Shanker vs The State of M.P.

Appellant has filed this appeal against the judgment dated 16.11.2007 passed in Sessions Trial No.155/2006. The trial Court held the appellant

guilty for commission of offence punishable under Section 302 of Indian Penal Code and awarded sentence of life imprisonment alongwith fine of

Rs.100/.

Prosecution story in brief is that deceased was the wife of the appellant. Appellant used to quarrel with the deceased. He used to beat her after

consuming liquor because he had apprehension about the character of the deceased. On 20.02.2006, at around 9:30 in the night, deceased was

cooking food, appellant came there, he was in a drunken state. The food was cooked. The appellant told the deceased to leave the house. He

quarreled with the deceased and beaten her by fists and legs. Thereafter, he poured kerosene on the deceased after taking out kerosene from a

kerosene lamp and ablaze her. The incident was witnessed by the daughter of the appellant. She doused the fire and informed the neighbour.

Deceased herself went to the hospital at Sausar on foot. Her dying declaration was recorded. She died on 10.03.2006. Police conducted

investigation and filed charge-sheet against the appellant. The appellant abjured the guilt and pleaded innocence. The trial Court, after trial, held the

appellant guilty for commission of offence and awarded sentence as mentioned above in the judgment.

Learned Amicus Curiae for the appellant has submitted that the trial Court committed error in convicting and sentencing the appellant.

Prosecution witnesses have not supported the case. If the prosecution case is accepted as it is, then also, the offence committed by the appellant

would fall under Section 304 Part I of IPC because the incident had happened all of a sudden. Hence, the sentence of the appellant be awarded as

already undergone.

Learned Government Advocate has submitted that the prosecution has established the guilt of the appellant and the trial Court has rightly

convicted the appellant and awarded a proper sentence.

PW-1 Manikrao is neighbour of the deceased. He deposed that I heard the sound of the deceased (Chhavi) and she told me that appellant had

ablaze her. I advised her to go to hospital. She went to the hospital with her daughter. PW-8 Km. Nisha is the daughter of the deceased and the

appellant. She deposed that the deceased was her mother. The appellant came after drinking liquor. My mother was preparing chapaties, at that

time, appellant had beaten my mother and poured kerosene on her and ablaze her. I doused the fire after taking water in a glass. Thereafter, I went

to the hospital alongwith my mother.

PW-2 Dr. Vivek Gupta, deposed that on 21.02.2006, I was posted as Medical Officer at C.H.C. Sausar. I examined the deceased. She told

me that her husband ablaze her. After examination, I found that there were 55% burn injuries on her body. I also examined the appellant on the

aforesaid date and noticed one abrasion caused by some hard object. I gave opinion that the deceased was in a fit mental condition to give dying

declaration. Same was recorded by me in Ex.P6. I signed the same.

PW-3 D. Murthi (Naib Tehsildar) deposed that on 21.02.2006, I was posted as Naib Tehsildar of Sausar Tehsil. I received certificate from the

doctor that deceased was in a fit mental condition to give dying declaration. I recorded dying declaration of the deceased. Same facts were

recorded by me as stated by the deceased. Dying declaration is Ex.P6 and I signed the same. Deceased also put her thumb impression on the

dying declaration.

PW-5 Dr. Shailendra Verma performed postmortem on the body of the deceased. He deposed that when I performed postmortem on the body

of the deceased, there was pus formation and smell was coming from the body. She was 70- 75% burnt. There was infection. The cause of death

was septicemia developed due to burn injuries. He further deposed in the cross-examination that if the deceased had received some infection after

receiving burn injuries, then septicemia could had happen.

PW-9 Arvind Singh Chouhan is the Investigating Officer. He deposed that on 21.02.2006, I was posted as Town Inspector, Sausar and I

conducted investigation of the case. I prepared spot map Ex.P17 and signed the same. From the spot, I seized Saree, kerosene lamp, plastic

container of five liters and matchbox vide Ex.P18 and signed the same. Appellant was arrested vide Ex.P19. The appellant was sent for medical

examination. The seized articles were sent to FSL.

Dying declaration of the deceased is Ex.P6, recorded by Naib Tehsildar. It is mentioned in the dying declaration that on the date of incident I

was preparing chapaties, appellant came to the house, he was in a drunken state, he told me to leave the house and thereafter, he had beaten me.

Kerosene lamp was there. He had taken out kerosene from the lamp and sprinkled the same on me and ablaze me. I came out of the house. My

daughter doused the fire. Thereafter, appellant ran away from the spot. I went to Sausar Hospital on foot, which is at a distance of 2 kilometers.

There is a dying declaration of the deceased, which is Ex.P6. It was recorded by Naib Tehsildar. Doctor had given certificate that the

deceased was in a fit mental condition to give the dying declaration. Dying declaration of the deceased is supported by the evidence of the

daughter (PW-8) of the appellant and the deceased. She specifically deposed that appellant had poured kerosene on her mother and ablaze her.

It is well settled principle of law that a dying declaration is admissible in evidence and conviction can be based on dying declaration if it inspires

confidence of the Court. The Apex Court in the case of Pawan Kumar vs State of Himachal Pradesh, (2017) 7 SCC 780 has held as under in

regard to admissibility of dying declaration:

In Atbir v. Government of NCT of Delhi (2010) 9 SCC 1, the Court, after noting earlier judgments, has laid the following

guidelines with regard to admissibility of the dying declaration:-

The analysis of the above decisions clearly shows that:

(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.

(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 the 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 eyewitness 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 the basis of conviction,

even if there is no corroboration.

Recently, in Gulzari Lal (supra), the Court confirmed the conviction by placing reliance on the statement made by the deceased

and recorded by the Head Constable on the basis of the principles stated in Laxman (supra). The analysis in the said case is as

follows:-

In reference to the position of law laid down by this Court, we find no reason to question the reliability of the dying

declaration of the deceased for the reason that at the time of recording his statement by the Head Constable Manphool

Singh (PW 7), he was found to be mentally fit to give his statement regarding the occurrence. Further, evidence of Head

Constable Manphhol Singh (PW 7) was shown to be trustworthy and has been accepted by the courts below. The view

taken by the High Court does not suffer from any infirmity and the same is in order.

The conviction by the High Court was based not only on the statements made by Maha Singh (deceased) but also

on the unshattered testimony of the eyewitness Dariya Singh (PW 1) and the statement of the independent witness

Rajinder Singh (PW 11).

Tested on the anvil of the aforesaid authorities, we find that there is no reason to disregard the dying declaration. The Head

Constable has recorded it as narrated by the deceased and the deceased has also written few words about the accused. The same

has been recorded in presence of the doctor, PW-10, who had appended his signature. A certificate of fitness is not the requirement

of law. The trial court has been swayed away by the burn injuries. It is worthy to note that there cannot be an absolute rule that a

person who has suffered 80% burn injuries cannot give a dying declaration. In Vijay Pal v. State (Government of NCT of Delhi

(2015) 4 SCC 749), the Court repelled the submission with regard to dying declaration made by the deceased who had sustained

100% burn injuries stating that:-

Thus, the law is quite clear that if the dying declaration is absolutely credible and nothing is brought on record that

the deceased was in such a condition, he or she could not have made a dying declaration to a witness, there is no

justification to discard the same. In the instant case, PW 1 had immediately rushed to the house of the deceased and she

had told him that her husband had poured kerosene on her. The plea taken by the appellant that he has been falsely

implicated because his money was deposited with the in-laws and they were not inclined to return, does not also really

breathe the truth, for there is even no suggestion to that effect.

It is contended by the learned counsel for the appellant that when the deceased sustained 100% burn injuries, she

could not have made any statement to her brother. In this regard, we may profitably refer to the decision in Mafabhai

Nagarbhai Raval v. State of Gujarat, (1992) 4 SCC 69 wherein it has been held that a person suffering 99% burn

injuries could be deemed capable enough for the purpose of making a dying declaration. The Court in the said case

opined that unless there existed some inherent and apparent defect, the trial court should not have substituted its opinion

for that of the doctor. In the light of the facts of the case, the dying declaration was found to be worthy of reliance.

In the present case, dying declaration of the deceased was recorded by Naib Tehsildar, who is an Executive Magistrate. There is a certificate

of the doctor that the deceased was in a fit condition to give the dying declaration. Evidence of both these witnesses has been recorded before the

Court. There is FIR, which was lodged by the deceased herself. Hence, in our opinion, the trial Court has rightly held that the appellant had killed

the deceased.

Now the question is, what offence the appellant has committed? Learned amicus curiae has submitted that the deceased died after a period of

15 days of the incident due to septicemia. There were 55% burn injuries to the deceased and she herself went to the hospital after covering a

distance of two kilometers on foot. Hence, the offence committed by the appellant would fall under Section 304 part 2 of IPC.

We find substance in the argument advanced by the learned amicus curiae. The Apex Court in the case of Maniben vs State of Gujarat, (2009)

8 SCC 796 has held that the offence committed by the accused would fall under Section 304 part II if deceased died after 8 days after the incident

of burning on account of septicemia, it reads as under:

There is also evidence on record to prove and establish that the action of the appellant to throw the burning tonsil was preceded by a quarrel

between the deceased and the appellant. From the aforesaid evidence on record it cannot be said that the appellant had the intention that such

action on her part would cause the death or such bodily injury to the deceased, which was sufficient in the ordinary course of nature to cause the

death of the deceased. Therefore, in our considered opinion, the case cannot be said to be covered under clause (4) of Section 300 IPC. We are,

however, of the considered opinion that the case of the appellant is covered under Section 304 part II IPC.

A Division Bench of this Court in the case of Ganesh Ram vs State of Madhya Pradesh, 2010 (2) M.P.H.T. 350 has held as under:

Due to some minor quarrel in between the husband and wife with regard to preparation of tea, the appellant/accused without any intention poured

kerosene on the wife deceased Pinki and thereafter set her on fire, due to which, she sustained 50 to 55 percent burn injuries and died near about

5 days after the incident due to complication of the burn injuries and in such circumstances, the appellant/accused can be convicted for the offence

punishable under Section 304 Part I of IPC and not under Section 302.

In the present case, the doctor who performed postmortem of the deceased, deposed that the deceased was died due to septicemia

developed by burn injuries. Doctor, who examined the deceased initially, deposed that the deceased received 55% burn injuries. Deceased and

her daughter both stated that the deceased herself reached at hospital by covering a distance of 2 kilometers on foot. The incident is dated

20.02.2006 and the deceased was died on 10.03.2006 i.e. after a period of about 20 days of the incident. Hence, in our opinion, the offence

committed by the appellant would fall under Section 304 Part I of IPC. The appellant is in jail since 23.02.2006. He has completed more than 11

years of actual jail sentence. Hence, in our opinion, it would be just and proper to award a sentence to the appellant as already undergone

including fine amount of Rs.100/-

Consequently, Appeal filed by the appellant is partly allowed. His conviction and sentence awarded by the trail Court is hereby set aside. The

appellant is convicted for commission of offence punishable under Section 304 part I of IPC. He is awarded a sentence of already undergone with

fine of Rs.100/-. It is not necessary to pay the fine because the appellant has undergone sufficient jail sentence. He is in jail. He be released

forthwith, if he is not required in any other case.