-11) was that the deceased set herself ablaze. There is yet another document on record filed by the prosecution written by RSO that the history given by the deceased was that she set ablaze to herself in her house. Thus, the statement made by deceased to Dr. R. K. Bajpai (PW-12) and Dr. K. D. Sahu (PW-11) was that the deceased set herself ablaze. Jitendra brother of the deceased has stated that it was only after 2-3 days the deceased disclosed that the accused were responsible for setting her ablaze. Jitendra (PW-8) in paragraph No. 4 to his deposition has stated that it was only after 2-3 days the deceased disclosed to him that accused were responsible for setting her ablaze. In case the accused persons had set her ablaze why she has not disclosed the fact on 22-4-1997 at the first instance when she was taken to Hospital by her brother Jitendra (PW-8) is not understandable. Rajendra Kumar (PW-7) also accompanied the deceased in Auto to Hamidia Hospital has stated in paragraph No. 3 in his deposition that after 2-3 days of the incident it was disclosed by the deceased to him that the accused persons had set her ablaze. She had not disclosed the fact to the aforesaid witnesses on 22-4-1997 the date of incident. Had it been truth that the accused persons had set her ablaze in the night she would have disclosed the fact at the first instance to her brother Jitendra Kumar (PW-8) and his friend Rajendra Kumar (PW-7). When we consider the statement of Guttulal (PW-5) father of the deceased he has stated in paragraph No. 5 of his deposition that the oral dying declaration was made to him by the deceased, but in Ex.D/1 his police statement there is omission as to aforesaid fact of dying declaration made by the deceased to him. It was material omission in Ex.D/1. Police statement recorded under section 161 of Guttulal (PW-5), thus, the statement made in the Court that oral dying declaration was made to him by the deceased cannot be said to be reliable. It was material omission in Ex.D/1. Police statement recorded under section 161 of Guttulal (PW-5), thus, the statement made in the Court that oral dying declaration was made to him by the deceased cannot be said to be reliable. When we consider the statement of Koushlaya (PW-6) mother of the deceased Babita, she has stated in paragraph No. 4 of her deposition that the deceased made the dying declaration to her that the accused persons set her ablaze, but, she has not given the date when this fact was disclosed to him whether on the date of incident or after 2/3 days. The fact of not disclosing the date assumes significance considering the initial version given by the deceased to Dr. K. D. Sahu (PW-11) that she set herself ablaze and it was suicidal attempt. This fact was disclosed to other Doctor also i.e. Dr. R. K. Bajpai. First dying declaration filed by the prosecution itself along with the charge-sheet i.e. Ex.D/1 dt. 22/23-4-1997 has been proved by A. K. Somne (DW-1). He has stated that he was requested on 22-4-1997 to record the dying declaration of the deceased. He had recorded it and owned his signature on it. He has also stated that Doctor certified that she was in fit state of mind to give dying declaration. Trial Court has given the reason that Doctor had certified her to be fit for giving statement on 22,4.1997 at 11:05 a.m., but, in the time mentioned there is overwriting, it appears that initially it was mentioned as "PM" and thereafter it appears that "P" has been substituted by word "A", in the next line date and time of recording was also mentioned in the body of the dying declaration as 22-4-1997, time 11.10 PM. thus, it is apparent that recording of dying declaration was commenced at 11:10 PM on 22-4-1997, it runs into two pages and it was completed at 12:15 a.m. after about one hour on 23-4-1997 that is why two dates are found mentioned in the dying declaration (D/1) it commenced on 22-4-1997 and come to end on 23-4-1997. It cannot be said to be manipulated document. It cannot be said to be manipulated document. No doubt about it that there appears to be overwriting made in the time of 'fitness note' recorded at the bottom of dying declaration as 12:15 and date appears to be 25-4-1997 may be that Doctor put endorsement later on or an incorrect date has been mentioned, since it is a document produced by the prosecution there is reference to previous dying declaration (D/1), in the second dying declaration (Ex.P/12) that the earlier dying declaration was recorded of the deceased by the Executive Magistrate. In the circumstances the recording of dying declaration (Ex.D/1) has been wrongly disbelieved by the trial Court. Even if we discard the dying declaration (D/1) the deceased kept quiet for 3 days, in view of the aforesaid statement of Jitendra (PW-8) as well as Rajendra Kumar (PW-7) initially it was not disclosed even to them that the accused had set the deceased ablaze. In view of the aforesaid dying declaration and other evidence, two views are possible. In the history given to the two Doctors by the deceased it was mentioned that she had set herself ablaze, it was suicidal case, thus, in the instant case as per the initial version there is possibility that the second dying declaration was given after deliberation consultation with the relatives, it was given after 2/3 days of the incident. Possibility of tutoring is not ruled out. Thus, the dying declaration (Ex.P/12) could not have been relied upon as two views are possible in the instant case, as per the initial version the deceased had set herself ablaze that view is also possible in view of the evidence adduced by the prosecution. It is settled law that when two views are possible one favouring the accused is required to be adopted. 8. Consequently, we allow the appeal, set aside the conviction and sentence imposed upon the appellants. The bail bonds of appellant No. 1; Dilip is discharged. Appellant No. 2; Tulasa Bai has been released under the provision of M. P. Prisoners Release Act, we do not comment on the aforesaid release.