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2018 DIGILAW 629 (MP)

Rai Kumar @ Ramkaran v. State of M. P.

2018-07-17

ATUL SREEDHARAN, J.P.GUPTA

body2018
JUDGMENT Sreedharan, J.--1. The present appeal has been filed by the appellant herein aggrieved by the judgment of conviction and sentence dated 20.10.2008 passed in Sessions Trial No. 75/2008 by the Court of learned IIIrd Additional Sessions Judge (Fast Track), Katni (M.P.) whereby the appellant has been sentenced to suffer a rigorous imprisonment for life and Rs. 1,000/- as fine and an additional simple imprisonment of six months in default of payment of fine, for an offence under section 302 of IPC In this case, but for the evidence in the form of the dying declaration, there is no other credible evidence against the appellant. 2. The prosecution story is that on 29.4.2008, the deceased Kanchedi is stated to have received burn injuries between 2.30 and 3.00 in the early hours of the morning, when he was asleep. His son and daughter who have been examined as PW1 and PW2 have stated that they woke up they found their father on fire. They put out the fire and asked him as to how he had caught fire to which he replied that he was suffering from acute stomach-ache and was unable to bear the same and so he set himself on fire. The son and daughter have been declared hostile in cross-examination by the prosecution. The postmortem report of the deceased reveals that he had suffered 80% burns due to which he died. His dying declaration is recorded by the Tahsildar on 29.4.2008. It started at 9.45 a.m. and was completed by 9.50 a.m. The dying declaration is Ex.P-6. The same has been proved by PW4 who is the Tahsildar. With regard to the question as to how he had caught fire, the deceased is stated to have answered that he was sleeping when Raj Kumar Kachi set him on fire by lighting a match. He further states in his dying declaration that he has no previous enmity with the appellant and that they were earlier working as partners from which the appellant subsequently left. The deceased further says that a day before the incident, Raghuveer Thakur had told him that Raj Kumar was trying to kill him. 3. He further states in his dying declaration that he has no previous enmity with the appellant and that they were earlier working as partners from which the appellant subsequently left. The deceased further says that a day before the incident, Raghuveer Thakur had told him that Raj Kumar was trying to kill him. 3. Raghuveer has been examined as PW3 and he has turned hostile and has not stated that he never had a conversation to such an effect with the deceased wherein he had warned the deceased that one Raj Kumar was trying to kill him. 4. The facts and circumstances of the case reveal that the son and daughter of the deceased have turned hostile and have stated that the deceased had set himself on fire. Secondly, the prosecution has not been able to prove that the place where the deceased was sleeping had adequate ambient light that the deceased could have seen who set him on fire, as the time of incident is between 2.30 and 3.00 a.m. as has so been stated by the deceased himself. Thirdly, the deceased only says that Raj Kumar Kachi was the person who set him on fire. The Police has not been able to fix the identity of Raj Kumar Kachi as that of the appellant herein. They have not adduced the evidence to the effect that besides the present appellant, there was no other person by the name of Raj Kumar Kachi in the village. Fourthly, the deceased himself says that he had no enmity with Raj Kumar and therefore, there is no motive which has been established in this case and fifthly, Raghveer Singh who is stated to have informed the deceased that Raj Kumar was trying to kill him, has also turned hostile before the trial Court and has not stated that he had ever informed to that effect to the deceased. 5. Under the circumstances, this Court is of the considered opinion that the dying declaration is not of such a quality that the prosecution has been able to prove its case beyond reasonable doubt only on the basis of the said dying declaration. The other material witnesses having all turned hostile, it would be unsafe to sustain the conviction of the appellant herein only on the basis of the dying declaration. The other material witnesses having all turned hostile, it would be unsafe to sustain the conviction of the appellant herein only on the basis of the dying declaration. Under the circumstances, the appeal is allowed and the conviction and sentence imposed upon the appellant vide judgment dated 20.10.2008 in Sessions Trial No. 75/2008 passed by the Court of learned IIIrd Addtional Sessions Judge (Fast Track) Katni, is hereby set aside and the appellant is acquitted. He shall be released from jail forthwith, if not being so held in any other case.