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2013 DIGILAW 416 (MP)

Gajendra Singh Chouhan v. State of M. P.

2013-03-25

RAKESH SAKSENA, VIMLA JAIN

body2013
JUDGMENT : RAKESH SAKSENA, J. 1. Appellant has preferred this appeal against the judgment dated 19th September, 2001 passed by Sessions Judge, Bhopal in Sessions Trial No. 73/2001, convicting the appellant under section 302 of the Indian Penal Code on two counts and sentencing him to imprisonment for life with fine of Rs. 500/- on each count. In default of payment of fine, further imprisonment for three months. Both the sentences to run concurrently. 2. In short, the prosecution case is that the deceased persons viz. Guddu and his wife Basanti Bai lived in village Kajalikheda. On 20-11-2000, around 8-9 O' clock in the night, when they were at their house in which they used to run tea shop also, appellant Gajendra along with his two associates reached there and demanded money. On refusal by Guddu, he picked up a can of kerosene kept in the shop and poured kerosene on him and Basanti Bai, and set fire to them. When Guddu tried to extinguish the fire of his wife, he also got burnt. Papoo (PW-2) and his mother Rajo (PW-3) reached there and extinguished the fire. Appellant and his associates ran away. Papoo, in his truck carried Guddu and Basanti Bai to Hamidia Hospital, Bhopal for treatment. Guddu gave a report to Sub Inspector Purnendra Singh (PW-13) which was recorded by him at Hamidia Hospital as Dehati Nalishi Ex.P/18. On the basis of said report, first information report Ex.P/18-A was registered at police station Kolar Road under sections 307 and 34 of the Indian Penal Code. Due to burn injuries, both the injured persons died. Thereafter, the case was converted to one under section 302 of the Indian Penal Code. 3. During treatment, dying declarations Ex.P/13 and Ex.P/14 of both the deceased persons were recorded by Executive Magistrate Maqsood Ahmed (PW-7). After the death, dead body of Guddu was sent to Medico Legal Institute, Bhopal, where Dr. Ashok Sharma (PW-4) conducted autopsy of his body. The dead body of Basanti Bai was sent to Gandhi Medical College, Bhopal, where Dr. V.K. Athwal (PW-11) conducted autopsy of her body. After arrest of the accused/appellant and further requisite investigation, charge-sheet was filed and the case was then committed for trial. 4. During trial, appellant abjured his guilt and pleaded false implication. The dead body of Basanti Bai was sent to Gandhi Medical College, Bhopal, where Dr. V.K. Athwal (PW-11) conducted autopsy of her body. After arrest of the accused/appellant and further requisite investigation, charge-sheet was filed and the case was then committed for trial. 4. During trial, appellant abjured his guilt and pleaded false implication. According to him, though he did not know to deceased persons, but false dying declarations were made by them against him. 5. Learned Sessions Judge, upon trial after appreciation of evidence held appellant guilty, convicted and sentenced him as mentioned above. 6. Learned counsel for the appellant submitted that the eye witnesses and other main witnesses of the prosecution did not support the prosecution case, yet learned Sessions Judge mis-appreciating the evidence of dying declarations held the appellant guilty. Learned Sessions Judge committed error of law and facts in holding the dying declarations reliable in the absence of any supporting evidence. On the other hand, learned counsel for the State submitted that the evidence of dying declaration of deceased Guddu recorded by Executive Magistrate was clear and reliable. It stood corroborated from the evidence of dying declaration of Basanti Bai, the statement of deceased Guddu recorded by Investigating Officer Purnendra Singh (PW-13) and also by the evidence of Dr. Pankaj Tiwari, C.M.O. 7. We have heard the learned counsel for the parties and perused the impugned judgment and the evidence on record carefully. 8. It has not been disputed by appellant that both the deceased persons died of burn injuries, Mangilal (PW-1) and Rajobai (PW-3), respectively the father and mother of deceased Guddu, and Papoo Singh (PW-2) deposed that on hearing cries they reached at the spot and saw Guddu and Basanti Bai in burnt condition. They extinguished the fire. Papoo carried deceased persons to hospital in his truck. Papoo also gave information Ex.P/6 about the burning of deceased persons at police station Kolar Road which was recorded by Head Constable Sultan Singh (PW-9). Dr. Pankaj Tiwari (PW-10) stated that on 20-11-2000, he examined the injuries of Guddu and Basanti Bai. According to him, there was smell of kerosene in their bodies. There were 90% burn injuries on the body of Guddu, whereas Basanti Bai had suffered 100 % burn injuries. He recorded medical reports Ex.P/16 and Ex.P/17. Both the injured persons died in the hospital. According to him, there was smell of kerosene in their bodies. There were 90% burn injuries on the body of Guddu, whereas Basanti Bai had suffered 100 % burn injuries. He recorded medical reports Ex.P/16 and Ex.P/17. Both the injured persons died in the hospital. Police conducted inquest proceedings and recorded memorandums Ex.P/1 and Ex.P/2 and referred the bodies of deceased persons for post-mortem examination. 9. Dr. Ashok Sharma (PW-4) of Medico Legal Institute, Bhopal conducted autopsy of the body of Guddu and found second and third degree burns on it. The burns were on face, chest, abdomen, both thighs, back and scalp. Except burn injuries, there was no other injury on the body. The death of deceased, in his opinion, occurred due to ante-mortem burn injuries. He recorded the post-mortem examination report Ex.P/9 and signed it. 10. Dr. V.K. Athwal, Assistant Professor of Gandhi Medical College, Bhopal conducted autopsy of the body of Basanti Bai and found burn injuries of second and third degree on her face, neck and chest. Similar burn injuries were found on her both hands, shoulders, back, neck, both legs, knees, face and foot. These burn injuries were also ante-mortem in nature. From the aforesaid evidence, it stood established that both the deceased persons died due to ante-mortem burn injuries. 11. Now, it is to be seen whether burn injuries to deceased persons which resulted into their death, were caused by appellant. 12. Executive Magistrate Maqsood Ahmed (PW-7) deposed that on 20-11-2000, police requisitioned him for recording the dying declarations of Guddu and Basanti Bai, who were admitted in Hamidia Hospital, Bhopal. He went there and recorded their dying declarations. Before recording the said dying declarations, he sought opinion of the doctor on duty about their fitness. The doctor endorsed his opinion about the fitness of the patient on the dying declaration Ex.P/13. On questioning, Guddu stated that “while he and his wife were sitting in his shop, his mother was cooking, Gajendra Singh reached there and poured kerosene on him and ignited.” According to Maqsood Ahmed (PW-7), in the dying declaration Ex.P/14, Basanti Bai stated that “at about 8-9 0' clock, at her house while she was warming up milk on a stove in her shop, that ignoble person poured kerosene on her. Since, she was standing near a stove, she got burnt. He was dairy wala. Since, she was standing near a stove, she got burnt. He was dairy wala. She knew him by face, but did not know his name. Mother-in-law was cooking and her husband was warming up in the courtyard. When she caught fire her husband came to save her and stuck to her, therefore, he also got burnt. Kerosene was kept in a can in the shop. Assailant had come in a jeep. There were three persons.” Both the deceased persons stated that the incident occurred because of some money dispute. Maqsood Ahmed (PW-7) in respect of Basanti Bai had also obtained opinion of the doctor about her fitness to make statement and had got it recorded on Ex.P/14. 13. Dr. Nitin Garg (PW-8) who was posted as R.S.O. in Hamidia Hospital, Bhopal deposed that Guddu and Basanti Bai were admitted in Hamidia Hospital as a burn case. Executive Magistrate had come to record their dying declarations. After examining both the patients, he had certified that both the persons were mentally and physically fit to give dying declarations. He had recorded his endorsements on Ex.P/13 and Ex.P/14. Both the dying declarations were recorded in his presence. He had signed both the endorsements. He firmly denied that he recorded his endorsements under compulsion of police. 14. Despite roving cross examination of Executive Magistrate Maqsood Ahmed (PW-7) and Dr. Nitin Garg (PW-8), there appeared nothing to indicate that they had any grudge or animosity against the appellant. Even otherwise both of them were public servants and had recorded the dying declarations in discharge of their duties. 15. Apart from the above evidence of dying declarations, there is also evidence of Dr. Pankaj Tiwari (PW-10), who examined both the deceased persons when they were brought in burnt condition to hospital. Dr. Pankaj Tiwari deposed that when Guddu and Basanti Bai were brought to hospital, they informed him that around 8 O' clock in the night, Gajendra Singh poured kerosene and ignited them. This fact was recorded by him in their injury reports Ex.P/16 and Ex.P/17. In our opinion, there appears no reason to disbelieve the evidence of Dr. Tiwari. From his evidence, it is manifestly clear that immediately after Guddu and Basanti Bai were brought to hospital they disclosed to Dr. Tiwari that appellant Gajendra Singh set fire to them after pouring kerosene. Evidence of Dr. In our opinion, there appears no reason to disbelieve the evidence of Dr. Tiwari. From his evidence, it is manifestly clear that immediately after Guddu and Basanti Bai were brought to hospital they disclosed to Dr. Tiwari that appellant Gajendra Singh set fire to them after pouring kerosene. Evidence of Dr. Tiwari (PW-10) supplied a strong corroboration to the evidence of Executive Magistrate Maqsood Ahmed (PW-7). Yet another piece of evidence appeared in the form of Dehati Nalishi Ex.P/18 recorded by Inspector Purnendra Singh (PW-13) on the information given by deceased Guddu. In this report, details about the occurrence were furnished by Guddu. For the sake of convenience, the contents of Ex.P/18 are reproduced as under. 16. Learned counsel for the appellant argued that the aforesaid dying declarations were suspicious because father and mother of deceased viz. Mangilal (PW-1) and Rajobai (PW-3) and Papoo Singh (PW-2) did not support the prosecution case and expressed their ignorance about the person, who caused burn injuries to deceased persons. Learned counsel submitted had the aforesaid witnesses seen appellant setting fire to deceased persons, they would have certainly spoken so before the Court. Before entering into appreciating the evidence of aforesaid witnesses, it is significant to note that Papoo Singh (PW-2) and Rajobai (PW-3) disowned their versions which they had given under section 161 of the Code of Criminal Procedure, therefore, they were declared hostile. 17. As far as the evidence of Mangilal (PW-1) is concerned, he stated that in the night Guddu and Basanti Bai got burnt; they were taken to hospital where they died, but he expressed his ignorance as to when and how the incident occurred and how Guddu and Basanti Bai got burnt. When he received information in the night at about 11 O'clock, he went at the shop and found two policemen present there. The evidence of this witness is of no use since neither he happened to be an eye witness nor he met deceased persons before their death. 18. Rajobai (PW-3) stated that in the night while she was cooking food she heard some sound then she saw Guddu and Basanti Bai burning. According to her, she and Papoo extinguished the fire and then she became unconscious. Papoo took Guddu and Basanti Bai to hospital in his truck where they died. 18. Rajobai (PW-3) stated that in the night while she was cooking food she heard some sound then she saw Guddu and Basanti Bai burning. According to her, she and Papoo extinguished the fire and then she became unconscious. Papoo took Guddu and Basanti Bai to hospital in his truck where they died. She stated that neither she saw how Guddu and Basanti Bai got burnt nor Guddu told anything about it to her. This witness was declared hostile. She was confronted with her police statement Ex.P/8, wherein she stated that Gajendra Singh along with his two associates burnt Guddu and Basanti Bai, but she denied of having made any such statement. Similarly Papoo Singh (PW-2), who carried deceased persons to hospital in his truck stated that he saw Guddu and Basanti only in burnt condition. He extinguished their fire, but none of them told to him how they caught fire. He lodged report Ex.P/6 at police station mentioning that injured persons caught fire from stove, but he explained that he did not see with his own eyes that they caught fire from stove. Since he saw stove kept at the place of occurrence, he presumed that they must have caught fire from stove and for this reason he mentioned the said fact in the report Ex.P/6. 19. On a close scanning of the evidence of aforesaid witnesses it can be gathered that there was something which persuaded them to disown themselves to be the eye witnesses of the occurrence, though they remained present at the time of occurrence. But on the basis of negative evidence of such witnesses, the dying declaration made by deceased Guddu which stood corroborated from Dehati Nalishi Ex.P/18 and the evidence of Dr. Pankaj Tiwari, (PW-10) cannot be discredited. There appears no reason for deceased persons to have falsely implicated the appellant. A person may make false dying declaration implicating somebody, who is inimical to him, out of suspicion when the incident occurs in darkness or in such circumstances that the assailant could not have been seen or identified by him or some time when deceased person commits suicide feeling harassed, frustrated or traumatised by the conduct of that person. But we find no such situation in the present case which could have induced deceased persons to make false dying declarations implicating the appellant. 20. But we find no such situation in the present case which could have induced deceased persons to make false dying declarations implicating the appellant. 20. The Apex Court in case of Muthu Kutty and Another vs. State, (2005) 9 SCC 113 , observed: “16. In the light of the above principles, the acceptability of the alleged dying declaration in the instant case has to be considered. The dying declaration is only a piece of untested evidence and must like any other evidence, satisfy the court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration. [See: Gangotri Singh vs. State of U.P. Goverdhan Raoji Ghyare vs. State of Maharashtra, Meesala Ramakrishan vs. State of A.P. and State of Rajasthan vs. Kishore].” 21. After a careful consideration of the dying declarations made by deceased Guddu in the light of the law laid down by the Apex Court, we find that the said dying declarations were not the result of imagination, tutoring or prompting. They appeared to have been made by the deceased voluntarily. In our opinion, the dying declarations made by Guddu are trustworthy and creditable and learned trial Judge committed no error in holding that it stood established beyond doubt that appellant Gajendra Singh set fire to deceased persons after pouring kerosene on them. 22. In the result, the conviction of appellant as recorded by the trial Court and the sentence imposed by it, warrant no interference. The appeal being without any merit is dismissed accordingly.