Ravindra vs State of Madhya Pradesh

S.K. Awasthi, J

The appellant has preferred the present appeal against the judgment dated 28.09.2011 passed by First Additional Sessions Judge, Dhar (M.P.) in

Sessions Trial No273/2007, whereby appellant Ravindra has been convicted of offence under Sections 302 of IPC and sentenced to life imprisonment

with fine of Rs.500/- with default stipulation.

(2) It is admitted fact that the deceased Anita was a daughter of Heeralal (PW-1), she was married to the appellant-Ravindra about 7 years prior to

her death. They having two children namely Kumari Arti and Rohan. The appellant was resided with the deceased at Housing Board Colony,

Pithampur. Deceased- Anita was admitted in Choithram Hospital, Indore for treatment of burn injuries and during this she was died on 06.09.2007.

 (3). Brief facts which are necessary for disposal of the instant appeal are that on 02.09.2007 a quarrel took place between the appellant and her

wife Anita. The appellant had beaten her wife-Anita and in order to kill her, he poured kerosene on her body and ablazed her due to which Anita

sustained 98% burn injury, thereafter, she was brought to the Choithram Hospital, Indore for treatment, where on 04.09.2007 Dr. Sobha Chamaniya

(PW-10) had recorded her dying declaration. On the request of the police, on the same day Executive Magistrate Rajnees Shrivastava also recorded

the dying declaration of Anita. During the treatment Anita had died on 06.09.2007 and an intimation of her death was sent to the police station-

Rajendra Nagar, Indore. On the basis of aforesaid, merg was registered under Section 174 of Cr.P.C. The police had initiated inquest, the

Panchanama of dead body of Anita was prepared by Naib Tehsildar Smt. Radha Mahant and her dead body was sent for postmortem. The merg

intimation was transferred to the police Station-Pithampur under the area of which the incident took place. On 16.09.2007 Police Station-Pithampur

registered FIR (Ex. P/26) at crime No.141/2007 and investigated the matter. The spot map (Ex. P/34) was prepared, container of kerosene, match

box and burn cloths of the deceased were seized from the place of occurrence. The statements of witnesses were recorded. The accused was

arrested and after completion of investigation, the charge-sheet was filed before the Chief Judicial Magistrate, Dhar, who committed the case to the

Court of Sessions Judge, Dhar and ultimately it was transferred to First Additional Sessions Judge, Dhar.

(4) The trial court has framed charges against the appellant under Section 302 of I.P.C. The appellant abjured his guilt, he pleaded innocence and took

a plea that his father- in -law and brother-in- law are addicted to alcohol that's why they asked for money from him and also wanted to grab of his

house and land therefore they gave false statement against him. The deceased was died due to accident and he was also burnt injuries in an attempt to

save her. In defense he has examined Dashrath (DW-1), Santosh (DW-2), Dr. Narendra (DW-3) and Vishwanath Patil (DW-4).

(5) In order to bring home charges framed against the appellant, the prosecution has examined 19 witnesses, out of which Mohan Singh (PW-4) has

not supported the prosecution story and turned hostile.

(6) The trial court after appreciation of evidences arrived at the conclusion that the prosecution has duly established its story and there is significant

material available against the appellant which is sufficient to charge against him. Consequently, vide impugned judgment appellant was held guilty and

convicted under Section 302 of I.P.C and sentenced to undergo life imprisonment with fine of Rs. 500/- with default stipulation. Against his conviction,

the appellant preferred this appeal.

(7) Learned counsel for the appellant has argued that the impugned judgment suffers from several errors which are sufficient to set aside the same. It

is vehemently argued by the learned counsel for the appellant that present appellant was falsely implicated in the crime. The trial court has not

appreciated the prosecution evidences in proper manner as there are material contradictions and discrepancies in the statements, therefore, he prayed

that the impugned judgment of the trial court be set aside and the appellant be acquitted from the aforesaid charges.

(8) On the other hand learned counsel for the respondent/State has supported the reasoning of the trial court and submitted that there is overwhelming

evidence available against the present appellant which is sufficient to affirm the conviction recorded by the trial court.

(9) We have duly examined the record and have considered the rivals contentions canvassed by both the parties.

(10) It is not disputed that on 02.09.2007 at about 08:00 pm Anita Bai sustained burn injuries at her house situated at Housing Board Colony,

Pithampur, she was brought to the Choithram Hospital, Indore for treatment where she expired on 06.09.2007. Police initiated the inquest, Naib

Tehsildar prepared Panchnama of dead body of deceased-Anita and thereafter her body was sent for postmortem. Dr. Bharat Prakash Vajpayee

(PW-13) conducted the postmortem of the dead body of Anita and found multiple burn injuries all over the body about 92% and opined that the cause

of death of the deceased was cardiac respiratory system failure due to extensive burn injuries which were anti mortem. The statement of Dr. Bharat

Prakash Vajpayee (PW-13) was duly corroborated by the autopsy report (Ex.P-19). Although the exhaustive cross-examination has been tested of

Dr. Bharat Prakash Vajpayee, inspite of this his statement remained unchallenged, therefore, the trial court has rightly relied upon the testimony of Dr.

Bharat Prakash Vajpayee (PW-13) and conclude that deceased Anita had died due to burn injuries.

(11) Hiralal (PW-1 ) has deposed that Anita was her daughter, she was married to appellant Ravindra, who was working at Pithampur and also

resided there with Anita and two children. On the date of incident, Ravindra informed him by telephone that Anita got fire and she is admitted to the

Choithram Hospital, Indore, after receiving this information he reached hospital alongwith his wife and son Rajendra where he found that his daughter

Anita was completely burn. Anita told him that appellant- Ravindra beat her and poured kerosene on her and then set her ablaze. She also told that

Ravindra is having illicit relationship with other woman and because of this he used to beat her. Dagubai (PW-2) and Rajendra (PW-3) corroborated

the statement of Hiralal (PW-1).

(12) Arti (PW-5) testified that deceased Anita was her mother whereas accused is her father. A quarrel took place between her father and mother

and during this his father poured kerosene on her mother and set her on fire. She is not aware that why her parents were quarreling. After that her

father taken the mother to the Chothram Hospital by ambulance.

(13) Dr. Ramesh Mehta (PW-7) stated that on 02.09.2007 at about 10:00 pm the injured Anita was brought to the hospital where on examination he

found that she was conscious and smell of kerosene was coming from her body. He intimated the matter to the Police Station- Rajendra Nagar,

Indore by telephone. On the same night at 02:00 pm husband of the deceased was also admitted for treatment, he has sustained injuries on his right

hand, right side of face and stomach as well as right leg . He was received total 9% burn injuries. He informed that he got fire during saving his wife.

(14) Dr. Shobha Chamniya (PW-10) deposed that on 02.09.2007, she was posted as in-charge of burn unit at Choithram Hospital, Indore. On that day

Anita wife of appellant was admitted in the hospital in burn condition, she was sustained 98% burn injuries. Anita was in serious condition, therefore

she had recorded her dying declaration (Ex.P 11) in which she has stated that her husband is having illicit relationship with Urwashi and she opposed

their relationship, hence on 02.09.2007 at about 04:00 pm her husband Ravindra poured kerosene oil on her and set her ablaze. After that she was

remained 4-5 hours in the house. Dr. Chaminiya further stated that at the time of recording of the dying declaration Anita was fully conscious and she

also put her thumb impression in the Ex.P-11.

(15) According to Executive Magistrate, Rajneesh Shrivastava (PW-11), it appears that on 04.09.2007 upon receipt of information to record the dying

declaration of Anita, he reached at Choithram Hospital, Indore where Anita was admitted in burn condition and after taking certificate from the doctor

regarding the mental fitness, he recorded her dying declaration in question answer form which is as under:

I. Question: What happened, narrate the place, time of incident ?

Answer: Day before yesterday at noon her husband poured kerosene and ablazed her, he consumed liquor and last three days, he was beating her, he

ablazed her at the house situated at Pithampur.

II. Question: Whose involved abalzed her ?

Answer: Her husband only abalzed her, no one was accompanied him.

III. Question: Why he set her on fire ?

Answer: Her husband was having illicit relationship with Lata and he wanted that she leave her from his house

IV-Question- Who was at the house ?

Answer: Her husband and two children are residing in the house.

(V) Anything else to say . Answer: Nothing

The dying declaration of the Anita is Ex. P-18 in which F to F place she affixed her thumb impression.

(16). The aforesaid dying declaration were recorded on 04.09.2007 and Anita expired on 06.09.2007. From the Statement of Dr. Shobha Chaminya

and Rajnees Shrivastava, it appears that at the time of recording of the dying declaration Anita was fully conscious and capable of making statement.

Nothing elicited from their cross examination to show that they are interested witnesses and dying declaration are fabricated thus there is no reason to

disbelieve their testimonies.

(17). In the case of Ramesh Vs. State of Haryana AIR (2016) SC 5554, the Hon'ble Apex Court explained about the admissibility of dying declaration

which is 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.

(18) In the case of Atbir Vs. Government of NCR Delhi AIR 2010 SC 3477, the Apex Court after considering wealth of the president on the subject

of dying declaration laid down following principles:

(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the Court.

(ii) The Court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of

tutoring, prompting or imagination.

(iii) Where the Court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration. Â

(iv) 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 corroborated. The

rule requiring corroboration is merely a rule of prudence.

(v) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence.

(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the

basis of conviction.

(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.

(viii) Even if it is a brief statement, it is not to be discarded.

(ix) When the eye-witness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.

(x) If after careful scrutiny, the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is

coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration.

In the case on hand, although at the time of admission in hospital it was intimated that the deceased Anita set on fire while she was preparing food,

however it is pertinent to note that the appellant/husband brought her to the hospital and It might be possible that on the influence of the appellant

deceased gave aforesaid statement to the doctor so that she can get admitted to hospital and get proper treatment.

(19). Learned counsel attempted to dilute the sensitivity of the dying declaration by contending that the injured had survived till 06.09.2007 and she had

no apprehension immediate death, her statement to be relevant under Section 32 of the Evidence Act. It is not necessary that death should have nexus

in terms of any fixed time with the declaration, or that the victim should be in apprehension of immediate death. The conditions of that statement

should relate to the circumstance surrounding the event which ultimately let to the death. There should be nexus between the circumstance stated by

the victim and her death.

(20) Dashrath Prasad (DW-1) deposed that on 02.09.2007, he was at his house which is situated near the house of the accused at about 07:00 Anita

came to his house and told her wife that her gas cylinder is over therefore she made request for providing extra cylinder, however, he was not having

any extra cylinder, therefore, they refused. After that Anita back to her house. After 15-20 minutes they heard the cry of Anita then he alongwith

other neighbors came to the house of accused where he saw that Anita was completely burnt and other neighbors were pouring water on her.

Accused was also try to extinguish the fire then he asked about the incident from the Arti daughter of the deceased who informed him that gas

cylinder was over therefore her mother was preparing food in the stove, when she was taking out the kerosene fill in the stove then cane felt down on

her at that time stove was also burning there and she had coming in contact with burning stove therefore she got fire. Dasrath Prasad (DW-1) further

stated that then they called Dr. Narendra Raj who examine and suggested to take her Choithram Hospital, Indore then, she was sent to the aforesaid

hospital by ambulance.

(21). The aforesaid witnesses admitted in his cross examination that he had not reported the incident to the police because he has go to his duty but

the statement of the this witnesses is not found trustworthy, for the reason that he stated that at about 07:00 pm Anita came to his house however as

per the prosecution case itself the incident was already taken place at 04:00 pm. The another reason that when the FSL team inspected the spot then

it was found that the filled up gas cylinder was kept in the kitchen of the deceased therefore neither she having any occasion to made any request for

providing gas cylinder nor taken out the kerosene oil cane to fill kerosene in the stove therefore the defence taken by the accused is not acceptable.

(22). The sole eye witness of the incident Arti (PW-5) categorically stated that she only saw that her father poured the kerosene oil on her mother and

then he slept her and taken outside the house. After that what happened she did not see. When she came in the house she saw her mother in a burnt

conditions, This witness is aged about 7 years and she has categorically narrated about the incident which she has witnessed. The above statement of

Arti remained uncontroverted in cross-examination.

(23) Arti (PW-5) accepted in her cross-examination that she has not narrated in the incident to her maternal uncle and maternal grand father when

they came to the spot but it cannot be said to be an unnatural conduct. Keeping this in mind that when deceased Anita was hospitalized her parents

and brother visited Choithram Hospital, Indore to see her at that time she was in position to speak and therefore they had no need to get information

about the incident from Arti .

(24). In the case of Panchhi & Ors. v. State of U.P. [AIR 1998 SC 2726], it is held by Hon'ble Supreme Court that “ It cannot be held that ""the

evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected,

even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a

child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring."" It is more a rule of practical wisdom then

a law.

(25) In the case of Bhagwan Singh Vs. State of M.P. [AIR 2003 1088],“ The law recognises the child as a competent witness but a child

particularly at such a tender age of six years, who is unable to form a proper opinion about the nature of the incident because of immaturity of

understanding, is not considered by the court to be a witness whose sole testimony can be relied without other corroborative evidence. The evidence

of child is required to be evaluated carefully because he is an easy prey to tutoring. Therefore, always the court looks for adequate corroboration from

other evidence to his testimonyâ€​.

(26) In the context of the above cases we have examined the testimony of child witness Arti and found that although she stated in para 17 of her

cross examination that her father took cane and poured kerosene oil on her mother and set fire to her, however, during this neither her mother make

any effort to save herself nor make any alarm, even she did not try to snatch the match box from accused. On that basis trial court has taken the view

that the statement of Arti (PW-5) is not natural and it indicates that at the time of incident she was not present on the spot. But we are not agree with

the aforesaid stand taken by the learned trial court for the reasons that Arti (PW-5) is a girl of aged about 7 years, therefore, we cannot expect from

her that she will explain each and every event which was taken place. Arti happened to be daughter of the accused and there appeared no reasons for

her speaking false against her father although suggestion was put to Arti that she was tutored, however she firmly denied the suggestion that she has

given the statement on asking her maternal uncle and maternal grand-father. Altough some omission of facts narrated in court statement from her

case diary statement but looking to her age we do not find these omission fatal to the prosecution. There was no material contradiction or

discrepancies in the statement of this child witnesses regarding the incident. From the statement of Dashrath (DW-1), the presence of the Arti on the

place of occurrence has also been established. It is also pertinent to note that her presence in the house at the time of occurance has not been

challenged in her cross-examination. The evidence of Arti find support from dying declaration and the medical evidence i.e. autopsy report of the

deceased-Anita, who was sustained burn injuries on her body. Therefore, in our considered view the trial court has committed error in discarding the

statement of the Arti, who appears to be a natural witness.

(27). The accused has taken defence that her wife accidentally got fired and he was also burnt in an attempt to save her, but accused has not

explained as to how his wife got fire. In case of Trimukh Maroti Kirkan v. State of Maharashtra , the Apex Court observed,

In a case based on circumstantial evidence where no eye-witnesses account is available, there is another principle of law which must be kept in mind.

The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an

explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has

been taken in a catena of decisions of this Court. [See State of T.N. v. Rajendran SCC Para 6; State of U.P. v. Dr. Ravindra Prakash Mittal SCC

Para 39 : AIR Para 40; State of Maharashtra v. Suresh SCC Para 27; Ganesh Lal v. State of Rajasthan SCC Para 15 and Gulab Chand v. State of

M.P. SCC Para 4]. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show

that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally

resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is

found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In Nika Ram v. State of H.P., it was

observed that the fact that the accused alone was with his wife in the house when she was murdered there with ""khukhri"" and the fact that the

relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of

Maharashtra, the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had

occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section

313, Cr.PC. The mere denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the

accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife.

(28) On examining the factual aspects of the present case in the light of the above legal propositions,we find that the appellant did not offer any

explanation about the homicidal death of his wife inside his dwelling house. His presence soon before the occurrence with his wife has been

established beyond doubt. It has also been established that there had been a quarrel between them and he beated her wife. Appellant in his statement

under Section 313 of the Code of Criminal Procedure, did not offer any explanation as to how the deceased received injuries which were found on her

body. The circumstances enumerated above unerringly point out to the guilt of the appellant and of no one else.

(29) In view of the above circumstances, we are of the considered opinion that the Trial Court was perfectly right in convicting the appellant/accused

under Section 302 of the Indian Penal Code and sentencing him thereunder. We, therefore, do not find any merit in this appeal, it is hereby dismissed.

(30) The appellant is in jail. copy of the judgment be also sent to the trial Court along with its record for information and necessary action.