Paru S/O Khuma Bhil vs State Of Madhya Pradesh

The appellant has preferred present appeal under Section 374 of the Cr.P.C. being aggrieved with his conviction by the judgment dated 01/02/2001

passed by Additional Sessions Judge, Jhabua in S.T. No. 378/2000, by which the appellant has been convicted for the offence punishable under

Sections 498(A), 302 of the IPC and sentenced to undergo R.I. for 2 years and to pay fine Rs.500/-and sentenced to undergolife imprisonment

and to pay fine of Rs.1,000/- respectively with usual default stipulation.

It is admitted fact that the deceased-Kalibai was the wife of the appellant-Paru, who has died due to burn injuries.

The prosecution story is in short is that on 06/06/2000 at about 7:45 p.m., Kalibai-wife of the appellant was brought to District Hospital, Jhabua in

85% burnt condition. In this regard Medical Officer sent an intimation (Ex.P/14) to the Police-Station Jhabua. After receiving the information Police

reached at the Hospital and make arrangement for recording her dying declaration. Executive Magistrate-Naresh Kumar Barole (PW 9) has recorded

the dying declaration of the Kalibai, in which she stated that her husband after pouring kerosene on her person set her on fire for the reson that she

had no son,her husband was angry with this and he used to beat her. On 06/06/2000 at about 11:15 p.m., Kalibai succumbed to the injuries at hospital

during treatment. Sub-Inspector- Idla Mourya (PW 10) after receiving the information about the death of the Kalibai registered the inquest No.

39/2000 under Section 174 of the Cr.P.C.. During the Merg inquiry he prepared lash panchnama of the deceased Kalibai and her body was sent for

the postmortem. Thereafter, an FIR (Ex. P/17) bearing Crime No. 243/2000 has been registered at Police-Station-Jhabua for the offence

punishable under Sections 498(A) and 302 of the IPC against the appellant.

Sub-Inspector-Idla Mourya (PW 10) visited the place of occurrence and prepared spot map (Ex.P/18). He seized one plastic cane and burnt

pieces of clothing from the spot vide seizure memo (Ex. P/20). He recorded the statement of the witnesses and arrested the appellant on 14/06/2000.

He obtained the bed head tickets and dying declaration of the deceased. After completion of the investigation charge-sheet was filed before the Chief

Judicial Magistrate, Jhabua, who committed the case to the Court of Sessions.

The appellant abjured his guilt. He did not take any specific plea but he has denied the charges on the pretext that he has been falsely implicated in

the matter, however, in defence he has not examined any witness.

After examination of the entire evidence lead by the parties, the trial Court has convicted the appellant for the offence under Sections 498(A) and

302 of the IPC and sentenced him as mentioned above.

Learned counsel for the appellant submits that Dallu-father of the deceased (PW 4) and Kasma Baimother of the deceased (PW 5), who after

coming to know about the incident met the deceased in District Hospital-Jhabua have not supported the prosecution case and stated that when they

met Kali Bai, she was completely burn and not in a position to speak. He also submits that in the present case the conviction of the appellant rests

on the dying declaration, alleged to have been recorded by Executive Magistrate-N.K. Borale (PW 9) and argued that endorsement made in 'E to

E' part of the dying declaration reveals that Dr. S.K. Sahu (PW 12) had examined Kalibai at 10:20 p.m. on 06/06/2000 and he found her fit for

giving statement. Dr. Sahu examined Kalibai after reaching of Mr. N.K. Barole (PW 9) to the hospital; whereas Mr. Barole received the requisition

letter (Ex.P/10) at 10:20 p.m. Under such circumstances, it does not look natural that Shri Barole reached the hospital at 10:20 p.m. and recorded the

dying declaration of Kalibai. Although Shri Barole stated that he had reached the hospital within 1 minute after receiving the requisition letter for

recording the dying declaration of Kalibai, which does not inspire confidence. He further submitted that although Dr. S.K. Sahu (PW 12) gave a

certificate that the deceased was mentally fit to give her statement, however, as per the statement of the parents of the deceased and head constable-

Ashwani Kumar Chaturvedi (PW 8), it appears that when they reached at Hospital, Kalibai was not in a position to speak. He also attacked on the

dying declaration by contending that no endorsement is made on the dying declaration that it was read out and explained to the deceased and she

admitted its truthfulness. He further argued that as per medical evidence Kalibai sustained approximately 85% burn injuries and her fingers and

thumbs sustained burn injuries, which is evident from the statement of Dr. S.K. Sahu (PW 12) also, therefore, it is not possible for Kalibai to affix her

thumb impression on the dying declaration. The dying declaration is alleged to have been recorded on 06/06/2000, however, the date of recording of

dying declaration is mentioned as 08/06/2000 on its bottom and it was forwarded to the Police after 6 days on its recording, thus it appears to be

anti-dated. Under these circumstances without any corroboration only on the basis of the dying declaration the appellant cannot be convicted for the

offence punishable under Sections 498(A), 302 of the IPC.

On the other hand learned Public Prosecutor supported the impugned judgment passed by the trial Court and prayed for dismissal of the appeal.

Having heard learned counsel for the parties, we have carefully scrutinized the material available on record and judgment of the trial Court.

In order to substantiate the charges, theprosecution examined 13 witnesses out of which total 6 witnesses i.e. Ratan Singh (PW 1), Jhitaribai

(PW 2), Baboo (PW 3) , Dallu (PW 4), Kasama (PW 5) and Kailash (PW 7) have not supported the prosecution story and turned hostile.

Dr. O.P. Agrawal (PW 11), who conducted the postmortem of the deceased-Kalibai, found the multiple burn injuries on all over the body of the

deceased and body was burnt about 80 to 85 % and he opined that deceased was died due to extensive burn injuries.

Dallu (PW 4) and Kasma (PW 5) are the parents of the deceased-Kalibai and they have not stated anything against the appellant. They deposed

that the deceased-Kalibai was their daughter and she died due to burn injuries, however, they do not know how she was burned. They have denied

that the appellant/accused had beaten to Kalibai and he poured kerosene on her person and set her on fire in order to kill her. They also denied that

when they reached at the Hospital, Kalibai told them that she did not have any son, therefore, her husband used to beat her and he set her on fire.

Ratan Singh (PW 1), Jhitaribai (PW 2) and Baboo (PW 3) have deposed that after seeing the smoke turned out of fire from the house of the

appellant, they reached there and found that the door was closed from the inside. They climb up on the roof of the house and after entering inside

they saw that deceased-Kalibai-wife of the appellant was burning but they did not know who burned her. After being declared hostile, they have

denied the suggestion given by the Public Prosecutor that there was a quarrel between deceased-Kalibai and the appellant; during the quarrel

appellant/accused assaulted and set ablaze by pouring kerosene oil on her. Ratansingh (PW 1) admitted that parties have been arrived at compromise,

however, he denied that because of this he is not supporting the prosecution story.

The statements of the Jhitaribai (PW 2) and Baboo (PW 3), does not disclose that at the time of alleged incident the appellant was present in his

house. Jhitaribai (PW 2) stated that when the incident occurred the appellant/accused went to the house of Karan Singh for

working.Looking to the statement of these witnesses, it is evident that there is no direct evidence is available on record to connect the appellant with

the present crime. Thus, the case of the prosecution is solely rests upon the dying declaration given by the deceased-Kalibai.

We may say at the very outset that the dying declaration of the deceased-Kalibai has been recorded just before her death by an Executive

Magistrate-N.K. Barole (PW 9), therefore, this dying declaration is the bone of the contention.

Section 32of the Indian Evidence Act, 1872 (for short ""the Act"") enumerates that statements, written or verbal, of relevant facts, made by a

person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured, without an

amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts under the

circumstances enumerated under Subsections (1) to (8) of Section 32of the Act. When the statement is made by a person as to the cause his death, or

as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question is

admissible in evidence being relevant whether the person was or was not, at the time when they were made, under expectation of death, and

whatever may be the nature of the proceeding in which the cause of his death comes into question. Such statements in law are compendiously called

dying declarations. The admissibility of the dying declaration rests upon the principle that a sense of impending death produces in a man's mind the

same feeling as that of a conscientious and virtuous man under oath--nemo moriturus prosesumitur mentiri. Such statements are admitted, upon

consideration that their declarations are made in extremity, when the matter is at the point of death and when every hope of this world is gone, when

every motive to falsehood is silenced and the mind induced by the most powerful consideration to speak the truth. The principle on which the dying

declarations are admitted in evidence, is based upon the legal maxim ""nemo moriturus prosesumitur mentiri"" i.e., a man will not meet his maker with a

lie in his mouth. It has always to be kept in mind that though a dying declaration is entitled to great weight, yet it is worthwhile to note that as the

maker of the statement is not subjected to cross-examination, it is essential for the Court to insist that dying declaration should be of such nature as to

inspire full confidence of the Court in its correctness. The Court is obliged to rule out the possibility of the statement being the result of either tutoring,

prompting or vindictive-ness or product of imagination. Before relying upon a dying declaration, the Court should be satisfied that the deceased was in

a fit state of mind to make the statement. Once the Court is satisfied that the dying declaration was true, voluntary and not influenced by any

extraneous consideration, it can base its conviction without any further corroboration as rule requiring corroboration is not a rule of law but only a rule

of prudence.

In the case of Laxman v. State of Maharashtra, (2002) 6 SCC 710, the Hon'ble apex Court has held as under:-

“The situation in which a man is on the deathbed is very solemn and serene, is the reason in law to accept the veracity of his statement. It is for

this reason that the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the Courts

insist that the dying declaration should be of such a nature as to inspire full confidence of the Court in its truthfulness and correctness. The Court,

however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of

imagination. The Court also must further decide that the deceased was in a fit State of mind and had the opportunity to observe and identify the

assailant. Normally, therefore, the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up

to the medical opinion. But where the eye-witnesses State that the deceased was in a fit and conscious State to make the declaration, the medical

opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying

declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs

or otherwise will suffice provided the indication is positive and definite. There is no requirement of law that a dying declaration must necessarily be

made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently,

what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case.

What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it

is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration

can be acted upon provided the Court ultimately holds the same to be voluntary and truthful.â€​

In the case of P. Mani. Vs. State of Tamil Nadu, the Hon'ble Supreme Court, observed as under:-

“14. Indisputably conviction can be recorded on the basis of the dying declaration alone but therefore the same must be wholly reliable. In a case

where suspicion can be raised as regards the correctness of the dying declaration, the court before convicting an accused on the basis thereof would

look for some corroborative evidence. Suspicion, it is trite, is no substitute for proof. If evidence brought on record suggests that such dying declaration

does not reveal the entire truth, it may be considered only as piece of evidence in which event conviction may not be rested only on the basis thereof.

The question as to whether a dying declaration is of impeccable character would depend upon several factors; physical and mental condition of the

deceased is one of them...â€​

In the case of Nahar & Ors. Vs. State of Haryana, the Hon'ble Supreme Court as taken a view as under:-

“33... The dying declaration should be such, which should immensely strike to be genuine and stating true story of its maker. It should be free from

all doubts and on going through it, an impression has to be registered immediately in mind that it is genuine, true and not tainted with doubts.....â€​

Based on the above principle, we havescrutinized the material available on record to find out as to whether the finding of the trial Court placing

reliance on the dying declaration is based on the settled principles laid down by the Apex Court in the above judgments. While doing so, we would like

to reproduce the dying declaration of the deceased-Kalibai, which reads as under:-

“ Q.1. What happens ?

Ans. Burned.

Q.2 How you got burn ?

Ans. By pouring kerosene.

Q.3. who poured ?

Ans. Husband poured.

Q.4. Why husband poured ?

 Ans. For not having male child.

Q.5. How many children do you have ?

 Ans. Four, three daughters and one son, however, son has died.

Q.6. Where is your husband gone after settingfire ?

 Ans. He fled away and she did not know where he has gone.

Q.7. Were they quarreling daily ?

Ans. Yes. He always used to beat me.â€​

The deceased was brought to the hospital at 7:45 p.m. on 06/06/2000 and at that time she was sustained 85% burn injuries. After receiving the

intimation regarding this head constable-Ashwani Kumar Chaturvedi (PW 8) reached there and he addressed a letter (Ex. P/10) to Tehsildar-

N.K. Barole (PW 9) for recording the dying declaration of the deceased-Kalibai and on receipt of intimation Tehsildar-N.K. Barole proceeded to the

hospital. After ascertaining the physical and mental condition of the victim-Kalibai from the Medical Officer, he recorded the statement at 10:20

p.m., which is at Ex. P/11. Although the Medical Officer Dr. S.K. Sahu (PW 12) endorsed on the dying declaration to the effect that the patient is

conscious and fit to gave statement, however, head constable A.K. Chaturvedi (PW 8), categorically admitted in his crossexamination that when he

reached at the hospital, injured was not in a position to communicate, therefore, he has not recorded her statement. Dallu (PW 4) and Kasma Bai (PW

5), parents of the deceased also endorsed the contention of A.K. Chaturvedi (PW 8) by stating that when they have reached at hospital Kalibai was

not in position to speak.

Dying declaration (Ex. P/11) reveals that it was recorded about 10:20 p.m., however, Mr. N.K. Barole admitted in his cross-examination that he

has received the intimation at 10:20 p.m. for recording the dying declaration of Kalibai. If the intimation was received at 10:20 p.m. then question of

recording the dying declaration at the same time does not arise. As per the statement of Dr. S.K. Sahu (PW 12), he was present there at the time

of recording of dying declaration of the victim-Kalibai; whereas Executive MagistrateN.K. Barole (PW 9), submitted in his crossexamination that at

the time of recording the dying declaration of Kalibai, Dr. Sahu was out side the room and after recording of the statement he called him inside the

room.It is also pertinent to note that in the bottom of the dying declaration the date of recording dying declaration is mentioned as 08/06/2000; whereas

Kalibai was died at 11:15 p.m. on 06/06/2000. Although it appears to be a mistake made by the Tehsildar-N.K. Barole but it was not the case of the

prosecution. In fact the dying declaration was also forwarded to Police after 6 days of its recording, although genuineness of the dying declaration

recorded by an Executive Magistrate cannot be doubted merely because of delay of 6 days in sending the same to the Investigating Officer. But these

surrounding circumstances adversely affected the credibility of the dying declaration. There is no mention in the dying declaration that it was read

over and explain to the deceased. Therefore, alleged dying declaration is not found to be acceptable in the light of the judgment passed by the Hon'ble

Apex Court in the case of Shaikh Bakshu Vs. State of Maharashtra, 2007 AIR SCW 4120.

Now coming to the question about affixing thumb impression by the deceased on the dying declaration is concerned. Perusal of the dying

declaration reveals that the thumb impression is said to have been affixed by Kalibai after her dying declaration was closed and that thumb impression

shows clear ridges and curves, however, as per the statement of the Dr. S.K. Sahu (PW 12), Kalibai sustained 85% burn injuries and her fingers and

thumbs were found fully burned.

Chapter 20 of Modi's Medical Jurisprudence and Toxicology (Twenty third Edition) deals with the injuries from burns, scalds, lightning and

electricity in which it has been mentioned about the third degree of burns as under:-

“ (a) Third Degree: Third degree burn refers to the destruction of the cuticle and part of the true skin, which appears horny and dark, owing to it

having been charred and shriveled. Exposure of nerve endings gives rise to much pain. This leaves a scar, but no contraction, as the scar contains all

the elements of true skin.

(b) Fourth Degree: In fourth degree burns, the whole skin is destroyed. The sloughs which form are yellowish-brown and parchment-like and

separate from the fourth to the sixth day, leaving an ulcerated surface, which heals slowly forming a scar of dense fibrous tissue with consequent

contraction and deformity of the affected parts. The burns are not very painful as the nerve endings are completely destroyed.â€​

In the present case also doctors have stated that burn injuries were present on the thumb of the deceased, therefore, as per the Modi's Medical

Jurisprudence, there was no question of affixing thumb impression by Kalibai on dying declaration. Under this situation, it is difficult to believe that the

 dying declaration given by deceased-Kalibai, therefore, the prosecution has not been able to establish the dying declaration is without any shadow of

doubt.

From the statement of the witnesses of locality,it is also apparent that the appellant was not in his house and the house was closed from the inside,

which also indicates that at the time of alleged incident the appellant was not present in his house. Under these circumstances, the dying declaration of

deceased-Kalibai does not inspire full confidence of the Court in its truthfulness and correctness. There is no other material available on record to

connect the accused with the crime in question. Hence the finding of the trial Court convicting the accused for commission of offence under Sections

302 and 498-A of the IPC cannot be sustained.

Resultantly, the appeal succeeded and the same is allowed. The conviction and sentences imposed under Sections 302 and 498-A of the IPC are

set aside. Appellant is acquitted from the said charges.The appellant is on bail. His presence is no more required before this Court and therefore, it is

directed that his bail bonds stand discharged.

A copy of the judgment be sent to the court below along with its record for information.