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2013 DIGILAW 1338 (MP)

Sanjeev Girraj Kirar v. State of Madhya Pradesh

2013-11-11

B.D.RATHI, BRIJ KISHORE DUBE

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JUDGMENT B.D. Rathi, J. This appeal under Section 374 of the Code of Criminal Procedure, 1973 (in short “the Code”) has been preferred by the appellant being aggrieved from the judgment of conviction dated 10-01-2006 passed by learned Special Judge, [Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act)], Guna (MP) in Special Sessions Trial No.176/2003, whereby appellant has been convicted under Section 302 of Indian Penal Code (in short “IPC”) and sentenced to undergo life imprisonment with fine of Rs.5,000/- with default stipulation. At the same time, appellant was acquitted of the offence punishable under Sections 450, 376/511 of IPC and under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short “the Act”). 2. The prosecution story, in brief, is that on 01-09-2003 about 2:30 p.m., the appellant entered into the house of prosecutrix (since deceased), situated at village Endwada District Guna with an intention to commit rape with the prosecutrix and set her at fire after dousing the kerosene and at the same time, poured water to save her from death. Thereafter, the prosecutrix was taken to police station where FIR Ex-P/12 was lodged by her and crime No.54/2003 was registered at Police Station Dharnawada District Guna for the offence punishable under Sections 376, 511, 307 and 454 of IPC and under Section 3(2) (v) of the Act. On completion of investigation, charge-sheet was filed also for the offence punishable under Section 302 of IPC. It is pertinent to mention here that the prosecutrix had died on 06-09-2003 during treatment. 3. During the trial, the accused pleaded not guilty to the charges and contended that he had been falsely implicated. 4. It is argued on behalf of the appellant that trial Court has not properly appreciated the evidence on record and he prayed for acquittal of appellant on the ground that in all the three dying-declarations there were so many discrepancies and therefore, on the basis of such dying-declarations, conviction cannot be sustained. 4. It is argued on behalf of the appellant that trial Court has not properly appreciated the evidence on record and he prayed for acquittal of appellant on the ground that in all the three dying-declarations there were so many discrepancies and therefore, on the basis of such dying-declarations, conviction cannot be sustained. It is also submitted that in the bed head ticket, injury report and in FIR, for identification purpose name of the father of deceased and name of husband of the deceased were mentioned but in dying declaration Ex-P/33 recorded by the Executive Magistrate neither the name of father nor the name of husband of the deceased was mentioned, therefore, this document cannot be taken into consideration as the dying declaration of deceased. Alternatively, it was also argued that at the most appellant can be convicted for the offence under Section 304 Part II of IPC. 5. Learned Public Prosecutor on the other hand defended the conviction and sentence of the appellant. 6. To bring home the charges prosecution has examined as many as 17 witnesses, namely, Kailash (PW-1), Geeta Bai (PW-2), Laxmibai (PW-3), Suresh (PW-4), Dr. Y.S. Raghuvanshi (PW-5), Harishankar Chaubey (PW-6), Shyamlal (PW-7), Jitendra Singh (PW-8), Karodimal (PW-9), Jainarayan (PW-10), Dr. R.K. Jain (PW-11), Dr. B.K. Kushwah (PW-12), S.P. Sharma (PW-13), G.S. Jadon (PW-14), Shyam Sundar Khare (PW-15), Dr. P.K. Sharma (PW-16) and Dr. C.S. Jain (PW-17). In defence, appellant had also examined Madho as DW-1. 7. Having regard to the arguments advanced by the parties, we have perused the entire evidence and material available on record as well as the impugned judgment of trial Court. 8. Now it is well-settled that where after making the statement before the police, the victim succumbs to her injuries the statement can be treated as a dying declaration and is admissible under Section 32(1) of the Indian Evidence Act (Munnu Raja v. The State of Madhya Pradesh, AIR 1976 SC 2199 ). The trial Court was, thus, fully justified in treating the first information report of prosecutrix as her dying declaration. 9. After taking into consideration, learned trial Court has held in paragraph 35 of its judgment that there is no discrepancy in dying declaration Ex-P/12 (FIR) and Ex-P/33 dying declaration recorded by Executive Magistrate. The trial Court was, thus, fully justified in treating the first information report of prosecutrix as her dying declaration. 9. After taking into consideration, learned trial Court has held in paragraph 35 of its judgment that there is no discrepancy in dying declaration Ex-P/12 (FIR) and Ex-P/33 dying declaration recorded by Executive Magistrate. We have also gone through the entire evidence and record of the trial Court, in our considered view, trial Court has rightly held that there was no discrepancy in between these two documents. In both the documents, it was clearly and categorically stated by the prosecutrix that she was set at fire by the appellant after pouring the kerosene. 10. So far as the submission in regard to identification of the declarant (prosecutrix) of the dying declaration Ex-P/33 is concerned, arguments advanced by the learned counsel for the appellant are not acceptable because specific questions were not asked during cross-examination from the Executive Magistrate who had recorded the dying declaration Ex-P/33 by the defence. 11. The question which now calls for consideration is whether even on accepting the prosecution version in totality, the offence against the appellant would be under Section 302 or Part II of Section 304 of IPC. 12. Recently, in the case of Muthu v. State, AIR 2008 SC 1 , it has been held by Supreme Court that when in the heat of the moment and in a fit of anger a person does not act without premeditation that person must also be punished but his punishment should be lesser than that of premeditated offences. The Supreme Court has observed that it is for this reason that Exceptions 1 and 4 have been inserted in Section 300 of the IPC. Exception 4 to Section 300 of the IPC clearly provides that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. 13. In Kaluram v. State of Rajasthan, AIR 2000 SC 3630 , it is held by the Supreme Court that the accused in a highly inebriated stage approached his wife and demanded her ornaments for raising money to buy liquor. On refusal by her to oblige, the accused got infuriated and doused her with kerosene, because he wanted her to die. In Kaluram v. State of Rajasthan, AIR 2000 SC 3630 , it is held by the Supreme Court that the accused in a highly inebriated stage approached his wife and demanded her ornaments for raising money to buy liquor. On refusal by her to oblige, the accused got infuriated and doused her with kerosene, because he wanted her to die. For this reason he even supplied a box of matchstick to her. When she failed to ignite the matchstick, accused collected the matchstick, lit one matchstick, and set her ablaze. However, when the flames were flared up the accused poured water to save her from death. The Supreme Court held that accused only had the intention to inflict burns to his wife and to frighten her but the situation slipped out of his control and it went to the fatal extent. Conviction was, therefore, altered from Section 302 of IPC to 304 Part II of IPC. 14. In the present case also the appellant without any premeditation set fire on the clothes of the prosecutrix after dousing her with kerosene. The incident admittedly took place when prosecutrix resisted the appellant to commit rape. In FIR (Ex-P/12), a dying declaration, it was mentioned that the prosecutrix was set at fire and when she cried appellant immediately to put off the fire poured water on her from a bucket. This conduct of appellant cannot be ignored. Most probably he would not have anticipated that the act done by him would have escalated to such a proportion that prosecutrix might die. If he had an intention to kill her, he would not have altered his senses to put off the fire in an effort to rescue her. We are, therefore, inclined to think that all that the appellant thought of was to inflict burns to prosecutrix and to frighten her but unfortunately the situation slipped out of his control and it went to the fatal extent. Having regard to the facts of the case and following the above referred decisions of the Supreme Court, we hold that the act committed by the appellant would fall under Section 304 Part II and not under Section 302 of IPC. 15. Having regard to the facts of the case and following the above referred decisions of the Supreme Court, we hold that the act committed by the appellant would fall under Section 304 Part II and not under Section 302 of IPC. 15. Consequently, we set aside the conviction of the appellant under Section 302 of IPC and sentence of life imprisonment imposed to him with a fine of Rs.5000/- and instead convict him under Section 304, Part II of IPC and impose a sentence of ten years rigorous imprisonment. The appellant is reportedly in jail. He be released on his undergoing the jail sentence imposed by us, if not already undergone. Fine amount if deposited be refunded to the appellant. With the above modification, the appeal is partly allowed. Copy of the judgment along with record be sent to the trial Court for information and compliance. Appeal partly allowed.