Research › Search › Judgment

Madhya Pradesh High Court · body

2013 DIGILAW 1279 (MP)

Badu v. State of M. P.

2013-10-24

A.K.SHRIVASTAVA, VIMLA JAIN

body2013
JUDGMENT Shrivastava, J. -- 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 30.11.2005 passed by learned First Additional Sessions Judge, Betul in Sessions Trial No.121/2002 convicting appellant for the offence punishable under section 302 of IPC and thereby sentencing him to suffer life imprisonment, this appeal has been preferred by the appellant under section 374(2) of the Code of Criminal Procedure, 1973. 2. In brief, the case of the prosecution is that on 15.3.2002 at about 10:00 p.m. Baby Bai (hereinafter shall be referred to as ‘deceased’), who is the wife of appellant, was lying the bed for her husband (appellant). At that juncture, some altercation took place between the appellant and deceased and thereafter the appellant gave a kick upon her abdomen, as a result of which, she fell down and thereafter the appellant after pouring the kerosene from the Kuppi, threw a burning match-stick upon her, as a result of which she sustained burn injuries. But, she died after 3 months of the incident. The deceased who was alive at that time was sent to hospital where her dying declaration was recorded by Dr. M.A. Ansari (PW14). After the death of deceased, the case was altered from section 307 to section 302 of IPC. 3. By making the appellant as an uxoricide the investigating agency investigated the matter. After the investigation was over, a charge-sheet was submitted in the committal Court which committed the case to the Court of Session from where it was received by the trial Court for trial. 4. The learned trial Judge on the basis of material available on record, framed the charge punishable under section 302 of IPC. Needless to say that appellant abjured his guilt and pleaded complete innocence. 5. In order to bring home the charge of section 302 of IPC against the appellant, the prosecution examined as many as sixteen witnesses and placed Ex.P-1 to P-32, the documents on record. The defence of the appellant is of maladroit implication and the same defence he set-forth in his statement recorded under section 313 CrPC but in support of his defence he did not choose to examine any witness. In his statement under section 313 of CrPC he has given explanation that when deceased received burn injuries, he tried to save her. 6. In his statement under section 313 of CrPC he has given explanation that when deceased received burn injuries, he tried to save her. 6. The learned trial Judge on the basis of evidence placed on record came to hold that the charge has been proved against the appellant and eventually convicted him and passed the order of sentence which we have mentioned in paragraph 1 of this judgment. 7. In this manner, this appeal has been filed by the appellant assailing his judgment of conviction and order of sentence. 8. In his usual vehemence, Shri Pushpraj Pandey, learned counsel for the appellant by inviting our attention to the dying declaration of deceased has contended that she was not in such a condition that she could depose the dying declaration and if that is the position, learned trial Judge has erred in convicting the appellant under section 302 of IPC by holding that appellant is an uxoricide. An alternative submission has also been put-forth by learned counsel that if this Court comes to the conclusion that appellant has set her ablaze, since the deceased had died after about three months of incident, as she died on 9.6.2002 although the incident had occurred on 15.3.2002 and further that deceased had died on account of septicemia, therefore, at the most case would rest within the ambit and scope of section 326 of IPC. It has been submitted by learned counsel that on 16.3.2002 deceased was admitted to the hospital where her dying declaration (Ex.P-25) was recorded when her treatment was undergoing and was in the hospital upto 23.3.2002. However, the mother of deceased, against the medical advice, carried the deceased with her from the hospital. However, when her condition became more deteriorated at the house of her mother, she was again admitted in the hospital where she breathed her last and therefore at the most the case would rest within the purview of section 326 of IPC. In this regard learned counsel has invited our attention to the decision of Supreme Court in B.N. Kavatakar and another v. State of Karnataka [1994 Supp.(1) SCC 304]. 9. In this regard learned counsel has invited our attention to the decision of Supreme Court in B.N. Kavatakar and another v. State of Karnataka [1994 Supp.(1) SCC 304]. 9. On the other hand, Shri Mishra, learned Public Prosecutor has argued in support of impugned judgment and submitted that learned trial Court did not commit any error in convicting the appellant under section 302 of IPC holding the appellant to be an uxoricide and hence prayed that this appeal be dismissed. 10. Having heard learned counsel for the parties, we are of the considered view that this appeal deserves to be allowed in part. 11. In the present case, the entire case of the prosecution rests upon the pivot of dying declaration. The dying declaration is based upon the maxim “nemo moriturus praesumitur mentire” which means a man would not like to meet with his maker by keeping a lie in his mouth. By keeping this legal maxim in our mind, we have examined the hallmark and genuineness of the dying declaration (Ex.P-25). On x-raying the dying declaration we find that it was recorded at 1:30 a.m. on 16.3.2002 by Dr. M.A. Ansari (PW14). On going through the testimony of said doctor as well as dying declaration (Ex.P-25), we find that deceased specifically told the doctor that in the night altercation and hot talk took place between the deceased and appellant and thereafter all of a sudden appellant stood-up and poured the kerosene and lit the fire. Although Dr. M.A. Ansari (PW14) was cross-examined at length, but, he remained firm in his version despite there being roving cross-examination over him. Hence, we find that dying declaration (Ex.P-25) has been emphatically proved. Not only this, the investigating agency also recorded the statement under section 161 of CrPC of deceased and after her death this document would also become her dying declaration and in this document also, it has been stated by deceased that a quarrel took place earlier to the incident between her and appellant and thereafter appellant set the fire on her. Hence, according to us, learned trial Court did not err in holding that appellant set the fire upon the deceased. 12. However, this would not end the matter. Autopsy Surgeon Dr. Hence, according to us, learned trial Court did not err in holding that appellant set the fire upon the deceased. 12. However, this would not end the matter. Autopsy Surgeon Dr. Ashokar Baranga (PW15) in para 8 of his cross-examination has specifically admitted that deceased who was admitted in hospital on 16.3.2002 at 00:55 hours thereafter on 23.3.2002 she had voluntarily without any advice of doctor and without taking permission from the doctor and hospital staff, left the hospital on 23.3.2002 along with her mother. Thus, we think it apposite to consider the testimony of Kamla Bai (PW1), who is the mother of deceased, who has categorically deposed in para 10 of her deposition sheet that she voluntarily carried the deceased from the hospital by writing a note that voluntarily she is carrying her and she would be responsible if anything happens to the deceased. Admittedly, deceased had died on 9.6.2002 and Autopsy Surgeon Dr. Ashokar Baranga (PW15) has admitted during cross-examination that deceased had died on account of septicemia. In that regard para 5 of the deposition of Autopsy Surgeon may be seen. According to us, since voluntarily the deceased had gone against the medical advice along with her mother and thereafter the infirmity in her body developed the complications during the long period of three months and eventually she had died on account of septicemia. In these facts and circumstances, the case of appellant would rest within the ambit and sweep of section 326 of IPC. In this regard decision of B.N. Kavatakar (supra), placed reliance by learned counsel for appellant is squarely applicable. 13. That apart, the appellant himself sustained burn injuries in his hands in the incident and his burn injuries are proved by Dr. M.A. Ansari (PW14), who has categorically stated that he examined the appellant and found that he was having superficial burn injuries on his both the hands. At this juncture, we have given our anxious and bestowed consideration to the statement of appellant recorded under section 313 of CrPC, who has categorically exaplained and stated that he too had received burn injuries. Thus, according to us, the appellant must have tried to save deceased. At this juncture, we have given our anxious and bestowed consideration to the statement of appellant recorded under section 313 of CrPC, who has categorically exaplained and stated that he too had received burn injuries. Thus, according to us, the appellant must have tried to save deceased. However, the deceased had died on account of septicemia and the said informity in the body developed on account of carelessness of deceased herself, therefore, she herself is responsible for her death, but, since she was set to fire by appellant, he has committed the offence punishable under section 326 of IPC. 14. Resultantly, this appeal succeeds in part. Conviction of appellant is altered from section 302 IPC to section 326 of IPC and he is sentenced to suffer eight years rigorous imprisonment, which he has already suffered. Appellant is in jail. He be set at libertyforthwith, if not required in any other case.