Rajaram & Ors. vs State of Madhya Pradesh

This appeal under Section 374(2) of Cr.P.C. has been preferred by the appellants/accused-persons against the judgment and conviction dated

21stNovember, 1994, passed by VIII Sessions Judge, Jabalpur (M.P.) in S.T. No.225/1992, whereby the appellant/accused Rajaram has been

convicted for commission of offence punishable under Section 302 of IPC read with Section 34 of IPC and sentenced to undergo rigorous

imprisonment for life and a fine of Rs.1000/- and appellant/accused Radha Bai has been convicted for commission of offence punishable under

Section 302 of IPC and sentenced to undergo rigorous imprisonment for life and a fine of Rs.1000/- with default stipulation.

The case of prosecution in brief is that deceased Smt. Rukmani Bai was living with her husband, the appellant Rajaram in Jabalpur. Rajaram had

illicit relations with appellant No.2 Radha Bai and he had kept her as his keep (concubine). There was frequent quarrel between the deceased and

appellants due to illicit relationships of Rajaram and Radha Bai. It is alleged that on 08.11.1991 at around 5 O''clock in the morning Rajaram and

Rukmani Bai were present in the house, appellant Radha Bai came there and asked Rukmani Bai to prepare tea. When Rukmani Bai was

preparing tea in a stove, appellant Radha Bai poured kerosene oil on her and set her ablaze. Appellant Rajaram also aided her in commission of

offence. Hearing the cry of Rukmani Bai, the neighbours arrived at the house and doused the fire. Rukmani Bai was brought to Victoria Hospital

Jabalpur, for treatment. Doctor intimated the police about the incident. P.C. Mishra, ASI, Police Station Omti, visited the hospital and after seeing

the condition of Rukmani Bai, informed SDO for recording of dying declaration. The Sub Divisional Officer recorded the dying declaration. Later

on, Rukmani Bai expired at around 3:15 p.m. in the afternoon during treatment. Police recorded FIR Ex.P-10 and Marg Intimation and conducted

the inquest. The Panchnama of dead body was prepared and body was sent for postmortem. During investigation, spot map was prepared and a

kerosene stove, a plastic container of kerosene and burnt clothes were seized from the scene of occurrence. The scientific officer FSL Mobile Unit

has also visited the scene of occurrence and prepared spot inspection report Ex.P-8. The statements of witnesses were recorded and after

completion of investigation, the charge sheet has been filed before the Court.

The trial Court has framed the charge of offence punishable under Section 302 and 302/34 of IPC, the appellants abjured guilt and pleaded

innocence. The prosecution has examined 15 witnesses whereas appellants has not given any evidence in their defence.

The trial Court on appreciation of evidence arrived at the conclusion that appellant Radha Bai had committed the murder of deceased by

pouring kerosene oil and setting her ablaze. Appellant Rajaram was also present at the time of incident and he had aided Radha Bai in commission

of crime. The trial Court held Radha Bai guilty under Section 302 of IPC and appellant Rajaram guilty under Section 302/34 of IPC and sentenced

them as mentioned hereinabove.

It is argued by learned counsel for the appellants that there is no evidence on record to show that the appellant Rajaram was present on the spot

at the time of incident and he has aided the main accused Radha Bai in commission of crime. It is evident from the evidence on record that hearing

the cry of deceased, Rajaram came on the spot and tried to douse the fire and save the deceased. He took her to hospital. In her dying declaration

also, deceased had not stated any thing against appellant Rajaram. The trial Court has committed illegality in convicting Rajaram in alleged offence.

It is further argued that another appellant Radha Bai is also falsely implicated in this offence, deceased herself informed the doctor that she had

sustained injuries by accident when she was preparing tea by kerosene stove. The trial Court has committed illegality in recording conviction

against the appellants under Section 302 and 302/34 of IPC. Appellants are innocent. The prosecution has failed to prove the guilt of appellants

beyond reasonable doubt.

Heard arguments and perused the record.

It is not disputed that in the early morning of 08.11.1991 at about 5 O''clock, the deceased Rukmani Bai had sustained burn injuries in her

house, she was taken to Victoria Hospital Jabalpur where she was admitted for treatment. Later on, on the same day she had expired at around

3:15 p.m. in the evening during treatment.

Doctor R.D. Namdeo (PW-16) deposed that on 09.11.1991, at Medical College Jabalpur he had performed the postmortem of dead body of

Rukmani Bai. There was third degree flame burn present on all over the body except skull. No other mark of injury found on the body. The burn

were ante-mortem. She was 90% burnt. The cause of death was shock due to burn injuries. The report of doctor is corroborated by postmortem

report Ex.P-13. The defence has not challenged the findings recorded by doctor in postmortem report. Therefore, relying upon the postmortem

report, it is proved that deceased Rukmani Bai had died of burn injuries and the death is homicidal.

Now the question arises whether the appellants had caused burn injuries to deceased by setting her ablaze ? The prosecution witness Mewalal

(PW-1) deposed that he is neighbour of appellant Rajaram. The deceased Rukmani Bai was wife of Rajaram and Radha Bai is his lover. Another

witness Raju (PW-12) also deposed that Rajaram was in relationship with Radha Bai and he has kept her as his ""keep"". This fact is also admitted

by appellant Rajaram in his statement under Section 313 of Cr.P.C. Therefore, relying upon above testimony, it is rightly found proved by the trial

Court that the appellant Rajaram was having relationship with Radha Bai and he has kept her as his ""keep"". Ram Dayal (PW-3) the father of

deceased deposed that Rajaram and Radha Bai used to quarrel with Rukmani Bai and harass her. This fact is not controverted by the appellants in

cross-examination. Keeping in view the illicit relationship between Radha Bai and Rajaram, we can infer that the relations between Radha Bai and

Rukmani Bai were not good and inimical

Sanjay Kumar (PW-6) deposed that he is neighbour of Rajaram. His house is situated adjacent to Rajaram''s house. On the date of incident at

about 05:00 O'' clock in the morning he heard the cry of Rukmani Bai and rushed to her house. He found the door of the room was closed from

inside. Meanwhile, Lekhram and Babloo also arrived there. They broke open the door and found Rukmani Bai in burnt condition lying on the bed.

She was still on fire. Appellant Rajaram and Radha Bai were present in the room. Another witness Babloo (PW-7) has also corroborated the

testimony of Sanjay Kumar. He deposed that hearing the cry of Rukmani Bai he reached on the spot, broke open the door of the room and found

the appellants Rajaram and Radha Bai standing near the deceased Rukmani Bai who had sustained burn injuries.

It is not disputed that Rukmani Bai was taken to hospital by appellant Rajaram, where she was admitted for treatment. Dr. Shobha Shandilya

(PW-15) deposed that on 08.11.1991 Rukmani Bai was brought to Victoria Hospital by her husband Rajaram in burnt condition. She was

admitted in the hospital. She was fully conscious and speaking. P.C. Mishra, ASI (PW-13) deposed that after getting intimation from the hospital

he reached there and found Rukmani Bai admitted in the hospital. He sent intimation for recording of her dying declaration to SDO. Ashok Kumar

Sharma (PW-14) Sub Divisional Officer, deposed that on 08.11.1991 receiving the intimation (Ex.P/13) for recording of dying declaration he

reached Victoria Hospital where Rukmani Bai was admitted. He verified from the doctor about condition of Rukmani Bai. The duty doctor

certified that Rukmani was fully fit and conscious to make statement than he recorded the dying declaration of Rukmani Bai (Ex.P/14). The doctor

endorsed the fitness certificate on dying declaration at c - c place and Rukmani Bai had marked her thumb impression at B- B place. In cross-

examination this witness has categorically stated that at the time of recording of dying declaration Rukmani Bai was fully conscious and capable of

making statement. Although, the prosecution has not examined the doctor who has given fitness certificate, but only on this ground we cannot

disbelieve the dying declaration recorded by Sub Divisional Officer. In the case law Gulzari Lal Vs. State of Haryana AIR 2016 SC 795 Hon''ble

Apex Court has relied upon the dying declaration recorded by Police Head Constable without having the certification of the doctor regarding

fitness of the deceased. In the present case the treating doctor Shobha (PW-15) has verified that at the time of admission in the hospital Rukmani

Bai was fully conscious and speaking. Therefore, we can rely upon the statement of Ashok Sharma (PW-14) SDO that the deceased was capable

of making statement at the time of recording of dying declaration.

In her dying declaration Ex.P/14 Rukmani Bai stated as under:-

VERNACULAR MATTER OMITTED

Thus, in her dying declaration, the deceased Rukmani Bai had categorically stated that when she was preparing tea, appellant Radha Bai

sprinkled kerosene oil on her hand set her ablaze. Hearing her cry, her husband appellant Rajaram entered in the room from breaking the tiles of

the roof and doused the fire. The door of the room was closed from inside at the time of incident.

The dying declaration of deceased is also corroborated by witnesses PW-3, PW-1 and PW-12 Ram Dayal, (PW-3) deposed that deceased

was his daughter. He went to see the deceased who was admitted in Victoria Hospital Jabalpur. Deceased told him that at the time of incident,

Rajaram told her to prepare tea, when she was preparing the tea, Radha Bai poured kerosene oil on her and set her ablaze. This fact is also

verified by witness Mevalal (PW-1) who was present in the hospital when deceased narrated about the incident to her father. Another witness

Raju (PW-12) is brother of the deceased. He deposed that the deceased had told him in the hospital that appellant Rajaram and Radha Bai had

set her ablaze. Since Ram Dayal and Mevalal did not depose that deceased had informed them that Rajaram had also ablaze her, therefore, we

cannot rely upon statement of Raju against appellant Rajaram. Thus, from the statement of witness Ram Dayal, Mevalal and Raju, it is found that

the deceased had made oral dying declaration before these witnesses in the hospital stating that the appellant Radha Bai had set her ablaze. The

presence of Radha Bai inside the room at the time of incident is duly proved by witness Sanjay Kumar (PW-6) and Bablu (PW-7) which is not

controverted in their cross-examination.

It is argued by learned counsel for the appellants that when deceased was brought to the hospital, she informed the doctor that she had

accidentally caught fire by kerosene stove when she was preparing tea. This fact is corroborated by prosecution witness Dr. Shobha (PW- 15).

Other eyewitness Kamla (PW-4) also corroborates the same fact who reached on the spot soon after the incident. This witness has not been

declared hostile by the prosecution. This creates doubts on prosecution story. It is quite possible that the deceased caught fire accidentally when

she was preparing tea. Therefore, it cannot be believed that deceased was killed by appellants.

This argument cannot be accepted. The doctor Shobha (PW-15) who has examined the deceased first time when she was brought to hospital,

has stated that the smell of kerosene oil was coming from whole body of the deceased. This is possible only when the kerosene oil was poured on

person of deceased. In accidental fire from stove normally we do not find kerosene oil on whole body of deceased. The scientific officer of FSL,

who had inspected the scene of occurrence, Dr. Kiran Thakur (PW-10) deposed that he found a kerosene oil stove and a tin of 5 liters of

kerosene at the scene of occurrence. There was one liter kerosene found in the stove, whereas tin of kerosene oil was empty. This shows that the

kerosene stove was not used in burning of deceased. This fact rule out the possibility of accidental burning. The witness Kamla (PW-4) is real

sister of appellant Rajaram, therefore, it is quite possible that she is not telling the truth to save her brother. The deceased was brought to hospital

by her husband and it is quite possible that she might have informed the doctor about incident under influence of her husband. Therefore, the trial

court has rightly not relied upon testimony of PW-15 and PW-4.

Considering the above evidence available on record, it is establish that the deceased Rukmani Bai had made a dying declaration Ex.P-14

wherein she had stated that the appellant Radha Bai had poured kerosene oil on her and set her ablaze. The appellant Rajaram entered in the room

by breaking the tiles of the roof because the door of room was closed from inside. Rajaram doused the fire. This dying declaration is also

corroborated by the statement of witness Mevalal (PW-1) and Ram Dayal (PW-3) to whom the deceased had narrated about the incident. The

witness Sanjay Kumar (PW-6) and Bablu (PW-7) who entered into the room by breaking open the door found the deceased in burnt condition

and appellants Rajaram and Radha Bai were also present there. The scientific officer of FSL Dr. Kiran Thakur (PW- 10) deposed that on spot

inspection, he had found some tiles of the roof of the room were removed. This corroborates the dying declaration Ex.P-14 wherein it is stated that

appellant Rajaram entered in the room from the roof after breaking the tiles. Thus, the dying declaration Ex.P-14 which is corroborated by PW-1,

PW-3 and PW-12 appears to be cogent, reliable and trustworthy.

In disputably conviction can be recorded on the basis of dying declaration alone but therefore, the same must be wholly reliable. The

admissibility of dying declaration is explained by Hon''ble Supreme Court in case law Ramesh v state of Haryana AIR 2016 SC 5554 as under:-

Law on the admissibility of the dying declarations is well-settled. In Jai Karan v. State of N.C.T., Delhi3, this Court explained that a dying

declaration is admissible in evidence on the principle of necessity and can form the basis of conviction if it is found to be reliable. In order that a

dying declaration may form the sole basis for conviction without the need for independent corroboration it must be shown that the person making it

had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish. If, in the facts and circumstances of the

case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal

knowledge without being influenced by others and the court on strict scrutiny finds it to be reliable, there is no rule of law or even of prudence that

such a reliable piece of evidence cannot be acted upon unless it is corroborated. A dying declaration is an independent piece of evidence like any

other piece of evidence, neither extra strong or weak, and can be acted upon without corroboration if it is found to be otherwise true and reliable.

Thus, relying upon the dying declaration and statements of witnesses PW-1 and PW-3, it is proved that the appellant Radha Bai poured

kerosene oil on the deceased Rukmani Bai and set her ablaze. As far as appellant Rajaram is concerned, it appears that he had tried to save the

deceased. He had not aided the main accused Radha Bai in commission of crime. The trial court on erroneous appreciation of evidence had held

the appellant Rajaram guilty. It is not proved that Rajaram set his wife ablaze.

In view of aforesaid, the appeal of Rajaram is allowed, impugned conviction and sentenced awarded by trial court on Rajaram under Section

302 of IPC is set aside and he is acquitted of charge of aforesaid offence. The bail-bonds of appellant Rajaram stands discharged.

Appellant Radah Bai has committed murder of deceased Rukmani Bai by pouring kerosene oil and setting her ablaze. The trial court on proper

appreciation of evidence has found the appellant Radha Bai guilty for commission of murder of deceased Rukmani Bai, the trial court has rightly

convicted and sentenced the appellant under Section 302 of IPC. There is no illegality or perversity found in the impugned judgment of trial court.

Thus, the conviction and sentence awarded by trial court is upheld and affirmed.

Thus, the appeal preferred by Radha Bai is dismissed. Her bail-bonds stands cancelled and she is directed to surrender before the trial Court

in order to undergo remaining part of sentence as awarded by trial court.