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2013 DIGILAW 21 (CHH)

SHIVKUMAR ALIAS SILLU v. STATE OF M. P. NOW C. G.

2013-01-08

Sunil Kumar Sinha, Yatindra Singh

body2013
JUDGMENT 1. This appeal is directed against the judgment dated 30th of September, 1996 passed in S.T. No. 263/1995 by the 4th Additional Sessions Judge, Bilaspur. By the impugned judgment, the Appellant has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life. 2. The facts, briefly stated, are as under: Deceased - Shivkumari @ Laxmibai was wife of the Appellant. She was married with the Appellant 10 years ago. The Gauna was performed 1 year prior to the incident, which took place on 30.12.1994. On 30.12.94, the deceased was residing with her parents in village Kota. She had came from her in-laws place (Mungeli) to Kota 3-4 days prior to the incident. Since last 2-3 days, she was missing from the house of her parents. A search was made and she was found in the house of one Santosh Kurmi. On 30.12.94, in the morning, her father Baisakhuram (PW-5) brought her to his house. On 30.12.94 itself, at about 11.30 am, the deceased received bum injuries in the house of her father Baisakhuram (PW-5). At that time, her mother- Urmilabai (PW-11) and her niece - Sunita (PW-4) were also present in the house. Baisakhuram (PW-5) lodged a report to Police Station, Kota, which was reduced into Rojnamcha Sanha No.1042 (Ex.P/8-C) at about 11.30 am. In the said report, Baisakhuram (PW-5) mentioned that the deceased had tried to commit suicide by putting herself on fire after pouring kerosene on her body. The deceased was sent to Primary Health Centre, Kota for her medical examination vide requisition Ex. P/13-A. Her medical examination was conducted by Dr. A.V. Chipde (PW-13). He found 100% superficial burn injuries on the body of the deceased. She was admitted in the Hospital and was referred for District Hospital, Bilaspur. The M.L.C. report of the deceased is Ex. P/13. The case of the prosecution is that after taking the report in Rojnamcha Sanha, the Executive Magistrate, A. Tirkey (PW-6), was requested to record the dying declaration. He had gone to the Hospital and had recorded the dying declaration (Ex.P/7) at about 11.50 am on 30.12.94. In the dying declaration, the deceased made allegations that she was put on fire by the Appellant after pouring kerosene on her body. The dying declaration was handed over to the Police and thereafter, a First Information Report (FIR Ex.P/14) was registered under Section 307 IPC. In the dying declaration, the deceased made allegations that she was put on fire by the Appellant after pouring kerosene on her body. The dying declaration was handed over to the Police and thereafter, a First Information Report (FIR Ex.P/14) was registered under Section 307 IPC. The deceased died during the course of her treatment on 8.1.95. The case of the prosecution was solely based on the dying declaration of the deceased. The Sessions Judge relied on the dying declaration and held that it was proved beyond all reasonable doubts that the Appellant put the deceased on fire after pouring kerosene on her body, therefore, he was liable for punishment under Section 302 IPC. The Appellant, thus, was convicted and sentenced as above. Hence, this appeal. 3. Smt. Renu Kochar, counsel appearing on behalf of the Appellant has argued that there are many infirmities in the dying declaration; it appears to be unbelievable on the face of it; there are many manipulations in it by different ink; it appears to be suspicious, therefore, the conviction based on the solitary evidence of dying declaration cannot be sustained. 4. On the other hand, Shri D.K. Gwalre, Government Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. 5. We have heard counsel for the parties at length and have also perused the records of the Sessions Case. 6. A. Tirkey (PW-6) is the Executive Magistrate, who has recorded the dying declaration of the deceased. He deposed that on 30.12.94, on the request of the Station House Officer of Police Station, Kota, he had recorded the dying declaration of the deceased. At that time, the deceased was conscious and was able to give the statement (dying declaration). He had obtained a certificate from the concerned Doctor over the dying declaration that the deceased was in a position to record it. The persons of the family of the deceased were also present at the time of recording dying declaration. The contents of the dying declaration would show that "father of the deceased was sending her to her in-laws place, as her husband had come to take her, but the deceased was not willing to go, therefore, her husband (the Appellant) poured kerosene over her body and put her on fire by using a match stick". 7. The contents of the dying declaration would show that "father of the deceased was sending her to her in-laws place, as her husband had come to take her, but the deceased was not willing to go, therefore, her husband (the Appellant) poured kerosene over her body and put her on fire by using a match stick". 7. We find that in 3rd line of dying declaration, the time of recording dying declaration as 11.50 am has been inserted by different ink. Likewise, a note has been appended in the last portion of the dying declaration, by which it has been inserted by a different ink that "both the thumbs of the deceased were in burnt condition, therefore, the thumb impression was not taken". These 2 portions in the dying declaration apparently appear to be manipulations by insertion in the said document on the face of it. About the above infirmity, a question was asked to the Executive Magistrate, to which he answered in last paragraph of his statement that it is true that there is a change in the ink at those places and it may be that he may have used a different pen for writing the above 2 portions in the dying declaration. The said explanation given by the Executive Magistrate does not appear to be correct. The dying declaration must have been recorded in sequence and not in the piecemeal. If the Magistrate had chosen to use another pen after writing 3 lines in the dying declaration, in normal human conduct, he should have continued with the same pen unless there was some reason to use another pen again. But this was not done. These 2 portions clearly appear to be written by a similar pen. Why 2 different pens were used for recording the dying declaration has not been properly explained by the Executive Magistrate. Thus, we take that the above 2 portions included in the dying declaration were manipulated with intent to show that the said dying declaration was recorded at about 11.50 am, and to explain that at that time, thumbs of the deceased were in burnt condition, so the thumb impressions were not taken by the Executive Magistrate. 8. According to A. Tirkey (PW-6), Executive Magistrate, after recording the dying declaration on 30.12.94, he sent it to the Police on the same day, but it was not sent in a closed cover. 8. According to A. Tirkey (PW-6), Executive Magistrate, after recording the dying declaration on 30.12.94, he sent it to the Police on the same day, but it was not sent in a closed cover. This he has deposed in para 7 of his evidence, whereas, the Investigating Officer, J.S. Bhadoria (PW-15) - Town Inspector has deposed in para 4 of his evidence that he had received the dying declaration (Ex. P/7) in the morning of 9.1.95. The above contradiction in the evidence of these 2 witnesses has not been explained by the prosecution. 9. We find that FIR (Ex.P/14) was lodged on the basis of said dying declaration on 9.1.1995. This was registered under Section 307 IPC because according to the dying declaration and other information received by Kota Police, till lodging of the FIR, the deceased was alive. We further find from perusal of FIR (Ex.P/14) that in this document also same manipulations relating to same facts, which were manipulated in the dying declaration, have been mentioned at place 'B to B' and 'C to C'. This shows that in fact, the above 2 manipulations in the dying declaration were not there at the time of recording dying declaration and they were made at some later point of time. This also makes the dying declaration suspicious. 10. In the introductory part of the dying declaration, the deceased has allegedly stated that her father was saying that she has committed suicide, but it was not correct and she was put to fire by her husband. How the deceased, at the time of recording dying declaration, knew that her father was saying that she burnt herself in his house. The deceased after the incident was taken to the Hospital and she may not be in a position to know about the first version of her father, which he gave to the Police at the time of recording Rojnamcha Sanha Ex.P/8-C. This also creates a doubt on the contents of the dying declaration that the deceased in fact, gave such declaration before the Executive Magistrate-A. Tirkey (PW-6). 11. 11. Besides the above, if we believed the contents of the dying declaration, it was recorded at about 11.50 am, whereas, the Executive Magistrate- A. Tirkey (PW-6) admitted in first paragraph of his cross-examination (para 6) that the information for recording dying declaration was received by him prior to 9.00 am and thereafter, he went to the Hospital and 20 minutes thereafter, he recorded the dying declaration. Not only this, he admitted in clear words that he had recorded the dying declaration prior to 10.00 am, whereas, the time mentioned in the dying declaration is 11.50 am. 12. We further note that the very genesis of the case was the Rojnamcha Sanha (Ex.P/8-C) lodged by the father of the deceased. The Rojnamcha Sanha itself was recorded at about 11.30 am. When the first Sanha, which was the genesis of the investigation, was recorded at 11.30 am, how the dying declaration could be recorded prior to this time? Because according to the prosecution when report of bum injuries was made at 11.30 am, then only the Magistrate was requested to record the dying declaration. 13. Even if we ignore the above evidence of the Executive Magistrate and take the time of 11.50 am to be the correct time of recording the dying declaration, it also does not appear to be probable, because after recording the Rojnamcha Sanha at 11.30 am and sending a request letter to the Executive Magistrate, and then recording dying declaration, would take some time and in that situation also it does not appear to be plausible that the dying declaration could have been recorded at 11.50 am. All these facts create doubt on the dying declaration-Ex.P/7. 14. Admittedly, 3 inmates of the house namely- Baisakhuram (PW-5), Urmilabai (PW-11) and Sunita (PW-4) were present at the time of the incident. 15. Baisakhuram (PW-5) deposed that he wanted to send the deceased to her in-laws place, but she was not ready to go. The deceased had come to his house 4-5 days prior to the incident, but she was not residing in his house since last 2 days. In para 12 of his cross-examination, he deposed that on the date of incident, he has brought the deceased from the house of one Santosh Kurmi, with whom she was in love, and thereafter, she put herself on fire by pouring kerosene on her body. In para 12 of his cross-examination, he deposed that on the date of incident, he has brought the deceased from the house of one Santosh Kurmi, with whom she was in love, and thereafter, she put herself on fire by pouring kerosene on her body. Baisakhuram (PW-5) has been declared hostile by the prosecution and was confronted with his case diary statement, but he has denied the facts mentioned in his diary statement and stuck to the version, which he gave to the Police at the time of lodging Rojnamcha Sanha report (Ex. P/8-C). 16. Urmilabai (PW-11) has also deposed that she was present at the time of incident in her house and the deceased herself put her on fire by pouring kerosene on her body. 17. Sunita (PW-4) is a child witness. She is niece of the deceased. She was also present in the house at the time of incident. She has deposed that on the date of incident, at about 10.00 am, her aunt (the deceased) poured kerosene over her body and she herself put her on fire. Why the real father and mother of the deceased would cancel the name of actual culprit of their daughter if, in fact, she was burnt and they had witnessed it. 18. Shri D.K. Gwalre, Government Advocate has argued that it comes in the evidence of these witnesses that the Appellant was also present in their house at the time of incident. 19. Even if the Appellant was present in the house of Baisakhuram (PW-5) at the time of incident, in absence of any proof that he put the deceased on fire, nothing can be attributed to him. Apart from the above dying declaration, which we have found to be suspicious, there is no positive evidence on record to connect the Appellant with the aforesaid crime. 20. We are of the view that in the above facts and circumstances of the case, the learned Sessions Judge was not justified in relying on the solitary evidence of the dying declaration (Ex.P/7) for convicting the Appellant under Section 302 IPC. 21. For the foregoing reasons, the appeal is allowed. The conviction and sentence awarded to the Appellant under Section 302 IPC are set-aside. The Appellant is acquitted of the charges framed against him. It is stated that the Appellant is on bail. 21. For the foregoing reasons, the appeal is allowed. The conviction and sentence awarded to the Appellant under Section 302 IPC are set-aside. The Appellant is acquitted of the charges framed against him. It is stated that the Appellant is on bail. His bail bonds shall continue for a further period of 6 months in view of the provisions of Section 437-A Cr.P.C. Appeal Allowed.