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2011 DIGILAW 212 (CHH)

SURESH PAL v. STATE OF M. P.

2011-07-04

RADHE SHYAM SHARMA, SATISH K.AGNIHOTRI

body2011
JUDGMENT As per Hon'ble Shri Radhe Shyam Sharma, J. :- 1. This appeal is directed against the judgment dated 31-10-1994 passed by the Additional Sessions Judge, Manendragarh in Sessions Trial No.203/93, whereby the appellant has been convicted under Sections 302 and 498-A of the Indian Penal Code and sentenced to undergo imprisonment for life. No separate jail sentence has been awarded to the appellant for the offence under Section 498-A of the Indian Penal Code. 2. The case of the prosecution, in brief, is as under: Deceased Smt. Indrapal was wife of the appellant Suresh Pal. On 159-1992, at about 8:30 P.M., the deceased lodged Dehati Nallsi (Ex.P-7) that on that very day, at about 2 P.M., a quarrel took place between her and the appellant (accused) because he wanted to send her to maternal home. On her refusal, the appellant started beating her and thereafter poured kerosene on her and set her on fire. She cried for help but no one came forward to help her. She further alleged that her mother-in-law, father-in-law and brother-in-law were present in the house but they did not come to save her. Later on, her mother Phoolkunwar (PW-1) and father Tanguram (PW-2) came there and got her admitted in Regional Hospital Kurasia. Thereafter, Dr. Ganesh Chand Sarkar, Medical Officer, Regional Hospital Kurasia (PW-4) sent communications regarding the incident to Police Station, Chirmiri under Ex.P-3 and P-4. The police reached the hospital and recorded the Dehati Nalisi (Ex.P-7). Subsequently, R.R.Meshram, Naib-Tahsildar/Executive Magistrate (PW-11) recorded dying declaration of the deceased on 15-9-1992 under EX.P-2. An offence under Section 307 of the Indian Penal Code was registered in Police Station, Chirmiri under Ex.P-15. Later on, the deceased succumbed to her burn injuries on 26-9-1992. Inquest report (Ex.P-13) was prepared and dead-body of the deceased was sent for post mortem examination to the Government Hospital, Chirmiri. The post mortem was conducted by Dr. A.K. Agrawal (PW-9). The post mortem report is EX.P-12. The autopsy surgeon opined that cause of death was anemia, hypoprotenemia and toxemia due to extensive burn, thus, the death was homicidal in nature. The post mortem was conducted by Dr. A.K. Agrawal (PW-9). The post mortem report is EX.P-12. The autopsy surgeon opined that cause of death was anemia, hypoprotenemia and toxemia due to extensive burn, thus, the death was homicidal in nature. After completion of the investigation, a charge-sheet was filed under Sections 302 and 498-A of the Indian Penal Code in the Court of Judicial Magistrate, First Class, Manendragarh, who, in turn, committed the case to the Court of Session, Surguja, from where it was received on transfer by the Additional Sessions Judge, Manendragarh, who conducted trial and convicted and sentenced the appellant as above. 3. Smt. Savita Tiwari, learned counsel appearing for the appellant argued that the dying declaration (Ex.P-2) recorded by R.R.Meshram, Naib- Tahsildar/Executive Magistrate (PW-11) is not reliable. According to medical evidence, the deceased had sustained burn injuries to the extent of 75-80% and she was not in a position to make any statement. Learned counsel has further argued that the deceased died after 12 days of the incident, therefore, the dying declaration (Ex.P-2) made by her is not conclusive. She further argued that the deceased's mother Phoolkunwar (PW-1) and father Tanguram (PW-2) are interested witnesses, therefore, their testimonies are not reliable. The finding recorded by the learned Additional Sessions Judge for convicting the appellant under Sections 302 and 498-A of the Indian Penal Code is unsustainable. Alternatively, learned counsel also argued that the act of the appellant would not be punishable under Section 302 of the Indian Penal Code and even after admitting the entire case he would be liable for punishment under Section 304 of the Indian Penal Code. Learned counsel has placed reliance on Hari Shankar Vs. State of Rajasthan). 4. On the other hand, Shri Ajit Singh, learned Panel Lawyer for the State/respondent, supporting the judgment under appeal, argued that the prosecution witnesses are natural witnesses. The dying declaration (Ex.P-2) recorded by R.R.Meshram, Naib- Tahsildar/Executive Magistrate (PW -11) is admissible in evidence and can be based for conviction of the appellant. 5. We have heard learned counsel appearing for the parties and perused the record. Conviction of the appellant is based on the dying declaration (Ex.P-2) recorded by R.R.Meshram, Naib-Tahsildar/Executive Magistrate (PW-11) as also the oral dying declaration made by the deceased before her mother Phoolkunwar (PW-1) and father Tanguram (PW-2). Admittedly, there was no eye witness of the incident. 6. 5. We have heard learned counsel appearing for the parties and perused the record. Conviction of the appellant is based on the dying declaration (Ex.P-2) recorded by R.R.Meshram, Naib-Tahsildar/Executive Magistrate (PW-11) as also the oral dying declaration made by the deceased before her mother Phoolkunwar (PW-1) and father Tanguram (PW-2). Admittedly, there was no eye witness of the incident. 6. So far as dying declaration is concerned, if an officer recording a statement was satisfied that the declarant was in a fit mental condition to make dying declaration, the said dying declaration can be relied upon and may be basis for conviction of the accused. 7. We shall examine the instant case in the above context and find out whether the dying declaration made by the deceased before R.R.Meshram, NaibTahsildar/Executive Magistrate (PW-11) was admissible in evidence? 8. The deceased has stated in her dying declaration (Ex.P-2) that she was burnt by her husband (the appellant) in their house at Podi by pouring kerosene on her. She has also stated about the date and time of the incident to be 15-9-1992 at about 2 P.M. She has stated that the reason behind the incident was her being patient of heart disease and, therefore, the appellant, to avoid her treatment, wanted to leave her and to cause her death she was burnt on the fateful day. Thereafter, she was taken to the Regional Hospital Godaripara for treatment. She has further stated that the statement given by her was true and final. She has further added to her statement that at the time of incident, she, her husband and two children were present. 9. Dr. Ganesh Chand Sarkar (PW-4) has stated in paragraph 5 of his deposition that on 15-9-1992, the Executive Magistrate had asked him about health of the deceased for the purpose of recording her dying declaration. He has further stated that the deceased was able to make statement, therefore, he had given a certificate to that effect to the Executive Magistrate. He has also stated that the deceased's health was good during and after recording of her statement. 10. R.R.Meshram, Naib-Tahsiidar/Executive Magistrate (PW-11) has stated in paragraph 2 of his deposition that he was called by the police to record dying declaration of the deceased who was admitted in Godaripara Regional Hospital for treatment of her bum injuries. He has also stated that the deceased's health was good during and after recording of her statement. 10. R.R.Meshram, Naib-Tahsiidar/Executive Magistrate (PW-11) has stated in paragraph 2 of his deposition that he was called by the police to record dying declaration of the deceased who was admitted in Godaripara Regional Hospital for treatment of her bum injuries. He has further stated that the deceased was fit to make statement and the medical officer posted in the hospital had certified that the deceased was able to make statement and thereafter he had recorded the statement of the deceased which is Ex.P-2 and which bears his signature as also the signature of the deceased. 11. According to Dr. Ganesh Chand Sarkar (PW-4), the deceased was mentally fit to make dying declaration and R.R.Meshram, Naib- Tahstldar/Executive Magistrate (PW -11) has also deposed about the fit mental condition of the deceased. Ex.P-2, the dying declaration, is certified by the doctor that the deceased was conscious and mentally fit for giving statement about the incident. The Executive Magistrate, who recorded the dying declaration, was also satisfied that the deceased was fit to make the statement. Therefore, the dying declaration (Ex.P-2) appears to be admissible in evidence. 12. Now, we shall examine whether the oral dying declaration made by the deceased before her mother Phoolkunwar (PW-1) and father Tanguram (PW-2) was reliable and admissible in evidence? 13. Learned counsel appearing for the appellant has argued that 'the deceased had sustained burn injuries to the extent of 75-80% and she was not in a position to make any statement. We have carefully perused the dying declaration (Ex.P-2), the evidence of Dr. Ganesh Chand Sarkar (PW-4) and R.R.Meshram, Naib-Tahsildar/Executive Magistrate (PW-11) and found that at the time of recording the dying declaration, the deceased was conscious and mentally fit for giving statement about the incident. 14. Phoolkunwar (PW-1), mother of the deceased, has stated in paragraph 2 of her deposition that on receiving information, she and her husband had gone to the matrimonial house of their daughter immediately. The appellant was lying near the door of the house. He was not talking to anyone. Her daughter (the deceased) was crying in pain inside the house. She was burnt extensively. She asked her about the incident. Her daughter told her that the appellant had burnt her by pouring kerosene on her. The appellant was lying near the door of the house. He was not talking to anyone. Her daughter (the deceased) was crying in pain inside the house. She was burnt extensively. She asked her about the incident. Her daughter told her that the appellant had burnt her by pouring kerosene on her. She has further stated in paragraph 3 of her deposition that they had arranged an ambulance from Podi Colliery and had taken their daughter to Godaripara Hospital and got her admitted there, where she died. She has further stated that her daughter had narrated the whole incident to the police. Statement of Tanguram (PW-2), father of the deceased, is similar to that of Phoolkunwar (PW-1). 15. Rajmanti (DW-2), who was examined by the appellant in his defence, has stated in paragraph 4 of his deposition that the deceased was conscious when she was being taken to the hospital. Looking to the statement of this defence witness, it is crystal clear that when the deceased was being taken to the hospital, she was conscious. We are satisfied that the deceased, at the time when she made the dying declaration, was conscious and mentally fit for giving statement about the incident. 16. The evidence of Phoolkunwar (PW-1) is corroborated by Tanguram (PW-2), Dr. Ganesh Chand Sarkar (PW-4) and R.R.Meshram, Naib-Tahsitdarl Executive Magistrate (PW-11). Hence, the oral dying declaration made by the deceased before her mother Phoolkunwar (PW-1) and father Tanguram (PW2) appears to be reliable and admissible in evidence. 17. So far as the death of the deceased after 12 days of the incident is concerned, the deceased was a 25 years old young woman and the doctors were trying to save her life and the dying declaration (Ex.P-2) was recorded prior to her death, therefore, in this situation, the dying declaration cannot be discarded for the reason that the death of the deceased took place after 12 days of the incident. One cannot lose sight of the fact that death occurred during treatment in the hospital due to burning of the deceased. 18. From the above, we find that the evidence of dying declaration led by the prosecution is reliable, admissible in evidence and can be based for conviction of the appellant. The prosecution came-up with a definite case that the offence was committed by the appellant and proved its case beyond all reasonable doubts. 19. 18. From the above, we find that the evidence of dying declaration led by the prosecution is reliable, admissible in evidence and can be based for conviction of the appellant. The prosecution came-up with a definite case that the offence was committed by the appellant and proved its case beyond all reasonable doubts. 19. We have carefully perused the evidence of Phoolkunwar (PW-1), Tanguram (PW-2), Dr. Ganesh Chand Sarkar (PW-4) and R.R.Meshram, NaibTahsiidar/Executive Magistrate (PW-11). From the evidence of these witnesses, it is crystal clear that it was none other than the appellant, who burnt the deceased by pouring kerosene and setting her on fire. Dr. Ganesh Chand Sarkar (PW-4) has opined that cause of death was anemia, hypoprotenemia and toxemia due to extensive bum and the death was homicidal in nature. Therefore, we do not find any infirmity in the finding recorded by the Additional Sessions Judge that it was the appellant who caused the death of the deceased. 20. Now, we shall examine the matter in the light of the provisions of Section 302 vis-a-vis Section 304 of the Indian Penal Code. 21. Section 304 of the Indian Penal Code provides the punishment for culpable homicide not amounting to murder. It draws a distinction between the penalty to be inflicted in cases, where, an intention to kill being present, the act would have amounted to murder, but for its having fallen within one of the Exceptions in Section 300 of the Indian Penal Code, and cases in which the crime is culpable homicide not amounting to murder, that means, where there is knowledge that death will be a likely result, but the intention to cause death, or bodily injury likely to cause death, is absent. The first part of Section 304 of the Indian Penal Code applies where there is intention, whereas the second part applies where there is knowledge but the important thing is that before holding the accused guilty under any part of Section 304 of the Indian Penal Code, it has to be observed that a death must have been caused by him under any of the circumstances mentioned in the five Exceptions to Section 300 of the Indian Penal Code, which include death caused while deprived of power of self-control under grave and sudden provocation, while exercising in good faith the right of private defence of person or property, and in a sudden fight in the heat of passion without premeditation. Knowledge of consequences which may result in doing an act is quite different than the intention which denotes that a particular consequence should ensure. For attracting the former part of Section 304 of the Indian Penal Code, an element of intention is a factor whereas for attracting the later part, an element of knowledge is a factor. The intention is the purposeful doing of a thing to achieve a particular result, whereas, the knowledge is an awareness which attributes to be well informed that a particular result may happen by doing a thing. 22. In the instant case, the appellant poured kerosene on the deceased and set her on fire, which reveals that he had an intention to commit murder of the deceased. We are of the view that in the above facts and circumstances, the act of the appellant would not be falling under any Exception to Section 300 of the Indian Penal Code and the present cannot be said to be culpable homicide not amounting to murder. In view of the above, the case law relied upon by learned counsel for the appellant is distinguishable on facts. 23. For the foregoing reasons, we do not find any substance in the appeal. The criminal appeal is liable to be and is accordingly dismissed. Appeal Dismissed.