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2014 DIGILAW 154 (CHH)

KARTIK RAM v. STATE OF C. G.

2014-04-10

INDER SINGH UBOWEJA, SUNIL KUMAR SINHA

body2014
JUDGMENT Sunil Kumar Sinha, J. 1. This appeal is directed against the judgment dated 10th of July, 2001 passed in Sessions Trial No. 352/99 by the Sessions Judge, Raipur, District Raipur (CG). By the impugned judgment, the appellants have been convicted u/S 302 IPC and sentenced to undergo imprisonment for life. 2. The facts, briefly stated, are as under:- 2.1 The appellants are in-laws of deceased-Mamta. Mamta (deceased) was married to their son on 19.4.1998. She was residing with the appellants and her husband. On 26.5.1999 at about 10.00 a.m. Mamta (deceased) was present along with the appellants in their house. Her husband, as usual, had gone on his work. Appellant No.1 was in habit of drinking. He used to deposit money with the deceased. On the fateful day, he demanded money from the deceased. The deceased became angry and torn the currency notes. The allegations are that on such behaviour of the deceased, the appellants became angry. Appellant No.1 poured kerosene on the deceased and appellant No.2 lit the match-stick and set her on fire. On hue and cry many persons gathered there and took the deceased to the Medical College Hospital, Raipur, where she was examined by Dr. Pratiksha Chauhan (PW-10). The attendants of the deceased, being unsatisfied, shifted her to MMI Hospital, Raipur in the evening. There she was examined by Dr. M.L. Jain (PW-7). Mamta (deceased) had sustained 50% burn injuries. She was admitted in the MMI Hospital. During this period her dying declaration (Ex.-P/3) was recorded by the Executive Magistrate, K.G.S. Chandel (PW-3) at 6.30 p.m. on 27.5.1999. She made positive allegations against the appellants. 2.2 Mother of Mamta (deceased), Smt. Rukmani (PW-1), after hearing about the incident, also reached to the MMI Hospital. Raipur. She was regularly attending her. Mamta (deceased) had made oral dying declaration to her mother also. 2.3 Mamta (deceased) died during course of her treatment on 11.7.1999. The death was intimated to the police. Inquest (Ex.P/2) was prepared and the dead body was sent for postmortem. The postmortem examination was conducted by Dr. Sanjay Dadu (PW-8). He opined that the cause of death was cardio respiratory failures as a result of burns and its complications and it was homicidal in nature, Postmortem report is Ex.-P/16. The death was intimated to the police. Inquest (Ex.P/2) was prepared and the dead body was sent for postmortem. The postmortem examination was conducted by Dr. Sanjay Dadu (PW-8). He opined that the cause of death was cardio respiratory failures as a result of burns and its complications and it was homicidal in nature, Postmortem report is Ex.-P/16. 2.4 The case of the prosecution was based on the dying declaration (Ex.-P/3) made by the deceased to the Executive Magistrate, K.G.S. Chandel (PW-3) as also the oral dying declaration made to her mother (PW-1). The Sessions Judge mainly relied on the dying declaration (Ex.-P/3) made to the Executive Magistrate (PW-3) and held that it was proved beyond all reasonable doubts that the appellants had committed murder of the deceased in the above manner, therefore, they were liable for punishment u/S 302 IPC. The appellants, thus, were convicted and sentenced as above. Hence this appeal. 3. We have heard counsel for the parties. 4. Mr. Bhaduri had contended that the dying declaration (Ex.-P/3) was recorded in MMI Hospital, Raipur, whereas the Executive Magistrate (PW-3) in Para-l of his evidence has stated that it was recorded in Medical College Hospital. This creates a doubt on the dying declaration. 5. We have gone through the entire evidence of the Executive Magistrate (PW-3). Though he deposed in Para-l that he had gone to Medical College Hospital to record the dying declaration of the deceased, but in 4th paragraph of his evidence, he made it clear that the dying declaration was recorded in MMI Hospital, and earlier he had deposed about recording of the dying declaration in Medical College Hospital without seeing the records. This he has clarified it in the re-examination by the Public Prosecutor. Mr. Bhaduri, in this connection, has relied on the decision of Bombay High Court, Tukaram Dadu Savat Vs. State of Maharashtra, 1997 (99) BOMLR 681 . In the said case, Metropolitan Magistrate has recorded some part of the dying declaration in Cooper Hospital and last paragraph was written by him in his residence. In the cross-examination he' admitted that it was not mentioned in the dying declaration as to, which part was written in the hospital and which part was written by him in his residence. It is on this account, the dying declaration was held to be doubtful. In the cross-examination he' admitted that it was not mentioned in the dying declaration as to, which part was written in the hospital and which part was written by him in his residence. It is on this account, the dying declaration was held to be doubtful. In the instant case, the entire dying declaration was recorded in the MMI Hospital and the Executive Magistrate, who firstly deposed that it was recorded in Medical College Hospital, made it clear in his re-examination. If we go through the entire evidence of the Executive Magistrate (PW-3) as also the contents of the dying declaration (Ex.-P/3) and correspondence made by the police to the Executive Magistrate, it would be clear that in the first para, he mentioned the name of Medical College Hospital, Raipur on a bonafide mistake, and only on this account the dying declaration cannot be discarded. 6. Mr. Bhaduri then contended that there is no certification of the Doctor in the dying declaration, therefore, it was not proved that the deceased was in a fit mental condition. 7. In Laxman Vs. State of Maharashtra, (2002) 6 SCC 710 , the Supreme Court held that there is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement, even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise. 8. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise. 8. Thus, it is clear that even if the Magistrate (PW-3) has not taken the certificate of the Doctor that the deceased was in a fit mental condition to record the dying declaration, but he was satisfied about her mental condition to be fit and then he recorded the dying declaration, the dying declaration cannot be discarded only on account of not taking certificate by the Doctor. In the instant case, the evidence of the Executive Magistrate (PW-3) would show that the deceased was in a fit mental condition to record the dying declaration and the Executive Magistrate being satisfied about it, had recorded the dying declaration. 9. Mr. Bhaduri then contended that in bed-head-ticket, at page 28, it was mentioned that the deceased sustained burn injuries by stove while preparing meal. 10. This comes in the evidence of Dr. M.L. Jain (PW-7) in Para-8. Dr. Jain has admitted in Para-8 of his cross-examination that such endorsement was made at page 28 of the bed-head-ticket by one Dr. Nisha Yadu (not examined). The said endorsement was made by her after disclosure by the deceased. When the said fact came in the cross-examination, certain questions were asked by the Court to clarify it, which were responded by Dr. Jain (PW7) in the following manner: - ^^ejht dks vLirky dkSu ysdj vk;k ;g eSus csMgsM fVfdV es ugh fy[kk gSA ijUrq mlds lkFk es dksbZ vVsUMsaV vk;k FkkA ;g lgh gS fd iz- ih- 21 es v ls v tgkW ij fgLVªh fy[kh gS ogkW ij ,slk dksbZ mYys[k ugh gS fd fgLVªh Lo;a ejht ls iwNdj fy[kh x;h ;k mlds vVsUMasV ls iwNdjA xokg us dgk fd fgLVªh T;knkÙkj ejht ls gh iwNdj fy[kh tkrh gS ijUrq ;fn ejht cksyus dh fLFkfr es ugh gS rks vVsUMsaV ls iwNdj fy[kh tkrh gSA bles ,slk mYys[k ugh gS fd ftLVªh fdlls iwNdj fy[kh x;h^^ 11. The first page of the bed-head-ticket, marked as Ex.-P/21, is available on record. In fact, it is admission slip of the patient. Noting has been mentioned in this document regarding such history and it is simply mentioned that the deceased has sustained 50% burn injuries with thromboenbolism. The first page of the bed-head-ticket, marked as Ex.-P/21, is available on record. In fact, it is admission slip of the patient. Noting has been mentioned in this document regarding such history and it is simply mentioned that the deceased has sustained 50% burn injuries with thromboenbolism. What was the reason for a Junior Doctor to make such endorsement in the bed-head-ticket during the course of her treatment in page 28. That apart Dr. Nisha Yadu (junior doctor), who allegedly made the said endorsement, has not been examined. Normally the history is recorded at the time of admission and not that after a long time during the course of treatment on any day. The purpose of recording the history of the case in admission slip is to apprise with the prevailing situation of the patient so that the Doctor gets maximum information and clinically the treatment proceeds on correct line. It does not appear to be logical and it appears to be quite unreasonable that after a long time, history like above would be recorded on the 28th page of the bed-head-ticket. Therefore, the above endorsement and the evidence of Doctor Jain (PW-7) to the effect that it was made by a junior Doctor at the instance of the deceased, in the light of the answer to the above court's questions, cannot be given importance to disbelieve the dying declaration (Ex.-P/3) which was otherwise duly proved by the Executive Magistrate (PW-3). 12. That apart, there is oral dying declaration before the mother, Rukmani (PW-1), which is very clear. She (PW-1) clearly deposed that the deceased had stated to her that she (deceased) was put to fire by her in-laws (appellants) in the above manner. 13. Mr. Bhaduri has lastly contended that the deceased had died after about 1 & ½ month, therefore, the acts of the appellants may not be punished u/S 302 IPC and they may be punished under some lesser Section preferably Part-I of Section 304 IPC. He relied on the decision of the Supreme Court in Cr.A. Nos. 840-841 of 2003 (Ongale Ravikanth Vs. State of A.P.) dated 17.06.2009 (Down Loaded Copy filed). 14. In the said judgment, the deceased had poured kerosene on herself and then only the appellant lit the match-stick resulting in fire and causing 60% burns which ultimately led to her death. He relied on the decision of the Supreme Court in Cr.A. Nos. 840-841 of 2003 (Ongale Ravikanth Vs. State of A.P.) dated 17.06.2009 (Down Loaded Copy filed). 14. In the said judgment, the deceased had poured kerosene on herself and then only the appellant lit the match-stick resulting in fire and causing 60% burns which ultimately led to her death. In the instant case, the appellants had poured kerosene on the deceased and then she was put to fire by them. This clearly shows their intention to commit murder of the deceased and the act committed by them was nothing short than an act punishable u/S 302 IPC. 15. For the foregoing reasons, we find no substance in the appeal. The appeal is liable to be dismissed and is hereby dismissed. Appeal Dismissed.