Sudama Bai vs State Of Madhya Pradesh

Appellant has filed this appeal against the judgment dated 17.11.1995 passed in Sessions Trial No.303/89 by the Court of Ist Addl. Sessions Judge,

Mudwara Kani. Appellant was prosecuted for commission of offence punishable under Section 302Â of IPC. Trial Court held the appellant guilty for

commission of offence and awarded sentence of Life.Â

Prosecution story, in brief is that, deceased-Malti Bai, was sister-inlaw (Nanad) of the appellant, she was living in the house of her parents.

Appellant had given Rs.100/- to Malti Bai (since deceased) for treatment of her child. Appellant demanded back the aforesaid amount from the

deceased, she was not able to repay the amount hence, appellant slapped her and poured kerosene and ablaze her. Dehati Nalishi (Ex-P-5) was

recorded on the information of the deceased herself. Police also recorded her statement and thereafter, she was referred to Hospital where dying

declaration (Ex-P-4) of the deceased was recorded. Subsequently, she was died. Police conducted investigation and filed charge-sheet. Appellant

abjured her guilt and pleaded innocence. The trial Court after trial held the appellant guilty for commission of offence punishable under Section 302 of

IPC and awarded a sentence of Life.

Conviction of the appellant is based on the basis of her dyingdeclaration which was recorded by (PW-2) Executive Magistrate, Dehati Nalishi and

her statement. Other prosecution witnesses including father, mother and sister-in-law Shakuntala turned hostile.Â

(PW-6) Munnaka Bai, is the mother of deceased. She deposed that deceased was living at my house. On the date of incident, she was cooking

food. She was wearing a Saree of terrycot. Saree catch fire and thereafter, she received burn injuries. We had taken the deceased to the hospital

where she was died.Â

(PW-12) Ramprasad is father of deceased. He also turned hostile. He deposed that at 10-11 O’clock in the morning, I came to my house

and I found that my daughter was laying unconscious. She received burn injuries.

I had taken her to Hospital. She was died on the same day.

(PW-8) Shakuntala Bai is another sister-in-law (Babhi) of the deceased. She also turned hostile and deposed that she did not know about the

incident.Â

(PW-2) Dr. S.K. Gupta,  Naib Tahsildar deposed that on 23.04.1989, I was posted as Executive Magistrate at Katni. I received information

(ExP-2) from the police to record dying declaration of deceased. Thereafter, I recorded dying declaration of the deceased. Doctor certified that

deceased was in a fit and conscious mental condition to give dying declaration. Dying declaration is (Ex.P-4). Before recording dying declaration, I

told the deceased that I am Executive Magistrate and I am recording  her dying declaration. I recorded dying declaration (Ex-P-4), as per

information given by the deceased. It is in the question answer form. Dying declaration is Ex.P-4. There is a certificate of the doctor that deceased

was in a fit mental condition to give dying declaration. In answer to the question that how the deceased catch fire;Â deceased replied that appellant

ablazed me her name is ‘Sudama Bai’. She poured kerosene and ignited fire by match box. My child was sick. Appellant Sudama Bai had

given me Rs.100/- thereafter, she made a demand of Rs.100/-. I had no money hence, I could not return the money then, she slept me by sleeper

and ignited fire by match box. It is further mentioned in the dying declaration that no family member was present at the time of recording dying

declaration.

(PW-13) N. Ajit Kumar certified that deceased was fit and inconscious condition to give dying declaration. He deposed that on the date of incident

i.e on 23.04.1989, I was posted as Assistant Surgeon at Government Hospital Katni. I examined the deceased, she was brought to the hospital by

neighbour. She received 90% burn injuries. Smell of kerosene was coming from her body. She was in a fit mental condition and she was replying the

questions. I submitted a written report Ex.P-19. Before recording dying declaration, I examined the deceased and my certificate is Ex.P-4 and I

signed the same. Deceased was able to give her statement. There is a lengthy cross-examination of the doctor, but there is no reason to disbelieve his

statement.Â

Apart from dying declaration, Ex.P-4, there is Dehati Nalishi whichwas recorded by Investigating Officer. It is mentioned in the Dehati Nalishi that

Mahabharat was exhibiting in the TV, at that time, appellant made a demand of Rs.100/- which she had given to me for treatment of my son. I could

not return the money because I had no money. On this ground, appellant slept me by sleeper and poured kerosene and thereafter, ignited fire by match

box. FIR (Ex.P-6) was recorded on the basis of aforesaid Dehati Nalishi [Ex.P-5]. There is also statement of deceased (Ex-P-20) which was

recorded by (PW-10) R.S. Parihar under Section 161 of Cr.P.C.

In the aforesaid statement, she stated that Mahabharat was exhibited in the TV. My sister-in-law (Babhi) made a demand of Rs.100/- from me,

however, I could not return the money hence, she slept me by sleeper and poured kerosene and ablaze me.

(PW-10) R.S. Parihar, is Investigating Officer, deposed that on23.04.1989 I was posted at Police Station Tikhuri. I received information from the

hospital and on the basis of Dehati Nalishi Ex.P-5, First Information Report (Ex.P-6) was registered. Thereafter, I prepared spot map which is Ex.P-2

and seized one Can of kerosene, one match box, trouser of Khakhi colour, one blouse of Kattha colour and piece of blouse which is Ex.P-1. I send

a request to Executive Magistrate Ex.P-13 to record dying declaration of the deceased. Appellant was arrested vide arrest memo Ex.P- 16. After

writing the report, I immediately visited the place of incident.

(PW-11) Dr. Y.S. Parihar, performed the post-mortem of the deceased. He deposed that he noticed that deceased received 92% burn injuries,

she was died due to burn injuries.

(PW-15) Mrudul Kumar, Head Constable deposed that ward boy Hari Shanker came to the police station with a Tahrir and as per this, report was

lodged at Roznamacha by A.S.IÂ Â Mr. M.L. Dubey. Appellant produced the evidence of husband of deceased (DW-1) he deposed that deceased

used to tell her that she would commit suicide and her behaviour was not proper.Â

Appellant in her statement before the trial Court recorded under Section 313 of the Cr.P.C., stated that she and other family members were

watching TV serial Mahabharat. After hearing cry of the deceased, we reached at the place of incident and deceased was burning near Chula. We

poured water on the deceased. She told that Chula was not burning hence she poured kerosene on it and thereafter, there was a flame of fire and her

Saree catch fire. Version of the appellant and mother of deceased that deceased catch fire when she was preparing food at Chula, is

unbelievable and is not true because (PW-13) Dr. N. Ajit, who examined the deceased specifically deposed that smell of kerosene was coming

from the body of deceased. Hence, the version of the deceased that she received burn injuries because her Saree catch fire is incorrect.

The apex Court in the case of Pawan Kumar vs. State of Himachal Pradesh reported in (2017) 7 SCC 780 has held as under in regard to

validity of dying declaration:

The hub of the matter is whether the dying declaration Ex. Pw- 10/A is to be treated as realiable or not. To appreciate the validity of the dying

declaration, we have requisitioned the original record and had perused the same. On a careful scrutiny of the same, we find that the Head Constable

had written what the deceased had spoken and thereafter the deceased had written that the accused alone was responsible for her death. The dying

declaration, as has been recorded by the Head Constable, eloquently states about the constant teasing of the victim by the accused. PW-10, Dr.

Sanjay, has stood firm in his testimony that the victim was in a fit condition to speak. Despite the roving cross-examination he has not paved the path

of tergiversation. The trial court, as mentioned earlier, has disregarded the testimony of PW-10 on the ground that there is no certificate of fitness. In

this context, reference to the Constitution Bench decision in Laxman v. State of Maharashtra[14] would be absolutely seemly. In the said case, the

larger Bench, while stating the law relating to the dying declaration, has succinctly held:-

“3. … A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will

suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to

writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate

absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die.

There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a

Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement

necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying

declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was

fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be

voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can

be established otherwise.â€​

In Atbir v. Government of NCT of Delhi[15], the Court, after noting earlier judgments, has laid the following guidelines with regard to admissibility

of the dying declaration:-

“22. The analysis of the above decisions clearly shows that:

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

(ii) The court should be satisfied that the deceased was in a fitstate 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 andvoluntary, it can base its conviction without any further corroboration.

(iv) It cannot be laid down as an absolute rule of law that thedying 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 beacted upon without corroborative evidence.

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

basis of conviction.

(vii) Merely because a dying declaration does not contain all thedetails 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 fitand conscious state to make the dying declaration, medical opinion cannot prevail.

(x) If after careful scrutiny, the court is satisfied that it is true andfree 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.â€​

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:-

“23. 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).â€​

The principle of law is that conviction of the accused can be based on sole dying declaration of the deceased, if it inspire confidence of the Court.

In the present case, the family members of the deceased including her father, mother and sister-in-law (Bhabhi) turned hostile. Statement of the

mother of the deceased that deceased catch fire when she was preparing food and same statement given by the appellant under Section 313 of

Cr.P.C. is unbelievable and unreliable because (PW-13) Dr. N. Ajitkumar, who had examined the deceased when she was brought to the hospital

deposed that smell of kerosene was coming from the body of deceased. (PW-11) Dr. Y.S. Parihar, who performed the postmortem deposed that

burn injuries on the body of the deceased were caused by kerosene.

Apart from dying declaration which was recorded by Executive Magistrate (PW-2) S.K. Gupta, there is certificate of the doctor that deceased

was found fit and conscious mental condition to give dying declaration. There is also Dehati Nalish (Ex-P-5) on which there is thumb impression of the

deceased and statement of the deceased recorded by the Police under Section 161 of Cr.P.C. In all the documents it is mentioned that present

appellant ablaze the deceased.

In view of aforesaid evidence on record and the principle of law laid down by the apex Court in the case of Pawan Kumar vs. State of

Himachal Pradesh (supra), in our opinion, the trial Court has rightly held the appellant guilty for commission of offence punishable under Section 302 of

IPC and awarded proper sentence. We do not find any merit in this appeal. It is hereby dismissed. Appellant is on bail, her bail bonds are hereby

cancelled. She is directed to surrender before the trial Court to serve remaining part of jail sentence.

Let copy of judgment be send to the concerning trial Court for necessary compliance.