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Madhya Pradesh High Court · body

2010 DIGILAW 618 (MP)

Santosh v. State of M. P.

2010-06-24

S.L.KOCHAR, S.R.WAGHMARE

body2010
JUDGMENT S.L. Kochar, J. 1. The Appellant has filed this appeal against the judgment dated 30.8.2005 passed by the learned First Additional Sessions Judge Mhow, in S.T. No. 416/2004, whereby Appellant Santosh has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life with fine of Rs. 2000/-, in default of payment of fine to suffer additional rigorous imprisonment for six months. 2. Briefly stated the prosecution case as unfolded before the Trial Court is that deceased Seema was married with the Appellant and they were having three children. Appellant was liquor addict and after consuming liquor, used to beat his wife. P.W. 16 Kaloo father of the Appellant had sold his land and deposited the sale proceed in the Bank in the name of his wife and children. On 21.8.2004 in the night at 8 PM Appellant demanded money for purchasing liquor from his wife deceased Seema which was refused by her thereafter Appellant picked up a quarrel and while saying that he will kill her poured kerosene oil on her person and lit fire by match stick. On hearing out cry, cousin brother of Appellant P.W. 11 Ramchandra, P.W. 3 Madanlal and P.W. 14 Shakuntala wife of Ramchandra reached on the spot and took the deceased to M.Y. Hospital Indore. Seema was admitted in burn unit of the Hospital. Telephone Operator of the Hospital sent information to Police about admission of deceased which was recorded in daily diary vide Ex. P/16 and its copy is Ex.P/16-C.P.W. 30 Station House Officer Indramani Patel of Police Station Simrol after receiving information from Hospital, reached to the Hospital, along with P.W. 21 Head Constable Ajab Singh and recorded Dehati Nalishi Ex.P/ 36 at the instance of deceased. On the basis of this Dehati Nalishi in Police Station FIR Ex.P/27 was recorded by P.W. 26 Head Constable Moorad Khan. Police registered the Crime No. 255/2004 for offence under Section 307 of the Indian Penal Code. On 22.8.2004 her dying declaration Ex.P/29 was recorded by Executive Magistrate P.W. 24 Rajkumar Haldhar. During the course of treatment she died in the Hospital on 25.8.2004. After receiving information of death, Police of Police Station Sanyogitaganj registered Merg No. 0/281/ 2004 vide Ex.P/35 and also sent intimation to concerned Police Station where offence under Section 302 of the Indian Penal Code was also added. During the course of treatment she died in the Hospital on 25.8.2004. After receiving information of death, Police of Police Station Sanyogitaganj registered Merg No. 0/281/ 2004 vide Ex.P/35 and also sent intimation to concerned Police Station where offence under Section 302 of the Indian Penal Code was also added. On completion of inquest enquiry vide Ex.P/2, the dead body was sent for post mortem examination and the same was conducted by Dr. S.K. Dadoo P.W. 17. The post mortem report is Ex.P/15. Investigating Officer seized various articles from the spot coupled with clothes of the deceased and also prepared spot map Ex.P/4. Appellant was arrested on 29.8.2004 through arrest memo Ex. P/5. He was sent for medical examination and examined by P.W. 25 Dr. H.R. Verma, who gave MLC Report Ex.P/32. The bed head ticket and other documents relating to admission and treatment of deceased were seized by the Police. Investigating Officer recorded statements of the witnesses who were acquainted with the facts of the case and on completion of the investigation, filed the charge sheet against the Appellant for the offence under Section 302 of the Indian Penal Code. Appellant refuted the charges and his defence was that his deceased wife was not willing to live with her in Village Datoda Tehsil Mhow, and wanted to shift in Indore Town. On this issue she was issuing threat to him that if they will not shift to Indore, she will do something and ultimately in the night of 21st August, 2004 ablazed herself after pouring kerosene oil. He also stated in his statement that he tried to save his wife wherein he sustained burn injuries. Appellant has not examined any witness in defence whereas prosecution has examined as many as 34 witnesses and adduced in all 46 documents to prove its case. Learned Trial court finding the Appellant guilty convicted and sentenced him as mentioned hereinabove. 3. We have heard the Learned Counsel for the parties and also perused the entire record carefully. 4. Appellant has not examined any witness in defence whereas prosecution has examined as many as 34 witnesses and adduced in all 46 documents to prove its case. Learned Trial court finding the Appellant guilty convicted and sentenced him as mentioned hereinabove. 3. We have heard the Learned Counsel for the parties and also perused the entire record carefully. 4. It is borne out from the record that conviction of the Appellant is mainly based on Dehati Nalishi Ex.P/36 which has rightly been considered as dying declaration by the learned Trial Court because it relates to the cause of death of deceased and admissible under Section 32(1) of the Evidence Act, dying declaration Ex.P/29 recorded by Executive Magistrate and oral dying declaration by deceased before P.W. 1 Debubai, P.W. 6 Mangilal and P.W. 8 Rakesh Chouhan. Learned Trial Court has also placed reliance on report Ex.P/ 28 lodged by deceased on 11.8.2003 at 11 AM against her husband/appellant about consuming of liquor and thereafter abusing, beating and ill-treating her. On this report Police had not taken any cognizance because offences under Section 405 and 323 of the Indian Penal Code were non-cognizable. This report has been proved by P.W. 21 Head Constable Ajab Singh. Learned Trial Court has sought corroboration to written and oral dying declarations by contents of document Ex.P/26 the admission ticket of the deceased proved by P.W. 20 Dr. Manish Kumar wherein it is mentioned that she was brought in the Hospital by Mukesh P.W. 15 brother-in-law of deceased/brother of the Appellant. Deceased gave history to doctor that she was burnt by her husband/appellant on 21.8.2004 at 8 PM. It is also clear from this document that there was no history of any unconsciousness/vomiting meaning thereby deceased was conscious at the time of admission. 5. Learned Counsel for the Appellant has Vehemently submitted that Appellant himself sustained injury while saving her and if he was a perpeturator of the crime, he would not have tried to save the deceased by putting himself in danger and that contents of both the dying declarations Ex.P/36 and P/29 are contradictory to each other. 5. Learned Counsel for the Appellant has Vehemently submitted that Appellant himself sustained injury while saving her and if he was a perpeturator of the crime, he would not have tried to save the deceased by putting himself in danger and that contents of both the dying declarations Ex.P/36 and P/29 are contradictory to each other. In Ex.P/29 she has deposed that after consuming liquor Appellant poured kerosene on her person and lit fire whereas in Dehati Nalishi Ex.P/36 she has stated that at 8 PM in the night of incident Appellant came to the house and demanded money for purchasing liquor and on refusal, he poured kerosene on her person and ablazed her. It is also argued that looking to the percentage and nature of burn injuries, deceased could not be in a condition to speak and Investigating Officer prepared false Dehati Nalishi as well as dying declaration. Therefore, no reliance should have been placed by the Trial Court on both dying declarations. It is also pointed out that according to Bank Manager P.W. 31 Satish Prasadji Shukla, the bank account was in joint name of Appellant, deceased and their son and daughter and the account can be operated by both, therefore, question of demanding money by the Appellant from his wife would not arise. 6. Per contra, Learned Counsel for the State has-supported the impugned judgment and finding arrived at by learned Trial Court. Learned Prosecutor has also submitted that in the dying declaration substance of the statement of the deceased is clear that Appellant by pouring kerosene oil lit fire, therefore, the minor contradiction whether at the time of incident he was under the influence of liquor or he was demanding money is not very material. According to learned Prosecutor it is not a case where in one statement deceased had disclosed that she sustained injuries accidentally or by commission of suicide and in second, she has stated about causing of injuries by the accused. 7. According to learned Prosecutor it is not a case where in one statement deceased had disclosed that she sustained injuries accidentally or by commission of suicide and in second, she has stated about causing of injuries by the accused. 7. First of all we would like to deal with the argument of Learned Counsel about conduct of the Appellant for which he placed reliance on two Supreme Court judgments passed in case of State of U.P. v. Chet Ram and Meera v. State of Rajasthan ( AIR 1989 SC 1543 and AIR 2004 SC 1879 ) and Division Bench judgment of this High Court passed in case of State of M.P. v. Phulchand 1993 (2) MPWN SH 75. We have perused the statement of the Appellant recorded under Section 313 of the Code of Criminal Procedure. by learned Trial Court and medical evidence of P.W. 25 Dr. H.R. Verma. It is clear from the statement of Dr. Verma, that on 30.8.2004 in the noon at 3 PM Constable Diwakar Prasad No. 2718 brought the Appellant in Civil Hospital Mhow, for his examination and on examination he found old burn injury on tip of the right fore fingers and thumb and teeth biting injury on left fore arm. Dr. Verma, proved MLC Ex.P/32 and also gave prescription for treatment vide Ex.P/33. He has specifically opined that the injuries were simple in nature and could be caused between 7 to 14 days from the date of examination of the Appellant. Dr Verma, has no where stated about disclosure of sustaining injury by the Appellant while saving his wife. In accused statement Appellant has not explained as to how he sustained teeth biting injury on his left fore arm. Appellant was arrested by Station House Officer P.W. 30 Indramani Patel on 29.8.2004 and he sent the Appellant with medical requisition vide Ex.P/37 for his examination with Constable. On this requisition, nothing is mentioned as to how Appellant sustained injuries on his person. There is absolutely no evidence on record that the Appellant was available to the Police right from the time of admission of his wife to the Hospital and disclosed about sustaining of injury while saving her. Shri Patel proved arrest memo Ex.P/5 and there is no cross-examination about delay in arrest if Appellant was available to the Police. It is also clear from the medical evidence of Dr. Shri Patel proved arrest memo Ex.P/5 and there is no cross-examination about delay in arrest if Appellant was available to the Police. It is also clear from the medical evidence of Dr. Verma that injuries were in healing process and Dr. Verma has no where stated about any kind of infection. That shows that Appellant must had taken some treatment or used medicine for healing the burn injuries. In all the above mentioned decisions, there was positive evidence in favour of the accused about taking of the deceased immediately after the incident to the Hospital and provide medical treatment, therefore, the ratio decided in these cases about conduct of the accused is not at all applicable in the instant case as there is no evidence that Appellant took the deceased immediately to the Hospital and got her admitted for the purpose of treatment. On the contrary, Appellant failed to apcount for his absence for about 7 days. This shows that he was absconding immediately after the incident which is also clear from the contents of the dying declarations Ex.P/29 and Ex.P/36 wherein it is mentioned that deceased was brought to the Hospital from the spot by neighbours and her brother-in-law. The medical document Ex.P/26 is also disclosing this fact that deceased was brought by Mukesh P.W. 15 brother-in-law of deceased and brother of Appellant. This witness has also admitted this fact in paragraph 3 of the cross-examination by defence Counsel. Though brother of the Appellant Mukesh deposed in favour of the Appellant and gave the story of self emulation by the deceased but same has been given for the first time in Court and if it was true, why Mukesh as well as Appellant Santosh did not immediately lodged the report in the Police Station or recourse to the Authority for bringing these facts to their knowledge. No such steps were taken by them shows that this story was concocted one and disclosed for the First time in Court, after lapse of long time. 8. Appellant has not disputed his arrest on 29.8.2004 meaning thereby he was free but he had not lodged any report about the incident before any Authority informing that deceased committed suicide and falsely implicated him. 9. 8. Appellant has not disputed his arrest on 29.8.2004 meaning thereby he was free but he had not lodged any report about the incident before any Authority informing that deceased committed suicide and falsely implicated him. 9. We have gone through the Dehati Nalishi Ex.P/36, dying declaration Ex.P/29 and document of admission in Hospital Ex.P/26, and in all these documents it is mentioned that deceased was ablazed by Appellant after pouring kerosene oil. The author of all these documents P.W. 30 SHO Indramani Patel, Executive Magistrate P.W. 24 Rajkumar Haldhar and P.W. 20 Dr. Manish Kumar Verma have proved all these documents and given detailed statement. From their statement, it is clear that deceased was conscious and able to give statement. Before recording the dying declaration Ex.P/29 Executive Magistrate obtained certificate of fitness from P W.34 Dr: M. Vadhwani who proved his hand writing and signature on the dying declaration and also deposed that during the course of recording the statement deceased was conscious and able to-give statement. There is absolutely no reason for these independent witnesses, out of which two are medical experts and one is Executive Magistrate, to speak lie or concoct a document against the Appellant. Before reaching of the Police in the Hospital at the time of admission Dr. Verma P.W. 20 had taken history of the patient and mentioned the same on admission document of the deceased Ex.P/26 that deceased gave history about lighting fire to her by her husband after pouring kerosene oil. 10. The aforesaid written dying declarations are also duly corroborated by evidence of oral dying declaration given by P.W. 1 Debubai, P.W. 6 Mangilal and P.W. 8 Rakesh Chouhan the mother, father and brother of the deceased. Prosecution had also examined other independent witnesses of oral dying declaration P.W. 11 Ramchandra, P.W. 14 Shakuntala both were neighbour of the deceased but they have turned hostile. 11. Appellant was not having cordial relations with his wife/deceased and ill-treating her is also clear by the report lodged by deceased vide Ex.P/28 proved by P.W. 21 Head Constable, Ajab Singh. This was the report about the incident occurred on 11.8.2003 much before the death of deceased. 12. For the foregoing discussions, in our considered view the learned Trial Court has rightly placed reliance on written and oral dying declarations hence, there is no merit in this appeal, therefore, the same is, hereby, dismissed.