Bhagwat vs State Of Madhya Pradesh

B. K. Shrivastava, J

This criminal appeal has been filed on 24/12/2009 under Section 374 (2) of the Cr.P.C. against the judgment dated 12/11/2009 passed in Session trial No. 259/2009 by the Sessions Judge, Sagar by which the learned Lower Court convicted the appellant for offence under Section 302 of the I.P.C. and sentenced him to undergo life imprisonment with fine of Rs. 10,000/- with default stipulation for one year R.I.

As per prosecution case, deceased Krishna Bai D/o Tulsiram (PW-13) was present in the field of Uday Rajak. On 10/02/09, Basant and Golu reached there for taking the photograph of Harsh for the purpose of insurance policy. The accused reached there holding lathi in his hand and said to Krishna that why she called two boys.

Thereafter, he assaulted the boys but they ran away. The accused also assaulted Krishna by means of lathi. Thereafter, he poured the kerosene oil and set her ablaze. After hearing the sound, some other person reached there including the brother of the deceased and father of the deceased. The deceased narrated the entire incident to her father and brother. Thereafter, they rushed to the hospital.

Dr. Prashant Awasthy examined the deceased and gave the opinion Ex. P-13 to the police. The police informed the Executive Magistrate. Thereafter, the Executive Magistrate reached to the hospital and recorded the dying declaration of the deceased. The deceased was admitted in the hospital on 10/02/2009 at about 6:10 P.M. After primary treatment, the Doctor gave the medical report Ex. P-12 and referred the patient to the District Hospital Sagar vide Ex. P-14. On 11/02/2009 at about 2:30 P.M. the deceased expired. Thereafter, the information Ex. P-8 was sent to the police station Gopalganj, District Sagar upon which the police registered the Merg No. 01/09 and upon the basis of aforesaid merg Ex. P-9, original Merg Ex. P-18 was registered as Merg No. 4/09 at Police Station Deori. The police reached on the spot and issued the notice to the witnesses. Thereafter, prepared the inquest Panchnama Ex. P-10 and sent the dead body for post-mortem with an application Ex. P-11.

After post-mortem, the report Ex. P-19 was received by the police.

After investigation, the police came to the conclusion upon the basis of dying declaration Ex. P-15 and the statements recorded, that the accused poured the kerosene oil and set ablaze to Krishna. Thereafter, the police arrested the accused. After investigation, the police filed the challan no. 75/2009 under Section 307 and 302 of the I.P.C. before the Court of J.M.F.C. Deori, District Sagar on 15/04/2009. The Magistrate registered the criminal case no. 275/09 and committed the case to the Court of Sessions on 15/05/09. On 22/05/2009, the Sessions Judge Sagar registered S.T. No. 259/09. Thereafter, on 16/06/09, the trial Court framed the charge under Section 302 of the I.P.C. which was denied by the accused. Thereafter, the prosecution examined 15 witnesses in support of its case. The Defence also examined two witnesses. After concluding the trial, the trial Court passed the judgment on 12/11/2009 holding the appellant guilty for the offence under Section 302 of the I.P.C. and passed the sentence as stated in para 1 of this appeal.

It is submitted by learned Amicus Curiae appearing for the appellant that the trial Court committed the mistake by holding the appellant guilty for the offence under Section 302 of the I.P.C. The dying declaration of the deceased was not reliable. The case was not supported by any independent witness. When the dying declaration was recorded, the parents of the deceased were also present and the statement was recorded upon the information given by parents of the deceased. The trial Court also ignored the omission and contradiction found in the statements of various witnesses. Therefore, the conviction is bad in the eyes of law and liable to be set aside and the accused/appellant is entitled to get acquittal.

On the other side, the State strongly opposed the appeal. It is submitted by learned Government Advocate that dying declaration has been recorded by the Executive Magistrate who is an independent witness and the statement is totally reliable. The oral dying declaration was also made to Badde PW-6 and Tulsiram PW-13. No any defence has been taken by the accused. Therefore, the trial Court did not commit any mistake by holding the appellant guilty for the offence under Section 302 of the I.P.C. and, therefore, this appeal having no force and liable to be dismissed.

The question arises whether the trial Court committed any mistake by holding the appellant/accused guilty for the offence under

Prashant Awasthy (PW-7) is the Doctor posted at Community Health Center, Deori who first treated the deceased on 10/02/2009. The witness said that Krishna Bai was brought before him and at that time, it was stated by Krishna Bai and the man who brought her that she has been burnt by somebody. The Doctor said that the girl was 95% burnt. Her forearm of left hand and the sole of both feet were not burnt. The body was totally burnt towards front and posterior side. The patient was in unconscious condition and the burn which was found was fatal to her life. The Doctor said that after giving the primary treatment vide Ex. P-12, he also sent the information to the police vide Ex. P-13 and referred the patient to the District Hospital vide Ex. P-14.

Dr. M.K. Paul PW-12 is the Medical Officer posted at District Hospital, Sagar who conducted the post-mortem on 11/02/2009. The aforesaid witness proved his report Ex. P-19 and said that the death was the result of ante-mortem burn and the complications arising out from the burn. The Doctor was not cross-examined by the defence upon any point. Therefore, it is proved beyond reasonable doubt that the death of Krishna Bai was the result of burn injuries.

In this case, the dying declaration Ex. P-15 is the most important document upon which the trial Court placed the reliance. Sumer Singh PW-10 is the Sub-Inspector posted at Police Station, Deori who received the information Ex. P-13 sent by Dr. Prashant Awasthy on 10/02/2009. The witness said that after receiving the aforesaid information, he informed the Naib Tehsildar for recording the dying declaration. The witness also reached to the Hospital after sometime. During this time, the Naib Tehsildar had recorded the statement of Krishna Bai. M.L. Soni PW-11 is the Naib Tehsildar posted at Tehsil Deori who recorded the statement of the deceased on 10/02/2009. The witness said that he reached to the hospital at about 4 P.M. Before recording the statement, he took the opinion of the Doctor who certified that the patient is in a fit mental condition to give the statement. Thereafter, he recorded the statement Ex. P-15. Dr. Prashant Awasthy PW-7 also said in para 7 that the Naib Tehsildar recorded the statement of the deceased in his presence and he certified the fit mental condition of the deceased before recording the statement. He also said that upon completion of the statement, he again certified that the patient was conscious during recording of her statement. The witness also admit his signature upon Ex. P-15 in the part of A-A and B-B.

As per statement of C.M. Soni PW-11, Krishna Bai gave the statement Ex. P-15 which is as under :-

मेरे मौसि;ा भाÛवत में मेरे ऊपर मिट्टी का तेल (कैरोसीन) डालकर आÛ लÛा दी। माचिस की काड$ी से आÛ लÛा दी है।

और मौसि;ा भाÛ Û;े। लडके भी दोनों भाÛ Û;े।

The learned Defence counsel strongly argued before the Court that when the aforesaid dying declaration was recorded, at that time, mother and father of the deceased were present. Therefore, it cannot be denied that the parents tutored to the deceased. The aforesaid argument having no force because the Doctor said in para 5 that the patient was lying in the emergency bed in the hospital. When the witness reached there, at that time, the mother and father were present and they were talking to the deceased, but at the time of recording the statement, the witness told them to go outside from the room. He denied the suggestion that the parents told Krishna Bai to narrate about Bhagwat. He also denied the suggestion that the police was present at the time of recording of the statement. Dr. Prashant Awasthy PW-7 denied in para 4 that the father of the deceased was present at the time of recording her dying declaration. He said in para 7 that the family members were present before recording of the statement. The presence of family members is natural because they are mother and father of the deceased. There is no any possibility for any interference during recording of statement. The Naib Tehsildar is an independent witness who performed his official duties and well known to the procedure of recording the statement, he took the certificate from the Doctor and in the presence of the Doctor, he recorded the statement of the deceased. Therefore, only upon the basis of presence of the parents in the hospital, it cannot be presumed that the dying declaration has been given upon the instigation of the parents. The accused is close relative of the deceased. He is maternal uncle (मौसाजी) of the deceased, therefore, no any reason of false implication is found. Hence, the dying declaration Ex. P-15 is found totally reliable from all corners.

In addition to the aforesaid written dying declaration, in this case, evidence of oral dying declaration is also available which was made to Badde PW-6 and Tulsi Ram PW-13. PW-6 is the brother of the deceased. The witness said that at about 2:30 P.M. in the day Pilu PW-1 came to his house and gave the information regarding the incident. Thereafter, the witness reached there. The witness again said that when he reached on the spot and asked to the deceased, then she told that Basant came for taking the photograph and when he was going after taking the photograph, the accused assaulted him. The deceased also told that she ran away from the field but the accused assaulted by means of lathi in her leg. Thereafter, the accused put the bed-sheet upon her and poured the kerosene and set her ablaze.

Tulsiram PW-13 is the father of the deceased. This witness also supports the statement of Badde. The witness said that at about 2:30 P.M., he was returning from Samnapur, at that time, he saw a crowd in his field (which was taken by him from Uday Rajak). When he reached near the well, Badde told that Krishna bai set ablazed by Mousia Bhagwat. In para 3, the witness again said that he asked to his daughter/deceased, then she told that Mousia beat her and set her ablaze. The witness again said that the deceased told that two boys came there for taking the photograph. When they went away, the accused reached there and asked about the aforesaid boys. The deceased gave the explanation that they had come for collecting the photograph of Harsh S/o Badde for the purpose of insurance, but the accused was not satisfied and told that they were coming to catch her. Thereafter, the accused assaulted her by the help of lathi and caused the injury in her leg. Thereafter, he took the kerosene oil kept in Taparia and also took the bed-sheet. He put the bed-sheet upon her and poured the kerosene and set her ablaze. Thereafter, the accused ran away.

It appears from the statement of PW-6 and PW-13 that the accused is the close relative of the witness. No any material omission or contradiction is pointed out in their cross-examination and no any reason of false implication is found.

Golu @ Lokendra PW-2 and Basant PW-9 have also supported the fact that they had gone to collect the photograph of the son of Badde for the purpose of insurance. Golu said that when he and Basant reached to the field, at that time, Krishna was standing near the well. They inquired her about Badde, then Krishna told him that Badde is not here. At that moment, the accused came there and abused them and also ran towards them for beating. Basant PW-9 also said that he had gone to the house of Badde for taking the photograph of Harsh but in the house, his mother was present. She gave the photograph and also told to talk with her husband Badde. Thereafter, they both reached to the field where they met to krishna. Since Badde was not there, Krishna told them that her brother is not here, but he left the photograph. The photo was given by Krishna. At that moment, the accused came there and abused both of them and also ran behind them for assaulting by holding a stick in his hand.

Therefore, it appears from the entire evidence that the oral dying declaration made to PW-6 and PW-13 and also the written dying declaration Ex. P-15 recorded by Naib Tehsildar in the presence of Doctor are found reliable and the trial Court did not commit any mistake by relying upon the aforesaid evidence. No any reason of false implication is found. The accused took the defence that he saw the deceased in the objectionable condition with Basant and Golu. When the accused told her that he will inform her father then, the deceased herself commit the suicide by pouring the kerosene oil. Two defence witnesses were also produced for proving the aforesaid fact but the presence of aforesaid witness has not been suggested to any of the prosecution witness. The incident happened in the day light. Other persons were also present there. Therefore, possibility of suicide is not appearing from the entire evidence. There was no any reason with the deceased to false implicate the accused.

Therefore, it appears that the trial Court did not commit any mistake by holding the appellant guilty for the offence under Section 302 of the I.P.C. The minimum sentence prescribed for the offence has been awarded, therefore, no interference is required in the conviction or sentence.

Hence, this appeal having no force is hereby dismissed. One copy of this judgment be sent to the accused through the jail authorities.