Prakash vs State of Madhya Pradesh

The appellant has preferred the present appeal being aggrieved by the impugned judgment of conviction and order of sentence dated 5.1.2007

passed by First Addl. Sessions Judge, Tikamgarh, District Tikamgarh, in Sessions Trial No.201/2004 whereby the appellant has been convicted

under Section 302 of IPC and sentenced him to undergo rigorous life imprisonment along with fine of Rs.500/-; in default of payment of fine,

additional two months RI.

In this case, it is not disputed that appellant is husband of deceased Shantidevi while co-accused Lacchibai is mother-in-law and Kamlabai is

sister-in-law of the deceased, who were also charged and tried along with the appellant for the offence punishable under section 302 read with

section 34 of the I.P.C. for com mitting murder of the deceased. However, they have been acquitted of the charge from the trial court.

In brief, the relevant facts of the case are that on 27.5.2004 nearabout 2 PM at village Dhajrai, Tahsil Tikamgarh, the appellant was consuming

liquor in his house and was taking food. His wife Shantibai stopped the appellant from consuming liquor. On this, some altercation took place

between them, then co-accused mother-in-law Lachhibai and sister-in-law Kamlabai caught hold the deceased and appellant poured kerosene oil

on the person of the deceased and set her ablaze by igniting fire from the match stick. After the incident, the deceased was taken to Rajendra

Hospital, Tikamgarh, by co-accused Lachhibai and Kamlabai and the Hospital authority informed the police. The statement of the deceased,

Ex.P/4, was recorded by Shri O.P.Sharma, Executive Magistrate (Naib Tahsildar) in presence of the doctor in which deceased stated that she

was burnt accidently during cooking food. After arrival of parents of the deceased in the Hospital on the same day, the deceased disclosed that she

was burnt by the appellant and his mother and sister as per the prosecution story. Thereafter, on 28.5.2004 Executive Magistrate Shri

R.N.Gupata, S.D.M. has recorded another dying declaration of the deceased, Ex.P/6, in which the deceased has disclosed that during the incident

mother-in-law and sister-in-law have caught hold her and the appellant has poured kerosene oil upon her and set her ablaze. Thereafter, initially

Police Station Kotwali, Tikamgarh, lodged FIR vide Crime No.294/04 for the offence under section 307/34 of the I.P.C. The deceased was

referred to Gwalior for treatment. During treatment, deceased Shantidevi died on 31.5.2004. Post mortem of the deceased was conducted on

1.6.2004 at Gajra Raje Medical College, Gwalior. The offence was converted into section 302/34 of the I.P.C. After completion of investigation,

chargesheet was filed before CJM, Tikamgarh, who committed the case to the Court of Sessions, who transferred the case to the court of Addl.

Sessions Judge, Tikamgarh.

During trial, the learned trial court framed the charge under section 302 of the I.P.C. and in the alternative section 302 read with section 34 of

the I.P.C. against the appellant and other co-accused Lachhibai and Kamlabai. They abjured the guilt and claimed to be tried. In defence,

appellants stated that they are innocent and have been falsely implicated.

The learned trial court after completion of the trial found the appellant guilty of the offence and convicted and sentenced them, as mentioned

hereinabove. However, acquitted co-accused Lachhibai and Kamlabai.

The learned trial court convicted the appellant on the ground of medical evidence with regard to death of the deceased on account of burning

and the dying declaration, Ex.P/6 recorded by Shri R.N.Gupta, S.D.M., PW8, and the statements of parents of the deceased namely Fundi, PW3

and Ganeshibai, PW4 with regard to oral dying declaration given by the deceased and discarding the earlier dying declaration, Ex.P/4 recorded by

Shri O.P.Sharma, Executive Magistrate/Naib Tahsildar, DW1.

Being aggrieved by the aforesaid judgment of conviction and order of sentence, the appellant has filed this appeal on the ground that the finding

of the learned trial court is contrary to law. The learned trial court has not appreciated the multiple and inconsistent dying declarations of the

deceased. Where two sets of dying declarations, contradictory and inconsistent with each other, have been proved, they cannot be relied and the

conviction cannot be based merely on the dying declarations. In addition, it is also contended that the incident had taken place suddenly in heat of

anger, hence, the appellant cannot be punished under sec tion 302 of the I.P.C. His act comes within the purview of section 304 Part I of the

I.P.C. He has relied upon the judgment of the Apex court in the case of Sayaji Hanmat Bankar Vs. State of Maharashtra, AIR 2011 SC 3172 .

Therefore, findings of the trial court are not sustainable in the eyes of law. They are based on conjectures and surmises and on the basis of

contradictory dying declarations, appellant/ accused cannot be held guilty and convicted for the aforesaid serious charge. In the view of the facts

and circumstances of the case, prayer is made to allow the appeal and set-aside the impugned judgment of conviction and order of sentence and

acquit the appellant.

On the other hand, learned Govt. Advocate appearing for the respondent / State has argued in support of the impugned judgment and stated

that the finding of conviction and sentence of the learned trial court is in accordance with law. The learned trial court has not committed any error in

convicting the appellant for committing the murder of his wife as the dying declaration, Ex.P/6, and the oral dying declaration proved by the parents

of the deceased are inconsistent to each other and free from any doubt and consistent with other circumstances and evidence available in the case

while earlier dying declaration, Ex.P/4 is not free from doubt as it was recorded under the influence of other co-accused persons. The

circumstance that the appellant being the husband did not accompany his burnt wife to the Hospital and not remain present during treatment at

Hospital, show that the incident of burn had not taken place accidently while cooking food. If it had happened, the appellant certainly would have

accompanied his wife deceased Shantidevi and also taken her care in the hospital. Hence, the appeal has no substance and deserves to be

dismissed.

Having considered the contention advanced by learned counsel for the parties and on perusal of the record, it is found that in view of the

statement of Dr.D.S.Bhadoriya, PW5, who examined the deceased, has stated that person of deceased Shantidevi was 80% burnt. Dr.Yogendra

Singh, PW10, who conducted the post mortem of the deceased, has stated that death took place on 31.5.2004 on account of aforesaid burn

injuries. Considering the aforesaid, in view of this Court, the learned trial court has not committed any mistake in arriving at the conclusion that the

deceased died on account of burn injuries sustained by her in the incident dated 27.5.2004.

Now, the question which arises for consideration is whether the appellant poured kerosene oil upon the deceased and burnt her by setting her

ablaze ?

The prosecution case is mainly based on the dying declaration, Ex.P/6 recorded by Shri R.N.Gupta, S.D.M., PW8, and the witnesses have

proved Ex.P/6 and also stated that the statement was taken in the presence of the doctor and under his certification that the deceased was fit to

give the statement. Dr.D.S.Bhadoriya, PW5, has also corroborated the aforesaid statement with regard to certification about the fitness of the

deceased for giving statement. In the dying declaration, Ex.P/6, it is categorically mentioned by the deceased that while she stopped the appellant

from consuming liquor he quarreled with her and then poured kerosene oil on the person of the deceased and set her ablaze by igniting fire by

match stick. Apart from it, parents of the deceased Fundi, PW3 and mother Ganeshi, PW4, have also stated that on the same day near about 10

PM they reached the Hospital at Tikamgarh and met the deceased. She was in burnt condition and told them that she was burnt by the appellant

by pouring kerosene oil on her. The statement given by Shri R.N.Gupta, PW8 which is corrobo rated by Dr.D.S.Bhadoriya, PW5 and the

statement of Fundi, PW3 and Ganeshibai, PW4 are reliable. There is nothing on record to discard the aforesaid statements. Fundi, PW3 and

Ganeshibai, PW4, have accepted in their statements before the Court that they did not disclose to the police the fact that deceased told them that

appellant poured kerosene oil upon her and set her ablaze by igniting fire by match stick; but, the fact is that the aforesaid statements have also

been given by them in their police statements, as found on perusal thereof. Therefore, it cannot be said that there is contradiction with the earlier

statements.

On behalf of the appellant by calling Shri O.P.Sharma, DW1, Executive Magistrate / Naib Tahsildar, earlier dying declaration, Ex.P/4, has

been proved as Shri O.P.Sharma, DW1, has stated that on 27.5.2004 he recorded the statement of deceased Shantibai, which is Ex.P/4, in which

she has stated that she was not burnt by anyone; but she burnt accidently during cooking food and no quarrel had taken place with anybody in the

house. This statement was recorded in the presence of doctor on certification of fitness of Shantibai with regard to giving statement. The same fact

has been corroborated by Shri D.S.Bhadoriya, PW5, about the fitness of Shantibai on 27.5.2004 for giving statement. The learned trial court has

discarded the aforesaid dying declaration which is inconsistent with the dying declaration recorded later on holding that at the time of giving

statement, Ex.P/4, deceased was not free from influence of her in-laws as co-accused mother and sister of the appellant took her to the hospital

and there is no law that if inconsistent or contradictory dying declarations are proved, the accused cannot be held guilty of murder on the basis of

dying declaration which is against the accused.

In the opinion of this court, the learned trial court has not committed any error as in the case of multiple dying declarations having inconsistency

or contradictory disclosure is not the sole criteria to hold that the prosecution has failed to prove the case beyond reasonable doubt. The court is

dutybound to accept the dying declaration which is found to be truthful considering other evidence and circumstances of the case. Hon''ble the

Apex Court in the case of Sudhakar Vs. State of Madhya Pradesh, reported in (2012)7 SCC 569, considering the principles with regard to

appreciation of multiple dying declarations in para 21 has held as under :-

Having referred to the law relating to dying declaration, now we may examine the issue that in cases involving multiple dying declarations made

by the deceased, which of the various dying declarations should be believed by the Court and what are the principles governing such

determination. This becomes important where the multiple dying declarations made by the deceased are either contradictory or are at variance with

each other to a large extent. The test of common prudence would be to first examine which of the dying declarations is corroborated by other

prosecution evidence. Further, the attendant circumstances, the condition of the deceased at the relevant time, the medical evidence, the

voluntariness and genuineness of the statement made by the deceased, physical and mental fitness of the deceased and possibility of the deceased

being tutored are some of the factors which would guide the exercise of judicial discretion by the Court in such matters.

In the present case, the attending circumstances indicate that the earlier statement, Ex.P/4, is not truthful. If the deceased was burnt accidently

during cooking food then there is no reason to non-accompanying of the appellant with her badly burnt wife. This is not the case of the appellant

that he was not present in the house at the time of incident and there is also no explanation under what circumstances he remained absent during the

treatment of the deceased as there is no evidence on record which show that the appellant has shown his bonafide acting as an ordinary man and a

loyal husband. The aforesaid circumstances indicate his culpability. The parents of the deceased have also proved oral dying declaration consistent

with the dying declaration, Ex.P/6. There is no material on record to suggest the fact that at the time of incident, the deceased was cooking food.

Hence, the story that the deceased was burnt during cooking food is not trustworthy, therefore, in our considered opinion; the dying declaration

given against the appellant is reliable in view of the law laid down by the Apex court.

Considering the aforesaid facts and circumstances of the case, there is no hesitation in holding that the appellant accused set her wife deceased

Shantibai ablaze and killed her. So far as conviction of the appellant under section 302 of the I.P.C. is concerned, it does not require any

interference. The contention that the incident had taken place suddenly without premeditation in heat of passion is not sufficient to attract the

provision of exception IV of section 300 of the I.P.C. as other ingredients, i.e. without the offenders have taken undue advantage or acted in a

cruel manner or unusual manner is missing. The appellant burnt his wife pouring kerosene oil upon her and igniting fire by match stick and

resultantly she was burnt 80% and thereafter the appellant ran away leaving her in the burnt condition. This act of the appellant comes within the

purview of cruelty. Therefore, the provision of section 300 exception IV is not attracted in this case. The judgment in the case of Sayaji Hanmat

Bankar (supra) relied upon by learned counsel for the appellant is not applicable in the present case as the facts of both the cases are different. In

the case of Sayaji Hanmat Bankar (supra), accused did not take any undue advantage or acted in a cruel or unusual manner. In that case, he threw

kerosene lamp upon the deceased and the lady was wearing nylon sari, therefore, she caught fire and burnt to the extent of 70%. In his case it was

observed that ""it is obvious from the evidence that this was done suddenly in the heat of passion. If there was any intention to commit her, as

mentioned in Section 299 IPC, there would have been much other acts like pouring kerosene on the deceased etc. on the part of the accused"".

While, in the case in hand, the appellant has poured kerosene oil on the deceased. Therefore, the act of the appellant does not come within the

purview of exception IV of section 300 of the I.P.C. The learned trial court has rightly convicted the appellant for commission of the offence under

section 302 of the I.P.C.

In view of the aforesaid discussion, we do not find any substance in the contention advanced by learned counsel for the appellant. In the result,

we do not find any infirmity in the appreciation of evidence and law in the judgment passed by the court below. Hence, this appeal is dismissed and

the judgment of conviction and order of sentence passed by the trial court is hereby affirmed.