Mohan Singh Gond vs State of Chhattisgarh

Pritinker Diwaker, J.—This appeal arises out of the judgment of conviction and order of sentence dated 22-11-2010 passed by the II Additional Sessions Judge (FTC), Korba in S.T. No. 73/08 convicting the accused/appellant under Section 302 of IPC and sentencing him to undergo imprisonment for life and to pay a fine of Rs. 100/-, in default thereof to undergo additional R.I. for three months. In the present case, name of the deceased is Sandhya who was second wife of the accused/appellant. It is alleged that on 12-8-2008 there was some quarrel between the accused/appellant and the deceased and thereafter, the deceased was burnt by the accused/appellant after pouring diesel. She was immediately taken to hospital where here MLC (Ex. P/4) was conducted by P.W. 3 Dr. V.S. Rathore at about 12.30 a.m. who noticed 96% burn injuries on the body of deceased. Thereafter, dying declaration Ex. P/5 of the deceased was recorded wherein she has stated that she was burnt by the accused/appellant. On the same day i.e. 13-8-2008 at about 3.25 a.m. the deceased expired. Intimation Ex. P/6 was sent to the Police Outpost Rampur, Police Station Kotwali, based on which merg intimation Ex. P/7 was recorded at zero number and thereafter, numbered merg intimation was recorded on 16-8-2008 at P.S. Balso. Post-mortem (unexhibited) was conducted on the body of the deceased on 13-8-2008 by Dr. R.K. Divya and according to her, cause of death was shock due to extensive superficial to deep dry burn ante-mortem in nature. After filing of charge-sheet, charge under Section 302 of IPC was framed against the accused/appellant.

So as to hold the accused/appellant guilty, the prosecution examined as many as 12 witnesses. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C. in which he denied the circumstances appearing against him in the prosecution case, pleaded innocence and false implication.

The trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment convicted and sentenced the accused/appellant as mentioned in para 1 of this judgment.

Learned counsel for the appellant submits as under:

"(i) that present is a case where the deceased set herself ablaze and unfortunately died;

(ii) in the same incident the accused/appellant had also suffered burn injuries, which shows that after suicidal attempt by the deceased the accused/appellant tried to save the life of his wife.

(iii) there is utter confusion in recording timing of admission of the deceased in hospital and her death. According to him, the dying declaration was never made by the deceased because on 13-8-2008 at 10.20 a.m. FIR (Ex. P/10) was registered against the accused/appellant under Section 307 of IPC and had it been a case of death of the deceased prior to registration of FIR, the question of registration of FIR under Section 307 would not have arisen.

(iv) while referring to bed head ticket (Ex. P/3) it has been argued that in several places the date has been mentioned as 13-8-2008 whereas only in the endorsement marked as "A to A" the date has been mentioned as 12-8-2008 and that goes to demonstrate that the dying declaration has been made subsequent to death of the deceased just to implicate the accused/appellant.

(v) that the so-called oral dying declaration made by the deceased before P.W. 5 Sagar Marco is highly improbable because cross-examination of this witness makes it clear that no such statement was made by the deceased to this witness.

(vi) that statements of P.W. 6 Radheshyam and P.W. 7 Gokul Prasad make it clear that the deceased committed suicide.

(vii) that from the statements of P.W. 3 Dr. V.S. Rathore, P.W. 6 & P.W. 7 it is apparent that the deceased was not in a position to make any dying declaration as she had suffered 96% burn injuries.

(viii) that even from the statement of P.W. 10 Koushalya, first wife of the accused/appellant, it is apparent that she saw the deceased entering her room and from there she heard the cries of the deceased and then she was saved by her, the accused/appellant and her sister. It is the accused/appellant who took the deceased to hospital and intimated to the police.

(ix) that dying declaration of the deceased cannot be relied upon because there is no endorsement in the dying declaration that the deceased was in a fit state of mind to make such declaration.

(x) that the autopsy surgeon has not been examined.

(xi) from the evidence it is apparent that the accused/appellant was trying to save the deceased which itself shows that the appellant had no intention to commit murder of the deceased and considering this aspect of the case, even if the entire prosecution case is taken as it is, at best the accused/appellant is liable to be convicted under Section 304, Part-I or II of IPC and not under Section 302 of IPC as has been done by the trial Court."

On the other hand, supporting the impugned judgment it has been argued by learned counsel for the State as under:

"(i) that minor discrepancies in mentioning the date is required to be ignored because the incident had taken place in the night intervening 12th & 13th August, 2008.

(ii) while referring to bed head ticket Ex. P/3 it has been argued that as the deceased was hospitalized in between 12-12.30 in the intervening night of 12th and 13th August, 2008, probably the date has been mentioned as 12-8-2008 in the portion marked as "A to A", however, subsequently specific date has been mentioned as 13-8-2008.

(iii) that there is no reason for this Court to disbelieve the dying declaration of the deceased and once from the evidence it is clear that even after suffering burn injury the deceased was talking to her neighbours and the police, in absence of any endorsement regarding mental or physical condition of the deceased, the dying declaration cannot be doubted. From the statement of P.W. 3 Dr. V.S. Rathore who recorded the dying declaration, it is apparent that the doctor was satisfied enough regarding physical and mental condition of the deceased.

(iv) that oral dying declaration made by the deceased before police authority has been duly proved by brother of the deceased P.W. 5 Sagar Marco and there is no reason to disbelieve the statement of this witness."

Heard learned counsel for the parties and perused the material available on record.

P.W. 1 Pooran Singh, neighbour of the accused/appellant and the deceased, has stated that on the date of incident upon hearing the cries when he came out of his house at about 10 p.m. he saw the accused/appellant trying to extinguish the fire by blanket and the appellant also offered water to the deceased. At that time number of people had gathered there and in their presence the deceased disclosed the name of the accused/appellant. He was informed by the lady members present there that the deceased had disclosed the name of the accused/appellant. The deceased was shifted to hospital and there she expired. He has further clarified that the accused/appellant has two wives, first was Koushalya and the second was the deceased. The first wife was living in a different village but she used to visit the accused/appellant. When he and other persons saw the deceased in burnt condition, they asked the accused/appellant as to how this incident had taken place, on which the accused/appellant disclosed that after consuming liquor the deceased had set herself ablaze and suffered burn injuries. In cross-examination, he has clarified that considering the fact that the deceased was naked, the male members present there avoided to go near her.

P.W. 2 Ganesh Singh, a witness to inquest Ex. P/2, has not stated anything specific. P.W. 3 Dr. V.S. Rathore had treated the deceased when she was hospitalized and conducted MLC vide Ex. P/4. He has stated that the deceased had suffered 96% burn injuries, but for the scalp her entire body was burnt. He has also proved the admission card Ex. P/3. He has stated that upon request being made by the police on 13-8-2008 at 12.35 hours he recorded dying declaration Ex. P/5 of the deceased in question and answer form wherein she categorically stated as to the manner in which she was burnt by the accused/appellant. He has further clarified that when he recorded the dying declaration, though condition of the deceased was serious but she was in a position to speak and understand the things. After death of the deceased, intimation (Ex. P6) was sent by him to Police Outpost Rampur. Though in the document Exs. P/3 to P/5 he has not mentioned the fact that the deceased was in a position to speak but has categorically mentioned "responds to verbal comment" and meaning of the said word is that whatever was being asked to the deceased she was in position to understand the same and answered the questions which were put to her. He had further stated that apart from answering the questions put to her she was also responding by way of gestures and nodding her head. He has further clarified that he did not record in the dying declaration about mental and physical status of the deceased because the same was already mentioned in the bed head ticket and further considering the serious condition of the deceased in order to save the time, it was not done.

P.W. 4 Sukhsen appears to be neighbour of the accused/appellant and the deceased. He has stated that on the date of incident upon hearing the cries when he came out of the house he saw the deceased in a burnt condition and at that time she was removing her clothes. He has stated that he did not see the accused/appellant at the place of occurrence and therefore, he had gone to inform about the incident to brother of the deceased and immediately after 5-10 minutes he returned along with brother of the deceased Sagar to the place of incident. He saw the deceased in lying condition and thereafter, the police came there and took the deceased to hospital. At that time the deceased was alive.

P.W. 5 Sagar Marco, brother of the deceased, has stated that the accused/appellant had two wives, second wife Sandhya (deceased) was his sister. Whenever first wife of the accused/appellant used to visit the house of the accused/appellant, there used to be quarrel between them and on the date of incident at about 10 p.m. he was informed by Sukhsen (P.W. 4) about the incident. When he reached the house of the accused/appellant, he saw her in burnt condition and upon arrival of the police, the deceased informed the police as to the manner in which she was burnt by the accused/appellant. He has stated that the deceased had not disclosed him about anything but she made statement before the police. He has further stated that on earlier occasions also the accused/appellant used to beat the deceased. He has categorically denied the suggestion that he is deposing against the accused/appellant just to falsely implicate him.

P.W. 6 Radheshyam, neighbour of the accused/appellant and the deceased, has stated that upon receiving information from brother of the deceased Sagar Marco (P.W. 5) and Sukhsen (P.W. 4) that the deceased has suffered burn injuries when he reached the place of occurrence, he saw the deceased in burnt condition, she was naked and that the accused/appellant was also standing there. He has further stated that he had intimated the police about the incident and when he returned back to the place of occurrence and till shifting of the deceased to hospital, the deceased was alive. At that time, the police had already enquired about the incident from the deceased. Even in the hospital, the deceased was alive and was asking for water which was offered by her brother. He, however, has clarified that the deceased had not made any statement to him. P.W. 7 Gokul Prasad is also neighbour of the accused/appellant and the deceased who reached the place of occurrence after hearing cries. P.W. 8 Babulal Chandra, Head Constable of Police outpost - Rampur, recorded merg intimation (Ex. P/17) on the basis of information (Ex. P/6) received from the hospital. P.W. 9 Fundesingh Pusam is a seizure witness of those articles which have been seized from the place of occurrence. He is also a witness to spot map Ex. P/9. P.W. 10 Koushalya, first wife of the accused/appellant, has stated that her marriage was solemnized with the accused/appellant about 14 years back and thereafter, her husband was living with the deceased. On the date of incident there was some quarrel between the accused/appellant and the deceased, in the night the deceased slept in other room, she heard her cries "Bachao, Bachao" and that her husband had tried to save her. P.W. 11 Thomas Minj recorded FIR (Ex. P/10) at PS-Balco. This witness after reaching the hospital requested the doctor for recording dying declaration of the deceased and after recording of the same, he registered FIR under Section 307 of IPC. He also made a request for MLC of the deceased. He also conducted part of the investigation and helped P.W. 12 N.L. Dhritlahre, who being SHO completed investigation and filed challan. PW 12 has supported the prosecution case.

Close scrutiny of the evidence makes it clear that on 12-8-2008 it is the accused/appellant who burnt his wife Sandhya resulting in 96% burn injuries and her death in the hospital. There is no reason for this Court to disbelieve the dying declaration (Ex. P/5) of the deceased which has been voluntarily made by her before the doctor (P.W. 3). The dying declaration made by the deceased reads as under:

There is enough evidence available on record that the deceased was in a fit state of mind to make dying declaration and in the dying declaration recorded in question and answer form she has described as to the manner in which she was burnt by the accused/appellant. No evidence has been brought on record to discredit or disbelieve the dying declaration made by the deceased and therefore, the same cannot be doubted. On the basis of mere fact that in the dying declaration no endorsement has been made by the doctor about physical and mental condition of the deceased, the dying declaration cannot be discarded particularly when other evidence is on record to show that the deceased was in a fit state of mind to make statement, she was talking and responding to the questions put to her."

Apart from the dying declaration, yet another piece of evidence against the accused/appellant is statement of brother of the deceased Sagar Marco (P.W. 5) who has categorically stated that when he reached the place of occurrence, he overheard the deceased informing the police as to the manner in which she was burnt by the accused/appellant. There is absolutely no evidence on record to show that the deceased set herself ablaze and tried to commit suicide. I further find no substance in the argument of the appellant that the appellant is liable to be convicted under Section 304, Part-I or II of IPC because while trying to save life of the deceased, he also suffered injuries. Firstly, there is no evidence on record to show that the accused/appellant suffered any burn injury and secondly, after setting the deceased on fire, even if some attempt has been made by the accused/appellant to extinguish the fire, it does not mean that he had no intention to commit her murder.

In view of the specific voluntary dying declaration made by the deceased, we find no substance in the others arguments of the appellants that as per statements of P.W. 6 and P.W. 7 the deceased committed suicide and that the autopsy surgeon has not been examined.

On the basis of aforesaid discussions, we are of the opinion that the trial Court has rightly convicted and sentenced the appellant under Section 302 of IPC on proper appreciation of the evidence on record. There is no illegality or infirmity in the judgment impugned warranting interference by this Court. The appeal being without any substance is liable to be dismissed and is, accordingly, dismissed. As the appellant is already in jail, no further order is required.