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2012 DIGILAW 1040 (MP)

Ram Kripal S/O Mewalal Kahar v. State Of M. P.

2012-10-09

RAKESH SAKSENA, T.K.KAUSHAL

body2012
JUDGMENT : This appeal has been preferred against the judgment dated 23-9-2004 passed by Sessions Judge, Shahdol in Sessions Trial No. 135/2004 convicting the appellant under section 302, Indian Penal Code for committing murder of Gulabia bai (since deceased) and sentencing him to life imprisonment with fine of Rs. 500/-. 2. Facts of the case, in short, are that deceased, having left alone by her husband Mangal Singh, lived in a house near GM Office of Jamuna colliery with her daughter Anjali (PW-1) and sons Sanjay (PW-2) and Ashok Kumar (PW-3). Brothers of the deceased i.e. Munnilal (PW-4) and Parmeshwar (PW-5) also lived in the same locality in different house. Appellant had developed intimacy with the deceased and had been treating her as a mistress. On 29-2-2004 at about 8.00 a.m., while appellant visited house of the deceased, she reminded her for provisions of money for marriage of her daughter (PW-1). Appellant declined the demand. Deceased asserted her demand saying that she was maintaining such relations for last about 4-5 years under assurance of her full maintenance including marriage of daughter also. Appellant continued to say no to the demand of money. Appellant asked her to do whatever she could. She may opt to die also if she liked and then told to her that he will kill her. Appellant poured kerosene on her and put a match stick. Deceased started ablazing. She cried. Her children came to her from inside of the house. By pouring water they tried to extinguish fire. 3. Deceased was taken to police station-Bhanumadha, District-Anuppur where she lodged FIR Ex.P-15 against the appellant. A. K. Pandey, ASI (PW-12) registered case at Crime No. 32/2004 under section 307, Indian Penal Code against the appellant. Deceased was sent to Community Health Centre, Kotma for treatment. Dr. O. P. Choudhary (PW-7) examined her injuries and prepared MLC Report Ex.P-9. In view of the critical condition of the deceased, PW-7 further recorded dying declaration Ex.P-20 in the hospital. A. K. Pandey, ASI (PW-12) recorded statement of deceased under section 161, Criminal Procedure Code also. In the evening, the deceased succumbed to her burn injuries and died. Ward Boy of District Hospital Shahdol sent Marg intimation Ex.P-14 to police station. Police- Bhanumadha, initiated inquest proceedings. Naksha Panchayatnama of dead body of deceased Ex.P-5 was prepared. On 1-3-2004 Dr. A. K. Pandey, ASI (PW-12) recorded statement of deceased under section 161, Criminal Procedure Code also. In the evening, the deceased succumbed to her burn injuries and died. Ward Boy of District Hospital Shahdol sent Marg intimation Ex.P-14 to police station. Police- Bhanumadha, initiated inquest proceedings. Naksha Panchayatnama of dead body of deceased Ex.P-5 was prepared. On 1-3-2004 Dr. R. P. Singh (PW-9) in District Hospital Shahdol conducted post-mortem of deceased and prepared Post-mortem Report Ex.P-12. During investigation, police prepared spot map and recorded statements of witnesses. On 2-3-2004 appellant was arrested. 4. After completing investigation, police submitted charge-sheet against the appellant in the Court of concerned Judicial Magistrate First Class. Case was committed to Sessions Court for trial. Trial Court framed charge under section 302, Indian Penal Code against the appellant. Appellant pleaded innocence and abjured guilt. 5. To substantiate case of the prosecution, statements of daughter of deceased Anjali (PW-1), son of deceased Sanjay (PW-2), son of deceased Ashok (PW-3), brother of deceased Munnilal (PW-4), brother of deceased Parmeshwar (PW-5), Sister-in-law of deceased Shyamwati (PW-6), Dr. O. P. Choudhary (PW-7), Rajendra Das, Patwari (PW-8), Dr. R. P. Singh (PW-9), son of deceased Rahul (PW-10), Triveni Prasad Mishra, Constable (PW-11), A. K. Pandey, ASI (PW-12), M.K. Upadhyaya, ASI (PW-13), Ramlal Tripathi, Head Constable (PW-14), Ramsujan Tiwari, Head Constable (PW-15), and Virendra Singh, SI (PW-16) were recorded. After appreciating aforesaid evidence, trial Court found the appellant guilty and convicted and sentenced him as above. 6. Assailing the impugned judgment, this appeal has been preferred on the grounds that trial Court has wrongly relied upon the testimony of dying declaration Ex.P-20 recorded by doctor. Similarly, FIR Ex.P-15 and case diary statement of deceased Ex.P-17, subsequently treated as dying declarations, have also been wrongly believed by the trial Court. These dying declarations are suffering from discrepancies. After sustaining 90% burn injuries on her body, it was not possible for the deceased even to speak. FIR Ex.P-15, case diary statement of deceased Ex.P-17 and dying declaration Ex.P-20 are concocted documents. Despite the fact that none of the family members supported the prosecution case and no independent witness has been adduced by the prosecution, trial Court convicted the appellant on the basis of insufficient and doubtful evidence. Conviction is bad in law. FIR Ex.P-15, case diary statement of deceased Ex.P-17 and dying declaration Ex.P-20 are concocted documents. Despite the fact that none of the family members supported the prosecution case and no independent witness has been adduced by the prosecution, trial Court convicted the appellant on the basis of insufficient and doubtful evidence. Conviction is bad in law. On the other hand, learned Panel Lawyer supported the findings of conviction and sentence and submitted that evidence of dying declaration has rightly been relied upon by the trial Court. 7. On 29-2-2004 at about 11.00 a.m., Dr. O. P. Choudhary (PW-7) examined injuries of the deceased at Community Health Centre, Kotma. PW-7 found burn injuries over head, face, neck, chest, stomach, abdominal portion, both upper limbs, thigh, buttock, both legs, anterior and posterior regions of the deceased. The deceased was conscious and was able to speak. There had been smell of kerosene in her body. Burns were caused by flames within 12 hours of the examination. Burn injuries had been dangerous to life. PW-7 found 90% burn on the body of the deceased and forwarded the deceased for further treatment to District Hospital Shahdol. 8. On 1-3-2004 at District Hospital Shahdol, Dr. R. P. Singh (PW-9) conducted post-mortem of the deceased and found 80 to 85% burn of 3rd degree on the body of deceased. Cause of death was the shock due to excessive burning caused within 12 hours of the post-mortem examination. PW-9 prepared post-mortem report Ex.P-12. In view of the aforesaid injuries, it remains no longer disputed that death of deceased was homicidal caused by burn injuries. 9. Daughter of deceased PW-1, sons of deceased PW-2, PW-3 and PW-10, and brothers of the deceased PW-4 and PW-5 and sister-in-law of the deceased PW-6, did not support the story of the prosecution. On the contrary, they came forward with a story that at the time of making tea on a "bhatti", sari of the deceased caught fire and she got burnt. All aforesaid witnesses have been declared hostile in the trial Court and they have disowned their previous statements. 10. On 29-2-2004 at about 10.15 a.m., PW-12 recorded FIR Ex.P-15 as told by the deceased. All aforesaid witnesses have been declared hostile in the trial Court and they have disowned their previous statements. 10. On 29-2-2004 at about 10.15 a.m., PW-12 recorded FIR Ex.P-15 as told by the deceased. According to Ex.P-15 at about 7-8 a.m. in the house of the deceased there had been a discussion between appellant and deceased in respect of provisions to meet the expenditure of marriage of her daughter PW-1 to be incurred by the appellant. Appellant poured kerosene, lit match stick and set deceased on fire. PW-12 recorded her police statement Ex.P-17 also. In respect of narration of the incident, text of Ex.P-15 and Ex.P-17 are verbatim same and identical. Deceased was brought to police station by her family members in a jeep. FIR and Case Diary statement were recorded at police station. Dr. O. P. Choudhary (PW-7) at 12.10 p.m. recorded dying declaration Ex.P-20 in hospital. Though it was not recorded in the form of questions and answers and date had not been mentioned on it, but it gave a brief account of the incident given by deceased. 11. Shri V. K. Lakhera learned counsel for appellant submitted that no date of recording has been mentioned in Ex.P-20. It has been proved in the trial Court at the stage of statement of witness by way of re-examination of PW-7. Ex.P-20, in these circumstances cannot be deemed to be a genuine document and cannot be relied upon. Per contra, Shri Amit Pandey, learned Panel Lawyer submitted that in charge-sheet there had been clear mention of this document and due to inadvertence prosecution could not get it proved on earlier occasion and made a request to the trial Court to recall and reexamine the doctor. 12. On careful perusal of the statement of PW-7 and further on perusal of Ex.P-20 dying declaration we find nothing to suspect the bona fides of doctor for its recording. PW-7 had taken down in writing the version given by the deceased to him in Ex.P-20. Absence of remark regarding fitness of the deceased, is not material because doctor himself has recorded it. Statement of PW-7 is convincing and reliable. Accordingly there appears no technical flaw in Ex.P-20. In para 18 of 2012(4) (2012)6 SCC 606 (Salim Gulab Pathan vs. State of Maharashtra), the Apex Court observed that .. "18. Absence of remark regarding fitness of the deceased, is not material because doctor himself has recorded it. Statement of PW-7 is convincing and reliable. Accordingly there appears no technical flaw in Ex.P-20. In para 18 of 2012(4) (2012)6 SCC 606 (Salim Gulab Pathan vs. State of Maharashtra), the Apex Court observed that .. "18. In Atbir vs. Government (NCT of Delhi), 2010 (9) SCC 1 after an elaborate consideration of several decisions of this Court, the following propositions have been laid down with regard to the admissibility of a dying declaration : "22. The analysis of the above decisions clearly shows that : (i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the Court. (ii) The Court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination. (iii) Where the Court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration. (iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. (v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. (vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction. (vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected. (viii) Even if it is a brief statement, it is not to be discarded. (ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail. (x) If after careful scrutiny, the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration." 13. (x) If after careful scrutiny, the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration." 13. A comparison of Ex.P-15 FIR, Ex.P-17 police statement and Ex.P-20 dying declaration reveals that before doctor, deceased did not say that appellant told to her that she need not die of her own rather he will kill her and further with intent to kill her poured kerosene. In both Ex.P-15 and Ex. P-17 OTHER LANGUAGE are mentioned but these facts are missing in Ex.P-20. It is submitted by learned counsel for appellant that FIR and police statement are the creations of Police Inspector PW-12 and are indicative of mind set of a police official. According to learned Panel Lawyer these discrepancies are not very material. 14. Version of the deceased narrated by her in Ex.P-20, in view of the aforesaid inconsistencies in dying declarations, requires a critical examination. During the course of heated discussion between deceased and appellant regarding need and demand of money for marriage of PW-1, at one point of time appellant told to her that he would not incur any expenditure, even if she preferred to die but in next breath, she stated that appellant poured the kerosene and set fire to her. It does not sound logical and probable and cannot be accepted as normal conduct of a prudent man in given circumstances. According to Ex.P-15 and Ex.P-17, appellant a step ahead told to the deceased that why to die herself rather he will kill her and poured kerosene on her, with intent to kill. These variations in dying declarations are material and make them vulnerable. The Apex Court in AIR 2009 SC 1059 (Samadhan Dhudaka Koli vs. State of Maharashtra) has observed in para 16 that : "16. Consistency in the dying declaration therefore, is a very relevant factor. Such relevant factor cannot be ignored. When a contradictory and inconsistent stand is taken by the deceased herself in different dying declarations, they should not be accepted on their face value. In any event, as a rule of prudence, corroboration must be sought from other evidence brought on record." 15. Such relevant factor cannot be ignored. When a contradictory and inconsistent stand is taken by the deceased herself in different dying declarations, they should not be accepted on their face value. In any event, as a rule of prudence, corroboration must be sought from other evidence brought on record." 15. On hearing shocking words of refusal OTHER LANGUAGE in spite of having 4-5 years of conjugal relationship, frustration of the mind of the deceased can be obvious. It could have provoked deceased to end her life and at the same time it might have lead her to implicate the appellant, who declined to share burden of expenditure of marriage of her daughter. 16. Version of the deceased narrated in dying declaration Ex.P-20 did not find corroboration from statements of her own children, brothers and bhabhi. Though their version of accidental burn from bhatti at the time of making tea too did not find corroboration from medical evidence, but they did not at all support theory of murder by the appellant. 17. Discrepancies in medical evidence in this regard are also material. Dr. O. P. Choudhary (PW-7) found presence of kerosene on the body of deceased at the time of medico legal examination and Dr. R. P. Singh (PW-9) did not find presence and smell of kerosene at the time of post-mortem, within 24 hours these two contradictory versions of doctors create doubt regarding manner and mode of the death. At the time of incident, only deceased and appellant were present in the room alone. Even the witnesses entered the room after hearing the cries. However, they did not support the story of prosecution. PW-12 recorded version of the deceased given to him at about 10.15 a.m. at police station by way of FIR and case diary statement. At about 12.10 p.m., PW-7 recorded dying declaration Ex.P-20. Discrepancies in the text of the aforesaid dying declarations regarding intention of the appellant for committing murder is also relevant and is a material lapse. 18. Dying declaration Ex.P-20 by itself indicates two different shades of the incident. In first part of the dying declaration, appellant had stated to deceased that he will not bear expenses. She is free to end her life. In second part of dying declaration Ex.P-20 appellant got ready to kill her and poured kerosene and set her ablaze. It does not sound convincing. In first part of the dying declaration, appellant had stated to deceased that he will not bear expenses. She is free to end her life. In second part of dying declaration Ex.P-20 appellant got ready to kill her and poured kerosene and set her ablaze. It does not sound convincing. Appellant had no reason to kill the deceased at that time. In fact helplessness and frustration of the deceased has been reflected in dying declarations. On careful perusal of dying declaration Ex.P-20 along with statement of PW-7 and considering the facts and circumstances of the case, it emerges out that though there appears no technical flaw in the dying declaration insofar as admissibility is concerned. However, in respect of truthfulness of the contents of dying declaration Ex.P-20 is not beyond doubt. At the time of deposing the dying declaration, the deceased was in the state of helplessness and frustration on account of refusal of the appellant for giving marriage expenses of PW-1 her daughter. Probability of false implication of appellant cannot be ruled out. 19. Declaration of the deceased can be relied upon only when it is true and voluntary. It should be free from suspicions. Truthfulness of the content must be proved beyond doubt. Ex.P-20 is the dying declaration, which is not coherent and consistent, hence, it alone cannot be made basis of conviction. It is contradicted by medical evidence and is not supported by oral evidence. In our opinion, it will not be safe to sustain the conviction of the appellant on the basis of Ex.P-20 only. 20. As discussed above, conviction and sentence of appellant under section 302, Indian Penal Code remains unsustainable. This appeal deserves to be and is hereby allowed. Appellant is acquitted of the charge under section 302, Indian Penal Code. Judgment of conviction of trial Court is set aside. Appellant be released if not required in any other case.