Smt. Rajabeti vs State of Madhya Pradesh

Justice Brij Kishore Dube

Feeling aggrieved by the judgment of conviction and order of sentence dated 19/11/1998 passed by the learned VI Additional Sessions Judge, Gwalior in Sessions Trial No. 215 of 1997 (State of Madhya Pradesh Vs. Gopal and another), convicting the appellant u/s 302 of IPC and thereby sentencing her to suffer rigorous imprisonment for life, the appellant has preferred this appeal u/s 374(2) of the Code of Criminal Procedure, 1973. The undisputed facts of the case are that the deceased, Smt. Mahadevi wife of Dharmendra was daughter-in-law of the appellant and on account of receiving burn injuries on 7.1.1997, she had died during the treatment in Kamla Raja Hospital, Gwalior on 08.01.1997 at 2.20 A.M., within seven years of her marriage.

Prosecution story, in brief, may be narrated as under:

(i). That, on 7.1.97 at about 9.00 AM, Mahila Mahadevi w/o Dharmendra Jatav, aged 22 years (since deceased) resident of Gol Pahadia was admitted in the Kamla Raja Hospital, Gwalior in a burnt condition. Duty Doctor informed the police accordingly. The police conducted enquiry into the matter and requested the doctor to record the statement of Mahadevi. Dr. Avinash Sharma (P.W.6) recorded her statement (Exhibit P-12), D.W.1, R.S. Bhadoria, Sub-Inspector has also recorded her statement (Exhibit D/3). During investigation on 08/01/97 at 02.30 AM Dr. Nasir Khan from Kamla Raja Hospital, Gwalior gave information that Mahadevi had died, therefore, Marg No. 2/97 u/s 174 of Cr.P.C., was registered.

(ii). That, the investigating agency reached to the spot, prepared spot map (Exhibit P/1), seized necessary articles from the place of occurrence and recorded the statements of the witnesses who were acquainted with the facts of the offence and also prepared inquest (Exhibit P/5) on the dead body and sent it to for post mortem. On 08/01/97 at 12.30 P.M., Dr. Yogendra Singh Kushwah (P.W.5), J.A.Group of Hospitals, Gwalior conducted the post mortem of the deceased and vide report (Exhibit P/10) opined that death was caused by cardio-respiratory failure due to complications of burn.

(iii). That, Mahadevi gave her dying declaration to Dr. Avinash Sharma (P.W.6) to the effect that her mother-in-law and father-in-law poured kerosene on her body and lit fire. Rajaram (P.W.2), the father of the deceased, in his statement and complaint stated that the parents-in-law of the deceased, used to demand motorcycle as dowry and on account of failure to meet out the demand, his daughter (since deceased) was harassed and on 07/01/97, by pouring kerosene on her body, she was burnt as a result of which she died in the hospital. Therefore, a case at Crime No. 133/97 dated 16/3/97 (Exhibit P/6) under Sections 302 and 304B of IPC was registered; and

(iv). That, during investigation, the accused has been arrested vide arrest memorandum (Exhibit P/8). On completion of the investigation, a charge sheet was filed against the accused Rajabeti and Gopal before the Chief Judicial Magistrate, Gwalior, who on its turn, committed the case to the Court of Sessions from where it was received by the Trial Court for trial.

The learned Trial Judge on the basis of the material placed on record framed charge punishable u/s 302, in alternate 304B of IPC against the accused /appellant and also against other co-accused Gopal. The appellant denied the charge and claimed to be tried. The defence of the accused person is of false implication, it is pleaded that the deceased herself poured kerosene on her body and set herself on fire and the same defence, she set-forth in her statement recorded u/s 313 of the Code of Criminal Procedure, 1973.

To bring home the charges, the prosecution has examined as many as 09 witnesses and placed Exhibits P/1 to P/12, the documents on record. The accused has examined R.S. Bhadoriya as D.W.1 in her defence.

The learned Trial Judge on the basis of evidence placed on record came to hold that charge u/s 302 of IPC has been proved against the appellant as well as against co-accused, Gopal as a result of which convicted them and passed the sentence as mentioned hereinabove. However, both have been acquitted from the charge u/s 304B of IPC.,

The State has not preferred any appeal against the acquittal u/s 304B of IPC., therefore, the findings regarding acquittal recorded by the learned Trial Court had attained finality.

In this manner, this appeal has been preferred by the Cr.A.No.591 of 1998 appellants (Rajabeti and Gopal) assailing the judgment of conviction and order of sentence passed by the learned Trial Court.

During pendency of this appeal, co-appellant, Gopal had died, therefore, the appeal stands abated against him.

Legality and propriety of the impugned judgment of conviction has been challenged by the appellant on the ground of mis-appreciation of the evidence on record. Learned counsel for the appellant, Shri N.P.Dwivedi has submitted that the appellant has been falsely roped in the case and there was no cogent evidence to establish the ingredients of offence u/s 302 of IPC against the appellant. By putting a deep dent on the dying declaration (Exhibit P/12) learned counsel for the appellant, Shri N.P. Dwivedi has submitted that it was not read over and explained to the deponent. It was also inconsistent with oral dying declaration to Ranjeet Singh (PW-1) and written dying declaration (Exhibit D/3) recorded by D.W.1, R.S. Bhadoria during investigation. In these state of affairs, the learned Trial Court erred in convicting the appellant, hence, this appeal be allowed and the appellant be acquitted from the charge. He has placed reliance on Kanti Lal Vs. State of Rajasthan, , Nirmala Maruti Gunjal vs. State of Maharashtra, 2012 (2) Cri 368 (Bomb.) and State of M.P. Vs. Rajbahadur, 2008

On the contrary, Shri Prabal Solanki, learned Public Prosecutor supported the impugned judgment and findings arrived at by the learned Trial Court and submitted that the conviction in question is well merited.

In order to appreciate the merits of the rival contentions in a proper perspective, it would be necessary to advert to the evidence available on record.

In the present case, the conviction u/s 302 of IPC is based on dying declaration of the deceased, Mahadevi. It is settled law that dying declaration is substantive piece of evidence and order of conviction can be safely recorded on the basis of dying declaration. For relying upon the dying declaration, the Court must be conscious that the dying declaration was voluntary and further it was recorded correctly and above all the maker was in a fit condition mentally and physically to make such a statement.

Admittedly, there is no eye witness count available in the case in support of the allegation against the appellant of her having burnt her daughter-in-law, Mahadevi. The entire prosecution case rests on the alleged dying declaration of the deceased.

The learned Trial Court after appreciating and marshalling the evidence in detail in the impugned judgment found that the oral dying declarations given by the Cr.A.No.591 of 1998 deceased to Ranjeet Singh (P.W.1) and to her father, Rajaram (P.W.2) does not inspire full confidence and therefore, rejected the same. On going through the reasonings assigned by the learned Trial Court, we are of the considered view that the learned Trial Court has rightly arrived at the aforesaid conclusion.

The learned Trial Court has also rejected the third dying declaration, Exhibit D/3 made to Sub-Inspector, R.S. Bhadoria (D.W.1). The reasons given by the learned Trial Court are that D.W.1, R.S. Bhadoria has not taken any certificate from the doctor to prove that the deponent, Mahadevi was in a fit condition mentally and physically to give such statement, thumb impression of the deponent (Mahadevi) was not obtained on the alleged dying declaration, it was also not recorded in accordance with the rules and before recording statement Investigating Officer, R.S. Bhadoria (D.W.1) had already made a request to doctor to record her dying declaration.

We find merit in the contention of the learned counsel for the appellant that the statement of the deceased recorded u/s 161 of Cr.P.C., after her death would become her dying declaration. According to P.W.3, Mangal Singh and R.S. Bhadoria (D.W.1) on 07.01.1997 an information was received from J.A. Group of Hospital, Gwalior to the effect that Mahadevi wife of Dharmendra has been admitted in a burnt condition in the hospital. It was got recorded in Rojnamcha Sanha, thereafter, S.H.O. of Police Station Janakganj, Mangal Singh (P.W.3) directed Sub-Inspector, R.S. Bhadoria (D.W.1) to conduct an enquiry into the matter, thereafter, R.S. Bhadoria went to the hospital and found that Mahadevi was admitted there in a burnt condition and, therefore, he made a written request to doctor to record her (Mahadevi) statement. R.S. Bhadoria (D.W.1) further deposed that he himself also recoreded the statement (Exhibit D-3) of Mahadevi. The case diary statement of the deceased, Mahadevi runs as under:

It is well settled in law that there is no fixed mode for recording dying declaration and dying declaration cannot be discarded merely because it was not recorded in question and answer form.

It has been reiterated by the Apex Court in the case of Kanti Lal (supra) that one of the important tests of the credibility of the dying declaration is that the person, who recorded it, must be satisfied that the deceased was in a fit state of mind. It is apparent from the deposition of D.W.1, R.S. Bhadoria that the deceased was in a fit condition to give her statement.

Therefore, on going through the dying declaration (Exhibit D-3) and testimony of R.S. Bhadoria (D.W.1) coupled with the fact that the statement (Exhibit D-3) has been recorded by the Investigating Officer, R.S. Bhadoria during the course of investigation, we are of the considered view that the learned Trial Court has committed error in rejecting the dying declaration (Exhibit D-3) made to R.S. Bhadoria (D.W.1).

Exhibit P-12 is the dying declaration recorded by P.W.6, Dr. Avinash Sharma, House Surgeon, J.A. Hospital, Gwalior who has categorically stated that on 07.01.1997 Mahadevi wife of Dharmendra in burnt condition was admitted at 9.45 AM in the Burn Unit of Kamla Raja Hospital, Gwalior and her case-sheet (Exhibit P-11) was prepared and recorded by him. He got a request letter from the Police Station, Janakganj for recording the dying declaration of Mahadevi, therefore, on the same day at 9.45 PM, he recorded the dying declaration (Exhibit P-12) of the deceased, Mahadevi in presence of Dr. Shailendra Jain and Dr. Naveen Jhala. At the time of recording the dying declaration, Mahadevi was conscious and was able to give the dying declaration and she was not under any fear or threat. The dying declaration was given voluntary. After recording her dying declaration, he obtained thumb impression of the deponent, Mahadevi on dying declaration.

The important reason to dis-believe the dying declaration (Exhibit P-12) recorded by Dr. Avinash Sharma (P.W.6) is that it was impregnated with infirmity i.e. that there is no endorsement on dying declaration (Exhibit P-12) of the fact that the statement was read over to the deceased and she admitted it to be a correct one. In Shaikh Bakshu and others (supra), there was no mention in the dying declaration that it was read over and explained to the deceased. The Trial Court and the High Court concluded that even though it is not so stated, it has to be presumed that it was read over and explained to the deceased. The Hon''ble Apex Court held that this view is clearly unacceptable. The fact of read over and explained to the deceased cannot be presumed and this fact must be clearly mention in the dying declaration.

On x-raying the statement of Dr. Avinash Sharma (P.W.6), we find that no where this witness has stated that dying declaration was read over and explained to the deceased and after hearing the contents thereof, she admitted the statement (dying declaration) to be true. According to us, it was mandatory on the part of the officer, who was recording the dying declaration to state that the statement was read over and explained to the declarant and after hearing the contents thereof, declarant admitted the statement. The decision of the Apex Court in the case of Jai Karan Vs. State of (N.C.T. Delhi), is quite relevant on this point.

Thus, from the above, re-appreciation of the entire evidence on record, in the light of the contentions raised against the legality and proprietary of the impugned judgment of conviction, we are of the considered view that the learned Trial Court has erred in convicting the appellant. For the reasons stated here-in-above, we are unable to uphold the impugned conviction and the order of sentence passed by the learned Trial Court. Ex-consequenti, the appeal succeeds and is hereby allowed and the impugned judgment of conviction and order of sentence passed by the learned Trial Court is hereby set-aside. The appellant is acquitted from the charge u/s 302 of IPC. The appellant is on bail, her bail bonds and sureties stand discharged.