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Madhya Pradesh High Court · body

2010 DIGILAW 272 (MP)

KAMAL SINGH v. STATE OF M. P.

2010-03-09

S.K.SETH, S.L.KOCHAR

body2010
Judgment S.K.Seth, J. ( 1. ) Appellants were charged under Section 302 and 498-A of the of the IPC for causing murder of Leelabai in the morning of 16.09.1999 by pouring kerosene on her person and setting her aflame. Undisputedly, appellant No.1 is the husband of deceased and appellant No.2 is the mother-in-law of the deceased. Leelabai was married to appellant Kamal about 10 years back from the date of incident and no issue was out of the wed-lock. ( 2. ) On the date (16.09.1999) when the unfortunate incident took place, Leelabai was in her matrimonial abode at Rajeev Nagar, Dewas. Same day, appellant No. 1 took her with burn injuries to the Mahatma Gandhi Hospital, Dewas (a goverment hospital) were she was attended to by Dr. H. Rehman (PW-9). On the intimation received from the hospital, FIR Ex.P-8 was recorded at P.S. Industrial Area, Dewas. Same day, at about 10 minutes past 2 pm, Tehsildar, Smt. Manorama Koshthi (PW-13) recorded the dying declaration Ex.P-7 under the medical certificate of Dr. R.K. Sharma (PW-7). Leelabai succumbed to the burn injuries same day at about 3.45 pm and intimation of death Ex. P-6 was went sent by Dr.R.K. Sharma (PW-7). which set the investigation rolling. The post-mortem examination of the dead body was carried out on 17.09.1999 by Dr. A.K. Verma (PW-12) and autopsy report is Ex.P-16. On completion of investigation challan was put up leading to S.T. No. 12/2000. Appellants denied the charges. ( 3. ) Learned Sessions Judge considering the prosecution evidence found the appellants guilty of offences punishable under Section 302 and 498-A of the IPC and sentenced them to two years R.I under Section 498-A and life imprisonment under Section 302 IPC with the direction that both the sentences to run concurrently. Hence, they are in appeal before us. ( 4. ) We have heard learned counsel for the appellants and learned Dy. A.G. at length. Perused the record. ( 5. ) The main-stay of the prosecution case consists of the dying declaration and the medical evidence. We may point out that there was no eye-witness to incident, nor was any expected, looking to the nature of the case. ( 6. ) Learned counsel for the appellants argued that when the victim was brought to the hospital and examined by Dr. ) The main-stay of the prosecution case consists of the dying declaration and the medical evidence. We may point out that there was no eye-witness to incident, nor was any expected, looking to the nature of the case. ( 6. ) Learned counsel for the appellants argued that when the victim was brought to the hospital and examined by Dr. Rehman (PW-9), she was unconscious, therefore, this cast a shadow of doubt on the reliability of the dying declaration. In this connection, he has taken us through the evidence of Dr. Rehman (PW-9) in great detail. From the evidence of Dr. Rehman, it is clear that victim was brought with 90% burn injuries to the hospital in unconscious state. She was examined by this doctor at 1.00 pm and there was strong smell of kerosene. Ex.P-9 is the M.L.C. report, werein also the smell of kerosene is mentioned. In his cross-examination, he admitted that a person with 90% burn injuries can live for 24 hours depending upon the medical aid. In cross-examination, he admitted that Leelabai was admitted in the hospital before 12.30 pm in the noon and treatment was already going on. He further stated in his cross-examination that the dying declaration was not recorded in his presence. In his re-examination, he has admitted that consciousness could be regained by the victim of such burn injuries. ( 7. ) Dr. R.K. Sharma (PW-7) is the doctor who certified that Leelabai was fit and conscious to give the dying declaration Ex.P-7. The certificate as contained in Ex. P-7 reads as under:- " Certify that Leelabai remained fully concious during narrating her statement from 2.10 to 2.20 on 16.06.1999." ( 8. ) Dr. Sharma (P.W-7) was on duty when the dying declaration was recorded and nothing has come out in his cross-examination to discredit this witness about the ability of the Leelabai to give her dying declaration to Smt. Manorama Koshthi (PW-13). ( 9. ) Smt. Manorama Koshthi (PW-13) is the Tehsildar, who recorded the dying declaration. According to this witness at the time of recording the dying declaration no relative was nearby; only the witness and the doctor were present at the time of recording of dying declaration and she recorded the dying declaration as stated by Leelabai and in her own words. ) Smt. Manorama Koshthi (PW-13) is the Tehsildar, who recorded the dying declaration. According to this witness at the time of recording the dying declaration no relative was nearby; only the witness and the doctor were present at the time of recording of dying declaration and she recorded the dying declaration as stated by Leelabai and in her own words. This witness in cross-examination has stated that she had satisfied herself that Leelabai was mentally and physically able to give a dying declaration, which was recorded in the presence of the doctor and after recording the dying declaration thumb impression of Leelabai was taken on dying declation. Dr. A.K. Verma (PW-12) performed the autopsy and according to him the cause of death was shock due to burn injuries. PW-1 is mother of the deceased who also supports prosecution story and bad blood between appellants and the deceased which ultimately led to the unfortunate incident. She is also supported by Vikramsingh (PW-2) and Munnibai (PW-4), who have deposed that Leelabai had informed her mother Ramkalibai (PW-1) about the ill-treatment and pouring of kerosene by appellant No. 1 and setting flame to the deceased by appellant No.2. ( 10. ) It is well settled that a dying declaration alone .can form the basis for conviction, if it is found to be reliable. In the present case the prosecution has proved that Leelabai had the opportunity of identifying the appellants and her dying declaration is thoroughly reliable and free from varnish. Learned trial Judge has found that Leelabai was in a fit state of mind and voluntarily made the statement on the basis of personal knowledge without being influenced by others. In the present case, there can be no doubt that Leelabai had an opportunity to see her tormentors as the incident happened in the broad day-light. There being no dispute that the death was homicidal and it is established from dying declaration Ex.P-7 that appellant No. 1 poured the kerosene and appellant No.2 set fire causing burn injuries to Leelabai because of which she met with the homicidal death. ( 11. ) We do not find any merit, in the submission of the learned counsel that the victim had 90% burns and her general condition was poor, therefore, it would be hazardous to hold that her statement was not true. ( 11. ) We do not find any merit, in the submission of the learned counsel that the victim had 90% burns and her general condition was poor, therefore, it would be hazardous to hold that her statement was not true. In Suresh v. State of M.P. (1987)2 SCC 32 the victim had sustained 100% burns of the second degree and her dying declaration was recorded by Dr. Bhargava in the hospital. Dr. Bhargava had deposed that victim was in a fit state of health. The evidence, however, disclosed that while Dr. Bhargava was recording her statement the victim had started going into coma. Yet the Supreme Court accepted the dying declaration made by the victim to Dr. Bhargava. Therefore, the mere fact that Leelabai had suffered 90% burns and her general condition was poor is no reason to discard the testimony of Dr. Sharma (PW-7) when he says that she was in a fit state of mind and was able to make the dying declaration in question. ( 12. ) It is also not necessary that the dying declaration should always be in the question and answer form. We do not think that the failure on the part of Dr. Sharma (PW-7) and Smt. Koshthi (PW-13) to record the dying declaration in question and answer form,can in any manner affect the probative value to be attached to their evidence. We, therefore, do not think that in would be reasonable to discard the prosecution evidence in regard to the dying declaration on such slender ground. In the result, we see no merit in the appeal and dismiss the same. ( 13. ) Appellant No.1 is already in jail but Appellant No.2-Sohaagbai is on bail. Her bail bonds are hereby cancelled and she is directed to surrender forthwith before the trial Court for undergoing the remaining part of sentence. On failure of appellant No.2-Sohaagbai to surrender before the trial Court, the trial Court is directed to take suitable action as per law against her as well as her surety. ( 14. ) Office is directed to send a copy of this judgment along with record of the trial Court forthwith. Appeal dismissed.