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2009 DIGILAW 210 (CHH)

SUDARSHAN @ SUDAR v. STATE OF C. G.

2009-08-08

RAJEEV GUPTA, SUNIL KUMAR SINHA

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JUDGMENT As per Hon'ble Shri Rajeev Gupta, C.J. :- 1. Appellant Sudarshan @ Sudar stands convicted under Section 302 of the Indian Penal Code with sentences of imprisonment for life and fine of Rs.500/-vide impugned judgment dated 17.05.2001, passed by the Fourth Additional Sessions Judge, Jagdalpur in Sessions Trial No. 157/2000. 2. The short facts of the case, essential for deciding this appeal are that Chitribai (since deceased) was living with accused Sudarshan @ Sudar as his wife for the last about three years. Chitribai used to earn by selling vegetables whereas accused Sudarshan @ Sudar was unemployed. There used to be frequent quarrels between the two in that behalf. In the above background, on the fateful day of 12.02.2000 when Chitribai came back to her house, the accused quarreled with her and assaulted her. The quarrel between them was pacified by their friends. Later in the night, accused Sudarshan @ Sudar again assaulted Chitribai; poured kerosene oil on her; and set her on fire by means of a matchstick, as a result whereof, Chitribai sustained extensive bum injuries. Mahadev, brother of Chitribai on getting information about the incident, came to her village with his mother Hirma next day on 13.02.2000 and took Chitribai for treatment to Maharani Hospital, Jagdalpur. Doctor Rizvi, Assistant Surgeon immediately sent a requisition for recording of her dying declaration. Shri KL Sori, Executive Magistrate recorded her dying declaration (Ex.P/3) at Maharani Hospital. On the report of Chitribai about the incident, a case was registered at Police Kotwali, Jagdalpur against her husband accused Sudarshan @ Sudar for the commission of offence punishable under Section 307 of the IPC. Chitribai succumbed to her injuries in the intervening night of 14th and 15th February, 2000. After performing the necessary formalities of preparing inquest etc., body of the deceased was sent for postmortem examination. The case registered at Police Kotwali, Jagdalpur thereafter was converted to one under Section 302 of the IPC. Police Kate Kalyan. District Dantewada after completion of the investigation, charge-sheeted accused Sudarshan @ Sudar for commission of the offence punishable under Section 302 of the I.PC. 3. Accused Sudarshan @ Sudar abjured his guilt and pleaded false implication to the charge framed by the trial Cour1 under Section 302 of the I.P.C. 4. Police Kate Kalyan. District Dantewada after completion of the investigation, charge-sheeted accused Sudarshan @ Sudar for commission of the offence punishable under Section 302 of the I.PC. 3. Accused Sudarshan @ Sudar abjured his guilt and pleaded false implication to the charge framed by the trial Cour1 under Section 302 of the I.P.C. 4. At the trial, the capital charge of murder against accused Sudarshan @ Sudar was sought to be proved by the prosecution on the evidence of PW/1 Smt. Sushila Tekam, PW/2 Prabhu Das, PW/3 Sashi Dev @ Driver, PW/4 Mahadev, PW/5 KL Sori, PW/6 Dr. Virendra Kumar Jha, PW/7 Ambika Prasad, PW/8 Dr. MAH Rizvi, PW/9 Anukulchand, and PW/10 HL Patel. 5. The accused also examined DW/1 Dr. Vivek Joshi and DW/2 Dr. AK Bara in his defence. 6. The trial Court on a close scrutiny of the evidence of the witnesses examined by the prosecution and the defence held that deceased Chitribai died a homicidal death in the intervening night of 14/15.02.2000 on account of the burn injuries sustained by her on 12.02.2000. The trial Court relying upon the dying declaration of the deceased, Ex.P/3, which was found corroborated by her own First Information Report (Ex.P/l), and the evidence of PW/2 Prabhu Das and PW/4 Mahadev about the oral dying declaration of deceased Chitribai held accused Sudarshan @ Sudar guilty of causing death of his wife Chitribai by setting her on fire after pouring kerosene oil on her. The trial Court on the above findings convicted accused Sudarshan @ Sudar under Section 302 of the IPC and sentenced him to imprisonment for life and fine of Rs.500/-. 7. Shri Prafull Bharat, learned counsel for the appellant vehemently argued that the trial Court has erred in recording the appellant's conviction on the evidence of the dying declaration (Ex.P/3) and of PW/2 Prabhu Das and PW/4 Mahadev about the oral dying declaration ofthe deceased, as the deceased after having sustained extensive burn injuries could not have been in a fit mental condition to give any statement, much less the one recorded in Ex.P/3. Learned counsel further submitted that the First Information Report (Ex.P/1) though purports to have been lodged by deceased Chitribai herself, but in fact it was lodged by PW/4 Mahadev. Learned counsel further submitted that the First Information Report (Ex.P/1) though purports to have been lodged by deceased Chitribai herself, but in fact it was lodged by PW/4 Mahadev. Learned counsel, in the alternative, submitted that even if the accused appellant is found guilty of causing those bum injuries on his wife Chitribai which led to her death, the offence against the appellant would not be one of 'murder' punishable under Section 302 of the IPC as the appellant while pouring kerosene oil on his wife Chitribai and setting her on fire, never intended to cause her death. 8. Shri Sudhir Bajpai, learned Deputy Government Advocate on the other hand, supported the impugned judgment of conviction and contended that the dying declaration Ex.P/3 is amply corroborated by the evidence of PW/2 Prabhu Das and PW/4 Mahadev about the oral dying declaration of deceased Chitribai. Learned Deputy Government Advocate further submitted that the accused while pouring kerosene oil on his wife Chitribai and setting her on fire intended to cause her death and therefore, the appellant's conviction under Section 302 of the IPC does not call for any interference in this appeal. 9. The fact that deceased Chitribai died a homicidal death in the intervening night of 14/15.02.2000 on account of the bum injuries sustained by her on 12.02.2000 was neither in dispute before the trial Court nor is under challenge before us in this appeal. That apart, there is overwhelming evidence available on record to establish the above fact beyond any shadow of doubt. We, therefore, affirm the finding recorded by the trial court that deceased Chitribai died a homicidal death in the intervening night of 14th and 15th February, 2000, on account of the bum injuries sustained by heron 12.02.2000. 10. The appellant's conviction is founded on the dying declarations of deceased Chitribai -recorded (Ex.P/3 and Ex.P/l) and oral to PW/2 Prabhu Das and PW/4 Mahadev. 11. In her dying declaration Ex.P/3 deceased Chitribai categorically stated that on the fateful night of 12.02.2000 her husband (accused Sudarshan @ Sudar) first poured kerosene oil on her and then set her on fire by means of a matchstick. 12. The dying dec1aration Ex.P/3 was recorded by PW/5 KL Sori, Executive Magistrate. PW 15 KL Sori has deposed that after getting the instructions from the Sub-Divisional Officer, Jagdalpur, he reached Maharani Hospital Jagdalpur for recording the dying declaration of Chitribai. 12. The dying dec1aration Ex.P/3 was recorded by PW/5 KL Sori, Executive Magistrate. PW 15 KL Sori has deposed that after getting the instructions from the Sub-Divisional Officer, Jagdalpur, he reached Maharani Hospital Jagdalpur for recording the dying declaration of Chitribai. He has categorically stated in para 1 of his statement that though there were extensive bums on Chitribai, she was in a fit mental condition to give statement. He has further stated that the doctor on duty also certified that Chitribai was in a fit condition to give statement. Thereafter, he recorded the statement of Chitribai. It is further in his evidence that Chitribai put her thumb impression on the dying declaration Ex.P/3. He stood firm in his cross-examination and nothing could be elicited by the defence which may create doubt about the genuineness or reliability of the dying declaration Ex.P/3 13. The unfortunate incident of the deceased having been set on fire by the appellant took place in the night of 12.02.2000. The dying declaration Ex.P/3 was recorded in the evening of 13.02.2000. The deceased thereafter survived for more than 24 hours and ultimately succumbed to her injuries in the intervening night of 14th and 15th February, 2000. PW/5 KL Sori has categorically stated that deceased Chitribai was in a fit mental condition to give statement. The dying declaration Ex.P/3 bears an endorsement made by the doctor, who at the relevant time was attending the deceased to that effect. 14. On a thorough scrutiny of the dying declaration Ex.P/3 and the evidence of PW/5 KL Sori, Executive Magistrate, we are satisfied that the dying declaration EX.P/3 and the evidence of PW/5 KL Sori do not suffer from any infirmity, whatsoever. The trial Court, therefore, has rightly acted upon the dying declaration Ex.P/3 in holding the appellant guilty of causing death of his wife Chitribai. 15. The evidence of dying declaration Ex.P/3 by itself is sufficient for upholding the conviction of appellant Sudarshan @ Sudar for the commission of murder of his wife Chitribai. Yet there is further evidence in the form of First Information Report Ex.P/1 lodged by the deceased herself, which also is to be treated under Section 32 of the Evidence Act as her dying declaration. Yet there is further evidence in the form of First Information Report Ex.P/1 lodged by the deceased herself, which also is to be treated under Section 32 of the Evidence Act as her dying declaration. In her First Information Report, the deceased categorically stated that in the fateful night, her husband, appellant Sudarshan @ Sudar first assaulted her and thereafter, poured kerosene oil on her and set her on fire by means of a matchstick. PW/1 Smt. Sushila Tekam, Sub-Inspector has proved that First information Report Ex.P/1 was recorded by her on the information of deceased Smt. Chitri Bai on 13.02.2000. 16. The contents of the First Information Report Ex.P/1 lodged by the deceased are consistent with the contents of her dying declaration Ex.P/3. Learned counsel for the appellant could not point out any significant discrepancy between the two versions of the deceased in regard to the main incident. 17. Then there is evidence of PW/2 Prabhu Das and PW/4 Mahadev about the oral dying declaration of deceased Chitribai. 18. PW/2 Prabhu Das was a neighbour of the appellant and the deceased. He has stated in para 3 of his statement that the appellant first assaulted the deceased and on the intervention of others, the matter between them was pacified. In para 4 of his statement, he has deposed that the accused again quarreled with his wife. The appellant again assaulted deceased Chitribai and after sometime, they heard some shouts for help. When they came out, they saw Chitribai, coming out of her house, in flames followed by her husband accused Sudarshan @ Sudar. On his query, as to how she got burnt, Chitribai categorically stated that her husband after pouring kerosene oil on her, set her on fire. He was subjected to a lengthy cross-examination by the defence, but no such material could be brought out in his cross-examination, which may render his evidence un-worthy of credence. 19. PW/4 Mahadev, brother of deceased Chitribai has also deposed that his sister Chitribai after her admission in the hospital told him that accused Sudarshan @ Sudar had poured kerosene oil on her and thereafter set her on fire. This witness too stood firm in his cross-exan1ination and the defence could not elicit any such material in his Cross-examination, which may render his evidence un-reliable. 20. This witness too stood firm in his cross-exan1ination and the defence could not elicit any such material in his Cross-examination, which may render his evidence un-reliable. 20. From the above analysis of the dying declaration Ex.P/3; First Information Report Ex.P/1; and the evidence of PW/l Sushila Tekam, PW/2 Prabhu Das, PW/4 Mahadev and PW/5 KL Sori, the witnesses examined by the prosecution before the trial Court about the recorded and oral dying declarations of deceased Chitribai, it emerges out that on the fateful night of 12.02.2000 appellant Sudarshan @ Sudar first assaulted his wife Chitribai and then after pouring kerosene oil on her, set her on fire resulting in extensive bum injuries to Chitribai, who succumbed to those injuries during the course of her treatment in the hospital in the intervening night of 14th and 15th February, 2000. 21. The deliberate manner in Which the appellant set his wife Chitribai on fire after pouring keirosene oil does not leave any room for doubt that the appellant while pouring kerosene oil on his wife Chitribai and setting her on fire by means of a matchstick very much intended to cause her death. We, therefore, have no manner of doubt that the above proved act of the appellant would amount to nothing short of 'murder' and would be punishable under Section 302 of the IPC only. 22. For the foregoing reasons, the appeal filed by the appellant against his conviction and sentence is liable to be dismissed and is hereby dismissed in toto. The appellant's conviction under Section 302 of the I.P.C. and sentences of imprisonment for life and fine of Rs.500/- awarded by the trial Court are hereby affirmed. Appeal Dismissed.