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2012 DIGILAW 268 (CHH)

GUDDU ALIAS LAXMINARAYAN v. STATE OF M. P.

2012-10-11

PRITINKER DIWAKER, SUNIL KUMAR SINHA

body2012
JUDGMENT Sunil Kumar Sinha, J. :- 1. This appeal is directed against the judgment dated 7th of November, 1996, passed in ST. No. 108/95 by the 3rd Additional Sessions Judge, Durg. By the impugned judgment, the appellants have been convicted and sentenced in the following manner : 1. Appellant No. 1 Guddu Under Section 302 IPC and sentenced to Alias Laxminarayan undergo imprisonment for life and to pay fine of Rs. 5000/- with default sentence of imprisonment for 6 months. Appellants 2 and 3, Shantibai Under Sections 201/34 IPC and sentenced to and Girjabai undergo R.I. for 6 months and to pay fine of Rs. 500/- with default sentence of imprisonment for 1 month. 2. The facts, briefly stated, are as under: Deceased-Banshilal was husband of Radha Bai (PW-1). Appellant No. 1 Guddu @ Laxminarayan was neighbour of the deceased. On 20.2.1994, at about 8.00 pm, Radha Bai (PW-1) was present in her house. She was sitting on a cot in front of her house. Appellant No. 1 Guddu @ Laxminarayan was also sitting on the same cot. At that time, the deceased had gone to the market. When the deceased came to his house, he saw appellant No. 1 Guddu @ Laxminarayan sitting with his wife on the cot. Thereafter, an altercation took place between appellant No.1 and the deceased. The allegations are that after the altercation, the appellant took up the burning lamp (small chimney) and threw it over the deceased, due to which, the deceased sustained burn injuries. The incident was witnessed by Radha Bai (PW-1). First Information Report (FIR Ex. P/12) was lodged by the deceased himself at about 8.40 pm, in which, he mentioned about the incident and he also mentioned the name of appellant No. 1 Guddu @ Laxminarayan. On the above report, an offence under Section 307 IPC was registered against appellant No. 1. The deceased was sent for medical examination vide requisition Ex. P/13. Thereafter, the deceased was admitted in the Hospital. On 20.2.1994, dying declaration of the deceased (Ex. P/8) was recorded by the Executive Magistrate, S.K. Sharma (PW-8). In the dying declaration also the deceased made allegations against appellant No. 1. The deceased died during the course of his treatment at about 9.30 pm on 3.3.1994. Merg intimation (Ex.P/6) was recorded. The Investigating Officer reached to the Hospital Mortuary, gave notice (Ex.P/5) to the Panchas and prepared inquest (Ex. In the dying declaration also the deceased made allegations against appellant No. 1. The deceased died during the course of his treatment at about 9.30 pm on 3.3.1994. Merg intimation (Ex.P/6) was recorded. The Investigating Officer reached to the Hospital Mortuary, gave notice (Ex.P/5) to the Panchas and prepared inquest (Ex. P/10) on the dead body of the deceased. The dead body was sent for postmortem. The postmortem examination was conducted by Dr. R.A. Pandey (PW-7). He found burn injuries to the extent of 50% on the dead body of the deceased and opined that the cause of death was shock and septicemia on account of ante-mortem burn injuries. The postmortem report is Ex. P/7. The learned Sessions Judge relied on the testimony of Radha Bai (PW-1) and the dying declaration made by the deceased, and held that it was proved beyond all reasonable doubts that appellant No. 1 Guddu @ Laxminarayan put the deceased on fire by throwing a burning chimney over him, therefore, he was liable for punishment under Section 302 IPC. Since Radha Bai (PW-1) had made allegations that appellant No. 2 Shantibai and appellant No. 3 Girjabai had suggested her to say to the Police that the deceased put himself on fire, these 2 appellants were held liable for punishment under Sections 201/34 IPC. 3. Mr. Arun Kochar, learned counsel appearing on behalf of the appellants, has argued that Radha Bai (PW-1) was not a reliable witness; the dying declaration was also not reliable; therefore, the conviction and sentences awarded to the appellants cannot be sustained. He also argued that in the above facts and circumstances of the case, an offence under Section 302 IPC would not be made out against appellant No. 1. 4. On the other hand, Mr. Akhil Mishra, learned Dy. Government Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. 5. Having heard learned counsel for the parties at length, we have perused the records of the Sessions Case. 6. Radha Bai (PW-1) deposed that in the fateful night, at about 8.00 pm, she was sitting on a cot in front of her house. Her husband (deceased) had gone to the market. Appellant No. 1 Guddu @ Laxminarayan came to her house and he also sat on the same cot. 6. Radha Bai (PW-1) deposed that in the fateful night, at about 8.00 pm, she was sitting on a cot in front of her house. Her husband (deceased) had gone to the market. Appellant No. 1 Guddu @ Laxminarayan came to her house and he also sat on the same cot. When her husband came from the market, he started abusing appellant No. 1 Guddu @ Laxminarayan saying that why he visited his house when no male member of the family was present in the house. He was saying that why the appellant was sitting in his house. Thereafter, both entered into her house abusing each other. A chimney was burning in their house. The appellant took the chimney and threw it on her husband, due to which, her husband (deceased) sustained burn injuries. Thereafter, she made cries. Gangaram came there and poured water on her husband. Shantibai (mother of appellant No. 1) and Girjabai (aunt of appellant No. 1) also came there and they took appellant No. 1 to their house. Her husband (deceased) thereafter, went to the Police Station. When she came out from her house to go to the Police Station behind her husband, Shantibai and Girjabai (appellants 2 and 3) restrained her. They were saying her to make statement that her husband was burnt accidentally. She made allegations that these 2 appellants (appellants 2 and 3) had threatened her. 7. Radha Bai (PW-1) was put to lengthy cross-examination by the defence. There was a major omission in her case diary statement (Ex. D/1). In the case diary statement, she did not mention that appellants 2 and 3 had restrained her in the above manner and they were saying her to make statement that the deceased had received above burn injuries accidentally. There was also a contradiction between her Court evidence and case diary statement (Ex. D/1). In D/1 she mentioned that her husband himself received burn injuries and appellant No. 1 Guddu @ Laxminarayan did not cause burn injury to him. When she was faced with the above omission and contradiction, she could not give proper explanation. On the above conduct of Radha Bai (PW-1), her evidence does not appear to be fully reliable. D/1). In D/1 she mentioned that her husband himself received burn injuries and appellant No. 1 Guddu @ Laxminarayan did not cause burn injury to him. When she was faced with the above omission and contradiction, she could not give proper explanation. On the above conduct of Radha Bai (PW-1), her evidence does not appear to be fully reliable. On appreciation, we find that she did not make any allegation against appellants 2 and 3 in her case diary statement, and about appellant No.1, in D/1, she stated that he did not cause burn injury to the deceased. We are of the view that her evidence was not wholly reliable and the Sessions Judge erred in law in accepting the evidence of Radha Bai (PW-1). 8. The incident took place at about 8.00 pm and the deceased himself lodged the FIR (Ex. P/12) at about 8.40 pm. In the FIR, he made allegations that the appellant threw a burning chimney on him, due to which, he sustained burn injuries. On the said report of the deceased, an offence under Section 307 IPC was registered against appellant No. 1. The deceased, thereafter, died on 3.3.1994. The prosecution has proved that the deceased had lodged the above FIR in the concerned Police Station. Therefore, the said FIR (Ex.P/12) lodged by the deceased, after his death, would be admissible as a dying declaration under Section 32 of the Indian Evidence Act (See Munnu Raja and Another Vs. The State of Madhya Pradesh (1976)3 SCC 104 ). 9. S.K. Sharma (PW-8) was the Executive Magistrate. He also recorded a dying declaration of the deceased, Ex.P/8, on 20.2.1994 itself. In the said dying declaration also, the deceased made clear allegations against appellant No. 1 Guddu @ Laxminarayan saying that the appellant threw burning chimney over him, due to which, he sustained burn injuries. We have gone through the evidence of S.K. Sharma (PW-8) and have also considered the contents of the dying declaration (Ex. P/8). On the evidence of S.K. Sharma (PW-8), it was proved that the deceased made above dying declaration before him on 20.2.1994, which he reduced into writing, vide Ex. P/8. 10. On appreciation of the above documents, we find that the deceased, thus, had made 2 dying declarations, first before the Police in form of the FIR and second before the Executive Magistrate, which was reduced into writing, vide Ex. P/8. P/8. 10. On appreciation of the above documents, we find that the deceased, thus, had made 2 dying declarations, first before the Police in form of the FIR and second before the Executive Magistrate, which was reduced into writing, vide Ex. P/8. Therefore, it was proved beyond all reasonable doubts that it was appellant No. 1 Guddu @ Laxminarayan, who threw the burning chimney over the deceased, due to which, the deceased sustained above burn injuries and succumbed to those injures on 3.3.1994. 11. Now, we shall consider as to what offence was committed by appellant No. 1 Guddu @ Laxminarayan. 12. In Sree Vijayakumar and Another Vs. State, By Inspector of Police, Kanyakumari (2005) 10 SCC 737 , the act of throwing a burning kerosene lamp on deceased by A-2 in the circumstances of the case was done on the spur of the moment. No premeditated attack was inferable from the facts and circumstances of the case. The Supreme Court held that hurling a small burning lamp towards a person need not definitely cause fire to his clothes. In the above facts and circumstances of the case, it was held that A-2 can only be imputed with the knowledge that by such a dangerous act, he was likely to cause death, and as such A-2 was liable to be convicted under Pt. II of S. 304 IPC. 13. In the instant case, appellant No. 1 was neighbour of the deceased. He was in visiting terms with the family of the deceased. In the fateful night, at about 8.00 pm, wife of the deceased, Radha Bai (PW-1), was sitting on a cot in front of her house. Appellant No. 1 Guddu @ Laxminarayan came there and sat on the cot of Radha Bai (PW-1). Thereafter, the deceased, who had gone to the market, also came there. He saw the appellant and his wife sitting on the same cot. The deceased became angry and a quarrel begun between them. It appears that on account of the above quarrel and the remarks made by the deceased, the appellant became enraged, and all of a sudden, in a spur of moment, in heat of passion, he took up the burning tamp (chimney) and threw it over the deceased. This shows that there was no preparation or premeditation on the part of appellant No. 1 Guddu @ Laxminarayan to commit murder of the deceased. This shows that there was no preparation or premeditation on the part of appellant No. 1 Guddu @ Laxminarayan to commit murder of the deceased. We are of the view that in the above facts and circumstances of the case, it cannot be held that appellant No. 1 Guddu @ Laxminarayan threw the burning lamp (chimney) upon the deceased with intent to cause his death. However, knowledge of appellant No. 1 can well be attributed that by his said dangerous act, he was likely to cause death of the deceased. We are of the view that in the above facts and circumstances of the case, an offence under Section 302 IPC would not be made out and appellant No. 1 Guddu @ Laxminarayan would be liable for punishment under Part II of Section 304 IPC. 14. So far as appellant No. 2 Shantibai and No. 3 Girjabai are concerned, we find that they were prosecuted on the evidence of Radha Bai (PW-1), who made allegations that she was restrained and threatened by them to make statement that her husband received burn injuries accidentally. The above allegation made by Radha Bai (PW-1) in her Court evidence was an omission in her case diary statement, which we have already discussed. We have held that Radha Bai (PW-1) was not a wholly reliable witness. In light of the above material omission in her case diary statement, we do not find her evidence to be sufficient to sustain the conviction of appellants 2 and 3 under Sections 201/34 IPC. 15. In the result, the appeal is partly allowed. The conviction and sentence awarded to appellant No. 1 Guddu @ Laxminarayan under Section 302 IPC are set-aside. Instead thereof, appellant No. 1 Guddu @ Laxminarayan is convicted under Section 304 Part II IPC and sentenced to undergo R.I. for 7 years. 16. The conviction and sentences awarded to appellant No. 2 Shantibai and appellant No. 3 Girjabai under Sections 201/34 IPC are set-aside. They are acquitted of the charges framed against them. Appeal Partly Allowed.