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2018 DIGILAW 347 (MP)

Raju @ Manjle v. State of M. P.

2018-03-22

J.K.MAHESHWARI, J.P.GUPTA

body2018
JUDGMENT Gupta, J.--1. The appellant has preferred the present appeal being aggrieved by the impugned judgment of conviction and sentence dated 29.1.2008 passed by 6th Addl. Sessions Judge (F.T.C.), Sagar, District Sagar, in Sessions Trial No. 309/2007 whereby the appellant has been convicted under section 302 of the IPC for committing murder of his wife Maltibai and sentenced to undergo life imprisonment along with fine of Rs. 1,000/-, in default six months R.I., and also convicted under section 498A of the I.P.C. for subjecting the deceased to cruelty for demand of dowry and sentenced to R.I. for 3 years along with fine of Rs. 500/-, in default R.I. for three months. 2. In this case, it is not disputed that marriage of appellant was solemnized with deceased Malti 4-5 years prior to the date of incident. It is also not disputed that appellant himself took the deceased to District hospital, Sagar, where she was admitted. It is also not disputed that deceased succumbed to death due to burn injuries on the next day. 3. The prosecution story, in brief, is that on 2.6.2007 at about 10.00 p.m., deceased Maltibai burnt at her matrimonial house situate at Poddar Colony, Sagar, and the appellant informed his father-in-law Jhalkan, PW1, about the incident. Thereafter, Jhalkan, PW1 and mother-in-law Jamnabai, PW2 and brother-inlaws Ramdas, PW3 and Balakdas, PW4, came on the spot and found the deceased lying in burnt condition. Near her a plastic can containing kerosene, match box and raw material for food preparation were found. Thereafter, appellant shifted the deceased to Sagar Hospital and informed the police at Police Station Gopalgunj, Sagar, vide letter, Ex.P-6 about the admission of the deceased in the hospital in burnt condition. Later, on 3.6.2007 Executive Magistrate S.L.Vishwakarma, PW12 recorded the dying declaration of the deceased, Ex.P-18 on the certification of Dr.A.K.Kastwar, PW9 and on 4.6.2007 injured Maltibai died on account of burn injuries. Her post mortem was conducted and as per the post mortem report cause of death was shock and complication due to 96% burn injuries. Information of the incident was given at Police Station Gopalgunj on which FIR, Ex.P-5, was registered at Crime No. 239/2007 under section 302 of the IPC During investigation it revealed that deceased was subjected to cruelty in connection with demand of dowry and her marriage had taken place 4-5 years before the incident. Information of the incident was given at Police Station Gopalgunj on which FIR, Ex.P-5, was registered at Crime No. 239/2007 under section 302 of the IPC During investigation it revealed that deceased was subjected to cruelty in connection with demand of dowry and her marriage had taken place 4-5 years before the incident. During investigation burnt clothes of the deceased and plastic can containing kerosene oil were seized from the place of incident and were sent to FSL for chemical examination. The appellant was arrested. Thereafter, on completion of investigation, charge-sheet under sections 302 and 304B and 498A of the I.P.C. was filed against the appellant before JMFC Sagar who committed the case to the court of Sessions, Sagar and after getting the case on transfer 6th ASJ Sagar tried the case. 4. During trial, the appellant accused was charged with the offence under sections 302, in the alternative under section 304B read with section 498A of the IPC He abjured the guilt and claimed to be tried. In defence, appellant stated that he is innocent and has been falsely implicated. The deceased burnt accidently while cooking food. He himself tried to save her and in the process sustained burn injuries. He immediately informed the parents of the deceased and brought her District Hospital for treatment. However, no evidence has been adduced in defence. 5. The learned trial Court after completion of the trial found the appellant guilty of the offence under sections 302 and 498A of the IPC and convicted and sentenced him, as mentioned hereinabove. However, the learned trial court acquitted him for the offence under section 304B of the IPC. 6. The finding of the learned trial Court for conviction under section 302 of the IPC is mainly based on the dying declaration, Ex.P-18 recorded by Executive Magistrate Shri S.L.Vishwakarma, PW12 on 3.6.2007 at District Hospital, Sagar. Likewise, conviction under section 498A of the IPC is based on the testimonies of Jhalkan, PW3, Jamnabai, PW2, Ramdas, PW3 and Balakdas, PW4. 7. Being aggrieved by the aforesaid impugned judgment of conviction and order of sentence, the appellant has filed this appeal on the ground that the finding of the learned trial Court is contrary to law. In the case, statements of Jhalkan, PW3, Jamnabai, PW2, Ramdas, PW3 and Balakdas, PW4 are not reliable as they are full of contradictions, omissions on material points. They are not independent witnesses. In the case, statements of Jhalkan, PW3, Jamnabai, PW2, Ramdas, PW3 and Balakdas, PW4 are not reliable as they are full of contradictions, omissions on material points. They are not independent witnesses. Apart from it, the dying declaration, Ex.P-18 is not reliable as Jamnabai, PW2, Ramdas, PW3 and Balakdas, PW4 have stated that in the hospital the deceased was not able to speak and there is no medical evidence on record to prove the fact that deceased was able to give statement. So far as the statements of relatives of the deceased with regard to demand of dowry are concerned, they are vague, ambiguous and there is nothing specific, therefore, they are not reliable. Apart from it, the learned trial court has acquitted the appellant for the offence under section 304B IPC In the circumstances, the statements of the relatives with regard to demand of dowry does not come within the purview of dying declaration of the deceased and the nature of such statement deemed to be hearsay evidence on the basis of which the appellant cannot be convicted for commission of the offence under section 498A IPC. Further, it is also contended that looking to other uncontroversial circumstances that the appellant made efforts to save the deceased and in that process sustained burn injuries, immediately informed his in-laws and brought the deceased to District Hospital, Sagar, for treatment and remained present during the treatment show that his intention was not to cause death of the deceased. In such circumstances, hardly it can be said that he had knowledge that by his act he would cause the death of the deceased. Hence, his conviction be modified under section 304 Part II of the IPC in place of section 302 of the IPC In the view of the facts and circumstances of the case, prayer is made to allow the appeal and modify the impugned judgment of conviction and order of sentence and release the appellant to the maximum period of custody he has already undergone. 8. On the other hand, learned Government Advocate appearing for the respondent /State has argued in support of the impugned judgment and stated that the finding of conviction and sentence of the learned trial Court is in accordance with law. Hence, the appeal be dismissed. 9. 8. On the other hand, learned Government Advocate appearing for the respondent /State has argued in support of the impugned judgment and stated that the finding of conviction and sentence of the learned trial Court is in accordance with law. Hence, the appeal be dismissed. 9. Having considered the contention advanced by learned counsel for the parties and on perusal of the record, in this case it is not controversial that death of the deceased had taken place on 4.6.2007 on account of burn injuries sustained by her on 2.6.2007 at her matrimonial house and on the remaining at the place of incident and the clothes and body of the deceased presence of kerosene substance were confirmed by the FSL report, Ex.P-14. The marriage of the deceased was solemnized with the appellant 4-5 years prior to the incident. Dying declaration Ex.P-18 has been proved by Executive Magistrate/Naib Tahsildar, Sagar Shri S.L.Vishwakarma, PW12, in which the deceased has stated that the appellant burnt the deceased. The statement was taken at the instance of the Police Gopalgunj in the presence of treating doctor on the certification that injured Maltibai was able to give statement. 10. Father of the deceased Jhalkan, PW1, has stated that on the second day Maltibai was able to speak and she told him that she was burnt by the appellant by pouring kerosene oil on her. He insisted her to bring the money from her father for construction of house. This statement shows that the deceased was not in a position to speak. So far as statements of Jamnabai, PW2, Ramdas, PW3 and Balakdas, PW4 are concerned, they reflect that the general condition of the deceased was not to speak much as she felt discomfort in speaking. They have not specifically stated that at the time of recording of the statement by Naib Tahsildar she was not in a condition to speak a word or was not conscious. Therefore, the aforesaid statements of the witnesses have no adverse affect on the statement of Executive Magistrate Shri S.L.Vishwakarma, PW12. There is nothing in his statement to see his act with any suspicion. Therefore, the aforesaid statements of the witnesses have no adverse affect on the statement of Executive Magistrate Shri S.L.Vishwakarma, PW12. There is nothing in his statement to see his act with any suspicion. It is correct that in this case the doctor who certified the condition of the deceased with regard to ability of taking statement has not been examined; but, on this infirmity, dying declaration, Ex.P-18, cannot be discarded as in law such certification is not an essential requirement or sine qua non where the statement is otherwise reliable. In the present case, we do not find any fact and circumstances or infirmity to discard the dying declaration, Ex.P-18, and which is sufficient to hold the appellant guilty for causing death of the deceased. 11. So far as the evidence of demand of dowry and subjecting the deceased to cruelty is concerned, there is no averment with regard to demand of dowry. Demand of money for construction of house cannot be equated with the demand of dowry. It requires clarification in the statement of the witnesses whether the demand was subject to condition of return or as gift or presents. Apart from it, after acquittal for the offence punishable under sections 304B of the IPC the aforesaid statements of the relatives cannot be considered to be dying declaration of the deceased and cannot be said to be admissible as they come in the purview of hearsay evidence and cannot be made basis of conviction. In this view of the matter, the conviction of the appellant for the offence under section 498A of the IPC cannot be affirmed. 12. Now, the question is whether the appellant intentionally caused death of the deceased or he only had knowledge that by his act he would cause death of the deceased. As emerged from the statements of the prosecution witnesses, the appellant tried to save the deceased and in the process he himself sustained burn injuries as admitted by his father-in-law Jhalkan, PW1. Thereafter, the appellant immediately informed his father-in-law Jhalkan, PW1 and shifted the deceased to District hospital for treatment and remained with the deceased till her death. In the circumstances, it cannot be said that the appellant burnt the deceased with the intention to cause death or with intention to cause such bodily injury which is sufficient to cause death in the ordinary course of nature. In the circumstances, it cannot be said that the appellant burnt the deceased with the intention to cause death or with intention to cause such bodily injury which is sufficient to cause death in the ordinary course of nature. But, it can very well be said that he knew the fact that his act would be likely to cause death of his wife. Hence, his act does not come within the purview of committing murder of the deceased instead he can be held guilty for commission of culpable homicide not amounting to murder. 13. In view of the aforesaid discussion, we partly allow this appeal and set aside the conviction and sentence of the appellant under section 302 of IPC and, instead, convict him for commission of the offence under section 304 Part II of IPC and sentence him to already undergone maximum period of R.I for 10 years as from the record it appears that the appellant is in custody since 22.6.2007. Hence, he has already suffered the jail sentence awarded to him. Resultantly, he be released forth with, if not required to be detained in any other case. 14. We also express our words of gratitude for the assistance rendered by amicus curiae. 15. A copy of this judgment be sent to the concerned trial Court and jail authorities for information and necessary action.