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2010 DIGILAW 1122 (MP)

Juggan alias Sabir Khan v. State of M. P.

2010-11-11

A.K.SHRIVASTAVA, BRIJ KISHORE DUBE

body2010
JUDGMENT A. K. Shrivastava, J. --1. Feeling aggrieved by the judgment of conviction and order of sentence dated 29th August, 2002 passed by the learned Additional Sessions Judge, Gohad, District Bhind in Sessions Trial No. 43 of 2000; convicting the appellant under section 302 of the IPC and thereby sentencing him to suffer life imprisonment and fine Rs. 1,000/- in default further rigorous imprisonment of three months, this appeal has been filed by the appellant under section 374 (2) of the Code of Criminal Procedure, 1973. 2. In brief, the case of prosecution is that at 2.00 a.m. on 18th May, 1999, appellant after sprinkling kerosene on his wife, Sameena (hereinafter referred to as the deceased) lit the fire. The deceased was admitted in the hospital where Dr. Dinesh Doshi recorded her dying declaration (Exhibit P/19) and Dr. Batham (PW 12) attested the dying declaration as witness. This dying declaration was recorded on 21st May 1999 and later on, another dying declaration (Exhibit P/11) was recorded by ASI, Lakhan Singh Sharma (PW 8) on 22nd May, 1999. The deceased succumbed to the burn injuries on 23rd May, 1999. 3. After the investigation was over, a charge-sheet was submitted in the committal Court, which on its turn, committed the case to the Court of session, from where it was received by the trial Court for the trial. 4. The learned trial Judge on the basis of the material placed in the charge sheet framed the charges punishable under sections 302 and 304B of the IPC Needless to say, that the appellant denied the charges and requested for the trial. 5. The prosecution thereafter examined its witnesses and also proved the documents. The defence of the appellant is that the deceased was not in a position to speak and, therefore, the dying declaration cannot be relied upon and further he has been falsely implicated and in support of his defence, he has examined Shaheed (DW-l) and Bilkis (DW 2). 6. The learned trial Judge on the basis of the evidence came to hold that charge under Section 304B of the IPC is not proved against the appellant as well as against the other co-accused persons, eventually, acquitted them from this charge. 7. 6. The learned trial Judge on the basis of the evidence came to hold that charge under Section 304B of the IPC is not proved against the appellant as well as against the other co-accused persons, eventually, acquitted them from this charge. 7. The learned trial Judge further came to hold that the charge under section 302/34 of the IPC is not proved against the other co-accused and also acquitted them from the said charge. However, the learned trial Judge came to hold that the charge under section 302 of the IPC is proved against the appellant and, therefore, he has been convicted and passed the sentence which we have mentioned hereinabove. 8. In this manner, this appeal has been filed by the appellant assailing the judgment of conviction and order of sentence. 9. The contention of Shri Aniket Saxena, learned counsel for the appellant is that the trial Court has based its judgment on two dying declarations, they are Exhibit P/19 and Exhibit Pill which have been recorded by Dr. Dinesh Doshi and ASI, Lakhan Singh Sharma (PW 8), respectively. The submission of leamed counsel is that Dr. Dinesh Doshi who has recorded the dying declaration (Exhibit P/19) has not been examined although Dr. Kanti Batham (PW 12) who attested the dying dec1arartion (Exhibit P/19) recorded by Dr. Doshi, has been examined., Further, it has been contended by him that from the dying declaration (Exhibit P/19) as well as in the statement of Dr. Kanti Batham (PW 12) it is borne out that firstly the deceased stated that on account of accident since a Chimney (lamp) fell over her, she sustained bum injuries. But, that statement of her was not recorded by Dr. Doshi and therefore, no reliance be placed on the dying de1caration, Exhibit P/19 recorded by Dr. Doshi. 10. By putting a deep dent on later dying declaration (Exhibit Pill) which was recorded on 22nd May, 1999 it has been argued by learned counsel that the factum of accidental fire has not at all been stated in it and, therefore, the two dying declarations are contradictory to each other on the material point and if that is the position, the benefit would go to the appellant and, hence, it has been prayed that the appellant who is languishing in the jail for the last 11 years be acquitted by allowing this appeal. 11. 11. On the other hand, Shri C.S. Dixit, learned Public Prosecutor has argued in support of the impugned judgment. 12. Having heard learned counsel for the parties, we are of the considered view that this appeal deserves to be allowed. 13. True, the incident had taken place in the house of the appellant and the deceased was his wife. It is equally true that the incident had taken place in the late night at 2.00 a.m., On bare perusal of the dying declaration (Exhibit P/19) which was recorded by Dr. Dinesh Doshi on 21st May, 1999, we find that while answering the question No.3, specifically, the deceased is saying that the appellant after pouring kerosene over her, lit the fire. But a specific question No.6 was put to her by Dr. Dinesh Doshi (not examined) that earlier deceased told that on account of accident since a chimney (lamp) fell over her, she received bum injuries and why she stated so. In reply, the deceased told that in order to save her own life, she gave a false statement earlier. We fail to understand that why Dr. Dinesh Doshi who recorded the dying declaration (Exhibit P/19) was not examined. As a matter of fact, he should have been examined by the prosecution. On the dying declaration (Exhibit P/19) recorded by Dr. Dinesh Doshi, Dr. Kanti Batham (PW 12) who was present through out when it was being recorded, has put his signature as attesting witness on the document of dying declaration and this witnesses specifically in paragraph 4 had admitted that Dr. Dinesh Doshi put a question to the deceased that how she has received injuries and in reply, she told that on account of accident as Chimney (lamp) fell over her, she had been burnt. But this reply of the deceased and the question put to her by Dr. Doshi is totally missing from Exhibit P/19. It appears that Dr. Dinesh Doshi has not recorded the entire version of the deceased as it transpires from the statement of Dr. Kanti Batham (PW 12). We would like to quote that piece of statement in paragraph 4 of the cross-examination of this witness, which reads thus: **MkDVj lkgc us lohuk dks ;g iwNk Fkk fd rqe dSls ty x;h rks lohuk us dgk fd oks fpeuh ls ty x;h gSA** We would like to quote question number 6 put by Dr. Kanti Batham (PW 12). We would like to quote that piece of statement in paragraph 4 of the cross-examination of this witness, which reads thus: **MkDVj lkgc us lohuk dks ;g iwNk Fkk fd rqe dSls ty x;h rks lohuk us dgk fd oks fpeuh ls ty x;h gSA** We would like to quote question number 6 put by Dr. Doshi to the deceased and answer given by her which reads as follows: **igys rqeus dgk Fkk fd rqe fpeuh ls ty xbZ \ ,slk D;ksa dgk\ eSusa viuh tku cpkus ds fy;s >wB cksyk FkkA** On close scrutiny of the evidence of Dr. Kanti Batham (PW 12), we find that it poses a big question mark on the authenticity and hall-mark on the dying declaration (Exhibit P/19) and it is borne out from the evidence of Dr. Kanti Batham that the entire version of the deceased was not recorded by Dr. Doshi and in that situation the benefit will go to the accused. 14. Indeed, the dying declaration should be taken down in the language in which it is made using as far as possible the exact words of the declarant and if it is not a continuous statement but was elicited in answer to questions, the exact questions and answers should be noted. For placing reliance on the dying declaration, a strict screening of the statement is required to be made because it is not a statement made on oath and its veracity cannot be tested on cross-examination. Before acting on the dying declaration it should, therefore, be ensured that the dying declaration made by the deceased should be of such a nature as to inspire confidence of the Court regarding its correctness and further that it is not a result of tutoring or prompting. When it is borne out from the statement of Dr. Kanti Batham (PW 12) that firstly deceased told that on account of accidental fire, the incident took place, why this answer was not written by Doctor Doshi. In these state of affairs, it is difficult to place any reliance on the dying declaration, Exhibit P/19. 15. When it is borne out from the statement of Dr. Kanti Batham (PW 12) that firstly deceased told that on account of accidental fire, the incident took place, why this answer was not written by Doctor Doshi. In these state of affairs, it is difficult to place any reliance on the dying declaration, Exhibit P/19. 15. The second dying declaration of the deceased was recorded on the next date i.e., 22nd May 1999 (Exhibit P/11) which was recorded by ASI Lakhan Singh Sharma (PW 8) and in this dying declaration, there is complete omission of the factum that the deceased received burn injuries on account of accident since Chimney (lamp) fell over her. 16. If there are more dying declarations than one and on the material points that are contradictory to each other, certainly, the benefit will go to the accused and authenticity could not be attributed to the said dying declarations. In this regard, we may profitably place reliance on the decision of the Supreme Court in the case of Smt. Kamla v. State of Punjab, AIR 1993 SC 374 . Hence, we hold that no reliance can be placed upon the two above said dying declarations of the deceased. 17. No doubt, it is true that the deceased had died on account of burn injuries but how the incident had taken place and whether the appellant is responsible for the same, there is no cogent evidence on record. We have already held hereinabove that no reliance can' be placed on the dying declarations of the deceased. 18. Resultantly, this appeal succeeds and is hereby allowed. The order of conviction and sentence passed against the appellant is hereby set aside. The appellant is acquitted from all the charges. The appellant is in jail, he be set at liberty forthwith, if not required in any other case.