Komal & Two Others vs State Of Madhya Pradesh

SubodhAbhyankar,J.

This criminal appeal under Section 374(2) of the Code of Criminal Procedure has been preferred by the appellants No.1 Komal s/o Latore Singh, No.2

Raju s/o Komal Singh Lodhi and No.3 Devendra Singh s/o Komal Singh being aggrieved by the judgment and order dated 22/10/2009 passed by the

learned Second Additional Sessions Judge, Damoh in ST No.94/2007, whereby the appellants have been convicted under Sections 302/34 and 452/34

of IPC and sentenced to life imprisonment with fine of Rs.500/- each and three years’ RI with fine of Rs.500/- each and in default of payment of

fine, additional RI for six month on each count.

The prosecution case in short is that on 17.3.2007 deceased Janki Bai wife of Omkar (PW-17) aged 25 years was brought to the Primary Health

Centre, Hata where her pre-MLC was done and on an intimation to the Police Station Hata a dying declaration (Ex.P-20) was recorded by ASI

Kishan Singh Thakur (PW-11) at 15.50 in which she has stated that one Mullabai, who was transporting cow dung cake in a tractor started abusing

the deceased Janki Bai and when she objected to it and asked not to abuse her, an altercation took place, however the aforesaid dispute led to the

accused persons including A-3 Devendra, A-2 Raju and A-1 Komal coming to her house at 11 AM, as accused A/1 Komal was the husband of the

said Mulabai, Accused A-2 Raju was carrying kerosene can and sickle and poured the same over her and accused A-3 Devendra set her ablaze.

Subsequently at her instance a Dehati Nalishi (Ex.P-21) was also lodged at 16:15 in which also more or less the same allegations have been leveled by

her against the accused persons. In addition she has also stated that her brother-in-law Balram (PW-12) came running to the spot and at that time the

accused persons fled away from the spot and she was brought to the hospital in a jeep. While in the hospital her dying declaration (Ex.P-18) was

officially recorded by the Executive Magistrate/Naib Tahsildar Kamlesh Agrawal (PW-10) at 19.05 and in this dying declaration also the deceased

has named A-3 Devendra, A-1 Komal and A-2 Raju.

After the investigation was over, the charge sheet was filed against the appellants and they were subsequently tried by the Second Additional

Sessions Judge, Damoh, who after recording the evidence of the witnesses convicted the present appellants under Sections 302/34 and 452/34 of IPC

and sentenced as aforesaid vide its judgment dated 22/10/2009. Being aggrieved by the said judgment, finding and sentence the instant appeal has

been preferred by the appellants.

Learned counsel for the appellants has submitted that in the present case despite there being three so-called dying declarations, none of them can

be relied upon because of the discrepancy which has occurred. He has drawn the attention of this Court to the Ex.P-18, which is the dying declaration

recorded by the Executive Magistrate/Naib Tahsildar Kamlesh Agrawal (PW-10), Ex.P/20 (pre M.L.C report) her statement given to ASI Kishan

Singh Thakur (PW-11), and the Dehati Nalishi (Ex.P-21), which is again recorded by PW-11 Kishan Singh Thakur. Learned counsel for the appellants

has submitted that the dying declaration recorded by the Executive Magistrate/ Naib Tahsildar Kamlesh Agrawal (PW-10) has not been recorded in a

proper format, as no other fact has been brought on record as to how the incident has taken place, and the dying declaration being cryptic cannot be

relied upon.

So far as other two dying declarations P/20 and P/21 are concerned, learned counsel for the appellants has submitted that the same are also in

different version from the dying declaration which was recorded before the Executive Magistrate/Naib Tahsildar, hence the same cannot be relied

upon. In support of his contention, learned counsel for the appellants has relied upon the judgments of the Hon’ble Apex Court as well as this

Court, which are as under:-

a) Gopal Vs. State of MP, AIR 2009 SC 2111.

b) WaikhomYaima Singh Vs. State of Manipur, 2011 CRI.L.J. 2673.

c) Amol Singh Vs. State of MP, (2008) 2 SCC (Cri) 637.

d) State of Maharashtra Vs. HemantKawadu, 2016 CRI. L.J. 663.

e) Narayan & anther Vs. State of MP (CRA No.781/2015 decided by the Division Bench of this Court on 26.9.2016)

It is further emphasized by the learned counsel for the appellants that so far as A-1 Komal is concerned, no over-act has been attributed to him, as

the main allegations are against appellant No.2 Raju, who had brought kerosene and appellant No.3 Devendra, who had shown the light to the

deceased when kerosene was poured over her body by appellant No.2 Raju and appellant No.1 Komal is liable to be acquitted on this ground only. In

alternative learned counsel for the appellants has submitted that his sentence may be reduced to the period already undergone by him looking to the

fact that no overt act has been attributed to him. 7. On the other hand, learned counsel for the State has submitted that the prosecution has been able

to prove its case beyond reasonable doubt, as there are as many as three dying declarations on record and none of them can be said to have been

given by the deceased under any influence. There is no reason to disbelieve the same. It is further submitted that the incident has been witnessed by

PW-12 Balram, who is the brother-in-law of the deceased. It is further submitted that no illegality has been committed by the learned Judge of the trial

Court in convicting the present appellants. Learned counsel for the State has also drawn the attention of this Court to the statement of PW-17 Omkar,

who happens to be the husband of the deceased, who had taken the deceased to the hospital and who has confirmed the story narrated by Balram

(PW-12).

We have heard the learned counsel for the parties and perused the record.

From the record, this Court finds that deceased Janki Bai was brought to the hospital on 17.3.2007 at around 2:30 PM, which is also mentioned in

the pre-MLC. She died on 19.3.2007 at around 12 O’clock in the noon and as per her post-mortem report (Ex.P-33), she had suffered burn

injuries. The post-mortem was prepared by Dr. Ashok Jain (PW-21), who has stated that deceased Janki Bai died due to shock arising out of deep

burn injuries. Apparently the nature of death was homicidal in nature. 10. So far as the allegations against the present appellants are concerned, as

already stated above, there are three dying declarations recorded at the instance of deceased Janki Bai including the Dehati Nalishi (Ex.P-21) dated

17.3.2006 recorded by ASI Kishan Singh Thakur (PW-11), secondly her dying declaration was recorded by the same ASI Kishan Singh Thakur (PW-

11) in the presence of the doctor, who has also endorsed on the aforesaid document and thirdly the dying declaration recorded by Kamlesh Agrawal

(PW-10) in the presence of Dr. P.D. Kargaiya (PW-20).

So far as the Ex.P/21 Dehati Nalishi and Ex.P/20 dying declaration recorded by the police officer are concerned, the same would amount to the

dying declaration under Section 32 of the Evidence Act, as they relate to the cause of death of deceased Janki Bai, and apart from that the dying

declaration (Ex.P-18) recorded by the Executive Magistrate/NaibTahsildar can be said to be recorded in accordance with law in the presence of the

Executive Magistrate/Naib Tahsildar Kamlesh Agrawal (PW-10), who, in his deposition has stated that he was posted as Naib Tahsildar and

Executive Magistrate on 17.3.2007 at Damoh and had recorded the dying declaration of the deceased. He has clearly stated that prior to the dying

declaration, the doctor had also examined her and had endorsed that she is in a fit condition to give dying declaration, which was also been read over

to her and then he obtained her thumb impression.

The contention raised by the learned counsel for the appellants is that it is not mentioned as to which thumb impression was obtained by the said

witness Kamlesh Agrawal (PW-10), but in the considered opinion of this Court that on close perusal of the statement of the Executive

Magistrate/Naib Tahsildar Kamlesh Agrawal (PW-10) reveals that there is nothing in his statement, which can be doubted. The aforesaid dying

declaration was endorsed by Dr. P.D.Kargaiya (PW-20), who has stated that initially he had treated the deceased and had also certified that the

deceased was in a fit condition to give her statement and hence her dying declaration can be recorded and the endorsement to this effect was also

signed vide Ex.P-19 and has also confirmed that he had also signed the dying declaration Ex.P-20, which was recorded by the Executive Magistrate.

In view of the same, although there appears to be no illegality or infirmity in other two dying declarations Ex.P-20 and P-21, this Court has no reason

to doubt veracity of the dying declaration (Ex.P-18) recorded by the executive magistrate Kamlesh Agrawal (PW-10).

So far as other two dying declarations Ex.P-20 and P21 are concerned, PW-11 Kishan Singh Thakur, who had recorded the same, has clearly

stated that while recording the dying declaration of the deceased, he had got endorsement of the duty Dr.P.D.Kargaiya (PW-20), who had also opined

that the patient was in a fit condition to give dying declaration. This witness has also been cross examined in detail but nothing substantive could be

extracted from him which can be said to be beneficial to their defence. Thus if the dying declaration is held to be genuine, then the culpability of the

appellants can also not to be doubted. This Court also finds that the deceased in unequivocal terms had narrated the same story for three times to at-

least two different authorities namely ASI Kishan Singh Thakur (PW-11) and Executive Magistrate/ Naib Tahsilar Kamlesh Agrawal (PW-10). The

allegation made in the dying declaration of the deceased also finds support from the eye-witness account PW-12 Balram, who happens to be the

brothere-in-law of the deceased, who has stated that on the date of incident when he came to his house at around 11 O’clock in the noon, he saw

the accused persons Komal, Raju and Devendra were inside the house and were beating Janki Bai, who was his sister-in-law and after seeing that

this witness is entering into the house, the aforesaid three accused persons ran after him, but this witness ran away from the spot and went to his

brother Omkar (PW-17) to fetch him and when they came back to their house, they saw that by that time the deceased was already burnt, after

pouring kerosene over her. He has further stated that his brother Omkar had taken the deceased to the hospital. He has further stated that a dispute

had arisen at 4-5 days which has led to the aforesaid incident.

Learned counsel for the appellants has also assailed the testimony of this witness on the ground that in his cross examination, he has exaggerated

the incident and has stated that Janki Bai was given around 50 axe blows by appellant No.2 Raju and other accused persons had also caused various

injuries to his sister-in-law. In his cross examination he has clearly stated that when he came back after calling his brother Omkar, at that time Janki

Bai was already burnt, hence the aforesaid contention raised by the learned counsel for the appellants cannot be accepted, as it might be possible that

in his zeal to have the appellants convicted, the said witness Balram (PW-12) has exaggerated the incident, however from his statement, the presence

of the accused persons on the spot is established beyond doubt. Omkar (PW-17) has stated that while he was not at his home, the accused persons

came to his house and set her wife ablaze, which information was provided to him by his brother when he had gone for work. This witness has also

stated that after reaching the home, when he asked about the incident, then his wife informed him that she was burnt by present appellants-Komal,

Raju and Devendra, in such circumstances there is no reason for this Court to disbelieve the statements of these two witnesses, they may have

exaggerated their version, but the same cannot be said to be material in nature and cannot be said to have caused any dent to the prosecution story.

So far as the judgments cited by the learned counsel for the appellants are concerned, in the case of Waikhom Yaima (supra) the doctor was not

cross examined and the dying declaration of the deceased was purely oral in nature and even in the FIR the name of the assailants was not

mentioned. But this is not the situation in the present case whereas the deceased had given the name of the assailants as many as three occasions. In

the case of Amol Singh (supra) the Hon’ble Apex Court has discussed the discrepancies in the multiple dying declarations, but in the present case

this Court has already found that there was no discrepancy in the three dying declarations made by the deceased. In the case of Hemant Kawadu

(supra), one of the factor in not relying upon the dying declaration was that the dying declaration of the deceased was recorded by the police after a

delay of about one full day and apart from that the other dying declaration was written by the deceased herself but no hand writing expert report was

produced to support the said document, hence the said judgment is totally distinguishable and is of no help to the appellants.

In the judgment of the Division Bench of this Court cited by the learned counsel for the appellants in the case of Narayan (supra) decided on

26.9.2016 in CRA No.781/2015, wherein the dying declaration recorded by the Constable was found to be not reliable and the dying declaration of the

deceased was also not recorded through the Executive Magistrate from 4.3.2011 to 11.3.2011, but in the present case at hand this Court has not found

any such infirmity in the evidence produced by the prosecution, hence the said judgment is of no help to the appellants.

In view of the same, this Court is of the considered opinion that the prosecution has been able to prove its case beyond reasonable doubt and no

fault can be found in the recording of conviction of the appellants by the learned Judge of the trial Court and they have been rightly convicted under

Sections 302/34 and 452/34 of IPC.

In the result, the criminal appeal filed by appellants Komal, Raju and Devendra Singh is hereby dismissed. The appellants are in jail, they shall

serve the remaining jail sentence as awarded to them by the learned trial Court in accordance with law.