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2018 DIGILAW 49 (MP)

Gudda @ Hemraj @ Motilal v. State of M. P.

2018-01-11

ANURAG SHRIVASTAVA, NANDITA DUBEY

body2018
ORDER Smt. Dubey, J--1. This appeal has been filed by the appellant being aggrieved by the judgment dated 4.7.2000, passed by learned Sessions Judge, Narsinghpur, in Sessions Trial No. 151/1997, whereby the appellant has been found guilty for the offence punishable under section 302 of IPC and has been sentenced to undergo life imprisonment and fine of Rs.2,000/- in default of fine R.I. for six months. 2. Prosecution case, in brief, is that deceased Shyama Bai was married to the appellant three years prior to the incident. On 19.5.1997 at about 8:10 a.m. when she was alone in the house appellant poured kerosene on her and set her alight. She was taken to the Government Hospital, Gotegaon by her parents, where she was initially treated by Dr. Suhane PW3, who informed police station Gotegaon in this regard Ex.P-5. On the same day, dying declaration of the victim was recorded by I.L. Thakur (PW8) Executive Magistrate/Tahsildar. 3. On the basis of the dying declaration, FIR Ex.P-3 was registered for offence under section 307 of the IPC, which was later on modified to section 302 of IPC on account of death of victim on 25.5.1997. On the basis of FIR, criminal law was set into motion. Spot map Ex. P-9 was prepared and statement of witnesses were recorded and dead body of the victim was sent for postmortem. 4. Post-mortem of the deceased was conducted by a team of doctors namely Dr. S.K. Gupta and Dr. Smt. P. Singhai and as per post-mortem report deceased was 95% burnt. Doctor opined the cause of death as due to shock and extensive burnt on all over the body. 5. The prosecution examined as many as 13 witnesses. The statement of the appellant was recorded under section 313 of CrPC He examined three witnesses in his defence. 6. The trial Court has recorded a finding that the appellant was guilty of offence under section 302 of IPC and convicted him as aforesaid, relying on the dying declaration Ex.P-6 and the statement of PW3 Dr. S.N. Suhane and PW8 I.L. Thakur, Tahsildar. 7. Having heard the learned counsel for the parties and on perusal of record, it is observed that the dying declaration Ex.P-6 was proved by PW8 I.L. Thakur Executive Magistrate and PW3 Dr. Suhane. S.N. Suhane and PW8 I.L. Thakur, Tahsildar. 7. Having heard the learned counsel for the parties and on perusal of record, it is observed that the dying declaration Ex.P-6 was proved by PW8 I.L. Thakur Executive Magistrate and PW3 Dr. Suhane. PW8, who recorded the dying declaration Ex.P-6 has clearly stated that after certification by the doctor PW3, that the victim was in conscious state of mind and in a position to give her statement, her dying declaration was recorded in which she had clearly stated that at about 8:00 a.m. in the morning her husband had set her on fire by pouring kerosene on her. 8. PW3 has admitted that a report to this effect Ex.P-5 was sent by him to the police station Gotegoan. He has further stated that he certified the dying declaration that the victim was conscious and in a fit state of mind to give statement and remained conscious during recording of the dying declaration. 9. It is settled law that dying declaration can be made the sole basis of conviction provided it was made in a fit state of mind and voluntary. 10. In Atbir v. Government of NCT [ (2010) 9 SCC 1 ], the Supreme Court, after analyzing the various decisions on the issue has observed : "22. The analysis of the above decisions clearly shows that. (i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the Court. (ii) The Court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination. (iii) Where the Court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration. (iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. (v) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction. The rule requiring corroboration is merely a rule of prudence. (v) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction. (vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected. (viii) Even if it is a brief statement, it is not to be discarded. (ix) When the eye-witness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail. (x) 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." 11. In the present case, PW3 Dr. S.N. Suhane, who certified the dying declaration and PW8 tahshildar, who recorded it, have clearly stated that the deceased was in a fit and conscious state of mind to make the dying declaration. Moreover, the post-mortem report shows 95% burnt on the body of the deceased. She died in the house of appellant where she was living alone with him, therefore, it was expected from the appellant to furnish some explanation in his statement under section 313 of CrPC as to the cause of her death. Moreover, there was no complaint by the appellant regarding the incident of burning of his wife, despite the fact that as per his defence he came to know about the incident at 3.00 P.M. on the same day. It was for the appellant to show as to who else was responsible for burning/killing of the deceased. 12. In (2007) 12 SCC 288 , Swamy Shdaddananda alias Murali Manohar Mishra v, State of Karnataka, the Supreme Court has observed that if it is proved that the deceased died in an unnatural circumstance in her bedroom, which was occupied only by her and her husband, law requires the husband to offer an explanation in this behalf, however, do not intend to lay down a general law in this behalf as much would depend upon the facts and circumstances of each case. Absence of any explanation by the husband would lead to an inference which would lead to a circumstance against the accused. 13. In view of the facts and circumstances of the case, we are of the considered opinion that the appeal filed by the appellant deserves to be dismissed. The conviction of the appellant under section 302 of IPC is accordingly affirmed and upheld. The appellant who is in jail shall remain incarcerated to undergo the remaining part of the jail sentence. 14. A copy of this judgment be sent to the M.P. High Court Legal Service Committee, Jabalpur for necessary information.