| SooperKanoon Citation | sooperkanoon.com/505713 |
| Subject | Criminal |
| Court | Madhya Pradesh High Court |
| Decided On | Jul-30-2009 |
| Judge | A.K. Shrivastava and ;S.S. Dwivedi, JJ. |
| Reported in | 2009(4)MPHT333 |
| Appellant | Virendra Singh |
| Respondent | State of Madhya Pradesh |
| Disposition | Appeal allowed |
Excerpt:
- - further, it has been contended by learned counsel that if the dying declaration is not found to be wholly reliable or creates doubt, corroboration is needed. the law in respect of dying declaration is well settled that if a dying declaration is clear, cogent and trustworthy and inspires full confidence, the court can rely on it and can base its conviction solely on the basis of dying declaration. however, if the dying declaration is not wholly reliable, then corroboration is needed. the general condition of the deceased was very poor. although the deceased was in a position to speak, but her condition was not that much good so as to record her pulse rate as well as blood pressure, because the entire body was burnt. it is borne out from the evidence of the doctor that appellant was creating certain doubt about the extra marital affair of the deceased and this has also been so stated by the deceased in the dying declaration as well as at the time of her admission in the hospital (exh. 1). before we examine her testimony on the touch stone and anvil of defence set forth by the appellant that deceased committed suicide, we would like to mention here that deceased and appellant took one room of the house of d. it is well settled in law that the credential value of the evidence of defence witness is at par with that of the prosecution witness and merely because the evidence of defence witness is against the prosecution, her evidence cannot be thrown just like a waste paper in the dustbin on the pretext that such a witness has been cited on behalf of the defence.a.k. shrivastava, j.1. feeling aggrieved by the judgment of conviction and order of sentence dated 15-12-2000 passed by learned first additional sessions judge, gwalior in sessions trial no. 362/1998 convicting the appellant under section 302 of ipc and thereby sentencing him to suffer life imprisonment, this appeal has been preferred by the appellant under section 374(2) of the code of criminal procedure, 1973.2. in brief the case of prosecution is that lali (hereinafter referred to as 'the deceased') was the second wife of appellant. six months prior to the date of incident (incident occurred on 20-6-1998), they got married. the first wife of the appellant was the real elder sister of the deceased and after her death, the second marriage was solemnized. on the fateful night, the appellant brought the deceased in j.a. group of hospitals, gwalior at 3:55 hours in burning condition, but at 6:30 am she could not survive and succumbed to the burn injuries. when the deceased was alive, dr. pritesh jain recorded her dying declaration, in which the deceased stated that after pouring kerosene, she was set to fire by the appellant. after the death of the deceased, her dead body was sent for post-mortem examination.3. after the investigation was over, a charge-sheet was submitted in the committal court against the appellant which on its turn committed the case to the court of sessions, from where it was received by the trial court for trial.4. the learned trial judge on the basis of the averments made in the charge-sheet against the appellant, framed charge punishable under section 302 of ipc, which he denied and requested for the trial.5. in order to prove the charges, prosecution examined as many as seven witnesses and placed exhs. p-1 to p-9, the documents on record. the defence of appellant is of false implication and his further defence is that deceased committed suicide. in support of his defence, appellant examined his landlady smt. shanti devi (d.w. 1) and meghnath (d.w. 2).6. learned trial judge on the basis of the evidence placed on record and by placing reliance on the dying declaration held that the charge under section 302 of ipc is found to be proved. eventually, convicted the appellant under section 302 of ipc and passed the sentence to suffer life imprisonment.7. in this manner, this appeal has been preferred by the appellant against the judgment of conviction and order of sentence passed by the learned trial court.8. the contention of shri kulshrestha, learned counsel for the appellant, is that the conviction has been based solely on the basis of dying declaration (exh. p-8) recorded by dr. pritesh jain (p.w. 7), but if the dying declaration is taken into consideration in proper perspective, it becomes highly doubtful for the simple reason, because in it, it has been stated by the deceased that she is pregnant and appellant was creating doubt on her that she had conceived from some other person. but, in the post-mortem report no pregnancy was detected. the another reason to disbelieve the dying declaration, according to learned counsel, is that in it, it has been stated by the deceased that firstly she was beaten by the appellant, but no injury in the post-mortem report has been found by the autopsy surgeon. by inviting our attention to the testimony of defence witness smt. shanti devi (d.w. 1) it has been contended by learned counsel that this lady is residing adjacent to the tenanted premises of the appellant. indeed, in the house one portion was given to the appellant on rental basis and in the adjoining room this landlady was residing. according to learned counsel, specific evidence of the landlady is that she saw smoke coming out from the room and thereafter, appellant, who was sleeping on the roof, rushed and after slamming the doors, when the doors were not opened, he opened kulaba and found that the deceased was lying in burning condition and, therefore, according to learned counsel, since this witness is an independent witness, therefore, her testimony should not be rejected merely on the ground that she has been cited as a defence witness. further, it has been contended by learned counsel that if the dying declaration is not found to be wholly reliable or creates doubt, corroboration is needed. but, except the dying declaration there is no evidence in order to hold that appellant after pouring kerosene lit fire, as a result of which, deceased succumbed to the burn injuries. on these premised submissions it has been argued by the learned counsel that by allowing this appeal the judgment of conviction and order of sentence be set aside.9. on the other hand, shri m.p.s. bhadoriya, learned public prosecutor for the respondent/state, has argued in support of the impugned judgment.10. having heard learned counsel for the parties, we are of the view that this appeal deserves to be allowed.11. the prosecution is basing its case entirely on the dying declaration of the deceased. the law in respect of dying declaration is well settled that if a dying declaration is clear, cogent and trustworthy and inspires full confidence, the court can rely on it and can base its conviction solely on the basis of dying declaration. however, if the dying declaration is not wholly reliable, then corroboration is needed. the dying declaration of the deceased is exh. p-8, has been proved by its scriber dr. pritesh jain (p.w. 7). on going through the evidence of this witness, we find that the deceased was 100% burnt and smell of kerosene was coming out from her body. the general condition of the deceased was very poor. although the deceased was in a position to speak, but her condition was not that much good so as to record her pulse rate as well as blood pressure, because the entire body was burnt. according to the doctor, the deceased told that she is having pregnancy of three months and further she told that in the night at 11:30 there was quarrel between her and the appellant. the appellant was creating doubt on her character and was saying that she has conceived from some other person. appellant had also beaten her and thereafter, poured kerosene and lit the fire. the doctor has further stated that after recording the dying declaration he took thumb impression of right hand of the deceased. in cross-examination this witness has admitted that the palms of the deceased were burnt and clarifying his statement further says that deceased was 100% burnt and every part of her body was burnt. though in his examination-in-chief the doctor has stated that he took the thumb impression of the deceased, but in cross-examination he has admitted that the thumb impression was taken by the ward boy in his presence. the doctor has further admitted that there is difference between a person in his senses and in a fit state of mind and these two things are distinct to each other. however, the doctor has admitted in para 17 of his cross-examination that he did not write in the dying declaration (exh. p-8) that the deceased was in a fit mental condition to give dying declaration. although the doctor has said that in the dying declaration, it has been mentioned that 'deceased was conscious and oriented for time and place and person', which, according to him, would mean that the deceased was in a fit mental condition to give the dying declaration.12. on scanning the testimony of doctor, we find that two situations emerges; firstly, the appellant was having certain doubt upon the character of the deceased as he was under the impression that deceased has conceived from some other person; and secondly, before she was set to fire, appellant has beaten her. but, in the post-mortem report no such injury has been found. we may presume that on account of receiving burn injuries the other injuries might not have been noticed by the doctor, but although the deceased told that she is having three months' pregnancy, however, it was not found in the post-mortem report. hence, according to us, the dying declaration of the deceased does not inspire full confidence. it is borne out from the evidence of the doctor that appellant was creating certain doubt about the extra marital affair of the deceased and this has also been so stated by the deceased in the dying declaration as well as at the time of her admission in the hospital (exh. p-9) and, therefore, the possibility of committing suicide cannot be ruled out.13. in support of his defence appellant examined a very material witness smt. shanti devi (d.w. 1). before we examine her testimony on the touch stone and anvil of defence set forth by the appellant that deceased committed suicide, we would like to mention here that deceased and appellant took one room of the house of d. w. 1 on rental basis. in the same house some other tenants were also residing. only two months earlier to the incident appellant took the room on rental basis from this lady (see para 5 of her cross-examination). thus, it cannot be said that this lady is an interested or thickly related to the appellant. according to this witness, the rental room of appellant is adjacent to her room. in the night at 2.00 this witness heard the sound of scream of the deceased coming from her room. further, she says that appellant and the deceased had gone to sleep on the roof in the night. this lady on hearing hue and cry of the deceased came out from the room and noticed that smoke is coming out from the room of the appellant, as a result of which she shrieked and was saying in high tone that fire has taken place. this witness has further stated that firstly she thought that on account of short circuit fire has taken place. on hearing the scream of this witness other tenants wake up and assembled nearby the room. at that juncture, appellant who was sleeping on the roof came down in running condition and found that the room was bolted from inside. thereafter, appellant started slamming the door and when nobody opened the door from inside, by removing kulaba he opened the door and saw that deceased was burning. thereafter, appellant douse the water on the person of the deceased. this lady and appellant carried the deceased in burning condition to the hospital.14. further, this witness has said that three days earlier to the incident the deceased was brought by appellant after performing vida ceremony. specifically this witness is saying that she did not notice any quarrel between the appellant and deceased, on the other hand, their relations were cordial. they happened to eat the food together. however, this witness has said that two days earlier to the incident deceased told that against her wishes her parents forcibly solemnized the marriage with the appellant and deceased was not liking the appellant, but on the pacification of her parents she gave her consent to marry and came along with the appellant. the mother of the deceased p. w. 3 has put her ignorance about the consent of deceased to marry with appellant. the suggestion put to her in cross-examination that when appellant screamed thereafter this witness came out from her room has been firmly denied by her. she has also stated in her cross-examination that she called the appellant from the ground floor. this witness has admitted that she did not lodge any report. according to us, looking to the condition of the deceased, rightly the deceased was shifted to the hospital first instead of lodging the report. the suggestion put to her that she has been tutored by the brother of the appellant has been firmly denied by her.15. according to us, why this lady, who is not at all related to the appellant and the relationship between them is of only landlady and tenant and that too of two months old only, will give evidence against the prosecution and in favour of the appellant. according to us, the evidence of this witness is worth reliable and merely because she has been cited in defence, from any angle her evidence cannot be said to be unreliable. it is well settled in law that the credential value of the evidence of defence witness is at par with that of the prosecution witness and merely because the evidence of defence witness is against the prosecution, her evidence cannot be thrown just like a waste paper in the dustbin on the pretext that such a witness has been cited on behalf of the defence.16. one important fact which cannot be marginalized and blinked away is that the statement of this witness under section 161 of cr.pc was recorded by the investigating agency and we find her statement in the record. according to us, she has not been examined by the prosecution because the prosecution was quite aware that her evidence will somersault its case. from the very beginning the defence of appellant is that deceased has committed suicide and this defence has been found to be probable and has also been proved from the statement of this witness.17. in his statement recorded under section 313 of cr.pc appellant has specifically stated that both of them were sleeping on the roof, but in the night when the deceased came down he was not aware and thereafter she committed suicide. he has also stated that when he wake up on hearing hue and cry and came down he found that doors of the room were bolted from inside and thereafter, he took out kulaba of the doors. further, he has stated that he himself tried to extinguish the fire and thereafter, he carried the deceased to the hospital. appellant has also stated that deceased after pouring kerosene, lit fire to commit suicide. according to us, the defence of appellant is found to be more probable and has also been proved by the statement of smt. shanti devi (d.w. 1). if the defence is found to be probable, according to us, due weightage should be given to it and the standard of proof of the defence should not be compared with that of prosecution where the prosecution is obliged to prove its case beyond all reasonable doubts. thus, according to us, the probable defence, which the appellant has taken, has been found to be proved by independent witness smt. shanti devi (d.w. 1), hence, by extending our benefit of doubt we hereby held that the charge under section 302 of ipc is not proved against the appellant. the judgment of conviction and order of sentence passed by learned trial court is accordingly set aside.18. the appeal is hereby allowed and the appellant is acquitted from the charge under section 302 of ipc. the appellant is in jail, he be set at liberty forthwith if not required in any other case.
Judgment:A.K. Shrivastava, J.
1. Feeling aggrieved by the judgment of conviction and order of sentence dated 15-12-2000 passed by learned First Additional Sessions Judge, Gwalior in Sessions Trial No. 362/1998 convicting the appellant under Section 302 of IPC and thereby sentencing him to suffer life imprisonment, this appeal has been preferred by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973.
2. In brief the case of prosecution is that Lali (hereinafter referred to as 'the deceased') was the second wife of appellant. Six months prior to the date of incident (incident occurred on 20-6-1998), they got married. The first wife of the appellant was the real elder sister of the deceased and after her death, the second marriage was solemnized. On the fateful night, the appellant brought the deceased in J.A. Group of Hospitals, Gwalior at 3:55 hours in burning condition, but at 6:30 am she could not survive and succumbed to the burn injuries. When the deceased was alive, Dr. Pritesh Jain recorded her dying declaration, in which the deceased stated that after pouring kerosene, she was set to fire by the appellant. After the death of the deceased, her dead body was sent for post-mortem examination.
3. After the investigation was over, a charge-sheet was submitted in the Committal Court against the appellant which on its turn committed the case to the Court of Sessions, from where it was received by the Trial Court for trial.
4. The learned Trial Judge on the basis of the averments made in the charge-sheet against the appellant, framed charge punishable under Section 302 of IPC, which he denied and requested for the trial.
5. In order to prove the charges, prosecution examined as many as seven witnesses and placed Exhs. P-1 to P-9, the documents on record. The defence of appellant is of false implication and his further defence is that deceased committed suicide. In support of his defence, appellant examined his landlady Smt. Shanti Devi (D.W. 1) and Meghnath (D.W. 2).
6. Learned Trial Judge on the basis of the evidence placed on record and by placing reliance on the dying declaration held that the charge under Section 302 of IPC is found to be proved. Eventually, convicted the appellant under Section 302 of IPC and passed the sentence to suffer life imprisonment.
7. In this manner, this appeal has been preferred by the appellant against the judgment of conviction and order of sentence passed by the learned Trial Court.
8. The contention of Shri Kulshrestha, learned Counsel for the appellant, is that the conviction has been based solely on the basis of dying declaration (Exh. P-8) recorded by Dr. Pritesh Jain (P.W. 7), but if the dying declaration is taken into consideration in proper perspective, it becomes highly doubtful for the simple reason, because in it, it has been stated by the deceased that she is pregnant and appellant was creating doubt on her that she had conceived from some other person. But, in the post-mortem report no pregnancy was detected. The another reason to disbelieve the dying declaration, according to learned Counsel, is that in it, it has been stated by the deceased that firstly she was beaten by the appellant, but no injury in the post-mortem report has been found by the autopsy surgeon. By inviting our attention to the testimony of defence witness Smt. Shanti Devi (D.W. 1) it has been contended by learned Counsel that this lady is residing adjacent to the tenanted premises of the appellant. Indeed, in the house one portion was given to the appellant on rental basis and in the adjoining room this landlady was residing. According to learned Counsel, specific evidence of the landlady is that she saw smoke coming out from the room and thereafter, appellant, who was sleeping on the roof, rushed and after slamming the doors, when the doors were not opened, he opened kulaba and found that the deceased was lying in burning condition and, therefore, according to learned Counsel, since this witness is an independent witness, therefore, her testimony should not be rejected merely on the ground that she has been cited as a defence witness. Further, it has been contended by learned Counsel that if the dying declaration is not found to be wholly reliable or creates doubt, corroboration is needed. But, except the dying declaration there is no evidence in order to hold that appellant after pouring kerosene lit fire, as a result of which, deceased succumbed to the burn injuries. On these premised submissions it has been argued by the learned Counsel that by allowing this appeal the judgment of conviction and order of sentence be set aside.
9. On the other hand, Shri M.P.S. Bhadoriya, learned Public Prosecutor for the respondent/State, has argued in support of the impugned judgment.
10. Having heard learned Counsel for the parties, we are of the view that this appeal deserves to be allowed.
11. The prosecution is basing its case entirely on the dying declaration of the deceased. The law in respect of dying declaration is well settled that if a dying declaration is clear, cogent and trustworthy and inspires full confidence, the Court can rely on it and can base its conviction solely on the basis of dying declaration. However, if the dying declaration is not wholly reliable, then corroboration is needed. The dying declaration of the deceased is Exh. P-8, has been proved by its scriber Dr. Pritesh Jain (P.W. 7). On going through the evidence of this witness, we find that the deceased was 100% burnt and smell of kerosene was coming out from her body. The general condition of the deceased was very poor. Although the deceased was in a position to speak, but her condition was not that much good so as to record her pulse rate as well as blood pressure, because the entire body was burnt. According to the doctor, the deceased told that she is having pregnancy of three months and further she told that in the night at 11:30 there was quarrel between her and the appellant. The appellant was creating doubt on her character and was saying that she has conceived from some other person. Appellant had also beaten her and thereafter, poured kerosene and lit the fire. The doctor has further stated that after recording the dying declaration he took thumb impression of right hand of the deceased. In cross-examination this witness has admitted that the palms of the deceased were burnt and clarifying his statement further says that deceased was 100% burnt and every part of her body was burnt. Though in his examination-in-chief the doctor has stated that he took the thumb impression of the deceased, but in cross-examination he has admitted that the thumb impression was taken by the Ward Boy in his presence. The doctor has further admitted that there is difference between a person in his senses and in a fit state of mind and these two things are distinct to each other. However, the doctor has admitted in Para 17 of his cross-examination that he did not write in the dying declaration (Exh. P-8) that the deceased was in a fit mental condition to give dying declaration. Although the doctor has said that in the dying declaration, it has been mentioned that 'deceased was conscious and oriented for time and place and person', which, according to him, would mean that the deceased was in a fit mental condition to give the dying declaration.
12. On scanning the testimony of doctor, we find that two situations emerges; firstly, the appellant was having certain doubt upon the character of the deceased as he was under the impression that deceased has conceived from some other person; and secondly, before she was set to fire, appellant has beaten her. But, in the post-mortem report no such injury has been found. We may presume that on account of receiving burn injuries the other injuries might not have been noticed by the doctor, but although the deceased told that she is having three months' pregnancy, however, it was not found in the post-mortem report. Hence, according to us, the dying declaration of the deceased does not inspire full confidence. It is borne out from the evidence of the doctor that appellant was creating certain doubt about the extra marital affair of the deceased and this has also been so stated by the deceased in the dying declaration as well as at the time of her admission in the hospital (Exh. P-9) and, therefore, the possibility of committing suicide cannot be ruled out.
13. In support of his defence appellant examined a very material witness Smt. Shanti Devi (D.W. 1). Before we examine her testimony on the touch stone and anvil of defence set forth by the appellant that deceased committed suicide, we would like to mention here that deceased and appellant took one room of the house of D. W. 1 on rental basis. In the same house some other tenants were also residing. Only two months earlier to the incident appellant took the room on rental basis from this lady (see Para 5 of her cross-examination). Thus, it cannot be said that this lady is an interested or thickly related to the appellant. According to this witness, the rental room of appellant is adjacent to her room. In the night at 2.00 this witness heard the sound of scream of the deceased coming from her room. Further, she says that appellant and the deceased had gone to sleep on the roof in the night. This lady on hearing hue and cry of the deceased came out from the room and noticed that smoke is coming out from the room of the appellant, as a result of which she shrieked and was saying in high tone that fire has taken place. This witness has further stated that firstly she thought that on account of short circuit fire has taken place. On hearing the scream of this witness other tenants wake up and assembled nearby the room. At that juncture, appellant who was sleeping on the roof came down in running condition and found that the room was bolted from inside. Thereafter, appellant started slamming the door and when nobody opened the door from inside, by removing kulaba he opened the door and saw that deceased was burning. Thereafter, appellant douse the water on the person of the deceased. This lady and appellant carried the deceased in burning condition to the hospital.
14. Further, this witness has said that three days earlier to the incident the deceased was brought by appellant after performing vida ceremony. Specifically this witness is saying that she did not notice any quarrel between the appellant and deceased, on the other hand, their relations were cordial. They happened to eat the food together. However, this witness has said that two days earlier to the incident deceased told that against her wishes her parents forcibly solemnized the marriage with the appellant and deceased was not liking the appellant, but on the pacification of her parents she gave her consent to marry and came along with the appellant. The mother of the deceased P. W. 3 has put her ignorance about the consent of deceased to marry with appellant. The suggestion put to her in cross-examination that when appellant screamed thereafter this witness came out from her room has been firmly denied by her. She has also stated in her cross-examination that she called the appellant from the ground floor. This witness has admitted that she did not lodge any report. According to us, looking to the condition of the deceased, rightly the deceased was shifted to the hospital first instead of lodging the report. The suggestion put to her that she has been tutored by the brother of the appellant has been firmly denied by her.
15. According to us, why this lady, who is not at all related to the appellant and the relationship between them is of only landlady and tenant and that too of two months old only, will give evidence against the prosecution and in favour of the appellant. According to us, the evidence of this witness is worth reliable and merely because she has been cited in defence, from any angle her evidence cannot be said to be unreliable. It is well settled in law that the credential value of the evidence of defence witness is at par with that of the prosecution witness and merely because the evidence of defence witness is against the prosecution, her evidence cannot be thrown just like a waste paper in the dustbin on the pretext that such a witness has been cited on behalf of the defence.
16. One important fact which cannot be marginalized and blinked away is that the statement of this witness under Section 161 of Cr.PC was recorded by the investigating agency and we find her statement in the record. According to us, she has not been examined by the prosecution because the prosecution was quite aware that her evidence will somersault its case. From the very beginning the defence of appellant is that deceased has committed suicide and this defence has been found to be probable and has also been proved from the statement of this witness.
17. In his statement recorded under Section 313 of Cr.PC appellant has specifically stated that both of them were sleeping on the roof, but in the night when the deceased came down he was not aware and thereafter she committed suicide. He has also stated that when he wake up on hearing hue and cry and came down he found that doors of the room were bolted from inside and thereafter, he took out kulaba of the doors. Further, he has stated that he himself tried to extinguish the fire and thereafter, he carried the deceased to the hospital. Appellant has also stated that deceased after pouring kerosene, lit fire to commit suicide. According to us, the defence of appellant is found to be more probable and has also been proved by the statement of Smt. Shanti Devi (D.W. 1). If the defence is found to be probable, according to us, due weightage should be given to it and the standard of proof of the defence should not be compared with that of prosecution where the prosecution is obliged to prove its case beyond all reasonable doubts. Thus, according to us, the probable defence, which the appellant has taken, has been found to be proved by independent witness Smt. Shanti Devi (D.W. 1), hence, by extending our benefit of doubt we hereby held that the charge under Section 302 of IPC is not proved against the appellant. The judgment of conviction and order of sentence passed by learned Trial Court is accordingly set aside.
18. The appeal is hereby allowed and the appellant is acquitted from the charge under Section 302 of IPC. The appellant is in jail, he be set at liberty forthwith if not required in any other case.