Gyarsibai vs State Of Madhya Pradesh

Rohit Arya, J

This appeal by an accused under section 374 Cr.P.C., is directed against the judgment of conviction and order of sentence dated 30/11/2007 passed in

sessions trial No.74/2007 by the Additional Sessions Judge, Narsinghgarh convicting the appellant under section 302 IPC and sentenced to suffer life

imprisonment with fine of Rs.1000/- and in default of payment of fine to undergo one year additional simple imprisonment.

The undisputed fact is that the deceased Sushilabai suffered burn injuries on 06/02/2007 and died in the hospital during treatment on 17/02/2007.

The prosecution story, in brief is that on 06/02/2007 Sushilabai in burnt condition reached Police Chowki, Boda falling under the Police Station

Pachour, District Ragarh (Biaora) about 07.50 pm and lodged the report to the effect that about 06.00 pm when she was at her residence in village,

Boda, the accused-appellant/Gyarasibai sister-in-law by relation came and abused by uttering filthy language as well as slapped without any just

cause. The husband of the deceased, Narayana intervened and tried to explain the things to her but she has turned deaf ear. The accused poured

kerosene from the gaslit cup (kuppi) and lit fire as a result she received burn injuries on various parts of her body. Thereafter, went away from the

place of occurrence. The husband of Sushilabai extinguished the fire. Thereafter, Ramesh brother of the deceased, Biharilal and Gangabai reached

the scene of occurrence. Based on the statement of Sushilabai, a case under section 307 IPC was registered at crime No.010/2007 and was sent for

treatment to the hospital. Further, information was forwarded to the Police Station Pachour for registration of the FIR and the same was registered at

crime No.54/2007 under section 307 IPC on 07/02/2007 at 02.15 pm.

The preliminary treatment was given to her at Narsinghargh Hospital. Looking to the condition of the patient, the MLC Doctor had called the

Executive Magistrate, Naib Tahsildar, Narendra Singh Chouhan (P.W.6) for recording the dying declaration. In fact, he has recorded her dying

declaration. As her condition was further deteriorating, she was referred to Hamadia Hospital, Bhopal for treatment and during the treatment she died

on 17/02/2007. Thereafter, Marg intimation was sent to the police station and the dead body was sent for post mortem. Due to death of the deceased,

the case was altered under section 302 IPC against the accused/appellant.

During investigation, Investigating Officer, Balveer Singh (P.W.9) has prepared the spot map (exhibit P/15), seized various articles viz., pieces of

burnt clothes, steel cup, one plastic can containing at least half liter kerosene, matchsticks, some unburnt pieces of cloth, broken bangles, simple earth

and the soil soaked with kerosene, etc., and prepared the seizure memo in presence of the witnesses (exhibit P/1). The statements of witnesses,

Rameshchandra, Biharilal etc., who were acquainted with the facts of the offence have been recorded and arrested the appellant/accused. After

completion of the investigation, a charge sheet was filed against the accused person before the concerned Court. Thereafter, cognizance of the matter

was taken and committed the case to the Court of Session for trial.

The trial Judge on the basis of the material placed on record framed charge punishable under Section 302 against the accused person. The accused

has admitted the fact that the deceased was in a room at her house and she herself has tried to extinguish the fire by pouring water on her body. She

has stated that Satyanarayana (P.W.3) was also present in the said room. However, the accused denied the charge and claimed to be tried. The

defence of the accused is of false implication and the same defence she set forth in her statements recorded under Section 313 of the Code of

Criminal Procedure, 1973.

The prosecution has examined as many as 10 witnesses and placed Exhibits P/1 to P/16, the documents on record and the accused has examined

defence witnesses; Kishore Patidar (D.W.1), Shabbir (D.W.2) and Vikram (D.W.3).

The trial Judge on the basis of evidence placed on record; particularly, the statements of Narmadaprasad (P.W.5), Biharilal (P.W.1),

Rameshchandra (P.W.2) and the medical evidence on record came to hold that charge under Section 302 of the IPC has been proved against the

appellant as a result of which convicted her and passed the sentence referred above.

This appeal has been preferred by the appellant assailing the judgment of conviction and order of sentence passed by the trial Court.

Learned counsel for the appellant while criticizing the impugned judgment contends that there is mis-appreciation of the evidence on record and

committed grave illegality having relied upon the testimony of the evidence led by cited witnesses. He has submitted that the appellant has been falsely

roped in the case and there was no cogent evidence to establish the ingredients of offence under Section 302 of the IPC against the appellant. Further,

if the deceased was put to fire, her hair also ought to have caught fair but, there is no cogent material on record that her hair also burnt, therefore, the

commission of offence by the accused/appellant is highly doubtful.

The prosecution witnesses Narmadaprasad (P.W.5), Biharilal (P.W.1) and Rameshchandra (P.W.2) in their statements have stated that the deceased

was not in a condition to speak and there are variances in their statements. Hence, their statements cannot be relied upon to convict the appellant.

By putting a deep dent on the dying declaration (Exhibit P/12) recorded by Narenda Singh Chouhan (P.W.6), it has been argued that there are

contradictions with the other circumstantial evidence and statements inasmuch as, the deceased was not in a fit mental and physical condition to give

the statement, and therefore, it would be highly unsafe to place reliance on the dying declaration (Exhibit P/12). Under such circumstances, the trial

Court erred in convicting the appellant, hence, this appeal be allowed and the appellant be acquitted from the charge.

10, An alternate submission has also been put-forth by the learned counsel for the appellant that if this Court comes to the conclusion that the appellant

has caused injuries on the person of the deceased, the same were not intentional or premeditation or pre-planned but the act was due to sudden

provocation. There was no premeditation either to cause bodily injury or death of the deceased. Under such circumstances, the case at the most fall

within the exception 4 of section 300 IPC, which reads as under -

“300. Murder :

… … ...

Exception 4.- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel

and without the offender having taken undue advantage or acted in a cruel or unusual manner.

Explanation.- It is immaterial in such cases which party offers the provocation or commits the first assault.

and therefore punishment under Section 302 IPC is wholly unwarranted, instead, the appellant may be held guilty for offence under Section 304 Part II

IPC. Further, the sentence may be reduced to the period already undergone by her as she has already undergone about 11 years of the sentence. He

has placed reliance on the judgments of the Hon'ble Supreme Court in the case of K. Ravi Kumar Vs. State of Karnataka, (2015) 2 SCC 638 and

judgment of Division Bench of this Court in the case of Premsingh s/o Lal Singh and another Vs. State of M.P., (2006) 4 MPLJ 526 to bolster his

submission.

Learned Public Prosecutor supported the impugned judgment submits that the conviction in question is well merited. Accordingly, prayed for

dismissal of the appeal.

We have heard learned counsel for the parties.

In the present case, the conviction is based on dying declaration of the deceased, Sushilabai. It is settled principle of law that dying declaration is

substantive piece of evidence and an order of conviction can be safely passed on the basis of dying declaration. For relying upon the dying declaration,

the Court must be conscious that the dying declaration was voluntary and further it was recorded correctly and above all the maker was in a fit

condition mentally and physically to make such statement.

The deceased herself lodged the FIR (Exhibit P/9) immediately, after the incident at Police Chowki, Boda.

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The dying declaration of the deceased was recorded by Narendra Singh Chouhan (P.W.6) upon certification

“This is to certify that Smt. Sushilabai w/o Satyanarana is mentally sound for statement.

Sd/xxx

08.00 AM

07/02/2007

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This is to certify that Smt. Sushilabai remained mentally sound during statement recorded.

Sd/xxxâ€​

Narendra Singh Chouhan (P.W.6) proved the dying declaration. After death of the deceased, this document would become her dying declaration, as

contemplated under Section 32(1) of the Indian Evidence Act. It has been categorically stated by P.W.6, that on receiving the information, he

immediately reached the hospital and found Sushilabai was admitted there in burnt condition. Thereafter, the injured was certified to be in fit mental

condition by the doctor and the endorsement and thumb impression in that behalf has been appended on the dying declaration itself made by the

deceased before the aforesaid executive officer.

The trial Court after appreciating the evidence in detail found proved the statement of the deceased that the appellant poured kerosene on her

(deceased) and lit the fire as a result she was burnt. On going through the reasonings assigned by the trial Court, we are of the view that the trial

Court has rightly arrived at a conclusion that the appellant has poured kerosene on the deceased, Sushilabai and lit the fire due to which she has

received the burn injuries.

The MLC report of the deceased was Exhibit P/14 which was proved by Dr. Mahendra Gupta. After death of the deceased, post mortem of the

body was conducted by Dr. B.K.Athawal (P.W.10) and his post mortem report is at exhibits P/16. After perusal of the testimony of the MLC Doctor

Mahendra Gupta (P.W.6), the Autopsy surgeon, Dr. B.K.Athawal (P.W.10) and the MLC report (Exhibit P/14) and the post mortem report (Exhibits

P/16), we find the following injuries on the person of the deceased:

MLC REPORT (exhibit P/14):

“Deep burn injuries on the following areas:

(1) Anterior chest and upper abdomen with extension to both infrascapula region;

(2) Anterior part of the neck and chin;

(3) Dorsal aspect of whole right upper limb including hand;

(4) Front of the left shoulder and flexor aspect of left forearm

and

(5) both buttock with post part of both thighs and upper leg caused by dry heat, duration within 24 hours. Danger to life.â€​

POST MORTEM REPORT (exhibit P/16):

“(1) Superficial infuriated burns present over chest and abdomen starting from neck anterior aspect flow of mount to chest all over and upto

umbilicus region of abdomen all over and on right line region.

(2) Superficial infuriated present over both upper limb on right side extending from auxillary line upto hand in patching form cubital on left side it

extend from shoulder upto while region on antromedial aspect.

(3) Superficial infuriated burn present over both lower limbs on right side anterior aspect it extend from iliac crest upto nearby mid of leg on anterio

lateral aspect and at ankle on which anterior aspect, on posterior aspect it stretching from gluteal fold upto fist above the knee all over. On left side

anterior aspect it extend from nearby mid of thigh upto just below knee as anteromedial aspect and in leg anterior aspect in patchy aspect from gluetial

fold upto just above ankle all over.

(4) Superficial infuriated burn present over back at left scapular region at lumber region all over and at buttock of both sides.

The burn is infuriated with propocket filled with an emitting from smell at slum and floor grenish yellow colour.

It was opined that death was due to cardiorespiratory failure as a result of burns and its complications. Viscera and scalp hair preserved for chemical

analysis. Duration of death was within 24 hrs. since the time post-mortem examination. Hospitalized case.

Taking into consideration the evidence of Biharilal (P.W.1), Rameshchandra (P.W.2) and Narmada (P.W.5), this court is of the view that death

was homicidal in nature but, there is no evidence of any premeditation of the accused appellant to cause injury upon the body of the deceased; much

less, with an intention to cause such bodily injury, which could result into death, as it has come in evidence that there was sudden provocation between

the accused and the deceased. Such course of event in the opinion of this court, in fact, suggests that the same provided a sudden and grave

provocation to the accused appellant which drove her to lit fire by pouring kerosene and, therefore, this court finds substantial force in the submission

advanced by the learned counsel for the appellant that the instant case falls under Exception IV to Section 300 IPC. Under such circumstances, we

are not in agreement with the conclusion of the trial court for conviction of the appellant under Section 302 IPC. Therefore, this court is of the view

that the present case is a case of culpable homicide not amounting to murder and, therefore, the appellant is liable for punishment under Section 304

Part II of IPC.

Consequently, the appeal is allowed in part. The conviction of the appellant under Section 302 IPC is hereby set aside, instead she is convicted

under Section 304 Part II of IPC and sentenced to the period already undergone with fine of Rs.1,000/-(Rupees two thousand only) with default

stipulation.

At this stage, learned counsel for the appellant submits that the appellant is in jail since 30/11/2017 and more than 10 years period he has

undergone. This fact is found verified with the record of the case. In terms of the report submitted by the office of the Central Jail, Bhopal dated

27/09/2017, the appellant has undergone about 11 years 04 months. In the obtaining facts and circumstances, she is directed to be released forthwith if

not required in any other criminal case subject to payment of the fine amount.

Consequently, this appeal is allowed in part to the extent indicated hereinabove.

The Registry is directed to send the copy of this judgment immediately along with the record to the learned Trial Court for necessary compliance.