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2008 DIGILAW 723 (MP)

Avinash @ Gudda v. State of Madhya Pradesh

2008-06-16

ARUN MISHRA, SUSHMA SHRIVASTAVA

body2008
Judgment ( 1. ) APPELLANT has challenged his conviction and order of sentence passed by Additional Sessions Judge, Narsinghpur in s. T. No. 154/96 decided on 9. 8. 99. ( 2. ) APPELLANT has been convicted under Section 302 of ipc for committing murder of his wife Beena Bai and sentenced to imprisonment for life with fine of Rs. 500/-, in default rigorous imprisonment for three months, by impugned judgment. ( 3. ) ACCORDING to prosecution, on 5. 4. 96 A. S. I. S. S. Khan received a telephonic information at Police Station Kareli from sarpanch of village Mohad that appellant Avinash @ Gudda had burnt his wife and son by pouring kerosene oil over them. After recording this information in Rojnamcha, A. S. I. S. S. Khan reached the spot and found that Beena Bai and her son Manish aged about 2? years were in burnt condition. The FIR of the incident in the form of Dehati Nalishi was recorded at the instance of Beena Bai, on the basis of which an offence was registered against the appellant at Police Station kareli and was investigated. Both Beena bai and her son Manish were sent to the hospital. The dying declaration of Beena Bai was recorded at the hospital by Executive magistrate-cum-Tahsildar Yashwant Singh. Beena Bai, however, succumbed to her burn injuries on 6. 4. 96 at 7. 10 in the morning, whereas her son Manish succumbed to his burn injuries at 5 oclock in the morning on 6. 4. 96. Intimation of their death was sent to the Police by hospital authorities. Merg intimation was then recorded and merg inquest reports were prepared. The dead bodies of deceased Beena Bai and Manish were sent for postmortem examination. After other usual investigation, appellant was prosecuted under Section 302 of IPC for committing murder of his wife and son and was put to trial. ( 4. ) APPELLANT abjured the guilt and pleaded innocence and false implication. ( 5. ) AFTER trial and upon appreciation of the evidence adduced in the case, learned trial judge acquitted the appellant of the charge of committing murder of his son Manish but found him guilty for committing murder of his wife Beena Bai by pouring kerosene oil over her body and setting her ablaze and convicted and sentenced him as aforesaid. ) AFTER trial and upon appreciation of the evidence adduced in the case, learned trial judge acquitted the appellant of the charge of committing murder of his son Manish but found him guilty for committing murder of his wife Beena Bai by pouring kerosene oil over her body and setting her ablaze and convicted and sentenced him as aforesaid. Being aggrieved by the order of his conviction and sentence appellant has preferred this appeal. ( 6. ) WE have heard the counsel for the parties and perused the evidence on record. ( 7. ) IT was no longer disputed that deceased Beena Bai died of burn injuries. It is also reflected from the testimony of dr. R. P. Faujdar (P. W-5), who had medically examined Beena Bai on 5. 4. 96, that Beena Bai had 90-95% superficial burns on her body and smell of kerosene oil was also present on her body. Dr. Rajesh (P. W-11), who conducted the autopsy on the dead body of deceased Beena Bai, also found 100% superficial ante mortem burns on her body. He also found Carbon particles in the trachea of deceased Beena Bai. In the opinion of Dr. Rajesh (P. W-11), the cause of death of Beena Bai was neurogenic shock as a result of burn injuries. The detailed postmortem report (Ex. P-24) prepared by Dr. Rajesh (P. W-11) is also placed on record. ( 8. ) LEARNED counsel for the appellant, however, submitted that trial court gravely erred in convicting the appellant by placing implicit reliance on the dying declaration of the deceased and unreliable testimony of P. W-2 Shyamlal, whereas learned counsel for the State supported the finding recorded by the court below that appellant intentionally burnt his wife Beena Bai and thereby caused her death. ( 9. ) THE dying declaration (Ex. P-11) was recorded by executive Magistrate Yashwant Singh (P. W-12) on 5. 4. 96 at community Health Centre Kareli. Yashwant Singh (P. W-12)categorically deposed in his evidence that he had recorded the dying declaration of Beena Bai on 5. 4. 96 at 9. 15 PM, after obtaining the certification from the doctor on duty that Beena Bai was fit to give statement, he recorded her statement as per ex. P-11 and obtained her thumb impression. Yashwant Singh (P. W-12)categorically deposed in his evidence that he had recorded the dying declaration of Beena Bai on 5. 4. 96 at 9. 15 PM, after obtaining the certification from the doctor on duty that Beena Bai was fit to give statement, he recorded her statement as per ex. P-11 and obtained her thumb impression. According to P. W-12 yashwant Singh, Beena Bai remained fully conscious during her statement and she had stated before him that her husband Avinash had poured kerosene oil over her and lit fire by matchstick. ( 10. ) DR. R. P. Faujdar (P. W-5) also testified that before recording of the dying declaration of deceased Beena Bai he had examined her and she was fit to give statement and he had also made an endorsement to this effect on the dying declaration (Ex. P-11) and also affixed his signature. He also testified that the dying declaration of deceased Beena Bai was recorded in his presence and he also appended certificate on Ex. P-11 at the foot that Beena Bai remained conscious during her statement. ( 11. ) THERE are no reasons to disbelieve the evidence of executive Magistrate Yashwant Singh (P. W-12) and dr. R. P. Faujdar (P. W-5) that deceased Beena Bai remained fully conscious during her statement and she was in a fit condition to give statement. There is also no inconsistency in the timings of recording of the dying declaration and the medical examination of beena Bai. Dr. R. P. Faujdar (P. W-5) categorically deposed in his evidence that he had examined Beena Bai at 9. 15 PM before recording of her dying declaration. There are also no reasons to disbelieve the testimony of P. W-12 Yashwant Singh that he had recorded the statement of Beena Bai as per Ex. P-11. There are also no grounds to suspect that P. W-12 Yashwant Singh would himself manipulate the dying declaration (Ex. P-11) as he had no animus against the appellant. ( 12. ) THERE is also no inconsistency in the dying declaration (Ex. P-11) and Dehati Nalishi (Ex. P-15) recorded by A. S. I. S. S. Khan (P. W-10) at the instance of Beena Bai, which was to be treated as dying declaration after her death. P-11) as he had no animus against the appellant. ( 12. ) THERE is also no inconsistency in the dying declaration (Ex. P-11) and Dehati Nalishi (Ex. P-15) recorded by A. S. I. S. S. Khan (P. W-10) at the instance of Beena Bai, which was to be treated as dying declaration after her death. The substratum of both the declarations remained the same that the appellant had poured kerosene oil over the body of Beena Bai and lit fire by matchstick. There is nothing on record to indicate that dying declaration (Ex. P-11) made by deceased Beena Bai was the result of any tutoring or prompting or product of imagination. In fact, there are no reasons to doubt or suspect that dying declaration (Ex. P-11) is not true or voluntary statement made by the deceased. ( 13. ) THE law relating to the dying declaration has been summed up by the Apex Court in the case of Muttu Kutty and another Vs. State by Inspector of Police, Tamilnadu reported in 2005 (9) SCC page 113 and it has been reiterated that dying declaration can form the sole basis for conviction, if the court is satisfied that declaration is true and voluntary. ( 14. ) IN face of the dying declaration (Ex. P-11) and in absence of any such evidence, the plea taken by the appellant that he was not present on the scene at the time of occurrence is not acceptable, while his presence on the scene was also witnessed by p. W-2 Shyamlal. ( 15. ) IN view of the aforesaid discussion, we are of the considered opinion, that the trial court committed no error in placing reliance on the dying declaration (Ex. P-11) of the deceased and in holding appellant guilty for intentionally causing death of his wife Beena Bai by pouring kerosene oil over her and setting her ablaze. Therefore, the conviction of the appellant as recorded by trial court under Section 302 of IPC and life sentence awarded to him with fine of Rs. 500/-do not warrant any interference in this appeal. ( 16. ) THUS, we find no merit and substance in this appeal. We uphold the conviction of the appellant and sentence passed on him under Section 302 of I. P. C. Appeal fails and is dismissed.