Patiram vs State Of Madhya Pradesh

Appellant has filed this Criminal Appeal being aggrieved by judgment dated 9.7.2008 passed by the 6th Additional Sessions Judge, Gwalior, in Sessions

Trial No.103/2007, whereby he has been convicted under Section 302 of IPC and sentenced to life imprisonment and fine of Rs.1,000/- and in default

of fine, six months Additional R.I.

Prosecution story in short is that on 8.11.2016 Dr. O.P.S.Chauhan, Casualty Ward, JAH Hospital, Gwalior, informed the police that today at 16.15

hours Patiram Mahor has admitted his daughter-in-law Kusum wife of Mukesh Mohore, aged 20 years, in burnt condition. She was about 35-40%

burnt. After registering this information at Rojnamacha Sanha No.450, enquiry was conducted. During enquiry, deceased Kusum died on 18.11.2006

at 3.15 hours. During enquiry, dying declaration (Ex.P/17) of the deceased was recorded by Naib Tahsildar Smt. Pushpa Pusham (PW-13) in which

she has stated that her fatherin-law after pouring kerosene put her on fire and her father-in-law and mother-in-law were harassing her in connection

with demand of dowry. Thereafter, FIR at Crime No.553/2006 was registered against the applicant, father-in-law, and co-accused, mother-inlaw,

under Sections 304-B and 302 of IPC and matter was investigated. During investigation, police prepared the spot map (Ex.P/14), seized certain

articles from the place of incident and also recorded the statements of the witnesses.

After investigation, police filed the charge-sheet before the Court of CJM, Gwalior, which committed the case to the Court of Session and from

where the case was received by the trial Court for trial.

The learned trial Court framed the charges under Sections 498-A and 304-B or 302 of IPC against the appellant and under Sections 498-A and

304-B of IPC against the co-accused, which they denied and requested for trial.

In the trial, learned trial Court examined Ratanlal (PW-1) neighbourer of the appellant; Meena (PW-2), aunt of the deceased; Laxman (PW-3),

uncle of the deceased; Sunna Mahor (PW-4) who was also neighbourer of the appellant; Head Constable Jagdish Sharma (PW-5); Pushpa (PW-6),

mother of the deceased; Mahesh (PW-7), step-father of the deceased; Constable Babulal (PW-8); Dr. Nikhil Agrawal (PW-9) who performed the

autopsy of the deceased; Dr. Dinesh Sharma (PW10) Senior Scientist of Forensic Science Laboratory, Mobile Unit, Gwalior; Constable Ashok Singh

Bhadauria (PW-11); Rajkishore (PW-12) who was the witness of spot map and seizure memo; Smt. Pushpa Pusham (PW-13) Naib Tahsildar who

recorded the dying declaration of the deceased; Constable Ram Bhuwan Singh (PW14); Dr.O.P.S.Chauhan (PW-15), Medical Officer (CMO) who

examined the deceased at the time of admission; Dr.Madan Mohan Mudgal (PW-16), Assistant Professor, JAH, Gwalior, Neeraj Pandey (PW-17),

Investigating Officer; R.S.Sengar (PW18), ASI and Dr. Sumitra Raj (PW-19), R.S.O. Surgery, who made the note on the dying declaration that

patient is well conscious & oriented to time, place and person and not under effect of any drug. However, no witness was examined by the accused in

their defence. The learned trial Court after going through the evidence available on record, acquitted the appellant and co-accused from the charges

under Sections 498-A and 304-B of IPC, however, convicted and sentenced the appellant as mentioned in para 1 of the judgment.

Learned counsel for the appellant submits that learned trial Court has ignored the evidence of Sunna Mahore (PW-4) who is the neighbourer of the

appellant and who has categorically deposed in his examination-in-chief that when he had reached to the place of incident, then deceased Kusum had

informed that she does not wish to stay at her in-laws place and her parents are not willing to keep her with them. This witness has mentioned in his

cross-examination that he had not given statement to the police that Patiram had drawn kerosene from the stove and put her on fire. Placing reliance

on such statement of Sunna Mahore (PW-4) and the statement of another neighbourer Ratanlal (PW1), who has categorically deposed that Patiram

was shouting for help saying that his daughter-in-law has put herself on fire, it is submitted that if these statements are taken into consideration, then it

is apparent that the deceased had put herself on fire as she was being forced to stay at the place of her in-laws against her own will. It is also

submitted that Mahesh (PW-7), step father of the deceased, did not make any statement regarding demand of dowry and the conviction is solely

based on the dying declaration (Ex.P/17). It is further submitted that Ex.P/7 which is a requisition sent to the FLS, it is mentioned that on 8.11.2006Â

Dr. O.P.S.Chauhan, Casualty Ward, JAH Hospital, Gwalior, had informed that at 16.15 hours Patiram Mahor had admitted his daughter-in-law

Kusum wife of Mukesh Mohore. Placing reliance on such document, it is submitted that when Kusum was admitted by her father-in-law, then it can

safely be construed that there was no intention of the appellant to cause her death, and therefore, taking into consideration such mitigating

circumstance, conviction of the appellant should be converted from Section 302 of IPC to Section 304 Part II of IPC. In support of his contention,

learned counsel for the appellant has placed reliance on the decision of Apex Court in the case of Harish Kumar Vs. State (Delhi Administration) as

reported in AIR 1993 SC 973 wherein after having appreciated the nature of injuries and also the time gap between the time of infliction of the injury

till the date of death which was two days after the injury was inflicted, the Apex Court held that we have no sufficient material as to the nature of the

treatment given to the deceased during those two days. Under these circumstances, though the injury had resulted in the death of the deceased, we

cannot conclusively say that it was sufficient to cause his death. Accordingly the offence would be one falling under Section 304 Part II of IPC.

Learned Public Prosecutor on the other hand submits that Sunna Mahore (PW-4) has improved his case diary statement and in the case diary

statement (Ex.P/5) he had categorically deposed that deceased Kusum had informed him that her fatherin-law had put her on fire. It is also submitted

that no possible defence has been taken by the appellant. The appellant has not examined any witness in defence, nonetheless his own son to point out

his own innocence. It is also submitted that intention of the deceased cannot be doubted inasmuch as if she would have wanted to falsely implicate

somebody, then she could have implicated whole family but she has stuck to her statement that she was put on fire by her father-in-law. It is

submitted that Dr. Sumitra Raj (PW-19) in whose presence dying declaration was taken, so also Smt. Pushpa Pusham (PW-13) Executive Magistrate,

who had recorded the dying declaration, have categorically mentioned that the deceased was in a fit condition to give her statement. No challenge has

been put to such statements of the Executive Magistrate and the treating doctors. It is also submitted that in fact the first MLC was drawn by Dr.

O.P.S.Chauhan (PW-15) at 4 pm and even to Dr. Chauhan the deceased had narrated that her father-in-law had put her on fire after pouring

kerosene. It is submitted that there is consistency in the statements as contained in Ex.P/19 and the dying declaration, Ex.P/17 which was taken at

5.35 pm. It is also submitted that at the time of recording of the history in Ex.P/19 and taking of the dying declaration, Ex.P/17, there was no such

intervening circumstance which can point out towards tutoring of the deceased. In view of such facts, he prays for maintaining the conviction and

dismissing the appeal.

The whole case of the prosecution revolves around the dying declaration (Ex.P/17) of the deceased in which she has stated that she was watching

television and her father-in-law after pouring kerosene, put her on fire. Executive Magistrate Pushpa Pusham (PW-13) and Dr. Sumitra Raj (PW-19)

in whose presence dying declaration was recorded have categorically stated that deceased was in fit mental condition to give statement. Before

recording of dying declaration, at the time of admission the deceased was examined by Dr. O.P.S.Chauhan (PW-15) and he also stated that the

deceased had informed him that her father-inlaw had put her on fire. Pushpa (PW-6), mother of the deceased, and Mahesh (PW-7), step-father of the

deceased, have also categorically mentioned in their statements that when they visited the hospital to see their daughter, she informed that her father-

inlaw had put her on fire. As per Dr. Nikhil Agrawal (PW-9), who performed the postmortem of the deceased alongwith another Dr. Ajay Gupta, the

death was due to cardio-respiratory failure as a result of burn and its complications.

The Apex Court in the case of Kusa and others v. State of Orissa as reported in AIR 1980 SC 559 has held as under :-

“12.There are a number of later decision of this Court also to the same effect but it is unnecessary to multiply authorities. It is thus manifest that a

person on the verge of death is most unlikely to make an untrue statement unless prompted or tutored by his friends or relatives. In fact the shadow of

immediate death is the best guarantee of the truth of the statement made by a dying person regarding the causes or circumstances leading to his death

which are absolutely fresh in his mind and is untainted or discoloured by any other consideration except speaking the truth. It is for these reasons that

the Statute (The Evidence Act) attaches a special sanctity to a dying declaration. Thus, if the statement of a dying person passes the test of careful

scrutiny applied by the Courts, it becomes a most reliable piece of evidence which does not require any corroboration. Suffice it to say that it is now

well established by a long course of decisions of this Court that although a dying declaration should be carefully scrutinised but if after perusal of the

same, the Court is satisfied that the dying declaration is true and is free from any effort to prompt the deceased to make a statement and is coherent

and consistent, there is no legal impediment in founding the conviction on such a dying declaration even if there is no corroboration.â€​

The Apex Court in the case of Prem Chand and Another as reported in 1993 Supp (4) SCC 214 has held that if at the time of recording of dying

declaration the deceased was conscious, there is no discrepancy regarding names of the assailants and contents of the dying declaration are in

conformity with the version given by eye-witnesses, dying declaration should be relied on.

In the present case, dying declaration (Ex.P/17) of the deceased is supported by the statement of MLC Dr. O.P.S.Chauhan (PW-15) who

examined the deceased at the time of admission as well as oral dying declaration made to her parents and also the case diary statement of Sunna

(PW-4) who has categorically deposed that deceased had informed him that her father-in-law had put her on fire and no evidence has been led by the

appellant as to why deceased will falsely implicate him leaving his wife. Even in his statement recorded under Section 313 of Cr.P.C. he has only

stated that he is innocent and has been falsely implicated in the.

So far as the submission of learned counsel for the appellant that in view of the fact that appellant had admitted the deceased in the hospital,

conviction of the appellant be converted from Section 302 of IPC to Section 304 Part II of IPC is concerned, in the dying declaration the deceased has

mentioned that her mother-in-law brought her to the hospital. This dying declaration is when read with the police statement (Ex.P/5) of Sunna (PW-4),

it is apparent that he has mentioned that it was in fact Patiram, appellant, his wife and other persons of the locality who had taken the deceased to

Kamla Raja Hospital. This witness in his Court statement has mentioned that somebody had called the police and police alongwith Patiram etc. had

taken the daughter-in-law to the hospital. In view of such facts that there is un- rebutted evidence on record that it was not Patiram alone who had

taken the deceased to hospital, this cannot be taken as a mitigating circumstance to absolve the appellant of his guilt.

As far as the decision of the Apex Court in Harish Kumar (supra) placed reliance by learned counsel for the appellant is concerned, as per the

facts of the case of Harish Kumar (supra) the allegation on the appellant was that on 19th March, 1973 being a holiday due to Holy festival, the

appellant and one Rajan Mani had asked the deceased to close the tea shop which he was vending and asked him to take part in playing Holi. The

deceased had refused to accede to their request. Thereafter, in a huff the appellant and Rajan Mani went away with a dire threat to the deceased and

his father, Ved Prakash (PW-1), who remonstrated against the threat. One hour thereafter the appellant came holding a Gupti in his right hand to the

shop by which time the deceased was closing the shop. Rajan Mani took the deceased in his arms and held him back. The appellant inflicted a fatal

blow near the neck and also gave other minor injuries. In such backdrop, it was held that when the evidence was closely scrutinized it was not

conclusively show that the offence can be brought within clause thirdly of Section 300 of IPC and resultantly the Supreme Court converted the

conviction under Section 302 of IPC and sentence of life imprisonment to one under Section 304 Part II of IPC imposing a sentence of rigorous

imprisonment for a period of seven years. In this backdrop, ingredients of Section 300 of IPC are to be examined whether case of the appellant falls

under any of the exceptions mentioned below Section 300 of IPC. Certainly, appellant's case is not covered under Exception 1 which deals with the

aspect that culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the

death of the person who gave the provocation or causes the death of any other person by mistake or accident. Similarly, it will not fall under Exception

2 which talks of right of private defence of person or property. Similarly, it will not fall under Exception 3 which deals with the aspect that culpable

homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the

powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his

duty as such public servant and without ill-will towards the person whose death is caused. Similarly, it will not come under Exception 5, therefore, only

possibility is that whether the case falls under Exception 4 or not which provides that 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's having taken undue advantage or acted in a

cruel or unusual manner. To examine this, it will be necessary to first refer to the fourth clause under Section 300 of IPC which reads as under

“4thly.- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as

is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid, then it will be said

that culpable homicide is murder.

In the case of Santosh Vs. State of M.P. as reported in AIR 1975 SC 654 it has been held that an intention to kill is not required in every case. A

knowledge that the natural and probable consequences of an act would be death will suffice for a conviction under Section 302 of IPC. In the present

case, the allegation on the appellant is that he poured kerosene over his daughter-in-law and thereafter put her on fire. In the present case, Exception

4 will not be attracted inasmuch as it was not a case of sudden fight without premeditation. As per the facts, daughter-inlaw was watching TV.

Accused had taken undue advantage of her such relaxed and unattended situation when he poured kerosene over her and then put her on fire.

Appellant being a adult must be knowing that pouring kerosene and putting somebody on fire will in all probability cause death or such bodily injury as

is likely to cause death and since the allegation on the appellant is that he had performed such act, ingredients of Exception 4 of Section 300 of IPC of

commission of offence without premeditation, commission of offence upon a sudden quarrel, commission of offence in the heat of passion and

commission of offence without the offender's having taken undue advantage or acted in a cruel or unusual manner are missing in the present case.

Therefore, the law laid down by the Apex Court in the case of Harish Kumar (supra) is distinguishable on facts.

In view of the aforesaid discussion and decisions of the Apex Court in Kusa and Premchand (supra), this appeal fails and is hereby dismissed.

Impugned judgment of conviction and sentence is hereby affirmed. The appellant is in jail, he shall suffer the sentence as imposed by the learned

trial Court.