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2018 DIGILAW 535 (MP)

Rajesh Patel v. State of M. P.

2018-06-18

ANJULI PALO, S.K.GANGELE

body2018
JUDGMENT Palo, J.--1. Appellant/accused has filed this appeal, being aggrieved by the judgment dated 1.7.2008, passed by IVth Additional Sessions Judge, Jabalpur, in Sessions Trial No. 312/2007, whereby the appellant has been convicted for offence under section 302 of the Indian Penal Code and sentenced to undergo for life imprisonment and fine of Rs. 500/-, with default stipulation. 2. It is not in dispute that on the date of incident i.e. 5.6.2007 deceased Hemabai was residing with the appellant as his wife since six months. She sustained burn injuries at the house of the appellant and died on 13.6.2007 due to aforesaid injuries. 3. In brief, the prosecution case is that deceased Hemabai has been living with the appellant as his wife since last three months at Village Kailwas, Police Station Barela Distt. Jabalpur. On 5.6.2007 at about 10:00 p.m. at their house, the appellant poured kerosene on her and set ablaze her. She sustained grievous burn injuries and her relatives from paternal side brought her to the hospital for her treatment. Two Executive Magistrates have recorded her two dying declarations. She died on 13.6.2007. Thereafter, Police registered crime under section 302 in the alternative 304B of IPC against the appellant. After due investigation, charge-sheet was filed against the appellate before the concerned Court. 4. During trial, the appellant abjured his guilt and pleaded innocence. After relying the dying declarations of the deceased, learned trial Court convicted the appellant under section 302 of IPC and sentenced as mentioned above. 5. The appellant challenged the aforesaid findings on the grounds that the learned trial Court wrongly relied on testimony of prosecution witnesses, who are interested witnesses, some of them turned hostile. At the time of the incident, the appellant was not present in his house, prosecution has failed to prove its case beyond reasonable doubt against the appellant. Hence, conviction of the appellant is liable to be set aside and appellant is entitled to be acquitted from the charge levelled against him. 6. Learned Government Advocate for the respondent-State strongly opposed the contentions of the appellant and supported the findings of trial Court. 7. Heard both the learned counsel for the parties at length. Perused the record. 8. As per the prosecution story, incident took place at about 10 p.m. on 5.6.2007. It is not in dispute that at that time the deceased was living with the appellant as his wife. 7. Heard both the learned counsel for the parties at length. Perused the record. 8. As per the prosecution story, incident took place at about 10 p.m. on 5.6.2007. It is not in dispute that at that time the deceased was living with the appellant as his wife. The appellant has taken defence that at that time he was not present at his house. At the same time, he did not disclose that where he had gone or where he was present. Because as per the dying declarations (Ex.P-13 and Ex.P-15) of the deceased, the appellant was present at his home. He poured kerosene on the deceased and set her ablaze. Ex.P-10 is the statement of the deceased recorded by the Police under section 161 of CrPC with same manner. 9. All three dying declarations also established that at the day time the deceased went to Aaganwari for taking injection. She was five months pregnant. Thus, the appellant was annoyed with her, he assaulted her. Thereafter, he sprinkled kerosene oil on her and set ablaze her. We do not find any justifiable reason to disbelieve the aforesaid dying declaration because the other prosecution evidence also duly corroborate the facts of aforesaid dying declarations. 10. In the case of Ramesh and others v. State of Haryana [ (2017) 1 SCC 529 ] and Vijay Pal v. State (Govt. of NCT of Delhi) (2015) 4 SCC 749 , the Supreme Court has held that : “Dying declaration is substantive piece of evidence if found reliable and if it given in a fit state of mind and voluntarily without being influenced by others.” 11. In the present case, dying declaration (Ex.P-13) was recorded by Executive Magistrate R.L. Vansh (PW13) at that time Dr. Jagdish (PW20) was also present. He certified that while recording of the said statement, the deceased was in a fit state of mind to give said declaration. Hemabai (since deceased) has specifically stated that the appellant poured kerosene oil and lit the match box. The testimony given by Executive Magistrates R.L. Vansh (PW13) and Manoj Kumar (PW17) are worth believing and creditworthy as they had no enmity with the accused and at the time of recording of the statements, none from the family of Hemabai was present in the hospital. There is nothing on record to suggest that when her dying declarations were recorded, she became unfit for statement. There is nothing on record to suggest that when her dying declarations were recorded, she became unfit for statement. Rather she survived for 6-7 days after suffering the burn injuries. 11(a).Gopal Prasad (PW12), Head Constable clearly stated that he received information about the incident and he immediately reached the spot and firstly he recorded statement of Hemabai (since deceased) as Ex.P-10 as narrated by her. Thereafter, he brought the deceased to the hospital for her treatment and informed Executive Magistrate for recording her dying declaration. He registered FIR Ex.P-12 against the appellant promptly. We find all the dying declarations are duly corroborate the facts of each one. There is no inconsistency in all these dying declarations. They very well establish the prosecution case trustworthy. Similarly, her other dying declaration (Ex.P-15) also establish the prosecution case reliable which was recorded by other Executive Magistrate Manoj Kumar (PW17) in a legal way. Therefore, findings of the trial Court are rightly based on the aforesaid dying declarations. 12. In our opinion, dying declaration (Ex.P-13 and Ex.P-15) itself is sufficient for sole basis of conviction without corroboration. Because, it is found voluntarily, true, reliable and free from suspicious circumstances and recorded in accordance with established practice and principles. 13. The appellant tried to establish his plea of alibi. Learned counsel for the appellant also contended that many of the prosecution witnesses have not deposed that at the time of the incident, they saw the appellant present at his house. It is true that Rajendra Prasad (PW1) and Raj Kumar Jhariya (PW2) were declared hostile in this regard. Further that, Govind Prasad Soni (PW3), the neighbour of appellant, established the presence of the appellant at the time of incident at his house. He deposed in a different way that he saw the appellant himself extinguishing fire from the person of his wife but we do not find any evidence on record with this regard. There is no burn injuries on his hands. 14. Many of the prosecution witnesses are neighbours of the appellant. Their testimonies are consistent with the dying declarations of the deceased. Anil Kumar Jhariya (DW1) and Dumari Lal Patel (DW2) also tried to establish the defence of the appellant but the appellant himself did not offer any explanation about the place of his presence nor he explained why he went away from his house. 15. Their testimonies are consistent with the dying declarations of the deceased. Anil Kumar Jhariya (DW1) and Dumari Lal Patel (DW2) also tried to establish the defence of the appellant but the appellant himself did not offer any explanation about the place of his presence nor he explained why he went away from his house. 15. In our opinion, other witnesses turned hostile, cannot be a reason to discard credible testimony of independent witnesses. 16. Dumari Lal (PW7), father of the deceased, also the resident of same village. He heard about the incident from Santosh Soni then immediately he reached on the spot, he saw his daughter in burnt condition. She also narrated the same incident to him as per her dying declarations that the appellant had set ablaze her after assaulting her. No suggestion has been given to him for non presence of the appellant at that time at his house. 17. Roshan Lal Yadav (PW8) and Ram Das Jhariya (PW9) are independent witnesses. They also corroborate the testimony of Dumari Lal (PW7). It inspires confidence on the aforesaid dying declarations of the deceased. 18. Kishore S. Malik (PW4), Inspector prepared spot map Ex.P-4 on the next day of incident and seized burnt articles from the spot. He found particles of kerosene oil on the spot. All the articles were sent for FSL examination. FSL report Ex.C-1 also confirmed the presence of kerosene oil on the aforesaid articles. All the evidence corroborate the prosecution story. 19. Dr. Khan (PW18) found 85% burn injuries on the deceased at the time of her treatment at Medical College, Jabalpur as per his report Ex.P-16. After the death of Hemabai Dr. R.P. Pyasi (PW1) conducted postmortem of her body, he found 60% burn injuries on the deceased. As per his opinion due to infection of above injuries the deceased died at Medical College, Jabalpur. All the injuries are ante mortem in nature and sufficient to cause her death. She died due to septicemia occurred from the aforesaid burn injuries. The aforesaid statements of the medical experts have remained unimpeachable. Thus, there is no hesitation to hold that the nature of death of the deceased was homicidal and the deceased died on account of burn injuries caused by the appellant. 20. All the aforesaid evidence duly established the charge for committing murder of the deceased against the appellant. The aforesaid statements of the medical experts have remained unimpeachable. Thus, there is no hesitation to hold that the nature of death of the deceased was homicidal and the deceased died on account of burn injuries caused by the appellant. 20. All the aforesaid evidence duly established the charge for committing murder of the deceased against the appellant. We find the defence witness trying to save the appellant with the concocted false story in favour of the appellant. 21. After considering the aforesaid facts and reasoning given by the learned trial Court in the impugned judgment, we come to the conclusion that there is sufficient evidence on record against the appellant to convict him under section 302 of IPC for the murder of the deceased. There is no merit in the case to interfere in the impugned judgment. Hence, the appeal is dismissed. The appellant is in jail. 22. Copy of the judgment be sent to the trial Court for information along with the record.