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2009 DIGILAW 481 (MP)

Sudama v. State of M. P.

2009-04-15

K.S.CHAUHAN, RAKESH SAKSENA

body2009
JUDGMENT Chauhan, J. -- 1. This criminal appeal under section 374 (2) of the Code of Criminal Procedure has been preferred by the appellants being aggrieved by the judgment, finding and sentence dated 23.8.2007 passed by the Sessions Judge, Damoh in S.T. No. 34/2007, whereby appellants have been convicted under section 302 read with section 34 of Indian Penal Code and sentenced for life imprisonment with fine of Rs. 5,000/- each, in default of payment of fine, additional R.I. for three months. 2. The prosecution case in short is that on 9.12.2006 on some domestic quarrel Sudama caused marpeet to Rajpyari. She reported the matter to the police. Sudama was arrested and thereafter he was released on bail. On 12.12.2006, Rajpyari was collecting the cow dung in the cattle shed. Her son Nanhe Bhai was at home and her husband Paramlal was going towards the village. On hearing the cries, Paramlal and Nanhe Bhai reached on the spot and saw that Halli Bai poured kerosene over the body of Rajpyari and Sudama ignited the match stick and set her on fire. She sustained the injuries. She was carried to Civil Hospital, Damoh where her dying declaration Ex. P-7 was recorded and she was referred to Medical College, Jabalpur. After inquiry, the offence under sections 307 and 120B/34 of IPC was registered at police station Nohta on 6.1.2007 against the appellants. Spot map was prepared. Country soil, kerosene stained earth, piece of burnt dhoti, match box etc. were seized from the spot. She got discharged from Medical Hospital, Jabalpur but later on her condition became serious, therefore, she was again admitted in Civil Hospital, Damoh on 2.1.2007. Marg intimation was recorded. Panchnama of dead body was prepared. Her dead body was sent for post mortem examination which was conducted by Dr. Rakesh Rai. According to his opinion, the cause of death was septicemia shock due to extensive burns (multiple ulcers). Duration within 12 to 24 hours of the examination. On the basis of post mortem report, the offence under section 302 IPC was added. Seized articles were sent to FSL, Sagar from where the report was received. Accordingly the presence of kerosene was found on items No. A, C, E, F & G. After completing the usual investigation, charge sheet was filed in the Court of CJM, Damoh who committed this case to the Sessions Court for trial. 3. Seized articles were sent to FSL, Sagar from where the report was received. Accordingly the presence of kerosene was found on items No. A, C, E, F & G. After completing the usual investigation, charge sheet was filed in the Court of CJM, Damoh who committed this case to the Sessions Court for trial. 3. The accused persons were charged under section 302 read with section 34 of IPC. They denied the guilt and claimed to be tried mainly contending that they are innocent and have been falsely implicated. Prosecution examined as many as 12 witnesses and placed the documents Exhibits P-l to P-20 on record and accused persons also examined two witnesses in their defence. After appreciating the evidence, trial Court found the appellants guilty under the above mentioned offences and sentenced thereto as stated hereinabove in para 1 of this judgment. Being aggrieved by the impugned judgment, finding and sentence the instant appeal has been preferred by the appellants on the grounds mentioned in the memo of appeal. 4. Shri Mahendra Pateria, learned counsel for the appellants submitted that trial Court has not appreciated the evidence in proper perspective. The witnesses have not supported the prosecution case. The dying declaration of Rajpyari is not reliable. There is no corroborative evidence. Rajpyari herself has given the affidavit Ex. D-3 wherein she has stated that appellants have not committed this offence but she herself has set her on fire. In such circumstances, 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 respondent-State supported the impugned judgment, finding and sentence mainly contending that prosecution has proved the case beyond reasonable doubt against the appellants and the trial Court has rightly convicted and sentenced them hence it does not call for any interference. 6. The main point for consideration in this appeal is that whether the trial Court has committed any illegality in convicting and sentencing the appellants under section 302 read with section 34 of IPC. 7. The incident is of 12.12.2006 at 8 a.m. of village Abhana, District Damoh. It is alleged that Rajpyari Bai was burnt by the appellants. 6. The main point for consideration in this appeal is that whether the trial Court has committed any illegality in convicting and sentencing the appellants under section 302 read with section 34 of IPC. 7. The incident is of 12.12.2006 at 8 a.m. of village Abhana, District Damoh. It is alleged that Rajpyari Bai was burnt by the appellants. She was admitted in Civil Hospital, Damoh by her husband Paramlal (PW 2) and information was sent by Kotwali Police, Damoh to Tahsildar for recording dying declaration. On this information Anil Jain (PW 4), Additional Tahsildar, Damoh reached at Civil Hospital and recorded the statement of Rajpyari Bai on the same date. He has deposed that Rajpyari Bai gave dying declaration that Halli Bai poured kerosene over her body and Sudama set her on fire. Consequently, she received the burn injuries. Dying declaration is Ex. P-7 which contains the thumb impression of Rajpyari Bai and signature of Anil Jain (PW 4). According to him, it was certified by doctor that Rajpyari was in a fit condition to give statement. She also remained conscious throughout. No doubt he admitted that her condition was serious but stated that she was in fit condition to give such statement. Nothing is carved out in the cross examination of this witness so as to discredit his evidence. Thus it is apparent that dying declaration Ex. P-7 was given by Rajpyari on the day of incidence to this witness. 8. Rajpyari not only narrated the incident but also stated the motive behind this offence. She narrated that prior to this incident her marpeet was done by Sudama. The matter was reported to the police. He was arrested and released on bail. After returning therefrom the appellants set her on fire. Thus motive is shown for commission of this incident. 9. Learned counsel for the appellants submitted that this dying declaration (Ex. P-7) is not reliable in the light of affidavit Ex. D-3 given by Rajpyari herself. But the contention of learned counsel for the appellants is not acceptable for the simple reason that dying declaration (Ex. P-7) was recorded on the day of incident when she was admitted in Civil Hospital, Damoh. It was her earlier version as to how the incident occurred. Whereas the affidavit Ex. D-3 is of 9.1.2007 i.e. one day before her death. P-7) was recorded on the day of incident when she was admitted in Civil Hospital, Damoh. It was her earlier version as to how the incident occurred. Whereas the affidavit Ex. D-3 is of 9.1.2007 i.e. one day before her death. It was recorded by Rajeev Nema (DW 2) but no permission has been obtained from duty doctor because at that time she was admitted in the hospital. It is an afterthought which appears to have been recorded to save the appellants from punishment. The contents of affidavit are contrary to the evidence as stated by some witnesses that she caught fire accidentally. Thus no reliance on such affidavit can be placed which is totally against her earlier version given in dying declaration (Ex. P-7). We are of the considered opinion that dying declaration (Ex. P-7) given by Rajpyari is true and voluntarily given. It has been recorded properly by competent authority. It is established principle of law that dying declaration if true and voluntarily given is sufficient to convict the accused and no corroboration is required. 10. Prosecution examined eye witnesses Paramlal (PW 2) Nanhe Bhai @ Nanhe (PW 3), Bharosha (PW 8) and Ramdas (PW 11) but they did not support the prosecution case and hence declared hostile. But this does not adversely affect the prosecution case because the witnesses appear to have been won over by appellants being their near relatives, are not making correct statements before Court. 11. This incident is of 12.12.2006 and Rajpyari died on 10.1.2007. On the basis of her dying declaration Bhagwat Prasad (PW 6) recorded FIR (Ex. P-10) but after his death one written report (Ex. P-8) was received by Pankaj Sharma (PW 5) on the basis of which marg intimation (Ex. P-9) was recorded. After giving notices the panchnama of dead body (Ex. P4) was prepared and her dead body was sent for post mortem examination. Dr. Rakesh Rai (PW 11) conducted the post mortem examination on 10.1.2007 and opined that her death was due to septicemia shock as a result of extensive burns (multiple ulcers). Post mortem report is Ex. P-9A which contains his signature. Thus medically it is proved that Rajpyari died on account of burn injuries. 12. From the foregoing discussion, it is manifestly clear that Rajpyari gave dying declaration (Ex. P-7) to the effect that she was burnt by the appellants and sustained injuries. Post mortem report is Ex. P-9A which contains his signature. Thus medically it is proved that Rajpyari died on account of burn injuries. 12. From the foregoing discussion, it is manifestly clear that Rajpyari gave dying declaration (Ex. P-7) to the effect that she was burnt by the appellants and sustained injuries. Anil Jain Additional Tahsildar and Executive Magistrate (PW 4) has proved such dying declaration. This evidence further finds support from medical evidence. The motive of crime has also been established. Thus we are of the considered opinion that prosecution has proved the guilt beyond reasonable doubt against the appellants. We find no infirmity, illegality or perversity in the finding of guilt recorded by the trial Court hence no interference is called for. The appeal is meritless which deserves to be dismissed. 13. Consequently, the appeal fails and is dismissed accordingly.