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Madhya Pradesh High Court · body

2012 DIGILAW 325 (MP)

Rajkumar v. State of M. P.

2012-03-20

A.K.SHRIVASTAVA

body2012
JUDGMENT 1. Feeling aggrieved by the judgment and conviction and order of sentence dated 25.4.1996 passed by the learned Second Additional Sessions Judge, Jabalpur in Sessions Trial No. 19/1989 convicting appellants under section 304 Part 1/34 of IPC and thereby sentencing them to suffer sentence as mentioned in the impugned judgment, the appellants have taken shelter of this Court by preferring this appeal under section 374 (2) of the Code of Criminal Procedure, 1973. 2. In brief, the case of prosecution is that on 13.11.1988 at 6.30 a.m. the hospital staff of Victoriya Hospital Jabalpur telephonically informed the concerned police station that Smt. Geeta Bai (hereinafter shall referred to as “deceased”) has been brought in burn condition at 6.20 a.m. and she has been admitted in the hospital. The said information was reduced in roznamcha No. 921 and thereafter Sub Inspector V.S. Sisodiya went to the said hospital where the deceased told him that the appellants were making demand of dowry of Rs. 10,000/- from her and on account of non-fulfilling the said demand she was being harassed. In the morning she was preparing the tea, at that juncture, second appellant who is her monther-in-law sprinkled the kerosene, while first appellant lit the match stick, as a result of which she sustained burn injuries. The investigating agency also made necessary arrangement to get her dying declaration recorded by the Executive Magistrate and eventually Executive Magistrate Shri S.P. Meshram recorded her dying declaration on 16.11.1988. A case was initially registered under section 307/34 of IPC but on account of the death of deceased it was altered to section 302/34 of IPC. 3. After the investigation was over a charge sheet was submitted in the committal Court which on its turn committed the case to the Court of Sessions and from where it was received by the Trial Court for the trial. 4. The learned Trial Judge on the basis of the material available in the charge sheet, framed charges punishable under sections 302 of IPC and in alternative 302/34 IPC against the appellants, which they denied and requested for the trial. 5. In order to bring home the charges, the prosecution examined as many as 15 witnesses and also proved Ex. P/1 to P/16, the documents on record. 5. In order to bring home the charges, the prosecution examined as many as 15 witnesses and also proved Ex. P/1 to P/16, the documents on record. The defence of the appellants is that while preparing tea, by accident her Saree caught the flames, as a result of which, she had died and the same defence they set-forth in their statement recorded under section 313 CrPC. In support of their defence they examined two witnesses namely Laxmibai (DW 1) and Shantibai (DW 2). 6. The learned Trial Court after appreciating and marshalling the evidence came to hold that appellants have committed offence under section 304 Part-1 IPC and eventually convicted the appellants and passed the order of sentence, which is mentioned in the impugned judgment. 7. In this manner, the present appeal has been filed by the appellants assailing the judgment of conviction and order of sentence. 8. It is has been put-forth by Shri R.S. Siddiqui learned counsel for appellants that the parents as well as brother of the deceased have not supported the case of the prosecution and they were declared hostile. It has also been aruged by him that conviction has been accorded solely on the basis of dying declaration (Ex. P/15) which has been recorded by Executive Magistrate Shri S.P. Meshram after three days of the incident, although the incident occurred on 13.11.1988 and no explanation has been given by the prosecution why for three days the dying declaration was not recorded. By inviting my attention to the testimony of treating doctor Shri G.K. Chourasiya (PW 6) it has been submitted by learned counsel that despite this doctor asked the deceased how she had received the burn injuries, but, she did not tell anything to him. Thus, it raises a heavy doubt about the authenticity and hallmark of the dying declaration (Ex. P/15) which has been recorded after 3 days and hence the contention of learned counsel is that the possibility of tutoring the deceased cannot be ruled out. 9. Thus, it raises a heavy doubt about the authenticity and hallmark of the dying declaration (Ex. P/15) which has been recorded after 3 days and hence the contention of learned counsel is that the possibility of tutoring the deceased cannot be ruled out. 9. Learned counsel further submits that the defence of the appellants is that while preparing tea by accident her Saree caught flames of fire, as a result of which, the deceased had died and in support of their defence they also examined Laxmibai (DW 1) and Shantibai (DW 2) who are the neighbours and to whom the deceased gave oral dying declaration that on account of accident her Saree caught fire while preparing the tea, but the learned trial Court has lightly brushed aside the testimony of defence witnesses merely because they have been examined on behalf of defence. 10. On the other hand, Shri Kesharwani learned Public Prosecutor argued in support of the impugned judgment and submitted that cogent reasons have been assigned by the trial Court convicting the appellants and therefore the appeal being sans substance, the same deserves to be dismissed. 11. Having heard learned counsel for the parties, I am of the considered view that this appeal deserves to be allowed. 12. On perusal of the entire gamut of the case, it is gathered that incident had occurred during dwan hours of 13.11.1988 when the deceased was preparing the tea, indeed it is the case of the prosecution also. According to the prosecution, the investigating agency reached the Victoriya Hospital Jabalpur immediately, but for no rhyme or reasons the dying declaration was not recorded immediately. No explanation has been given by the prosecution why investigating agency waited for another three days to record the dying declaration of the deceased which was recorded only on 16.11.1988. 13. It is borne out from the testimony of Mahesh (PW 1), Shyamabai (PW 2) and Ramlal (PW 10) who are brother, mother and father of deceased respectively that as soon as they heard about the incident, they rushed to the hospital and interacted with the deceased. 13. It is borne out from the testimony of Mahesh (PW 1), Shyamabai (PW 2) and Ramlal (PW 10) who are brother, mother and father of deceased respectively that as soon as they heard about the incident, they rushed to the hospital and interacted with the deceased. True, the witnesses were declared hostile and they have stated that nothing was said by deceased to them accusing any of the appellants but this fact has been carved out, rather proved from the testimony of these witnesses that they interacted with the deceased immediately after the incident in the hospital, and therefore if after 3 days of the incident deceased has given dying declaration to Executive Magistrate Shri S.P. Meshram vide Ex. P/15 accusing the appellants, there is possibility that dying declaration is the outcome of prompting and tutoring. 14. The law regarding dying declaration is that if the dying declaration is clear, cogent and trustworthy a conviction can be accorded solely on its basis. However, if it is a gathered from the facts and circumstances and other material on record that the dying declaration is an outcome of tutoring and prompting, in that case no reliance can be placed on it. 15. Apart from what I have held hereinabove that the dying declaration is surrounded by clouds of suspicion, the another reason to disbelieve is that the treating doctor G.K. Chourasiya (PW 6) who first treated the deceased when she was brought in the hospital in burnt condition has categorically stated in para 3 of his cross-examination that on being asked by him that how deceased received burn injuries, nothing was said by her to him. According to me, if the deceased was ablaze on account of vile act of accused persons (as the case of the prosecution that second appellant sprinkled kerosene oil while first appellant lit the match stick) certainly she would have stated to the doctor on being asked how incident had occurred. Further it would be condign to mention here that first action of the deceased when she was brought to hospital immediately after incident is having great significance and indeed it can be a turning point of the case because specifically when it was asked by treating doctor that how she had received the injuries, there was no reaction of the deceased and she kept silent. In this view of the matter dying declaration (Ex. In this view of the matter dying declaration (Ex. P/15) is surrounded by suspicious clouds since it has been recorded after three days of the incident. I have already held hereinabove that there is no reasonable explanation as to why for three days the dying declaration was not recorded by the investigating agency. Thus, in the peculiar facts and circumstances, the dying declaration of the deceased cannot be relied upon. 16. In this matter the Investigating officer has not recorded 161 CrPC statement of the deceased. If it would have been recorded, it could be also an important piece of evidence, being the dying declaration of the deceased. But, there is no reason why it was not recorded by the Investigating Officer. 17. In the present case the investigating agency did not record the statement of neighbours of the deceased and recorded the statement of parents only. According to me, the statement of neighbours were quite necessary. 18. The defence of the accused persons/appellant is that while preparing tea, the Saree of deceased caught the fire and indeed it is the case of prosecution in the dying declaration (Ex. P/15) where deceased has stated that while preparing tea the incident had occurred. This defence of appellants appears to be quite probable. In support of their defence they have also examined two witnesses namely Laxmibai (DW 1) and Shantibai (DW 2), who are neighbours of the deceased and they have categorically stated that soon after the incident when they arrived at spot an oral dying declaration was given to them by deceased that while preparing tea the accident took place and her Saree caught fire. According to me, the credential value of defence witness is at par with that of prosecution witness and merely because they have been examined by the defence, it cannot be said that their testimony is tainted. In this context, I may profitably place reliance on two decisions of Supreme Court State of Haryana v. Ram Singh AIR 2002 SC 620 and Munshi Prasad and another v. State of Bihar AIR 2001 SC 3031 . Merely because Laxmibai (DW 1) and Shantibai (DW 2) have been examined on behalf of defence it cannot be said that they will speak lie. Merely because Laxmibai (DW 1) and Shantibai (DW 2) have been examined on behalf of defence it cannot be said that they will speak lie. There is no law that the evidence of prosecution witnesses is always true or their statement is always 24 carat gold and they will speak truth or they never depose false evidence. 19. According to me and it is also well settled law that the standard of proof of defence is not that much heavy and it should not be compared with the standard of proof of prosecution. Because, the prosecution is always obliged to prove its case beyond all reasonable doubts, but for the defence, if the defence is found to be probable, due weightage should be given by placing reliance on it. The defence is only required to prove the probability and it should not be brushed aside merely because strictly it has not been proved. By testing this well settled golden principle of law of criminal jurisprudence in the present case, I find that the probable defence has been taken by the accused persons that while preparing the tea, by accident Saree of the deceased caught fire and when on seeing the incident all of them were shouting, neighbours also arrived there and to them the deceased gave oral dying declaration that on account of accident while preparing the tea, her Saree caught fire. This probable defence has been proved by the accused persons by examining the neighbours Laxmibai (DW 1) and Shantibai (DW 2) who have categorically stated that the deceased gave aforesaid oral dying declaration to them. Thus, I am of the view that defence is probable and due weightage should be given to it. 20. For the reasons stated hereinabove, I am unable to uphold the conviction of the appellants. Resultantly, this appeal succeeds and is hereby allowed. The impugned judgment of conviction and order of sentence is hereby set aside and the appellants are acquitted from all the charges. The amount of fine if deposited be refunded to the appellants. Appellants are on bail, their bail bonds shall stand discharged.