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2012 DIGILAW 105 (CHH)

SURESH KAMLE v. STATE OF M. P.

2012-04-10

RAJEEV GUPTA, SUNIL KUMAR SINHA

body2012
JUDGMENT Sunil Kumar Sinha, J 1. This appeal is directed against the judgment dated 28th of August, 1995 passed in Session Trial No. 474/93 by the First Additional Session Judge, Durg. By the impugned judgment, the appellant has been convicted u/s 302 IPC and sentenced to undergo imprisonment for life. 2. The facts, briefly stated, are as under: – Deceased- Sudha was wife of the appellant. She was working as a Nurse. Since the year 1990 she was residing in the rented premises of Abdul Hamid (PW-4). On 25.4.93, the deceased was married to the appellant. After the marriage, the couple continued to reside in the same premises of Abdui Hamid (PW-4). On 30.6.93, the deceased had returned from her parents place. The case of the prosecution is that on 30.6.93 at about 10:30 p.m. the appellant poured kerosene on the deceased and set her on fire. On hue and cry, Kunwar Singh and Abdul Hamid (PW-4) reached there. They saw the deceased in burnt condition. An Ambulance was called and the deceased was taken to the Hospital. The deceased was examined by Dr. S.C. Agrawal (PW-3). In the hospital her dying declaration (Ex.-P/5) was recorded by Executive Magistrate, Indira Singh Chouhan (PW-9). In her dying declaration, she made allegations against the appellant. The dying declaration was recorded on 1.7.93. The deceased died at 2:15 a.m. on 1.7.93. The death certificate is EX.-P/4. Panchnama (Ex.-P/9) was prepared. Merg (Ex.-P/10) was registered and the dead body of the deceased was sent for post-mortem. The post-mortem examination was conducted by Dr. G.R. Namdev (PW-7). The deceased has sustained 100% bum injuries. She had sustained bum over face, both upper limbs, both lower limbs, neck, trunk and back. The Autopsy Surgeon opined that the cause of death was shock combined with asphyxia due to extensive bums. The postmortem report is Ex.-P/13. The appellant had also sustained burn injuries over both the hands and was sent for his medical examination vide requisition Ex.-P/2-A. He was also examined by Dr. S.C. Agrawal (PW-3) who had firstly examined and admitted the deceased in the hospital. His M.L.C. report is Ex.-P/2. 3. The learned Session Judge relied on the dying declaration of the deceased and held that it was proved beyond all reasonable doubts that the appellant put the deceased on fire due to which she sustained above burn injuries and succumbed to those injuries. 4. Mr. His M.L.C. report is Ex.-P/2. 3. The learned Session Judge relied on the dying declaration of the deceased and held that it was proved beyond all reasonable doubts that the appellant put the deceased on fire due to which she sustained above burn injuries and succumbed to those injuries. 4. Mr. Rajesh Jain, learned counsel appearing on behalf of the appellant, argued that the dying declaration was not reliable; it does not bear the signature or thumb impression of the deceased; the appellant had also sustained burn injuries; the deceased had received 100% bums, therefore, she may not be in fit mental condition to give dying declaration; the decease while going to the hospital, made oral dying declaration before Abdul Hamid (PW-4) that she received burn injuries on her own; this declaration she also made before Dr. S.C. Agrawal (PW-3) who firstly examined her and admitted her in the hospital; there are discrepancies in the time written in the dying declaration which itself would show that the dying declaration was not genuine. 5. On the other hand, Mr. Arvind Dubey, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Session Court. 6. We have heard learned counsel for the parties at length and have also perused the records of the sessions case. 7. The reliability of the dying declaration is the sole question for consideration before us. 8. The deceased was brought to the hospital at about 11:50 p.m. and was firstly examined by Dr. S.C. Agrawal (PW-3) who prepared is report Ex.-P/1 According to the contents of Ex.-P/l, the deceased had received 100% bums, however, her pulse was 120 per minute and blood pressure was 90 mm. Hg systolic and she was conscious oriented. In the history of patient, it has been mentioned that it was an accidental bum. The deceased was brought by her husband (appellant). The appellant was also examined by Dr. S.C. Agrawal (PW-3) vide his report EX.-P/2. He had also sustained bum injuries on both hands. It has been mentioned in the report, prepared by Dr. S.C. Agrawal (PW-3), that he received injuries while rescuing his wife. Dr. Agrawal admitted in his cross-examination, Para-6, that all the entries made in EX.-P/1 were the entries of his hand and those entries were made after asking the patient (deceased). He had also sustained bum injuries on both hands. It has been mentioned in the report, prepared by Dr. S.C. Agrawal (PW-3), that he received injuries while rescuing his wife. Dr. Agrawal admitted in his cross-examination, Para-6, that all the entries made in EX.-P/1 were the entries of his hand and those entries were made after asking the patient (deceased). If the deceased would have been burnt by the appellant, she would not have disclosed to the Dr. that it was "an accidental burn at about 11:30 p.m." "Accidental burn" at about 11:30 p.m. mentioned in Ex.-P/l has been marked as 'B to B' and Dr. S.C. Agrawal (PW-3) admitted in his cross-examination that the said portion 'B to B' in EX.-P/l was written by him on the information of the patient. Apart from the above, we find that the appellant had also sustained burn injuries on his hands and it has been mentioned in his MLC report Ex.-P/2, though on his own information, that he sustained above injuries in rescuing his wife. We have no reason to disbelieve the evidence of Dr. S.C. Agrawal (PW-3) who firstly examined the deceased and recorded such declaration on her information in Ex.-P/l. 9. Now we shall examined the contents of the dying declaration recorded by the Executive Magistrate on 1.7.93. 10. The contents of the dying declaration (Ex.-P/5) would show that it was recorded by Executive Magistrate, Indira Singh Chouhan (PW-9) on 1.7.93 at about 12:25 p.m. Dr. S.C. Agrawal (PW-3) who gave a certificate of fit mental condition in the dying declaration also made endorsement of 12:35 p.m. of 1.7.93, whereas, the contents of the death certificate (EX.-P/4) issued by Dr. S.C. Agrawal (PW-3) would show that the deceased died at 2:15 a.m. on 1.7.93. An information to this effect (Ex.-P/3) was also sent to the concerned Station House Officer by Dr. S.C. Agrawal (PW-3) in which he has given details regarding date and time of admission and death of the deceased. According to this information, the deceased was admitted in the hospital on 30.6.93 at 11:50 p.m. and she died on 1.7.93 at 2:15 a.m. It was argued by Mr. Jain that when the deceased was already dead at 2:15 a.m. on 1.7.93, how a dying declaration can be recorded at 12:25 p.m. on 1.7.93. This discrepancy was tried to be clarified in the evidence of Dr. Jain that when the deceased was already dead at 2:15 a.m. on 1.7.93, how a dying declaration can be recorded at 12:25 p.m. on 1.7.93. This discrepancy was tried to be clarified in the evidence of Dr. S.C. Agrawal (PW-3) who deposed that the deceased was brought to the hospital at about 11:50 p.m. in the night and she died in the morning of 1.7.93 at about 2:15 a.m. But the fact remains that according to the contents of the dying declaration it was recorded at 12:25 p.m. of 1.7.93. The Executive Magistrate has not clarified the above discrepancy and has deposed that the dying declaration was recorded in the night of 1.7.93. That apart, there is no signature or thumb impression of the deceased on the dying declaration. Specific question was asked from the Executive Magistrate that why she has not taken the signature or thumb impression of the deceased on the dying declaration. She replied vide Para-10 of her cross-examination that she never took signature or thumb impression on any dying declaration so far recorded by her. Normally if the declarant is in a position to put signature or to put thumb impression on the dying declaration, this is always taken by the person recording the dying declaration with a view to make it more authentic and reliable but the same was not done in this case. This is not a case that the deceased, on account of burns, was not in a position to put her signature or thumb impression on the dying declaration. 11. Abdul Hamid (PW-4) was the landlord in whose rented premises, the deceased was residing since the year 1990. He deposed that in the fateful night, at about 10:30 p.m. he was sleeping in his house. The appellant came to him and said that the deceased was burning herself by pouring kerosene. He immediately rushed to that portion of the house where the appellant and the deceased were residing. The deceased, in fact, had received burn injuries by that time. Many persons gathered there. He went to call Ambulance. The driver of the Ambulance, who was previous known to the deceased, asked her as to how she received burn injuries? On this the deceased replied that she herself had set her on fire. He also accompanied the deceased to the hospital. Many persons gathered there. He went to call Ambulance. The driver of the Ambulance, who was previous known to the deceased, asked her as to how she received burn injuries? On this the deceased replied that she herself had set her on fire. He also accompanied the deceased to the hospital. In the hospital, Doctor had also asked the deceased as to how she received burn injuries, on which, the deceased had replied to the Doctor that she herself had put on fire. This makes clear that prior to reaching to the hospital, the deceased had made oral dying declaration before her landlord, Abdul Hamid (PW-4), that she herself had inflicted burn injuries and she did not whisper about involvement of the appellant in receiving such injuries. Even before the Doctor, she made such declaration, which the Doctor had recorded at portion 'B to B' in her history in Ex.-P/l. 12. If all these factors are taken together with the discrepancy of endorsement of time recorded in the dying declaration and particularly with reference to endorsement made in Ex.-P/l, in which, on the declaration of the deceased, Dr. S.C. Agrawal (PW-3) mentioned that it was an accidental burn, the dying declaration (Ex.-P/5) recorded by the Executive Magistrate becomes suspicious. It does not appear to us to be fully trustworthy. We are of the view that the learned Session Judge erred in law in relying of the contents of the dying declaration and the conviction based on the solitary evidence of dying declaration cannot be sustained. 13. The appeal, therefore, is allowed. The conviction and sentence awarded to the appellant u/s 302 IPC are set-aside. He is acquitted of the charges framed against him. The appellant was arrested on 3.7.93. He was throughout in jail, however, he was released on bail on 3.6.2002. Presently he is on bail. His bail bonds are cancelled and surety stands discharged. Appeal Allowed.