Ramavatar Sahu vs State Of Madhya Pradesh

Mohd. Fahim Anwar, J

The present appeal has been preferred by the accused/appellant under Section 374 (2) of the Code of Criminal Procedure, 1973, being aggrieved by

the judgment of conviction and order of sentence dated 05.05.2008, delivered by the learned First Additional Sessions Judge, Sidhi, in Sessions Trial

No.189/2007, whereby the appellant has been found guilty for commission of offence punishable under Section 302 of the Indian Penal Code and

sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.500/-, and under section 449 of Indian Penal Code and sentenced to undergo

rigorous imprisonment for 10 years and to pay fine of Rs.500/-, with default stipulations.

The case of the prosecution in brief is that on 16.08.2007 at about 8.30 pm, when Ramkali was alone in her house, the accused/appellant entered

into her house and threw a burning kerosene chimney on her body and set her ablaze. Thereafter, the appellant closed the door from outside and ran

away. She cried for help whereupon her son Ramprasad Sahu (PW/1) and her husband Shobhnath Sahu (PW/2), who were coming towards the

house heard her cry, rushed to the house and immediately extinguished the fire. Thereafter, they took Ramkali to the District Hospital, Sidhi. On the

basis of Dehati Nalishi (Exhibit P-14), an FIR (Exhibit P-15) of the incident was lodged on

08.2008. It is further alleged that on 01.09.2007 the District Hospital, Sidhi advised the family members of Ramkali Bai to shift her to Rewa

District Hospital, but they did not do so and on 3. 09.2007 she succumbed to the burnt injuries. The statements of witnesses were recorded and after

usual investigation, charge-sheet has been filed before the Court.

The appellant has been charged under sections 302 and 449 of the IPC. He abjured his guilt and pleaded innocence.

The trial Court on appreciation of evidence found the appellant guilty under sections 302 and 449 of the IPC, convicted the appellant and sentenced

him as mentioned hereinabove.

The learned counsel for the appellant submits that the impugned findings recorded by the trial Court suffer from perversity and illegality. It is

submitted that the trial Court has committed illegality in convicting the appellant on the basis of FIR and statements of deceased recorded by Arun

Kumar Dubey (PW/7), treating it as a dying declaration. It is further submitted that there are two contradictory statements of the deceased in regard

to the same incident. The learned trial Court has ignored the important aspect of the case that the deceased was alive for 15 days after the incident;

however, no dying declaration was recorded by the Executive Magistrate. There is no eye-witness to the incident. It is further submitted that there

was a dispute between his brother and the family member of deceased and due to this reason, the appellant has been falsely implicated in this case.

On the alleged date of incident, the appellant was at the house of Surajdeen Saket and Kamta Saket. Learned counsel for the appellant has relied upon

a judgment in the case of Chacko Vs. State of Kerala, reported in AIR 2003 SC 265 and prayed that the judgment of conviction and order of sentence

deserves to be set aside.

Learned Government Advocate for respondent/State has submitted that the appellant was involved in commission of offence, therefore, the trial

Court has rightly convicted the appellant.

On perusing the prosecution evidence, it is clear that Ramkali Bai was set ablaze on 16.08.2007 when she was at her residential house at Padra and

after remaining under treatment at the District Hospital Sidhi and afterwards at her residential house at village Padra, she died on 30.09.2007 due to

injuries and the resultant infection, which is very common in burnt cases.

Now, we shall advert to see that who was responsible for the act which has taken her to an untimely death. In this regard again the versions of

Ramprasad Sahu (PW/1) and Shobhnath Sahu (PW/2) are important. They do not claim to be the eyewitnesses of the incident. According to them on

the fateful night when they were proceeding to their residential house in which their mother/wife respectively also reside, they heard Ramkali’s

cry for help. They ran toward their residential house where they found that the house was closed from outside and after opening the clinker (Sankal)

they entered the house and found Ramkali Bai burning. They tried to extinguish the fire and took Ramkali Bai to the Hospital. Ramprasad Sahu

(PW/1) and Shobhnath Sahu (PW/2) have also stated in their evidence that whilst entering the house they saw a person who was running out of their

house by jumping the boundary but they did not recognize him. They have also stated that on enquiring from Ramkali Bai, she told them that when she

was alone in house, the appellant Ramavatar Sahu entered the house, snatched the burning chimney from her hand and threw it on her and set her

ablaze. In that regard also no remarkable omissions or contradictions have come on record during the course of their evidence and they have remained

consistent on their version, during their cross-examination.

As stated above, Ramprasad Sahu (PW/1) and Shobhnath Sahu (PW/2) are not the eyewitnesses of the incident. They narrated the story, which

Ramkali Bai is said to have disclosed to them. No other eyewitness have been examined by the prosecution. The case for the prosecution seems to

bank on the different statements of deceased Ramkali Bai, which have been given by her in critical health conditions.

We have to go through the statements one by one in chronological order to see and decide as to whether those statements are of Ramkali Bai and

whether the statements can be considered as dying declarations?

As stated above, Ramkali Bai was set ablaze on 16.08.2007 at about 08:30 pm. She was brought to District Hospital Sidhi where she was

admitted. In the night of 16.08.2007 the Sanha Report No.187 has been shown to be written at about 11:21 pm, afterward Sanha report no.189 has

also been shown to be written after taking the statement of deceased Ramkali Bai by A.S.I. R.C. Mishra (PW/5). It appears from the Sanha report

No.189 that it has been written on the midnight of 16/17.08.2007 at about 00:50 am. From the perusal of Sanha report it appears that it has been

written after taking the statements (Ex.P-11) of Ramkali Bai by the same Police Officer. The relevant part of the statement is reproduced herein

below:-

^^eSa ?kj esa vdsyh Fkh jkevkSrkj lkgw vkSj eka cq/kuh dgus yxh dh ';kedyh us esjs ifr o esjs ?kj ls 4 dqjkZ jkfgyk 4 eqjdk nky] jk’ku dkMZ] 2

Fkkyh] 4 ykSVk] 4 fxykl pksjh djds ys x;k gSA ;g dg dj jkevkSrkj lkgw iRFkj esjs ?kj esa ekjk vkSj esjs ?kj esa vkx yxk fn;k gYyk xkSgkj fd;s

¼vifBr½ ds chp Hkxk;s nn~nh rsyh] xQqvk rsyh oxSjg ¼vifBr½ vkx cq>k;s vkx esa esjk psgjk >qylk x;k nksuksa gkFk] lhuk] iSj] nksuks ?

kqVus] iSV] dej ihB Hkh ty xbZA eq>s ogka ls vLirky lh/kh ys vk;s tgka eSa HkrhZ gwa esjk bykt py jgk gSA^^

A report (Ex.P-14) of deceased Ramkali Bai shown to be recorded by Station House Officer, City Kotwali, Sidhi Shri A.K. Dubey (PW/7) on

20.08.2007 at about 08:20 pm when Ramkali Bai was admitted in District Hospital Sidhi. The incriminating part of it, is again reproduced herein

below:-

^^eSa ?kj esa jksVh cukus ds fy, pwYgk tykbZ vkVk xwnk fpeuh ty jgh Fkh tks ikl ds bZVk ds [kU/kk ij j[kh Fkh jkr djhc 20.30 cts fdokM+ [kqyk

Fkk jke vkSrkj firk cgknqj lkgw fu- iM+jk dk esjs dejs

esa vk;k tyrh fpeuh mBkdj eSa cSBh Fkh esjs Ã…ij tyrh fpeuh Qsad fn;k eSa tyus yxh fpYykbZ FkksM+h nsj okn esjk yM+dk rFkk ifr vk;s vkx

cq>k;sA^^

The third statement (Ex.P-19) of Ramkali Bai have been stated to be taken by Station House Officer Arun Kumar Dubey (PW/7) on 21.08.2007

under the provisions of Section 161, Criminal Procedure Code. The remarkable part of the statement is also narrated and shown here-in-below:-

^^jkr djhc 8%30 cts iRFkj ekjk ?kj ij dksbZ ugha Fkk fd eSa dqN ugha cksyh fdokM+ [kqyk Fkk brus esa jkekorkj lkgw ?kj esa ?kqlk eSa [kkuk cuk

jgh Fkh tSls eSa ns[kh fpeuh ysdj [kM+h gqbZ fpeuh esjs gkFk ls NqM+k dj esjs Ã…ij Qsd fn;k eSa tyus yxh jkekorkj Hkkxk o ckgj ls ldM+h yxk fn;k

eSa vUnj gh fpYyk jgh FkhA^^

As stated above, first statement (Ex.P-11) of the deceased Ramkali Bai has been recorded by the A.S.I. R.C. Mishra (PW/5). This statement

seems to be recorded during the course of enquiry regarding Sanha Report No.187 that was the reason it was the part of the case diary, which was

submitted in the trial Court. It seems that during cross-examination of A.S.I. R.C. Mishra (PW/5) this statement was enquired for, by the defence

counsel and later on after exhibiting the same as Ex.P-11 attached with the prosecution documents. A.S.I. R.C. Mishra (PW/5) has stated in his

chief-examination that he has recorded the statement of Ramkali Bai when she was admitted in the hospital. He also states that after taking the

statement of Ramkali Bai he has taken thumb impression of Ramkali Bai and he himself also signed the statement which are marked as B to B and A

to A respectively. There seems to be no contradiction during the course of the cross-examination of the witness. The above said statement has been

taken during the course of enquiry and it is signed by the scriber of the statement; therefore, it cannot be treated as a statement recorded under

Section 161 of Cr.P.C. In this position the observation of the Apex Court in the case of State of Punjab Vs. Amarjit Singh reported in 1989 SC (Cr) 58

is relevant:-

“As to the legality of the dying declaration, this case is on a better footing. It was recorded before investigation commenced. Even the FIR was

issued later. The ASI did not record the dying declaration in the capacity of an Investigating Officer.â€​

Similarly a Dehati Nalishi (Ex.P-14) and Police statement (Ex.P-19) have also been produced by the prosecution with the charge-sheet. The

Dehati Nalishi (Ex.P-14) and Police statement have been shown to be taken during the course of investigation by the Station House Officer Shri A.K.

Dubey (PW/7). During the course of examination before the trial Court he has submitted that he wrote the Dehati Nalishi (Ex.P-14) on the

information of deceased Ramkali Bai. During the course of examination and cross-examination he has not stated anything about the Police statement

of deceased Ramkali Bai because at that time there was no occasion to show the statement of the Ramkali Bai because she had already died. The

Presiding Officer of the trial Court after showing the statement and after admitting that witness A.K. Dubey (PW/7) has recorded it during the course

of investigation, marked it as Ex.P-19.

The witness A.K. Dubey (PW/7) has accepted that there is no statement, which have been recorded by the Executive Magistrate after medical

examination of the deceased in her life time. The explanation which he had given regarding this flaw is that he tried many times to call the Executive

Magistrate by writing letters but nobody came because the Revenue Officers were on strike at the relevant point of time. He has denied that the

Dehati Nalishi (Ex.P-14) and the Police statement (Ex.P-19) were not written on the information of the deceased Ramkali Bai. It is also denied that

he himself has recorded the said Dehati Nalishi at Police Station.

It is clear that Ramkali Bai has died about 18-19 days after the incident and that she remained continuously conscious and was in a fit menal

condition to give the statement before concern Doctor or Executive Magistrate. It seems that the concerning investigation officer has not taken proper

care to ensure that her statement be recorded as per rules which may ultimately be used as a dying declaration in the eventuality of her death.

At the same time it is also clear that as far as the above said enquiry statement (Ex.P-11), Dehati Nalishi (Ex.P-14) and Police Statements (Ex.P-

19) of the deceased are concerned they have all been recorded during the course of enquiry or investigation by the concerned Police officer without

certification by the doctor or Magistrate. However, it is not the defence of the accused that when the statements have been recorded by the

concerned officer, the deceased Ramkali Bai was not in a fit mental condition to give her statement or that she was not fully conscious. On the other

hand it seems that after the admission in hospital, her health condition improved a lot, that’s why she was taken to her residential house;

whereafter, her condition deteriorated and she died because of infection in the old burnt injuries. Therefore, it is clear that the statements of the

deceased have been recorded in her good health and mental condition and that such a statement does not loose its value simply in the absence of

certification by a doctor.

This issue has been considered by the Apex Court in Kans Raj Vs. State of Punjab, (2000) 5 SCC 207 with the following observations:-

Section 32, Evidence Act does not require that the statement, sought to be admitted in evidence, should have been made in imminent expectation of

death. The words ""as to any of the circumstances of the transaction which resulted in his death"" appearing in Section 32 must have some proximate

relations to the actual occurrence. In other words, the statement of the deceased relating to the cause of death or the circumstances of the transaction

which resulted in his death must be sufficiently or closely connected with the actual transaction.â€​

In the case of Koli Chunilal Savji Vs. State of Gujrat, (1999) 9 SCC 562 the Supreme Court has held as under:-

“To get a certificate from the Doctor regarding the mental condition of the declarant is mere a rule of prudence and the ultimate test is whether the

dying declaration can be held to be a truthful one and voluntarily given. It is no doubt true that before recording the declaration, the concerned officer

must find that the declarant was in a fit condition to make the statement in question.â€​

This Court has considered time and again the probative value of dying declarations recorded under different situations and also in cases where

more than one dying declaration have been recorded. The law is that if the Court is satisfied that the declaration is true and made voluntarily by the

deceased, conviction can be based solely on it, without any further corroboration. The Apex Court in the case of Sudhakar Vs. State of M.P., (2012) 3

SCC 430 has held as under:-

“21. 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.â€​

We are constrained to say that on minute scrutiny of the statements in the present case it is clear that Ramkali Bai remained fully conscious and

consistent regarding the guilt of the appellant and as the person who caused burn injuries sustained by her except for minor contradictions which do

not affect the truthfulness, consistency or reliability of her statements.

For the minor contradictions amongst the three dying declarations, the defence has relied on Sheikh Bakshu and others Vs. State of Maharashtra

(2007) 11 SCC 269, in which it is held by the Apex Court that if major discrepancies are found in two or more than two statements of the deceased

which may be considered under the category of dying declarations, in face of such infirmities, conviction can’t be sustained. In the case shown

above there were discrepancies as to place of occurrence and burn marks found on the person of the deceased. In the above said case the dying

declaration was also recorded before the intimation of offence reached the Police Station. In that situation the Apex Court has held that conviction

cannot be maintained on the basis of such suspicious dying declarations. The defence has also said to rely on Chacko Vs. State of Kerala, reported in

AIR 2003 SC 265 in which the dying declaration of deceased was not reliable because of the old age (70 years), extensive burn injuries (80%) and

delayed by 8 to 9 hours. The observations given by Hon’ble Apex Court do not seems to resemble with the case in hand, so no benefit of it may

be given to the appellant.

Contrary to this, the Apex Court in the case of Raju Davade Vs. State of Maharashtra, (2016) 11 SCC 673 has held as under:-

“Accused burning deceased, leading to her death- two dying declarations, out of three, found reliable- Motive also established-cogent evidence

proving prosecution case-conviction confirmed.â€​

From the aforesaid discussion it is clear that the witnesses Ramprasad Sahu (PW/1) and Shobnath Sahu (PW/2) are the persons who reached the

spot immediately after the incidence, they saw a person run away from the scene of occurrence, the deceased Ramkali Bai in severely burnt condition

has revealed the name of appellant Ramavatar to them as the assailant. Later on, after the incident on the first occasion the deceased has also

disclosed the name of appellant Ramavatar as the assailant during the course of enquiry as well as later at different stages of investigation. In the

facts and circumstances of the case the theory put up by the defence that it was accidental death has been rightly rejected by the trial Court. The

prosecution by cogent evidence has been able to establish beyond reasonable doubt that the death of deceased Ramkali Bai has been caused by burn

injuries and those fatal burn injuries to the deceased have been caused by appellant Ramavatar.

As has discussed above, the prosecution has established beyond doubt that the appellant had thrown a burning kerosene chimney on the deceased

Ramkali Bai when she was alone in her house, after entering in her residential house. It is also clear from the statements of the witnesses and the

different dying declarations which are found proved that appellant Ramavatar didn’t entered the deceased’s residential house with any

preparation of causing any type of grievous hurt or harm to deceased. As the circumstances reveal that after entering the house of the deceased, the

appellant snatched the burning kerosene chimney from the deceased and threw it on her. In the first dying declaration the deceased has stated that the

appellant has burnt her house, by which ultimately her clothes and body have also caught fire and she got burnt badly while in the second and third

dying declaration she seems to disclose that appellant had thrown the burning chimney on her body, by which her clothes caught fire and she got burnt

severely.

In view of the above said evidence it is clear that the act of appellant of throwing the burning chimney on the house of deceased or on the body of

deceased does not show that it was done only with the intention of causing the death of the deceased by severe burn injuries. But the act of the

appellant shows that he must have knowledge that his act would have cause physical loss which may be the death of the deceased Ramkali Bai. In

this regard the observation of the Apex Court in Tarsem Singh and others Vs. State of Punjab (2002) 2 SCC 673 is attributable. In the background, it

is difficult to hold that the appellant committed the offence of murder. The offence would only come under Section 304 Part-II of the IPC.

In view of the aforesaid and in view of exception 4 of Section 300 of IPC, we are of the considered opinion that the conviction of the appellant

under Section 300 of IPC deserves to be and is hereby converted into conviction for an offence punishable under Section 304 Part-II of IPC. At the

same time, we are of the considered opinion that the finding recorded by the trial Court in respect of the offence punishable under Section 449 of the

IPC is justified and deserves to be and is hereby confirmed and affirmed, in view of the facts and evidence available on record.

The appeal filed by the appellant is partly allowed to the extent indicated above and the sentence imposed upon the appellant is reduced to ten

years rigorous imprisonment. It is informed that the appellant is in jail. In case the appellant has served out 10 years R.I., he shall be released forthwith

and in case he has not done so, he shall undergo the remaining part of the sentence, as reduced by this Court. The punishment in respect of both the

offence shall run concurrently.

The appeal filed by the appellant stands partly allowed and the impugned judgment passed by the trial Court stands modified to the extent indicated

above.