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2010 DIGILAW 345 (MP)

Sharad Goswami v. State of M. P

2010-03-22

A.K.SHRIVASTAVA, S.K.GANGELE

body2010
JUDGMENT Shrivastava, J. -- 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 27.6.2006 passed by learned Sessions Judge, Vidisha in Sessions Trial No.120/2003 convicting the appellant under sections 302 and 498A of IPC and thereby sentencing him to suffer life imprisonment with fine of Rs.2,000/- and rigorous imprisonment of two years and fine of Rs.2,000/- respectively, in default of payment of fine to suffer further rigorous imprisonment of 3-112 months, this appeal has been preferred by the appellant under section 374(2) of the Code of Criminal Procedure, 1973. 2. In brief the case of prosecution is that three months prior to the date of incident in December, 2002 the deceased got married with the appellant. After solemnizing the marriage, the behaviour of appellant became cruelsome towards the deceased and he often caused marpeet to her. In the marriage the parents of the deceased gave bed, utensils, sewing machine, TV etc., but they were broken by the appellant by saying that all these items are not in working order and was insisting the deceased to bring some more items in dowry. Ramesh, Raju and Govind are the cousins of the deceased. On the fateful day viz. 29.3.2003 the appellant caused marpeet with the deceased by kicks and fists and after pouring kerosene on her, lit the fire. The mother-in-law of the deceased, at that juncture, had gone to the temple. The appellant also doused water on the deceased; On account of being screamed by her, the neighbours, namely, Aziz Bhai, his wife Kamla and jeth-jithani (brother-in-law and sister-in-law of the deceased) arrived at the spot. It is further said that Aziz Bhai by covering the deceased by a quilt, extinguished the fire. Thereafter, the deceased was brought to the hospital. Later on the father of deceased submitted application in the Police Station, Kurvai and thereupon a case was registered and the matter was investigated. 3. The investigating agency arrived at the spot; seized ordinary earth, container of kerosene, burnt matchsticks, mangalsutra (a sacred thread having pearls etc. being worn by a married lady), stove and burnt pieces of clothes from which smell of kerosene was coming out; recorded the statements of the witnesses and also got the dying declaration of the deceased recorded on 30.3.2003 through Tahsildar. being worn by a married lady), stove and burnt pieces of clothes from which smell of kerosene was coming out; recorded the statements of the witnesses and also got the dying declaration of the deceased recorded on 30.3.2003 through Tahsildar. On account of the death of the deceased on 9.4.2003 her dead body was sent for post-mortem The necessary articles were sent to the Forensic Science Laboratory at Sagar for examination. 4. After completing the investigation, a charge-sheet was submitted in the committal Court which committed the case to the Court of Session and from where it was received by the trial Court for the trial. 5. The learned trial Judge on the basis of the allegations made in the charge-sheet, framed charges punishable under sections 498A, 304B and 302 of IPC against the appellant, which he denied and requested for the trial. 6. In order to bring home the charges, prosecution examined as many as twenty witnesses and placed EX.P-l to EX.P-22 the documents on record. The defence of appellant is of false implication and the same defence he set forth in his statement recorded under section 313 of CrPC and in support of his defence he also examined Babulal Vishwakarma (DW1), Ahmad (DW2) and Shantibai (DW3). 7. The learned trial- Judge on the basis of evidence placed on record came to hold that charge under section 304B of IPC is not proved against the appellant and eventually, acquitted him from the said charge. However, on the basis of evidence placed on record, the learned trial Judge came to hold that charges under sections 302 and 498A of IPC are proved against the appellant and eventually, convicted him and passed the sentence which we have mentioned hereinabove. 8. In this manner, this appeal has been preferred by the appellant assailing his judgment of conviction and order of sentence passed by learned trial Court. 9. Although today the matter has been listed for consideration of IA No. 1801612009, which is first application for suspension of sentence and grant of bail filed on behalf of the appellant, but on the request being made by learned counsel for the parties to hear the appeal finally, by accepting their prayer we have heard the appeal finally. 10. 9. Although today the matter has been listed for consideration of IA No. 1801612009, which is first application for suspension of sentence and grant of bail filed on behalf of the appellant, but on the request being made by learned counsel for the parties to hear the appeal finally, by accepting their prayer we have heard the appeal finally. 10. The contention of Shri Gupra, learned counsel for the appellant is that in the present case there are as many as three dying declarations of the deceased and one dying declaration has been deliberately concealed by the prosecution. According to learned counsel, statement of the deceased under section 161 of CrPC (Ex.D-3) was recorded by the Investigating Officer in Primary Health Centre at Kurvai immediately after the incident on the same day viz. 29.3.2003 in which she specifically told that on account of accident fire took place and she sustained burn injuries. According to learned counsel, after the death of the deceased her case diary statement (Ex.D-3) would become her dying declaration and because the deceased did not accuse the appellant and also not made him responsible for the incident, on the contrary, told that appellant was at his work place viz. at beetle shop and, therefore, learned trial Court erred in holding that appellant has put the deceased to fire. 11. So far as another dying declaration (Ex.P-18) which was recorded by Tahsildar Vidisha on 30.3.2003 when the deceased was shifted from Kurvai to Vidisha is concernd, learned counsel submits that this dying declaration has no sanctity in the eyes of law because it is not a voluntary statement of the deceased but it is the outcome of the version of father of the deceased, as he tutord her and in this context learned counsel has invited our attention to the testimony of father of the deceased, namely, Kaluram (PW10). By hammering the third dying declaration in the shape of another case diary statement of the deceased EX.P-19 which was recorded on 3.4.2003 it has been contended by learned counsel that when the case diary statement of the deceased was already recorded by the Investigating Officer on the date of incident viz. By hammering the third dying declaration in the shape of another case diary statement of the deceased EX.P-19 which was recorded on 3.4.2003 it has been contended by learned counsel that when the case diary statement of the deceased was already recorded by the Investigating Officer on the date of incident viz. 29.3.2003, there was no occasion for him to record again another case diary statement and has further submitted that even if it was recorded again, the same cannot be placed reliance for the simple reason that deceased was already tutored by her parents. 12. By putting a deep dent on the case of prosecution learned counsel has invited our attention to a document (Ex.D-4) which is a letter written by Head Constable Gyanprakash Mathur to Station Officer Incharge of Police Station Kurvai that after the dying declaration of the deceased was recorded by Tahsildar at Kurvai, the Tahsildar did not handover the same to him and told that he would send it to the Court directly and, hence, he (Head Constable) requested the Station Officer Incharge to ask Tahsildar Kurvai to handover the dying declaration of the deceased. The contention of learned counsel is that this dying declaration of the deceased was recorded by Tahsildar on the date of incident viz. 29.3.2003 at Kurvai, but that dying declaration has not been produced in the Court and, therefore, adverse inference should be drawn against the prosecution. 13. Learned counsel further submitted that there is overwhelming evidence on record that at the time of incident the appellant was not present in the house and was at his work place in the market where he is having a beetle shop and, therefore, learned trial Court erred in convicting the appellant. By placing reliance on the decision of Supreme Court T.K. Reddy v. State of Andhra Pradesh [ AIR 2002 SC 2988 ], it has been argued that if there are two dying declarations inconsistent to each other, then the benefit will be extended to the accused. 14. By inviting our attention to the testimony of a member of the team of Autopsy Surgeons Dr. 14. By inviting our attention to the testimony of a member of the team of Autopsy Surgeons Dr. Maya Saxena (PW4) it has been contended by the learned counsel that this lady doctor has specifically stated that the death of deceased may be suicidal or homicidal and, hence, it has been contended that because appellant was not present in his home at the time of incident, therefore, the fact of committing suicide by the deceased cannot be negated. 15. An alternative submission has also been put forth by learned counsel that Dr. Shekhar Jalavashkar (PW5) who was another member of the team of the Autopsy Surgeons has stated that the deceased had died on account of septicaemia as a result of extensive bum injuries and because the deceased had died after twelve days of the incident, the appellant cannot be punished under section 302 of IPC and at the most offence under section 326 of IPC would be made out. In support of his contention learned counsel has placed heavy reliance in B.N. Kavatakar and another v. State of Karnataka [1994 Sup.(1) SCC 304]. The further contention of learned counsel is that the appellant is undergoing the sentence for last near about seven years and this would be the appropriate punishment for the offence under section 326 of IPC. 16. On the other hand, Shri Mahore, learned Public Prosecutor for the respondent-State, argued in support of the impugned judgment. 17. Having heard learned counsel for the parties we are of the considered view that this appeal deserves to be allowed in part. 18. In the present case admittedly the incident had occurred on 29.3.2003 and the deceased was brought to the hospital on the same day at 7:20 p.m. According to Dr. A.K. Shrivastava (PW1), the deceased was brought in burnt condition by her husband Sharad Goswami. She was having 100% superficial bum injuries and smell of kerosene was coming out. Admittedly her 161 CrPC statement (Ex.D-3) was recorded on 29.3.2003 in which she specifically told that at the time of incident the appellant was at his beetle shop and she was alone inside the home. Before the incident she was preparing the tea on the stove. She was having 100% superficial bum injuries and smell of kerosene was coming out. Admittedly her 161 CrPC statement (Ex.D-3) was recorded on 29.3.2003 in which she specifically told that at the time of incident the appellant was at his beetle shop and she was alone inside the home. Before the incident she was preparing the tea on the stove. When she poured kerosene from the container in the stove, some of the kerosene spread on her clothes and when she lit the matchstick, her clothes caught the fire and some of the kerosene which was lying on the floor also caught the fire. Thereafter, her husband came to home and doused the water on her to extinguish the fire. The other family members of her in-laws as well as some neighbours also arrived at the spot. According to her, no altercation took place with anybody and nobody subjected her to fire. Specifically she is saying that on account of accident only her sari caught the flames of the fire. After the death of the deceased, according to us, her case diary statement (Ex.D-3) would become her dying declaration which has been proved by its scribe Head Constable Gyanprakash Mathur (PW13) and according to this witness the statement was recorded in the Kurvai hospital in the same terms in which it was stated to him by the deceased. Further he has stated that he was not having any pressure when he recorded the dying declaration, and the deceased was also in her full senses. On going through the first version of the deceased, this Court finds that the incident had occurred on account of accident because the deceased when poured the kerosene in the stove, some portion of it fell on her clothes as well as on the floor and when she lit the matchstick to bum the stove, accidentally the matchstick fell on her sari as a result of which she received the bum injuries. 19. On going through the statement of the father of the deceased, namely, Kaluram (PW 10), this Court finds that on being informed to him firstly he came to Kurvai hospital and thereafter when the deceased was shifted to District Hospital at Vidisha throughout he was present there The second dying declaration (Ex.P-18) was recorded by Tahsidar at Vidisha on the next day of the incident viz. 30.3.2003 at 3:30 p.m. and at. 30.3.2003 at 3:30 p.m. and at. according to the Tahsildar Alok Pare (PW17), he recorded the dying declaration at 3:30 p.m. as stated by the deceased. On going through the statement of Tahsildar, we did not find that what was told by the deceased to him, although he has stated that he wrote the dying declaration (Ex.P18) according to the statement given to him by the deceased. According to us, it should have been stated by this witness in the Court that what statement actually the deceased gave to him. Be that as it may, on going through the dying declaration (Ex.P-18) recorded by this witness at Vidisha on the next day of the incident, we find that first of all the appellant quarreled with the deceased on the point of her character that she is having illicit relations with her cousin brothers, namely, Ramesh, Raju and Govind and to meet those persons she happens to go frequently at her parents house and thereafter, she was beaten by kicks and fists and was also thrown on the ground. The kicks were given on her abdominal region and thereafter, appellant poured kerosene and set her on fire. Further she has stated that the appellant was making demand of cash of Rs.10,000/- from her. In this dying declaration (Ex.P-18) it has also been stated by the deceased that earlier she was tutored by her husband that she should say that while preparing the tea she caught the fire. The same type of statement has been given by her in her second case diary statement EX.P-19 which was recorded on 3.4.2003. 20. True, in the dying declarations EX.P-18 and EX.P-19 the deceased has made the appellant responsible for setting the fire on her. The same type of statement has been given by her in her second case diary statement EX.P-19 which was recorded on 3.4.2003. 20. True, in the dying declarations EX.P-18 and EX.P-19 the deceased has made the appellant responsible for setting the fire on her. But, if her first version which she gave in her case diary statement EX.D-3 immediately after the incident on 29.3.2003 is seen, we find that it has been stated by deceased that her husband was not present in the home and was at his beetle shop at the time of the incident and to prepare the tea firstly she poured the kerosene from its container in the stove, but some of the kerosene spread on her clothes as well as on the floor and when she lit the matchstick to burn the stove, by accident it had fallen on her sari as a result of which her sari caught the fire and eventually, she received burn injuries. Much has been argued by learned counsel for the State that this case diary statement was given under the influence of the husband and it has been so explained in the later dying declarations by the deceased. However, on going through the statement of the Head Constable Gyanprakash Mathur (PW13), we do not find that the husband was present in the hospital when he recorded the case diary statement EX.D-3 of the deceased. 21. Even if we assume for the sake of argument that because the deceased was tutored by her husband to give the statement that accidentally the fire had taken place, it is difficult to rely the other two dying declarations of the deceased EX.P-18 and EX.P-19 recorded by Tahsildar Alok Pare (PW17) and Investigating Officer on 30.3.2003 and 3.4.2003 respectively because it is borne out from the testimony of the father of the deceased Kaluram (PW 10) that firstly he arrived at Kurvai hospital and thereafter when the deceased was shifted to Vidisha hospital, throughout for the twelve days he was with the deceased and, therefore, this inference may also be drawn that because the deceased was tutored by her father, she gave an altogether different dying declaration accusing the appellant somersaulting her earlier dying declaration in which she had told that the incident had taken place on account of accident. 22. 22. Tahsildar Alok Pare (PW17) has stated that when he recorded the dying declaration of the deceased how many persons were present in the room, he cannot say. Although, he has further stated that at the time of recording the dying declaration he happened to ask the family members as well as the police persons to go out from the room. Hence, we can infer that the deceased was tutored by her father to give an altogether different dying declaration accusing the appellant before this witness asked the persons who were present nearby the deceased to go out of the ward in which the deceased was admitted. 23. At this juncture it would be relevant to go through the statement of PW 16 Ghanshyam who has stated that he went to the hospital and had interaction with the deceased who told him that the appellant has caused the fire but in cross-examination he stated that at 12 in the afternoon he went to the hospital at Vidisha where he found the father of the deceased. Further he has stated in para 3 that the incident took place in the night and he was called on the next day in the morning as a result of which he carne to Vidisha hospital. In para 4 he has stated that at 12 in the afternoon he came to Vidisha hospital. According to this witness, when he carne to the hospital, he was informed that report has already been lodged and Tahsildar had gone after recording the dying declaration. But, on going through the dying declaration Ex.P-18, this Court finds that the same was recorded at 3:30 p.m. Hence, on this additional reason also, the dying declaration EX.P-18 becomes highly doubtful. 24. One important fact which cannot be marginalized and blinked away is that in the dying declaration EX.P-18 which was recorded by Tahsildar Alok Pare (PW17) nowhere it has been mentioned that the contents of the dying declaration were read over and explained to the deceased and after hearing the contents she put her thumb impression on it. 24. One important fact which cannot be marginalized and blinked away is that in the dying declaration EX.P-18 which was recorded by Tahsildar Alok Pare (PW17) nowhere it has been mentioned that the contents of the dying declaration were read over and explained to the deceased and after hearing the contents she put her thumb impression on it. Tahsildar Alok Pare (PW17) has stated in para 8 of his deposition that this fact was written by him in the dying declaration of the deceased Ex.P18, but when the document of dying declaration EX.P-18 was confronted to him he admitted that this fact did not find place in it and for the first time he is stating this fact in the Court. The Supreme Court Shaikh Bakshu and others v. State of Maharashtra [ (2007)11 SCC 269 ], in para 13 held that in absence of positive evidence in this regard, no such presumption can be arrived at that the dying declaration was read over and explained to the deceased. 25. True, the prosecution examined neighbours of the appellant and deceased, namely, Aziz Khan as PW8 and Kamlabai as PW9 who are the hostile witnesses, but they have stated that the appellant was not present in the house when the incident took place. The appellant has also examined some more witnesses in defence in order to establish that at the time of incident he was not present in his home and was at his shop and, therefore, it is difficult to hold that the defence is concocted and was setup later on. It is well settled in law that if the defence is found to be probable due weightage should be given to it and the standard of its proof should not be compared with that of prosecution where the prosecution is obliged to prove its case beyond all reasonable doubts. 26. On going through the testimony of lady doctor, Dr. Maya Saxena (PW4), who was one of the Autopsy Surgeon, we find that she put her inability to state firmly whether the death was homicidal or suicidal and, therefore, the possibility of suicidal death can also be inferred. 26. On going through the testimony of lady doctor, Dr. Maya Saxena (PW4), who was one of the Autopsy Surgeon, we find that she put her inability to state firmly whether the death was homicidal or suicidal and, therefore, the possibility of suicidal death can also be inferred. At this juncture, it would be relevant to mention here that the investigating agency took the assistance of scientific officer R.R. Chaudhary (PW20) who examined the spot on 2.4.2003 and found that one of the door of the room was broken from the top and the door was kept separately. This fact also finds place in his report EX.P-22. It has also been stated by this witness that in the room where the incident took place there was only one door and it was not bolted from outside, hence, this possibility cannot be ruled out that the deceased committed suicide and in order to take out her from the room the door was broken. In this context we may profitably place reliance on the decision of Supreme Court in P. Mani v. State of Tamil Nadu [ (2006)3 SCC 161 ]. 27. The Supreme Court in Ravikumar alias Kutti Ravi [ (2006)9 SCC 240 and 2007(1) 95], has held that conviction can be made solely on the basis of dying declaration if it inspires full confidence and it should be voluntary and not tutored. In another decision P. Mani (supra), it has been held by the Supreme Court that if the dying declaration is not wholly reliable, it can be treated as a piece of evidence but conviction cannot be made on its sole basis. 28. One important fact has been carved out from the statement of Aziz Khan (PW8) although he is a hostile witness that on the date of incident in the Kurvai hospital the dying declaration of the deceased was recorded by Magistrate. Admittedly this dying declaration has not been produced by the prosecution along-with the charge-sheet. 28. One important fact has been carved out from the statement of Aziz Khan (PW8) although he is a hostile witness that on the date of incident in the Kurvai hospital the dying declaration of the deceased was recorded by Magistrate. Admittedly this dying declaration has not been produced by the prosecution along-with the charge-sheet. It cannot be said by the prosecution that no dying declaration at Kurvai immediately after the incident was recorded, because, on going through the letter Ex.D-4, we find that this letter was written by the Head Constable Gyanprakash Mathur to the Station Officer Incharge Kurvai that Tahsildar after recording the dying declaration of the deceased refused to hand it over to this witness and told that the dying declaration would be sent directly to the Court. Ex.D-4 also contains that deceased gave statement to this witness that on account of accident she received burn injuries and she has not been subjected to fire by anybody. This type of version which are mentioned in Ex.D-4 also finds place in the case diary statement EX.D-3 of the deceased recorded immediately after the incident. Why the prosecution has not produced this important piece of evidence and has concealed this material evidence, there is no reply of the prosecution. 29. The Supreme Court in T.K. Reddy (supra), in similar situation held that if there are two dying declarations totally inconsistent to each other, the first dying declaration cannot be taken on lighter side merely because saving the accused it was made in hope of survival. In that case also the deceased was the wife of the accused and she made two statements. One to police that she herself disgusted in life and put her on fire and later on she gave another dying declaration to the Magistrate that her husband put her on fire. In that case also the evidence of neighbours was that the accused was not at home at the time of incident and in these circumstances the Supreme Court held that the conviction cannot be based on second dying declaration which was contrary to the fact a disclosed from evidence of the neighbours and the accused was acquitted. This decision of T.K. Reddy (supra), is squarely applicable in facts and circumstances of the present case. This decision of T.K. Reddy (supra), is squarely applicable in facts and circumstances of the present case. In the case of State of Gujarat v. Khumansingh Karsan Singh and others [ AIR 1994 SC 1641 ], in the first dying declaration the deceased who was the wife of the one of the accused implicated only mother-in-law, but in subsequent dying declaration after meeting his father implicated husband also, the Supreme Court on being found that there is inconsistency between the two dying declarations held that there is possibility of tutoring and false involvement and due to strained relations with both the accused they have been falsely implicated and acquitted them holding that the conviction cannot be made on such type of inconsistent dying declaration. 30. Hence, according to us, the conviction of appellant under section 302 of IPC cannot be affirmed and the same is hereby set aside and the appellant is acquitted from this charge. 31. However, on going through the evidence of the parents of the deceased, this Court finds that the demand of Rs.10,000/- was being made by the appellant from the deceased and she was ill treated and, therefore, according to us, the learned trial Court did not commit any error in convicting the appellant under section 498A of IPC and thereby sentencing him to suffer two years rigorous imprisonment and fine of Rs.2,000/- This finding of learned trial Court is hereby affirmed and the appellant stands convicted under this section. The sentence awarded by-learned trial Court is also hereby affirmed. But, the appellant has already served this sentence. 32. Resultantly, this appeal succeeds in part. The judgment of conviction and order of sentence passed by learned trial Court convicting the appellant under section 302 of IPC is hereby set aside and the appellant is acquitted from the said charge. However, his conviction and sentence under section 498A of IPC as passed by learned trial Court is hereby affirmed. The sentence awarded to the appellant for this charge has already been undergone by him. The appellant is in jail, he be set at liberty forthwith if not required in any other case. The amount of fine imposed along-with the custodial sentence under section 302 of IPC, if deposited, be refunded to him.