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Madhya Pradesh High Court · body

2009 DIGILAW 686 (MP)

RAJU @ AHMED s/o GULAM NABI v. STATE OF M. P.

2009-06-16

MANJUSHA P.NAMJOSHI, S.L.KOCHAR

body2009
JUDGMENT : S. L. KOCHAR, J. 1. The appellant has challenged his conviction under sections 302 and 506-II of the Indian Penal Code sentence to RI for life and fine of Rs. 50,000/-, in default of fine additional RI for one year and three years RI respectively, passed by learned Addl. Sessions Judge, Manavar, District Dhar in ST No. 51/2006, judgment dated 13-10-2006. Jail sentences were directed to run concurrently. 2. The appellant has admitted the following facts that Omprakash (PW.1), Anand (PW.2), Leelabai (PW.6) and Nupur (PW.8) are father, brother-sister-in-law and daughter of the deceased Smritibai, respectively. Mohansingh Morya (PW.3) was serving as driver in government hospital, Manavar and he had taken Smritibai, the appellant Raju @ Ahmed and Nupur in ambulance to hospital. Appellant was knowing Arvind (PW. 12) who had gone at the house of one Noorjahan for treatment of his sister situated in Teachers Colony and he had also gone with ambulance to hospital. The death of Smritibai due to burn and that Smritibai was serving as teacher in village Tonk and residing in Manavar have also been admitted. 3. The prosecution case in nut shell as put forth before the trial Court is that on 24-10-2005 Smritibai in burnt condition was brought to Primary Health Centre, Manavar from her house situated in Teacher's Colony, Manavar in the night at 11.00 p.m. Dr. K. C. Rane sent information (Ex.P.5) to Police Station, Manavar and on this basis, information was recorded in daily diary Serial No. 1280 vide Ex.P.17. Dr. Rane examined Smritibai and gave Medico Legal Certificate (for short "MLC") (Ex.P.6). Looking to the serious condition of Smritibai, her dying declaration (Ex.D.5) was got recorded by Naib Tehsildar (DW. 1) Shri Sakharam Yadav and she was referred for further treatment to District Hospital, Barwani. The reference letter is Ex.P.6. Smritibai died in District Hospital during the course of treatment, intimation (Ex.P.4) was sent to this effect to P. S. Barwani. Head Constable Sheikh Khurshid (PW.4) registered Murg Number (inquest number) 111/2005 under section 174 of the Criminal Procedure Code (Ex.P.13), he also prepared inquest report (Ex.P.2) in presence of witnesses and sent the requisition (Ex.P. 3) to District Hospital for post-mortem examination of deceased Smritibai. Dr. Rajesh Jain (PW.9) conducted post-mortem of the dead body and issued report (Ex.P.12). Head Constable Sheikh Khurshid (PW.4) registered Murg Number (inquest number) 111/2005 under section 174 of the Criminal Procedure Code (Ex.P.13), he also prepared inquest report (Ex.P.2) in presence of witnesses and sent the requisition (Ex.P. 3) to District Hospital for post-mortem examination of deceased Smritibai. Dr. Rajesh Jain (PW.9) conducted post-mortem of the dead body and issued report (Ex.P.12). According to him, deceased suffered 100% burn injury and died within six hours from the date and time of post-mortem examination. 3.1. Police Station, Barwani has sent intimation to P.S. Manavar in whose jurisdiction incident occurred and in P.S. Manavar, registered Murg No. 78/2005 entry whereof made in daily diary at Serial Number 581 dated 11-11-2006 (Ex.P.16). Sub Inspector G. R. Randhe (PW.10) in inquest enquiry reached on the spot and prepared spot map (Ex.P. 11) as well as seized kerosene plastic can, half burnt pieces of cloth through seizure memo (Ex.P.8). He also seized half burnt quilt, cotton bed and clothes of appellant through seizure memo (Ex.P.9 and Ex.P.10), respectively. SHO Anand Singh Vaskale (PW.13) in inquest enquiry found that deceased was residing near the house of appellant in Teacher's Colony, Manavar and was having physical relation with appellant. On the date of incident i.e 24-10-2005 appellant reached at the house of Smriti and asked her to go with him at his house whereupon they had arguments and deceased denied to go with him but appellant was again and again insisting her, and on refusal appellant poured kerosene on her body and lit fire by match stick. The incident was witnessed by Nupur (PW.8), daughter of the deceased. It was also revealed in inquest enquiry that appellant threatened the deceased Smriti and her daughter Nupur for not giving correct information and took them to the hospital. The spot was also inspected by FSL. Unit and expert found that deceased died because of burn due to kerosene. 3.2 Anandsingh Vaskale (PW.13) on the basis of murg enquiry, registered FIR (Ex.P. 15) vide Crime No. 479/2005 for commission of offence under sections 302, 506 of the Indian Penal Code against the appellant and also recorded statements of the witnesses acquainted with the facts of the case. Seized articles were sent with memo (Ex.P. 19) signed by Superintendent of Police to FSL and its report is Ex.P.21. Seized articles were sent with memo (Ex.P. 19) signed by Superintendent of Police to FSL and its report is Ex.P.21. Appellant was arrested and on due investigation, charge-sheet was filed against him for the abovementioned offences before the concerned Court. 4. The appellant refuted the charges and his defence was that he was falsely implicated and deceased sustained burn injury because of sudden burst of flame of kerosene lamp while filling kerosene and he reached on the spot upon hearing cry of Nupur (PW.8) and tried to save the deceased in which his both the hands were also burnt. He examined Naib Tehsildar Sakharam Yadav (DW.1) who proved dying declaration (Ex.D.5) of the deceased. The learned trial Court found the prosecution case proved, convicted and sentenced the appellant as mentioned hereinabove. 5. We have heard the learned counsel for parties and also perused the entire record carefully. 6. Learned counsel for the appellant has submitted that defence of the appellant that deceased sustained burn injury while filling kerosene in lamp when its flame flared up and he sustained burn injury on his both the hands while saving deceased and his defence is supported by dying declaration (Ex.D.5) recorded by Naib Tehsildar Shri Sakharam Yadav (DW. 1). It is also submitted that after some days, because of political pressure, a false case has been concocted by the police against the appellant and learned trial Court erred in relying on the testimony of eye witness Nupur (PW.8), daughter of deceased whose statement was recorded after the lapse of long time and no explanation was given by the Investigating Officer. 7. In oppugnation, the learned counsel for State has argued that presence of eye witness Nupur (PW.8) has been admitted by the appellant on the spot in the house at the time of incident and according to Nupur, appellant after pouring kerosene oil, ablazed the deceased and also did not allow her to go out of the house by catching her both the hands and thrown her on the cot. Nupur and deceased were badly threatened by the appellant because of which they did not disclose against the appellant immediately and the moment Nupur was examined by the police vide her statement (Ex.D.4) she disclosed everything against the appellant and also about threatening to her as well as her mother. Nupur and deceased were badly threatened by the appellant because of which they did not disclose against the appellant immediately and the moment Nupur was examined by the police vide her statement (Ex.D.4) she disclosed everything against the appellant and also about threatening to her as well as her mother. Learned counsel has also submitted that 100% burn injury could not be caused by flame of lamp and it is not the case of the appellant that kerosene oil fell on the person of deceased but according to medical evidence and FSL report, kerosene oil was found on the person of deceased and on half burnt pieces of cloth, quilt, cotton bed and other articles. According to learned counsel for State, the defence story is not corroborated by circumstantial evidence and medical evidence and defence has not put any question to Investigating Officer regarding delay in recording statement, therefore, no benefit can be extended on this count to defence. 8. The core question for us to decide whether deceased died because of accidental burn or set fire by the appellant after pouring kerosene oil on her person and out of dying declaration (Ex.D.5) and eye witness account of Nupur (PW.8) which one is reliable. 9. Bearing in mind the basic principle of criminal jurisprudence that prosecution is required to prove its case beyond reasonable doubt and cannot get strength because of weakness or falsity of the defence version. Now we proceed to examine the evidence adduced by both the parties. 10. Omprakash, father of deceased (PW. 1), Anand (PW.2) brother of deceased, Leelabai (PW.6) sister-in-law of the deceased have deposed that deceased had love marriage with Narendra before 18-20 years and it was not with their consent because of which they were not having visiting term with deceased. According to them, on receiving information they reached in the hospital from village Tonki to Manavar in the night itself. Deceased disclosed to Omprakash (PW. 1) that she was cheated and burnt by appellant Raju @ Ahmed. It is clear from the entire statement of this witness that deceased had marriage with Narendra against their wishes and because of which they were not having any visiting and talking terms. In cross-examination, Omprakash has deposed that deceased was travelling with appellant from village Tonki to Manavar but he expressed his ignorance about any kind of love affair between them. In cross-examination, Omprakash has deposed that deceased was travelling with appellant from village Tonki to Manavar but he expressed his ignorance about any kind of love affair between them. He denied defence suggestion that deceased told him that she wanted to marry with appellant and appellant refused whereby cheated her. It is also clear from his statement that in the same night he returned back to his village Tonki and on the next day in the morning he received information of death of his daughter in the hospital. The total conduct of this witness shows that he was not very much concerned with the deceased and incident occurred with her. 11. Leelabai (PW.6), sister-in-law of deceased has also supported the statement of Omprakash about oral dying declaration of deceased saying that she was ablazed by appellant. Both the witnesses had no reason to speak against the appellant and they were also not very much concerned with the deceased. In cross-examination, nothing substantial has come to corrode their version. 12. Anand (PW.2) has deposed that when he questioned deceased as to how she sustained burn injury, she started weeping and did not disclose anything. In cross-examination, he denied the defence suggestion that deceased told her that she caught fire by bursting of flame of lamp. According to him, when she started weeping he came out of the ward of the hospital. He has also stated that he had not gone to attend the funeral of her sister. 13. The learned counsel for appellant has very much banking upon document (Ex.P.5), a letter sent to police by Dr. Krishna Chandra Rane (PW.5) wherein it is mentioned that deceased was admitted in hospital having 100% burn injury caused while filling kerosene in lamp. We have perused this document and in this document, it is nowhere mentioned by Doctor as to who gave this information to him. In examination-in-chief he has not deposed about the contents of document (Ex.P.5) and he has only proved his signature on the document at "A to A" part. He has nowhere stated that entire document was written by him which is the requirement of section 67 of the Evidence Act to prove the documentary evidence and contents of the document. He has stated specifically that deceased suffered 100% burn injury because of kerosene. He has nowhere stated that entire document was written by him which is the requirement of section 67 of the Evidence Act to prove the documentary evidence and contents of the document. He has stated specifically that deceased suffered 100% burn injury because of kerosene. He has also proved the medical report of deceased (Ex.P.6) and medical report of appellant (Ex.P.7). According to him, appellant suffered superficial burn injury on his both the hands. In para four, he has deposed that if a woman was burning and person stopping her from burning by his both the hands, in that situation he could suffer burn injury as sustained by the appellant. In cross-examination, he deposed that he sent intimation (Ex.P.5) to police on the basis of information given to him by the deceased and her relative and all the clothes of the deceased were burnt and that there were no clothes on her body. He was re-examined by Additional Public Prosecutor and he stated that he did not mention the particulars of the person who gave intimation to him about the fact mentioned in document (Ex.P.5). He has given hypothetical answer about fact mentioned in document (Ex.P.5). It is very unusual that Dr. Rane would fail to mention the name of the person who gave him intimation. 14. It is clear from the evidence of eye witness Nupur (PW.8), Arvind (PW.12) that deceased was accompanied in ambulance by appellant and Nupur, the daughter of deceased aged about 16 years and according to Arvind (PW.12) he followed them on motorcycle (see para six of his deposition). Nupur has nowhere stated that she gave history of the patient to Doctor. Same is with Arvind, therefore, if any such information was given to Dr. Rane that could be either by deceased or by appellant and Dr. Rane would have not failed to mention the same. In MLC report (Ex.P.6) also he has mentioned "alleged H/O (history of) burn by Chimney". Who gave this history is not mentioned by him and it appears that Dr. Rane deliberately did not mention this because history must have been given to him by the appellant and if he would have mentioned this, both the documents would have lost importance and sanctity about history and they had kept it open to explain in the Court and Dr. Rane deliberately did not mention this because history must have been given to him by the appellant and if he would have mentioned this, both the documents would have lost importance and sanctity about history and they had kept it open to explain in the Court and Dr. Rane has not stated anything in examination-in-chief but explained the same in cross-examination. 15. The dying declaration (Ex.D.5) was recorded by Naib Tehsildar Shri Sakharam Yadav (DW.l) in the same night of 24-10-2005. The deceased had deposed that "today night at 9.30 p.m. she was filling kerosene in chimney and chimney was not burning, near to her gas oven was burning and she was not knowing as to how she caught fire, at that time she and her daughter was in the house, rest persons were residing in village Tonki". Again question was put to her that whether she was burnt by anybody and she replied that "NO", she was filling kerosene in chimney and probably because of fire of oven, flame of chimney flared up and she caught fire. The aforesaid statement of deceased is not corroborated by circumstantial evidence, if she caught fire only because of flame of chimney on her person, kerosene oil would have not been found by Doctor as well as in FSL report on her burnt pieces of cloth, quilt and cotton bed. She would have also not sustained 100% burn injury only because of flame of chimney. Her condition and 100% percentage burn shows that before catching fire, kerosene was poured on her person and she was silent about this. Falling of kerosene on her body accidentally is completely excluded by the deceased in her statement, therefore, either she herself had poured the kerosene or kerosene was sprinkled on her body by appellant as stated by eye witness Nupur (PW.8), daughter of the deceased. It is not the case of the appellant that deceased herself committed suicide by ablazing her after pouring kerosene oil. He has come with a specific defence that deceased caught fire because of bursting of flame of chimney. He has nowhere stated that kerosene fell on her body. It is not the case of the appellant that deceased herself committed suicide by ablazing her after pouring kerosene oil. He has come with a specific defence that deceased caught fire because of bursting of flame of chimney. He has nowhere stated that kerosene fell on her body. On the articles seized from the spot i.e. plastic can having 1½ litre liquid with smell of kerosene, half burnt pieces of clothes, nylone nivar, chimney with smell of kerosene, half burnt quilt, half burnt cotton bed, the articles marked as A,B,C, E and F, the kerosene oil was present as per FSL report (Ex.P.21). The kerosene was not found on the clothes of appellant i.e. Article G-shirt, Article H-Full pant and Article D-match box. (On the FSL report, correct Exhibit has not been marked. This report is admissible as per provision under section 293 of the Criminal Procedure Code and has been proved and exhibited by Investigating Officer Shri Vascale (PW.13) as Ex.P.21 but it is marked as Ex.P.2 and shown to be proved by (PW.3). 16. Eye witness Nupur (PW.8) has proved the seizure memo (Ex.P.8) by which these articles were seized. In cross-examination, para 29, she has denied the defence suggestion that no articles were seized through seizure memo (Ex.P.8) and same was not signed by her in police station. She has specifically stated that she went along with police to their house which was sealed and the seal was opened by the police, thereafter articles were seized. 17. Sub Inspector Shri Randhe (PW. 10) proved the seizure memo (Ex.P.8) about seizure of plastic can having 1½ litre kerosene, half burnt pieces of cloth smelling kerosene, one small empty chimney and Ex.P.9 about seizure of half burnt quilt and cotton bed seized in presence of Nupur and Ashok (PW.7) vide Ex.P.9. 18. Eye witness Nupur (PW.8) has stated that on the date of incident in the night at 9-9.30 p.m. she was studying in front room of her house and her mother was sitting near her. At that moment, appellant Raju driver reached there and took her mother in next room. There was arguments between her mother and appellant, appellant was insisting her mother to went along with him to his house and she was refusing. Appellant again and again asking her and she was denying. At that moment, appellant Raju driver reached there and took her mother in next room. There was arguments between her mother and appellant, appellant was insisting her mother to went along with him to his house and she was refusing. Appellant again and again asking her and she was denying. Further say of this witness is that appellant poured kerosene on her mother and lit fire by match stick. Her mother in burning condition came from last room to first room and was trying to run away but appellant caught her both hands and thrown her on the cot (palang), her mother tried to run away but appellant did not allow her and she (this witness) cried and came out of the house. She has also stated that appellant was threatening her mother not to speak against him otherwise he will kill her daughter i.e. to her. He also threatened her. When she came out of the house and cried, two by-passers reached there and they called ambulance and they took deceased in ambulance to hospital. Appellant in the ambulance was threatening her mother for not disclosing about the incident to anybody. In the hospital she was with her mother and appellant reached to Doctor and had talk with him. She was restrained by the appellant to phone to her father and threatened her. He had also threatened her mother not to speak against him and she is going to die and if she will speak anything against him, he will kill her daughter also. According to Nupur she was also threatened by appellant not to give statement against him. She has further stated that at that time she was alone and no other family member was present there because of which she and her mother gave statement as compelled by appellants. Her mother was taken to Barwani hospital where she died on 25-10-2005 and thereafter she disclosed about the incident to her father. She has also stated about illicit relation between appellant and her mother and her mother was ablazed by appellant. In cross-examination, para 13, she has given the distance of the house of the appellant from her house i.e 100-150 paces. Investigating Officer Shri Vascale (PW.13) in para 13 has given distance of about 300-500 feet. Looking to the distance, it was not possible for the appellant to hear any cry raised by Nupur. In cross-examination, para 13, she has given the distance of the house of the appellant from her house i.e 100-150 paces. Investigating Officer Shri Vascale (PW.13) in para 13 has given distance of about 300-500 feet. Looking to the distance, it was not possible for the appellant to hear any cry raised by Nupur. In cross-examination, Nupur (PW.8) was confronted with her police statement (Ex.D.3 and D.4) about threats issued by the appellant and she stand firm on this point. In Court statement, she did not speak exact words mentioned in her case diary statement because of which some omissions and contradictions appeared and same is bound to occur. In our considered opinion, no witness can give verbatim statement in Court as given before the police or any other authority and if such kind of statement is given by the witness, same cannot be believed and it would be considered that witness has given statement like parrot and is tutored. In cross-examination, SHO Vascale (PW.13) in para 15 has stated voluntarily that in police statement (Ex.D.3) Nupur has disclosed about threatening to her and her mother in the hospital by the appellant. It appears that because appellant was present in the house and witness Arvind had seen him, therefore, appellant also accompanied with the deceased. 19. Arvind (PW.12) has corroborated the statement of Nupur upto the extent that she was present at her house and he overheard the outcry about burning of a woman when he was passing by. He reached there and brought Ambulance, thereafter burnt woman was taken in ambulance by girl and appellant and was taken to Dr. Rane and after admission of woman he returned back. In cross-examination, para six, he has stated specifically that he went to hospital following the ambulance on motor cycle and he was not in the ambulance. This shows that deceased and eye witness Nupur were alone in the company and control of the appellant right from the spot till taking her in the hospital and it is evident that appellant must have given the story of burning of deceased by flame of lamp to Doctor and same story was passed on by Doctor to police. This shows that deceased and eye witness Nupur were alone in the company and control of the appellant right from the spot till taking her in the hospital and it is evident that appellant must have given the story of burning of deceased by flame of lamp to Doctor and same story was passed on by Doctor to police. It is also clear that within no time dying declaration was got recorded by Naib Tehsildar Shri Yadav (DW.1) who did not obtain certificate of fit state of mind of the deceased on the dying declaration and he himself has also nowhere mentioned anything in the dying declaration (Ex.D.5) on this issue. It is also clear as discussed hereinabove that deceased has not deposed in Ex.D.5 that she sustained burn injury positively by flame of lamp. At the first instance, in question to answer it is mentioned that she was not knowing as to how she caught fire and again in answer to last question she expressed only probability. Shri Yadav (DW.1) has nowhere stated in his statement that deceased was conscious and fit to give statement, he has also not given any reason as to why he did not call Doctor for taking certificate of fitness and admitted that at the time of statement, deceased was perturbed and outside the room several persons were standing. It is clear from the statement of eye witness Nupur and Arvind that with the deceased and Nupur only appellant was present right from the place of incident till her admission in the hospital and appellant had a talk with Dr. Rane (PW.5). 20. It is clear from the statement of eye witness Nupur and Arvind that with the deceased and Nupur only appellant was present right from the place of incident till her admission in the hospital and appellant had a talk with Dr. Rane (PW.5). 20. In view of all these state of evidence, we find ring of truth in the statement of eye witness Nupur that deceased and she were threatened by the appellant for not giving true version before hospital authority and police and story of the appellant that deceased caught fire by bursting of flame of lamp is not supported by the circumstances but it is contradicted by presence of 100% burn injury by kerosene oil, presence of kerosene on body of deceased, burnt pieces of her cloth, half burnt quilt, bed and other articles and possibility of not remaining in fit state of mind to give statement (Ex.D.5) looking to 100% burn injuries, could not be ruled out and if deceased and Nupur had given any statement about accidental fire, the same was under threat delivered to them by the appellant and their statements were not voluntary and true. The moment Nupur came out from the pressure of threat, immediately she disclosed about setting fire by pouring kerosene oil on the person of her mother by the appellant. Supreme Court in case of Shersingh and another vs. State of Punjab, 2008(2) SCC (Cri)783 has observed in para 16 as under :- "Acceptability of a dying declaration is greater because the declaration is made in extremity. When the party is at the verge of death, one rarely finds any motive to tell falsehood and it is for this reason that the requirements of oath and cross-examination are dispensed with in case of a dying declaration. Since the accused has no power of cross-examination, the Court would insist that the dying declaration should be of such a nature as to inspire full confidence of the Court in its truthfulness and correctness. The Court should ensure that the statement was not as a result of tutoring or prompting or a product of imagination. It is for the Court to ascertain from the evidence placed on record that the deceased was in a fit state of mind and had ample opportunity to observe and identify the culprit. The Court should ensure that the statement was not as a result of tutoring or prompting or a product of imagination. It is for the Court to ascertain from the evidence placed on record that the deceased was in a fit state of mind and had ample opportunity to observe and identify the culprit. Normally, the Court places reliance on the medical evidence for reaching the conclusion whether the person making a dying declaration was in a fit state of mind, but where the person recording the statement states that the deceased was in a fit and conscious state, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of mind of the declarant, the dying declaration is not acceptable. What is essential is that the person recording the dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement without there being the doctor's opinion to that effect, it can be acted upon provided the Court ultimately holds the same to be voluntary and truthful. A certificate by the doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of a statement can be established otherwise". 21. Applying the aforementioned test for scrutiny of dying declaration (Ex.D.5), it is clear that Shri Sakharam Yadav (DW.1) has not made any statement about consciousness and fit state of mind of deceased. On the contrary, he has stated that deceased was perturbed though she was admitted in the hospital but no reason was assigned by him as to why certificate of fit state of mind of deceased was not taken by him before recording dying declaration, therefore, dying declaration was not free from doubt and was not voluntary and true looking to the fact and circumstances of the present case. In the case of Shersingh (supra), in the first dying declaration recorded immediately after the incident in the hospital, victim did not name any of the accused and said that it was a case of accidental fire caught while preparing tea and on 19-7-1994 after recording of first dying declaration, her uncle Harbhajansingh met her to whom she disclosed that accused persons (husband and in-laws) ablazed her and her second dying declaration was recorded which has been relied upon by the Courts holding that first dying declaration was made by the deceased under pressure and threat issued to her by accused. In the instant case, the circumstances are more graver as discussed hereinabove for discarding the dying declaration, therefore, we do not find any force in the arguments of learned counsel for appellant and do not find any infirmity in the impugned judgment of conviction and sentence of the appellant passed by the trial Court. 22. About delay in recording statements of witnesses, no questions were put by the defence counsel to both the Investigating Officer Randhe (PW.10) and Shri Vascale (PW.13). It is settled legal position that if no opportunity has been given to the investigating agency to explain the delay by putting appropriate questions, the benefit cannot be extended to the defence and statement of witness/witnesses cannot be discarded on this count. See Supreme Court judgments passed in cases of Sunil Kumar vs. State of Rajasthan, (2005) 9 SCC 283 and State of U.P. vs. Satish, (2005) 3 SCC 114 . 23. Consequently, in view of the aforesaid marshalling and appreciation of evidence adduced by both the parties as well as legal position, we do not find any substance in this appeal. Hence, same is hereby dismissed.