Rajesh @ Goche vs State Of Madhya Pradesh

This appeal under section 374 (2) of Criminal Procedure Code has been preferred by the appellant against the judgment dated 30.01.2009 passed in

Session Trial No. 159/2008 by the learned Sessions Judge, Sagar. whereby, the appellant has been convicted for commission of offences punishable

under Section 354 of IPC, sentenced for 2 years R.I. and fine of Rs. 1,000/- and under Section 302 of IPC, sentenced for Life imprisonment and fine

of Rs. 5,000/- with default stipulation.

The case of prosecution in short is that on 04.02.2008, Jitendra (brother-in-law) of deceased came to her parental house to take her. Accused-

Rajesh went to her matrimonial house at gram Maswasi Baheriya to drop them in his motor cycle. On that day, in the evening at around 7 p.m., when

deceased was alone then Rajesh came to her and told her to come with him but she refused. To outrage her modesty, accused hold her hand then she

got rid of her hand and went to the room and sat near the hearth. Accused entered into there and poured the kerosene oil upon her body and set her

on fire. On her cry, father-in-law, mother-in-law and sister-in-law (Jethani) came there then accused ran away from the spot. She was admitted at Tili

Hospital, Sagar. On her statement Dehati Nalishi (Ex.P-10) was written by the A.S.I. K.P. Sen. Thereafter, F.I.R. was registered as Ex. P-18 under

Sections 307, 354 of IPC.

Dr. R.K. Mishra (PW-11) conducted the medical examination of her and opined that she was burnt up to 95 percent and burn injuries were found in

her body. Medical report marked as Ex. P-7.

During the treatment, on 10/02/2008, she was died. On the basis of information received from Dr. R.K. Jain (PW-10) marg was registered.

Dying declaration Ex.P-9 was recorded by the Nayab Tehsildar (PW-13). Postmortem was performed by the Dr. H.L. Bhuriya (PW-9) and

prepared the postmortem report as Ex.-P-6. He opined that the cause of death of deceased was shocked which developed as a result of extensive

antimortem burns and its complication. Spot map marked Ex. P-1, seizure memo Ex. P-4 and marg is Ex.P-12.

The prosecution after investigation filed the charge sheet and trial Court framed the charges under Sections 354, and 302 of IPC. Accused abjured

his guilt and pleaded innocence. Trial Court found that Appellant was guilty for commission of offence punishable under Sections 354 and 302 of IPC

and awarded the sentence as mentioned above.

Learned Amicus Curiae for the appellant has submitted that the conviction of appellant is unsustainable in law because the dying declarations are

not reliable. All the witnesses are related and contradictions and omissions also are in their evidence. The said incident is not natural. Appellant was

not present at the time of incident. Hence the appellant be acquitted from the offence.

Learned counsel for the respondent/State has submitted that the impugned conviction can be on the basis of the dying declaration of the deceased if

it is inspired confidence apart from their connected evidence against the appellant. Hence the trial Court has rightly hold the appellant guilty and

awarded appropriate sentence.

Radhe Lal (PW-1) (brother-in-law of deceased) has deposed that on 04.02.2008 his brother Jitendra went to matrimonial house of deceased to take

her. Accused-Rajesh came with them at Gram Mashwashi. His wife offered to accused-Rajesh to take dinner. Rajesh told to her wife that he

wants to eat chicken. Rajesh was abusing to his father-in-law and mother-in-law then he fired out him from his house. When he heard the cry of his

father he went to the house and he found that Rubi was burning. On that time, his father and Rubi was there. He extinguished fire through pouring

water upon her. Deceased told him that accused-Rajesh was teasing with her when she opposed he set fire. Jagat Rani (PW-2), Preeti (PW-3),

Ratan Lal (PW-7) deposed that the same facts. Ravindra (PW-4) and Laxman (PW-5) also deposed that deceased-Rubi told them that appellant set

fire upon her. According to the appellant these witness are related witnesses. So there evidence did not inspire reliable.

K.P. Sen (PW-12), who written the Dehati Nalisi under the instruction of deceased-Rubi has stated that on 04.02.2008, he received the

information that Rubi was admitted in hospital in burning condition. He was written Dehati Nalishi Ex. P-10. She told that the accused Rajesh was

set fire upon her. Marg intimation is Ex. P-5. , he further stated that on the basis of Dehati Nalishi, he was registered the F.I.R (Ex.P-18). On his

cross examination he denied the suggestion of defence counsel that the deceased was not able to speak.

Dr. R.K. Mishra (PW-11), who was performed the medical examination of deceased when she was admitted in hospital for treatment he stated

that the deceased was admitted in hospital on 04.02.2008 and he examined as following:-

^^ijh{k.k ij ejht dh gkyr xaHkhj Fkh] mldh ukM+h dh xfr 100 izfrfefuV Fkh] jDr pki 90@60 Fkk] og gks’k esa Fkh rFkk iz’uksa dk mRrj ns jgh

FkhA ckg~; ijh{k.k ij mldh xnZu] lhuk] isV] ihB] nksuksa vxzHkqtkvksa rFkk nksuksa Vkaxksa ds ,d frgkbZ fgLls ij iwjh rjg tyh gqbZ Fkh] cuZ dk

izfr’kr 95 izfr’kr Fkk] 'kjhj ls feV~Vh ds rsy dh xa/k vk jgh FkhA esjs erkuqlkj mijksDr cuZ :ch dh e`R;q ds fy;s ?kkrd FkhA cuZ dh vof/k

ijh{k.k ls 12 ?kaVs ds vanj FkhA ejht dks bykt gsrq cuZ okMZ esa j[kk x;k FkkA

3- esjh fjiksVZ izn’kZ ih&7 gS ftlds v ls v Hkkx ij esjs gLrk{kj gSA

4- fnukad 5-2-2008 dks jkf= 12 cts vkj{kh dsUnz dUsV dh vksj ls jk/ks oYn jru dks ijh{k.k gsrq yk;s tkus ij mldk ijh{k.k dj fuEu pksVsa ikbZ Fkha%&

ejht lkekU; fLFkfr esa Fkk] og iw.kZ :i ls gk’sk gok’k esa Fkk]

mldh ukM+h 60 izfrfefuV Fkh] jDr pki 110@70 FkkA

ckg~; ijh{k.k ejht ds psgjs rFkk nksuksa gksBksa ij] xky ij lqiqjQhfl;y cuZ ekStwn Fkk] flj ds cky >qyl x;s FksA cuZ 9 izfr’kr FkkA

5- mijksDr cuZ lk/kj.k izdkj dh Fkh tks ijh{k.k ls 12 ?kaVs ds Hkhrj dh FkhA cuZ fdlh Toyu’khy inkFkZ ds dkj.k gqvk FkkA bl laca/k esa esjh

fjiksVZ izn’kZ ih&8 gS tks esjs }kjk fy[kh xbZ gS ftlds v ls v Hkkx ij esjs gLrk{kj gSaA

6- esjh fjiksVZ es c ls c Hkkx esa =qfVo’k 5-3-08 fy[kk gS tks okLro esa 5-2-08 gSA

7- fnukad 4-2-2008 dks jkf= 10 cts tc :ch ifRu johUnz] vk;q 25 o""kZ tc cuZ okMZ esa HkrhZ Fkh rc uk;c rglhynkj mldk ej.kklUu dFku vafdr djus ds

fy;s vk;s Fks rc eSusa :ch dk ijh{k.k dj mls gk’s k esa gksdj c;ku nsus ea l{ke gksuk crk;k FkkA ej.kklUu dFku izn’kZ ih&9 ds v ls v Hkkx ij

izek.k i= vafdr gS ftlds c ls c Hkkx ij esjs gLrk{kj gSaA mlh fnu jkf= 10&10 cts :ch dk ej.kklUu dFku vafdr djus ds i’pkr mlds iw.kZ gks’k

gok’k esa j[kdj c;ku nsus ds laca/k esa eSus izek.k i= iznku fd;k Fkk tks izn’kZ ih&9 ds l ls l Hkkx ij vafdr gS rFkk n ls n Hkkx ij esjs gLrk{kj

gSaA^^

G.S. Patel (PW-13), Nayeb Tehsildar, who was recorded dying declaration Ex.P-9 stated that on 04.02.2008, he went to the district hospital, Sagar

word No. 5, where Rubi was admitted for treatment and able to speak. After getting the fitness certificate from the doctor he was recorded the dying

declaration Ex. P-9 and signed the same. Deceased stated that on that day she was alone then accused-Rajesh came to her and forcefully trying to

outrage her modesty on her opposed, accused set fire upon her. On asking about her family, she stated that at that time her mother-in-law and

sister-in-law was went for nature call and her father-in-law was tying buffalo. She further stated that on her shout her mother-in-law and sister-in-law

came here and save her. On his cross examination he was accepted the suggestion made by defence counsel that he was taken two thumb impression

mark by the deceased because first was not cleared, the thumb of deceased was not burnt. On his cross examination, he was denied the suggestion

that the deceased was not in condition to speak. He accepted that he had never been take thumb impression of any witness in dying declaration to

identify the deceased.

Dr. H.L. Buriya (PW-9), who was performed the postmortem of deceased and prepared the report as Ex.P-6 opined that the deceased was

burnt 95 percent and the cause of death of deceased was shocked which developed as a result of extensive antimortem burns and its complications.

He found following injuries in her body:-

^^ckg~; ijh{k.k e`rdk dk 'ko] 'ko ijh{k.k Vsfcy ij lh/kk ysVk Fkk] mlds iwjs 'kjhj ij vdM+u ekStwn Fkh] mlds cka;s iSj ds fgLls dks NksM+dj iwjs 'kjhj ij

tyus ds fu’kku Fks] tks dgha mFkys rFkk dgha xgjs Fks] flj ds cky dgha&dgha tys gq, Fks] vkW[k] eqWag can Fks] eqfV~B;ka [kqyh gqbZ

Fkha]

vkarfjd ijh{k.k

e`frdk ds varjax isy Fks] mlds g`n; esa nkfgus rjQ FkksM+k jDr Fkk] isV [kkyh Fkk] NksVh vkar esa v/kipk [kkuk ekStwn Fkk] cM+h vkar esa ey

inkFkZ Fkk] cPpknkuh lkekU; Fkh] e`frdk ds 'kjhj ij tyus ds fpUg e`R;q iwoZ ds FksA

2- esjh jk; esa :ch jk; dh e`R;q tyus ds dkj.k gq, ?kkoksa ls mRiUu ln~es ls ikLs V ekVZe ls 24 ?kaVs ds Hkhrj gksuk laHkkfor FkhA :ch yxHkx 95

izfr’kr tyh gqbZ FkhA esjh fjiksVZ izn’kZ ih&6 gS ftlds v ls v Hkkx ij esjs gLrk{kj gSA^^

The case of prosecution is based upon dying declarations of deceased. A dying declaration is entitled to great weight. Once the Court is satisfied

that the declaration was true and voluntary, it can base its conviction without any further corroboration. This principle is laid down by the Hon’ble

Apex Court.

The Hon’ble Apex Court in the case of Paniben Vs. State of Gujarat reported in (1992) 2 SCC 474 has held as under:-

“18. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a

power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of

such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a

result of either tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a

clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can

base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole

basis of conviction unless it is coroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several

judgments the principles governing dying declaration, which could be summed up as under:

(i) There is neither rule of law nor of prudencethat dying declaration cannot be acted upon without corroboration. (Munnu Raja v. State of M.P.)

(1976) 3 SCC 104.

(ii) If the Court is satisfied that the dyingdeclaration is true and voluntary it can base conviction on it, without corroboration. State of M. P. v. Ram

Sagar Yadav, (1985) 1 SCC 552; Ramavati Devi v. State of Bihar, (1983) 1 SCC 211.

(iii) This Court has to scrutinise the dyingdeclaration carefully and must ensure that the declaration is not the result of tutoring, prompting or

imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (K. Ramachandra

Reddy v. Public Prosecutor) (1976) 3 SCC 618.

(iv) Where dying declaration is suspicious itshould not be acted upon without corroborative evidence. (Rasheed Beg v. Sate of Madhya Pradesh,

(1974) 4 SCC 264.

(v) Where the deceased was unconscious andcould never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v.

State of M. P., 1981 Supp SCC 25)

(vi) A dying declaration which suffers frominfirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P. (1981) 2 SCC 654.

(vii) Merely because a dying declaration doesnot contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v.

Krishnamurthi Laxmipati Naidu, 1980 Supp SCC 455).

(viii) Equally, merely because it is a briefstatement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth.

Surajdeo Oza v. State of Bihar, 1980 Supp SCC 769)

(ix) Normally the court in order to satisfywhether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion.

But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot

prevail. (Nanahau Ram v. State of M.P.) 1988 Supp SCC 152

(x) Where the prosecution version differs fromthe version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P.

v. Madan Mohan) (1989) 3 SCC 390.â€​

In the cross examination of Radhelal (PW-1), Jagat Rani (PW-2), Preeti (PW-3), Ravindra (PW-4) and Ratan Lal (PW-7), appellant had made a

suggestion that deceased-Rubi committed suicide due to their cruelty. These witnesses completely denied the suggestions Laxman (PW-5) stated in

his examination in chief that he reached the spot and deceased-Rubi told him that appellant extinguished fire and ran away. These statements are not

contradicted in cross examination by the appellant.

From the evidence of the witnesses, it does not appear that the deceased was tutored at the time when she gave dying declaration, nor was she

under pressure at that time. Therefore, dying declaration of the deceased is wholly reliable.

K.P. Sen (PW-12) deposed this Court that he has written the Dehati Nalishi according to information given by deceased-Rubi. Deceased-Rubi

also told him that appellant set fire upon her.

G.S. Patel (PW-13) Nayab Tehsildar, who recorded dying declaration Ex.-P-9 of deceased, got fitness certificate from the doctor before writing

the dying declaration. Dr. R.K. Mishra (PW-11) deposed that the deceased-Rubi was competent to give dying declaration. G.S. Patel (PW-13) denied

the suggestion that the deceased was not in a condition to speak. So this is crystal clear that deceased had given dying declaration in different stages

and she told all the witnesses that appellant came to her house and tried to outrage her modesty and when she opposed, appellant set her on fire. It is

not disputed deceasedâ€"Rubi is sister-in-law of the appellant. So there is no reason to implicate the appellant in such grave false case. So, dying

declarations given by deceased-Rubi in different stages are reliable and the conviction can be made upon their dying declarations. It is clear that the

death of deceased-Rubi is homicidal in nature.

Prakash (PW-14)isfather-in-law of appellant, who was declared hostile and defence witness Gangotri DW-1 is mother-in-law of appellant. They

deposed that at the time of incident, appellant was not present on the spot but it is not disputed that witnesses were not present at the time of incident.

So there is no reason to dis-believe the dying declaration of deceased. So it is proved that appellant came to the deceased. At that time, deceased was

alone in her house. Appellant tried to outrage her modesty, and when she opposed, appellant set her on fire due to which deceased died.

Learned Amicus Curiae for the appellant submitted that even if it is held that appellant set the deceased-Rubi on fire the act of appellant would not

fall under section 302 of IPC but it would at the most fall under Sections 304(1) and 302(2) of IPC. He submitted that appellant had no intention to

cause of death of Rubi.

In support of this contention, he placed reliance on (K. Ravi Kumar Vs. State of Karnataka) reported in (2015) 2 SCC 638.

But there is no evidence that incident has occurred on the basis of sudden provocation or sudden fight. It is crystal clear that appellant came to the

deceased when she was alone in her house. He wanted to outrage her modesty, and when she opposed he poured kerosene on deceased and set

her on fire. It is evident that when the appellant did not succeed in his crime of out raging modesty he set the deceased on fire. Due to the said act, the

deceased suffered injuries. This injury was sufficient to cause of death in the ordinary course of nature. It is proved that there was in intention to

inflict that particular bodily injury. So the act of appellant will come in purview 302 of the IPC.

The Hon’ble Apex Court, in the case of Virsa Singh Vs. State of Punjab reported in AIR 1958 SC 465 has held as under:-

“14. To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 “thirdlyâ€​.

First, it must establish, quite objectively, that a bodily injury is present.

Secondly, the nature of the injury must be proved; These are purely objective investigations.

Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional,

or that some other kind of injury was intended.

Once these three elements are proved to be present, the enquiry proceeds further and,

Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the

ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.

Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder

under Section 300, “thirdlyâ€​. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to

cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It

does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury

actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective

inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are

sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face

the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional.â€​

So the findings of learned trial Court that the appellant committed murder the deceased Rubi, is based upon proper and legal evidence so in view of

the matter, in our opinion the learned trial Court has rightly convicted the appellant guilty for commission of the offence.

Cr. A. No. 472/2009

Accordingly, we do not find any merit in this appeal, the same is hereby dismissed.