17. HIGH COURT OF M.P. BENCH AT INDORE. HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE D.B: HON'BLE SHRI JUSTICE [ENTITY] & HON'BLE SHRI JUSTICE [ENTITY] CRIMINAL APPEAL No.322 of 2015 Sanju @ Sanjay S/o Munnalal & Another Vs. STATE OF M.P. Shri [ENTITY], learned Senior counsel for the appellants. Shri [ENTITY], learned Govt. Advocate for the State. JUDGMENT
(Delivered on 15/02/2018) Per: [ENTITY], J.
1. The appellants, who are elder brother and sister-in-law ([ENTITY] & [ENTITY]) of the deceased [ENTITY] W/o [ENTITY] have preferred this appeal against judgement and order dated 25.02.2015 passed in [CASE NUMBER] by ASJ, Dhar whereby the learned trial Court has convicted the appellants for the offence punishable under [SECTION] of [ACT] and sentenced them life imprisonment with fine of Rs.500/- each and in default of payment of fine amount further to go R.I. of one month each.
2. Succinctly stated material facts leading to the present appeal are that on 27.09.2013, at about 4:00 P.M. in the evening, the deceased got burnt by fire. Her husband took her to the Mittal Hospital, Dhar. She was immediately referred to HIGH COURT OF M.P. BENCH AT INDORE.
the Choithram Hospital, Indore. At about 6:45 P.M., she was admitted in the Choithram Hospital, where Dr. [ENTITY] (PW-9) prepared her case history sheet and recorded her dying declaration. In dying declaration, she disclosed that her elder brother and sister-in-law ([ENTITY] & [ENTITY]) had a brawl with her, poured kerosene on her and set her ablaze.
3. Dr. [ENTITY], CMO, Choithram Hospital, Indore informed the Police Station - Rajendra Nagar, Indore about the incident. The deceased remain under treatment at Choithram Hospital and died on 06.10.2013 at about 6:30 P.M. due to burn injuries. Her death was reported to the Police Station - Rajendra Nagar; where Merg No.086/13 was registered. The police called the witnesses and prepared memo of corpse Ex.P/2, sent a requisition for post mortem Ex.P-11. Dr. [ENTITY], Medical Officer, GBB, District Hospital, Indore performed post-mortem and submitted report Ex.P/12. He opined that death was due to cardiac respiratory failure as a result of burn and its complication. The case was referred to the Police Station -Dhar as the place of incident was under its territorial jurisdiction.
4. The Police Dhar registered Merg No.81/13 and investigated the case, recorded statement of parents of the deceased [ENTITY] and [ENTITY] and sisters [ENTITY] and [ENTITY] during investigation, who revealed that elder brother and sister-in-law ([ENTITY] & [ENTITY]) had a brawl with the deceased and lit her on fire after pouring kerosene. The HIGH COURT OF M.P. BENCH AT INDORE.
police collected case history and dying declaration Ex.P/13 to Ex.P/18 from the Choithram Hospital and on the basis of this evidence registered Crime No.873/13 under [SECTION] of [ACT] by scribing FIR Ex.P/20. The Police further prepared spot map Ex.P/3, got prepared Punchnama Ex.P/6, recorded statements of the witnesses under [SECTION] of [ACT], arrested the accused persons, seized a container containing 300 ml of kerosene from the place of incident, received burnt clothes of the deceased and sent both these articles to the FSL vide letter Ex.P/23 and received report Ex.P/24. FSL confirmed presence of kerosene in the clothes of the deceased. After completing investigation, the police filed the charge-sheet.
5. The accused persons were charged, tried and convicted as stated in para no.1 above.
6. The appellants have preferred this appeal on the grounds that the judgement and order of the learned trial Court is contrary to the law and facts on record. The learned trial Court has failed to consider material omissions and contradictions in the statements of prosecution witnesses. It has committed error in appreciating the evidence produced by the prosecution and has drawn unwarranted interferences. The prosecution could not prove intention which is the essential ingredients under [SECTION] of [ACT]. The prosecution could not prove its case beyond reasonable doubts; instead of that learned trial Court has convicted the HIGH COURT OF M.P. BENCH AT INDORE.
appellants. Therefore, it is prayed to set aside the judgment and order to acquit the appellants.
7. Per contra, the learned Public Prosecutor has opposed the prayer and submitted that in her dying declaration, the deceased has clearly stated before the doctor of the Choithram Hospital that her elder brother and sister-in-law ([ENTITY] & [ENTITY]) had poured kerosene and set her alight. This fact is mentioned in the case history also. The trial Court has rightly believed this dying declaration recorded by an impartial officer. Nothing could be brought on record by the defense to doubt this dying declaration. Therefore, judgment and conviction of the appellants is legal and proper and there is no scope for this Court to interfere with the findings of the learned trial Court. The learned Public Prosecutor prayed for dismissal of the appeal.
8. We have considered the rival contentions of both the parties and have gone through the record.
9. The defense has not disputed that the deceased sustained burn injuries on 27.09.2013 and during treatment she died on 06.10.2013 due to burn injuries. Dr. [ENTITY] (PW-
8) who performed autopsy has also confirmed that the death of the deceased was due to cardiac respiratory failure as a result of burn and its complication. This fact is also not challenged by the defense, therefore, it need not to discuss much to held that the deceased was died due to burn injuries.
10. The fact remains open as to how the deceased sustained HIGH COURT OF M.P. BENCH AT INDORE.
alleged burn injuries and whether her death was accidental or homicidal. To prove this fact and bring home the charge levelled against the appellants, the prosecution has examined parents of the deceased [ENTITY] and [ENTITY] PW-1 & 6, husband and son of the deceased [ENTITY] and [ENTITY] PW-2 & 3, neighbors [ENTITY] PW-4 and [ENTITY] PW-
5. They all turned hostile and have not supported the case of the prosecution. Parents of the deceased have clearly admitted that their daughter never complained against anyone. Though father of the deceased has stated that once the deceased disclosed before her mother that on the occasion of [ENTITY] when she had come Indore, her [ENTITY] had told her that she will never see Indore again, but mother of the deceased has not stated this fact. The fact is not mentioned in the police statement and is an improvement in earlier statement of the witness. Contrary to the case of prosecution, son of the deceased [ENTITY] and neighbors [ENTITY] and [ENTITY] have stated that the deceased got burnt when she was making tea and immediate after the incident, neighbours heard screams of her husband that the deceased got burnt while making tea. Similar is the statement of husband of the deceased. Therefore, no directed evidence is available to decide culpability of the accused persons.
11. The only evidence remains against the appellants is the dying declaration recorded by Dr. [ENTITY], Medical Officer, Choithram Hospital, Indore, who is examined by the HIGH COURT OF M.P. BENCH AT INDORE.
prosecution as PW-9. Dr. [ENTITY] has stated that on 27.09.2013, when he was on duty in Choithram Hospital, Indore, at about 6:45 P.M., husband of the deceased brought her in burnt condition, she was 37% burnt, he recorded case history and also recorded her dying declaration. He further stated that on 06.10.2013, she died during treatment and he prepared death summary of the case. In case history and particularly in her dying declaration, Dr. [ENTITY] has recorded that:-
"A 35 years old female was brought to CHRC, Indore by husband with A/H/O homicidal flamed burns on 27.09.2013 at about 4:30 P.M., at her home. Pt. was at her home and she had some quarrel with her [ENTITY] and [ENTITY] and they poured kerosene over her and burnt her. Fire was drowsed by her husband and then immediately taken to Mittal Hospital, Dhar where primary treatment given and then referred to CHRC, Indore for further treatment." (Ex.P.13).
12. The dying declaration which is recorded in question answer form is reads thus:-
"This is to certify that the patient is fully conscious and is fit to give a statement regarding the cause of her/her burn.
Q. What is your name?
Ans. Mrs. [ENTITY].
Q. What is your father's/Husband's Name? Ans. Mr. [ENTITY].
Q. How did you get burns?
HIGH COURT OF M.P. BENCH AT INDORE.
Ans. [ENTITY] & [ENTITY] poured kerosene over me & burnt me.
Q. Dis someone try to burn you?
Ans. [ENTITY] & [ENTITY] used to beat & harass her today she had some quarrel with them & they burnt her by pouring kerosene over her.
Q. Any Complaint against any-body? Ans. [ENTITY] & [ENTITY]."
13. Almost similar facts have been recorded in case summary: death Ex.P/15.
14. The prosecution has highly relied upon all these facts to prove guilt of the accused persons. In fact, this is the sole evidence which prosecution could proved against the appellants before the trial Court.
15. Learned counsel for the respondent has also focused his arguments on the credibility of this dying declaration. Learned counsel has submitted that this dying declaration bears no signature of the deceased, no explanation is given by the prosecution for this lapse, no such fact is mentioned in the intimation given to the police station Rajendra Nagar by Dr. [ENTITY], CMO, Choithram Hospital, Indore. The deceased remained alive from 27.09.2013 to 06.10.2013, but no efforts were made by the police during this period to record her statement under [SECTION] of [ACT] or got recorded her dying declaration by a competent authority i.e. an Executive Magistrate or some responsible officers of the State even after full opportunity for the same and no explanation is given for this, therefore, this dying declaration is highly improbable and doubtful and cannot be relied upon and conviction cannot HIGH COURT OF M.P. BENCH AT INDORE.
be passed on such dying declaration.
16. Thus, whole controversy in this case revolves on the anvil of dying declaration recorded by Dr. [ENTITY] and this needs a careful analysis.
17. Before proceeding further; it would be apposite to state that signature of deceased on dying declaration is only a rule to prudent and not the ultimate test. Dying declaration recorded by doctor is reliable piece of evidence and conviction can be based on such dying declaration. Way back in 1976, Hon'ble the Supreme Court has made it clear in [PRECEDENT] that doctor is the best person to opine about the fitness of the deceased and to make a statement where the doctor found that life was ebbing fast in the patient and that there was no time to call the police or Magistrate. He can record the statement. Indeed, he is duty bound to record dying declaration of the deceased. He was a disinterested and respectable witness; therefore, such dying declaration can be wholly relied upon and acted upon. Paragraph No.11 of the judgment reads thus:-
"11. The High Court found, and we think rightly, that this reasoning was wholly puerile. There was absolutely no basis for doubting the integrity and veracity of Dr. [ENTITY]. We have examined the statement of Dr. [ENTITY]. We are in entire agreement with the High Court, that Dr. [ENTITY]'s statement discloses "a picture of straight-forwardness and forthrightness" There is absolutely nothing in that statement which could raise a suspicion that the deponent was biased in favour of the prosecution or HIGH COURT OF M.P. BENCH AT INDORE.
ill-disposed towards the accused. The Doctor was the best person to opine about the fitness of the deceased to make the statement he did. The Doctor found that life was ebbing fast in the patient. There was no time to call the police or a Magistrate. In such a situation the Doctor was justified-indeed, he was duty bound-to record the dying declaration of the deceased. He was a disinterested, respectable witness. The Trial Judge was therefore wholly unjustified in rejecting the evidence of the Medical Officer."
18. Hon'ble the Supreme Court referring to various earlier case laws summed up the principles governing dying declaration in [ENTITY]'s case. Para no.18 of the [ENTITY] (Smt.) Vs. State of Gujarat reported in (1992) 2 SCC 474 reads thus:-
"18. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. 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. This Court has laid down in several judgments the principles governing dying HIGH COURT OF M.P. BENCH AT INDORE.
declaration, which could be summed up as under:
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. ([PRECEDENT])
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. ([PRECEDENT]; [PRECEDENT]).
(iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (K. Ramachandra Reddy v.
Public Prosecutor (1976) 3 SCC 618).
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. ([PRECEDENT])
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M.P. 1981 Supp. SCC
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P. (1981) 2 SCC
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurti Laxmipati Naidu 1980 Supp.
SCC 455)
(viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. [PRECEDENT]
(ix) Normally the court in order to satisfy whether deceased was in a fit mental HIGH COURT OF M.P. BENCH AT INDORE.
condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. ([PRECEDENT])
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. ([PRECEDENT]).
19. In the light of the above said principles, we will consider the dying declaration in the instant case to ascertain the truth.
20. First thing, which joggles our mind is that Dr. [ENTITY] has recorded case history of the deceased and her dying declaration on the date of incident i.e. 27.09.2013, soon after she brought to the hospital at 6:45 P.M. What is to be noted here is an information given by the CMO of the same hospital i.e. Choithram Hospital, Indore to the Police Station
- Rajendra Nagar after half an hour of admission of the deceased at 7:15 (19:15) P.M., which is entered in diary at Entry No.2636 (A) which reads thus:-
Dlary Enty No: 2636 (A) Dlary Date & time: 27-092013 19:15 Dlar Type: FIR/ML action as per Other Case Repoting Person: gSM dkWUlVscy [ENTITY] Substanc: bl le; lquuk gS fd Vh- pkSbFkjke vLirky bUnkSj ls MkW- ,-vkj-[kku
lh-,e-vks- us tfj;s VsyhQksu lwpuk fn;k fd et:gk lfjrk ifr lqHkk"k jkBkSj mez 35 lku fuoklh jktokMk pkSd /kkj ftyk /kkj dks vkt fnukad 27@09@2013 ds 4-00 cts fnu ?kj ij pk; cukrs le; 24 izfr'kr tyus ls mldk ifr lqHkk"k 992634076 okLrs bZykt gsrq ysdj vk;k gS et:gk cuZ ;qfuV esa HkrhZ gSA lwpuk djrk gwWA uksV lqpuk dh vken yh tkdj tkap iz/kku vkj02393 lqusjflg ds ftEes dj jokuk fd;k x;k HIGH COURT OF M.P. BENCH AT INDORE.
Signature of Reporting Person Signature of officer Incharge Date 27-09-2013 Rank: fujh{kd@bUlisDVj No:
Place: [ENTITY] (INDORE) [ENTITY] 00001013"
21. Thus, it is crystal clear that after half an hour of the incident certainly after receiving information from the doctor concerned, when CMO of the hospital informed the police, there was no mention of the fact that deceased was burnt by anyone else or that is to say by her [ENTITY] in the present case. Here begins doubt in our mind and that doubt remains unanswered even after deep scrutiny of the prosecution evidence produced before the learned trial Court.
22. Second thing which magnify our doubt is that undisputedly, the deceased remained alive since the date of admission in the hospital i.e. 27.09.2013 till 06.10.2013 and even after knowing that the deceased was burnt by someone else by pouring kerosene, which was undoubtedly a criminal case, the police authorities were called to register the case and to investigate the matter. The hospital authorities never made any efforts to call the police particularly in view of the fact that there is nothing on record to show that the deceased remained unconscious or not in the state of mind to give statement during this entire period.
23. Third thing to be noted here that even after knowing the procedure in respect of recording of dying declaration as admitted by Dr. [ENTITY] himself and having full opportunity, Dr. [ENTITY] or the hospital authorities never made any efforts HIGH COURT OF M.P. BENCH AT INDORE.
to call the concerned Executive Magistrate to record dying declaration of the deceased. No explanation is given for this lapse also. Not a single word is uttered by any of the prosecution witness in this regard. This further strengthens our doubts.
24. There is no dispute that the dying declaration is not got signed by the deceased even when scriber of this dying declaration Dr. [ENTITY] was well aware about the procedure of recording of dying declaration. Nothing is there to show that the deceased was not in a position to sign the dying declaration or to mark her thumb impression on it. When the deceased was brought to the Choithram Hospital, she was having 37% burns. On careful reading of her case history or details of burn injuries, it does not appear that she was not in a position to sign or to put her thumb impression on the dying declaration. Here, first time, Dr. [ENTITY] PW-9 tried to give explanation in para no.8 of his cross-examination that he did not get sign the dying declaration or did not try to take thumb impression of the deceased as her hands were burnt, but Dr. [ENTITY] PW-8, who performed autopsy, contradicts this statement of Dr. [ENTITY] giving details of burn injuries in para No.3 of his examination-in-chief. Dr. [ENTITY] has stated and recorded percentage of burn of various parts of the body. Percentage of burn was on face and neck 9%, on right and left arm 9-9%, lateral part of the body 12%, posterior part of the body 9% and on left lag 3%. Thus, there is no mention of HIGH COURT OF M.P. BENCH AT INDORE.
burns on hands, palm or more precisely on fingers or thumbs. Thus, explanation given by Dr. [ENTITY] appears to be a futile attempt. Dr. [ENTITY] also noticed an important thing that there was an ink mark on right thumb of the deceased. This again suspects the dying declaration recorded by Dr. [ENTITY] which does have any thumb impression of the deceased.
25. Now, coming to the end of the story, after death of the deceased on 06.10.2013 i.e. 9 days after her admission in the hospital another CMO, of the Hospital Dr. [ENTITY], PW-10 informed the death of the deceased to the Police Station - Rajendra Nagar, Indore. In this intimation no such allegations as made in the dying declaration has been made. This information reads thus:-
bl le; lwpuk gS fd Vh&pksbFkjke vLirky bUnkSj ls MkW dSyk'k nsoMk CMO us tfj;s VsyhQksu lwpuk fn;k fd e`frdk lfork ifr lqHkk"k jkBkSj mez 35 lky u- jktokMk pkSd /kkj 37 izfr'kr ?kj ij tyus ls dk fn- 27&9&13 ds 7-00 ctsa 'kke dsk bZykt gsrq HkrhZ gqbZ FkhA tks nkSjku bZykt vkt fn- 6&10&13 ds 6-30 cts e`R;q gks xbZ gSA lwpuk djrk gwWA uksV%& lwpuk ls ekeyk exZ eqLrQk dk ik;k tkus ls exZ d- 086@13 /kkjk 174 tk- QkS- dk dk;e dj tkWp iz-vkj 612 eukst 'kekZ ds ftEes dh xbZA
26. This raises many doubts regarding credibility of the dying declaration Ex. P/14.
27. Dr. [ENTITY] has admitted in para no.4 that the deceased HIGH COURT OF M.P. BENCH AT INDORE.
said that she got burnt while making tea and in para 6 of his cross-examination he admitted that it is mentioned in the document dated 27.09.2013 that when the deceased was brought to the hospital, she revealed that she got burned while making tea on kerosene stove as the stove suddenly inflamed. This statement of Dr. [ENTITY] seals the case of the prosecution that the deceased was alighted by her [ENTITY] and [ENTITY] after pouring kerosene on her.
28. Thus, the dying declaration which is the foundation of the prosecution case becomes highly suspicious and it is not safe to base conviction on such doubtful dying declaration. Learned trial Court has committed error in relying upon such dying declaration. We have already observed that there is no direct or ocular evidence against the accused persons and now, we find that dying declaration is also suspicious then nothing remains to convict the appellants for the offence they are charged with.
29. This has come in the prosecution evidence that the deceased and her husband and her [ENTITY] were living separately in the separate portion of the same house. Their shops were also separate. Both the families were living happily in their habitats and nothing has come on record which shows that there was any conflict between both brothers or their wives on any issue whatsoever, meaning thereby there was no motive in the case to commit such a heinous crime and this lack of motive also weakens the case HIGH COURT OF M.P. BENCH AT INDORE.
of the prosecution.
30. The case of the prosecution that the deceased had any grudge against her [ENTITY] also get negated by the fact that her mother has admitted in para 6 & 7 of her cross- examination that the deceased was interested in tying nuptial knot between daughter of her [ENTITY] with the son of her sister [ENTITY] and she had proposed the same.
31. We have noticed one more pothole in the allegation of the prosecution. The Investigating Officer [ENTITY] has admitted in para 8 of his cross-examination that in the investigation he found that at the time of the incident the accused persons were not present on the spot. This admission of the IO not only proves the defence of the appellants that at the time of the incident they were not present on the spot but in fact it renders the case of the prosecution highly suspicious and possibility of false implication of the appellants cannot be ruled out.
32. Soil having presence of kerosene was not seized from the spot, which creates doubt about the allegation that the kerosene was poured on the deceased by the appellants.
33. Thus, neither any direct evidence nor indirect or circumstantial evidence produced by the prosecution is credible or sufficient to establish guilt of the accused/appellants. The learned trial Court has committed error in relying on such type of evidence and holding the appellants guilty for the offence. We have reasons to differ HIGH COURT OF M.P. BENCH AT INDORE.
from the conclusions of the learned Trial Court.
34. Ex-consequenti, present appeal deserves to be and is hereby allowed. The judgement and order dated 25.02.2015 passed in [CASE NUMBER] by ASJ, Dhar is set aside. The appellants be set at liberty forthwith if not required to be detained in any other case.
35. Order of the trial Court regarding disposal of property stands confirmed.
([ENTITY]) ([ENTITY]) JUDGE JUDGE amit