---1--- HIGH COURT OF MADHYA PRADESH BENCH : INDORE (Division Bench: P.K. Jaiswal & I.S.Shrivastava, JJ.) Criminal Appeal No. 1216/2001 Heeralal V/s State of Madhya Pradesh ************************************************************************* Shri A.S. Rathor, Advocate for the appellant. Shri Deepak Rawal, Govt. Advocate for the respondent. ************************************************************************* J U D G M E N T (05.9.2011) Per P.K. Jaiswal, J. This appeal has been filed by appellant Heeralal against the judgment & order dated 29.8.2001, passed by the VIIIth Additional Sessions Judge, Indore in Sessions Trial No.803/2000, convicting him under Section 302 of IPC and sentenced him to undergo imprisonment for life with fine of Rs.500/-. 2. The prosecution case, in brief, is that at the time of occurrence deceased Basantibai was residing in one room, in the hedge belongs to one Yashwant Patel (PW1). The marriage of appellant Heeralal was solemnized with deceased Basantibai, but the appellant was residing with his second wife in another room. On 30.9.2000 Basantibai was sleeping outside her room. At about 1.30 in the mid night appellant Heeralal came there, took her inside the room and assaulted her; thereafter, he poured kerosene oil on Basantibai and set her to fire. On hearing the shriek of Basantibai, Yashwant Singh (PW1) and Gabbu Chowkidar (PW2) came to the spot and intervened between them. Appellant Heeralal was in habit of beating Basantibai. Thereafter, Yashwant Singh (PW1), Gabbu Chowkidar (PW2) and Babulal (PW3) took her to Community Health Centre, Depalpur from where Dr. Achal Kumar Silawat (PW5) sent an intimation to the police that Basantibai wife of Heeralal Bhilala, who had caused burn injury has come to the ---2--- hospital for treatment. Head Constable Murad Khan (PW9) written the same in the Rojnamcha Sanha No.1415 dated 29.9.200 (Ex. P/ 11). Head Constable Naharsingh (PW12) visited Depalpur Hospital along with Constable Kailash, where Basantibai was primarily treated by Dr. Achal Kumar Silawat (PW5). Ex.P/7 is medical report of Basantibai. As per her MLC report (Ex.P/7) kerosene smell was coming from her clothes; head hair were burnt and there were superficial burns on her face, neck, chest, abdomen, back of the body and both the arms. In the said report it is mentioned that patient was conscious. Her dying declaration was recorded by Dr. Achal Kumar Silawat on 30.9.2010. She, in her dying declaration, has deposed that due to dispute her husband Heeralal took her inside the room and set her to fire. Ex.P/8 is her dying declaration in which specific allegation has been made against appellant Heeralal. For further treatment Basantibai was referred to M.Y. Hospital, Indore. 3. Her statement under Section 161 Cr.P.C. (Ex. P/15) was also recorded by Head Constable Naharsingh (PW12) at Community Health Centre, Depalpur. Thereafter, FIR was registered on 30.9.200 vide Ex.P/16 against the appellant at Crime No.212/2000 for the offence punishable under Section 307 and 498-A of IPC. 4. At M.Y. Hospital, Indore Basantibai was treated by Dr. Jitendra Raghuvanshi (PW10). Ex.P/10 is her admission card. She was examined by Dr. Rupesh Khatri (PW15). She was admitted as out-door patient vide Ex.P/12 and an intimation to this effect was given to the CMO, M.Y.H. Indore vide Ex.P/24, which reads as under:- “Respected Sir, This is to bring to your kind notice that patient Basantibai wife of Heeralal, 38 years, R/o Baruphata Khargone P.S. Depalpur a case of 100% sup. & deep burn is to be admitted on 30.9.00. Kindly note and do needful. ---3--- Thanking you, Yours sincerely, Sd/- (Dr. R. Khatri)” 5. During treatment at M.Y. Hospital she died on the same day i.e., 30.9.2000 and intimation of her death was given to Head Constable Krishna Prasad (PW6), who in turn registered a Merg vide Ex. P/9. The Merg was investigated by Head Constable Onkarlal Patel (PW14) and witnesses were called, which is evident from Safina Form Ex.P/21. In their presence inquest was prepared vide Ex.P/22. Along with requisition (Ex.P/23) the dead body of Basantibai was sent for postmortem examination. On 2.10.2000, Dr. Surendra Dube (PW8) conducted the autopsy on the body of deceased Basantibai. Ex.P/10 is the postmortem report. He found the following antemortem injuries on her body: “Dead body of an average built female lying in supine position. On postmortem table wearing a blouse and petticoat. Vivisection wound is present on the medial aspect of the left ankle joint. Foley/s catheter is put in the gladder through urethra. Scalp heir of frontal and both parietal region are partially burnt and bangles of glass are present in each wrist. Both eyes are closed. Cornea is slightly hazy. Mouth is partially opened. Upper frontal teeth are visible. There is small wound present over the tongue behind the teeth. Stiffening present all over the body. Pugilistic posture lips and nails are cyanosed. 4th degree burn (epidermal burns) are present on the following parts of the body along with few pustules of 2nd degree burn (demo epidermal): (1) Head, neck and face, (2) both upper limbs, (3) Front of chest and abdomen, (4) Back of chest and abdomen, (5) Both lower limbs & (6) Perineum. Red line of demarcation are present. Blackening of skin is present. Death is due to cardio-respiratory failure as a result of burn and its complications.” 6. R.P.S. Rajput (PW13), at the instance of Mangilal (PW11) prepared a spot map (Ex.P/13) and in presence of witnesses kerosene mixed clay and plane clay, lamp box and pieces of bangles were seized vide seizure memo Ex.P/2. On 31.10.2000 ---4--- appellant Heeralal was arrested and arrest memo (Ex.P/3) was prepared. Seized property was sent to Forensic Science Laboratory vide Ex.P/17. FSL report is Ex.P/19. After completion of the investigation charge sheet was filed and the case was committed to the Court of Sessions for trial. 7. During trial, appellant abjured his guilt and pleaded false implication. According to him, when he came to his house he saw Basantibai lying burnt in front of her house. Learned trial Court, after trial and upon appreciation of evidence adduced in the case found the appellant guilty of intentionally causing death of his first wife Basantibai and, accordingly, convicted and sentenced him as mentioned herein above by the judgment which has been challenged in this appeal. 8. We have heard the arguments of the learned counsel for the parties and perused the record. 9. It is no longer disputed that deceased Basantibai died of burn injuries found on her body. It is also reflected from the evidence of Dr. Achal Kumar Silawat (PW5), Dr. Jitendra Raghuvanshi (PW10), Dr. Rupesh Khatri (PW15) and Dr. Surendra Dube (PW8) that she was primarily treated at Community Health Centre, Depalpur and, thereafter, she was brought to M.Y. Hospital, Indore and was admitted there and during treatment she died on 30.9.2000. Apart from the above evidence, statements of Yashwant (PW1), Gabbu (PW2) and Babulal (PW3) were recorded. Yashwant (PW1), Gabbu (PW2) and Babulal (PW3) before whom the oral dying declaration was made by the deceased have turned hostile and have denied that any oral dying declaration was made by the Basantibai prior to her death. Yaswant (PW1) in paragraph 2 of his cross examination has admitted that Mangilal (PW11) is neighbour of appellant Heeralal. He has further admitted that all the clothes of Basantibai were burnt. In paragraph 3 of his cross examination this witness further admits that he (PW1), Gabbu Chowkidar (PW2) and Babulal ---5--- (PW3) took her to Depalpur Hospital in a jeep. This witness in paragraph 6 of his cross examination has deposed that they opened the room and took Basantibai out of her room. At that time she was unconscious. He further admits that in the room Basantibai was alone. 10. Gabbu (PW2) in paragraph 1 of his statement has deposed that accused Heeralal is known to him and he was servant of Patel Gabbusingh and Yashwantsingh. He also knows his wife Basantibai. In paragraph 2 his statement it is deposed that accused Heeralal was not residing with his first wife (deceased). It is further stated that in the mid night at about 1.30 AM after hearing the voice of Gabbu Patel he came from his house and at that time Basantibai was lying in burn condition, outside her room. Then, they took her to Police Station. At that time Yashwant (PW1) was also with him. They all had gone in a jeep and intimated to the Police Station. It has been admitted by him that police persons came to the spot and seized burnt clothes of Basantibai. Kerosene oil, lamp box and broken bangles etc vide seizure memo Ex.P/2, which has been signed by him. This witness in paragraph 4 of his cross examination has admitted that accused Heeralal and Basantibai were residing separately. This witness further admits that 7-8 months prior to accident appellant Heeralal had caused injury by sickle and the matter was reported to Police Station Depalpur. This witness has further admitted that all clothes of Basantibai were burnt and, therefore, family members of Gabbu Patel came with another sets of clothes and covered her body with the said clothes. 11. Babulal (PW3) has deposed that in between 1.30 and 2.00 AM he came to the house of Gabbu Patel and saw Basantibai in brunt condition. This witness has supported the statement of Yashwant (PW1) and Gabu Chowkidar (PW2). He, in paragraph 4 of his cross examination, admits that Gabbu Patel, Yashwant Patel and he are relatives. In paragraph 5 he admits that Basantibai was ---6--- residing alone in one room of Gabbu Patel and at the time of incident her room was closed, they had broken the door and brought her out side of the said room. 12. Gabbusingh (PW4) has deposed that Mangilal (PW11) came and told about the incident. When he reached at the place of occurrence the appellant ran away from there. He along with Yashwant (PW1), Gabbu (PW2) and Babulal (PW3) took her to the hospital and reported the matter at Depalpur Police Station. When he asked Basantibai as to who had caused these burn injuries she had disclosed the name of appellant Heeralal. This witness further deposed that before this incident earlier also there was dispute between the appellant and Basantibai and in furtherance of the said dispute Heeralal had caused sickle injury to her and a criminal case with regard to the said incident is pending in Depalpur Court. 13. Dr. Achal Kumar Silawat (PW5), Medical Officer, Community Health Centre, Depalpur has deposed that on 30.9.200 when he was posted at Depalpur, Constable Kailash came along with an application (Ex.P/6) and Basantibai wife of Heeralal for her medical examination. She was examined by him. Smell of kerosene oil was coming from the body of the deceased. She had received burn injuries on whole body. The burns were superficial and also deep at some places. The deceased was conscious at the time of the examination. He recorded her dying declaration and, thereafter, for further treatment she was referred to M.Y. Hospital, Indore. Ex.P/7 is the MLC report in which 'A' to 'A' is signed by him. In paragraph 3 he has deposed that her dying declaration was recorded by him and at the time of dying declaration she was talking normally. In her dying declaration she has narrated the whole state of affairs and has stated that her husband Heeralal had caused injuries by pouring kerosene oil on her. Ex.P/8 is her dying declaration which has been signed by him and Basantibai had also put her thumb impression on the dying declaration. After recording dying declaration she was referred to M.Y. Hospital, Indore. There are ---7--- minor contradiction in his cross examination. This witness has admitted that in the dying declaration he has not mentioned that at the time of recording of dying declaration she was in fit state of mind. This witness has clarified that this fact has been recorded by him in her MLC report (Ex.P/7). Percentage of burn has not been mentioned in the dying declaration of the deceased. The fact that she was firstly treated by him has not been mentioned in the report (Ex.P/7). This witness has deposed that at Depalpur Hospital there was no facility to take care of burn injuries and, therefore, Basantibai was shifted to M.Y Hospital, Indore. This witness has further deposed that her dying declaration was recorded in presence of police persons. 14. Dr. Surendra Dube (PW8) has deposed that Basantibai died due to severe burn injuries and her autopsy was conducted by him. Ex.P/10 is her postmortem report. 15. Murad Khan (PW9), who was posted as Head Constable, Police Station, Depalpur, has deposed that on 29.9.2000 he had received a phone call of Dr. Silawat (PW5) from Primary Health Centre, whereby he has intimated that one Basantibai wife of Heeralal came for treatment at the Hospital with one Yashwant Patel and Gabbu Patel. The said intimation was reduced in witing and, thereafter, he sent Head Constable Naharsingh and Constable Daulatsingh to Depalpur Hospital. 16. Dr. Jitendra Raghuvanshi (PW10) has deposed that the deceased was admitted at M.Y. Hospital vide admission ticket (Ex.P/10) which has been signed by him. She had received 100% burn injuries. 17. Mangilal (PW11) turned hostile and has not supported the case of the prosecution. 18. Naharsingh (PW12), Head Constable Police Station Depalpur has deposed that Basantibai was admitted at Depalpur Hospital and her police statement (Ex.P/15) was recorded by him, ---8--- in which she has appended her thumb impression and 'A' to 'A' place has been signed by him. In paragraph 2 of his statement this witness has deposed that Basantibai narrated that when she was sleeping at that relevant point of time accused Heeralal came there, slept her and, thereafter, took her inside the room and poured kerosene oil and set her to fire. He has further deposed that Basantibai also told him that earlier also she was tortured by the accused. This witness has further deposed that her statement under Section 161 Cr.P.C. was recorded on the basis of statement made by her. In cross examination this witness admits that her police statement was recorded at Depalpur hospital. He denied that at that relevant point of time Basantibai was not in a position to make any statement. 19. R.P.S. Rajput (PW13), Investigating Officer has deposed that accused Heeralal was arrested by him on 31.10.2000. Ex.P/3 is his arrest memo. This witness has further deposed that prior to this incident deceased Basantibai had reported one case against the appellant on 6.4.2000 vide Crime No.72/2000 and an offence under Sections 324 & 506 of IPC has been registered against him. Ex.P/20-C is the copy of the FIR. This witness denied the suggestion put to him that Yashwant (PW1), Gabbu (PW2), Babulal (PW3) and Gabbusingh (PW4) have not given any statement to him and he has recorded their statements at his own. 20. Dr. Rupesh Khatri (PW15) has deposed that on 30.9.2000 he was on her duty as C.M.O., M.Y. Hospital, Indore and he had examined deceased Basantibai. Ex.P/12 is her admission ticket and Ex.P/12-A is her treatment prescription. He further deposed that vide Ex.P/24 he had sent intimation to the C.M.O., regarding admission of Basantibai. 21. Learned counsel for the appellant has submitted that Yashwant (PW1), Gabbu (PW2), Babulal (PW3) and Gabbusingh (PW4), before whom the oral dying declaration of the deceased has been recorded, have turned hostile and they have hot ---9--- supported the case of the prosecution. It is also submitted that there is material irregularity in the dying declaration (Ex.P/8) and the same is not admissible in evidence and prayed that there are material contradictions and omissions in the statements of the prosecution witnesses and prayed that the appeal be allowed and the impugned judgment be set aside and the appellant be acquitted of the charge. 22. Where after recording 161 statement, the victim succumbs to her injuries it can be treated as dying declaration and is admissible under Section 32 of the Evidence Act. In the present case the 161 statement of the deceased recorded by the Head Constable is admissible as dying declaration even if death took place much later. Statement of Basantibai recorded under Section 161 Cr.P.C. becomes a statement relating to the case of death of that woman if she subsequently dies. Here the postmortem examination shows that the deceased had sustained burn injuries and she immediately thereafter was admitted at Depalpur hospital and was treated by Dr. Achal Kumar Silawat (PW5), who, after her examination, prepared MLC report vide Ex. P/7 in which it is stated that at the time of her MLC she was conscious. She was referred by Dr. Achal Kumar Silawat (PW5) for further treatment of burn injuries to M.Y. Hospital, Indore where she died on 30.9.2000. At M.Y. Hospital she was admditted by Dr. Jitendra Raghuvanshi (PW10) as out door patient and his admission card was prepared vide Ex.P/12-B. She was also examined by Dr. Roopesh Khatri (PW15) and her autopsy was conducted by Dr. Surendra Dube (PW8). Her postmortem examination report shows that she had sustained burn injuries all over the body. As per MLC report (Ex.P/ 7) PW.5 Dr.Achal Kumar Silawat, gave her detail health condition and at the relevant point of time she was conscious and her 161 statement was recorded at Depalpur hospital. 23. It is well settled that after her death her 161 statement is admissible as dying declaration and, therefore, even if we accept ---10--- the arguments of the learned counsel for the appellant that there are some discrepancies in her oral dying declaration then also after her death her 161 statement is admissible as dying declaration. There is no technical compartment which prescribed that a police statement of the victim could not be treated as dying declaration, if it satisfies all the ingredients. Here, in the present case the injured herself naming the accused as assailant and narrated the fact that it is her husband who had poured kerosene oil and set her to fire. Her 161 statement cannot be discarded nor it can be said that the same is not a dying declaration merely on the ground that in the dying declaration (Ex.P/8) it was not stated that at the time of recording of her dying declaration she was found to be in a fit state of health to give statement. Here, in the present case from the police statement of the deceased a direct allegation has been made against the appellant, after her death the said statement will clearly fall within the four corner of Section 302 of IPC and, therefore, admissible in evidence. Her 161 statement was truthful. 24. In view of the aforesaid, we are of the view that the conviction of the accused/appellant was proper. The view taken by the learned trial Court is possible view. After closed scrutiny of the evidence on record we find that the prosecution was successful in establishing that the appellant caused the death of Basantibai with intention to commit her murder. The finding of conviction recorded by the trial Court does not suffer from any illegality or infirmity, calling for any interference. 25. Thus, we find no merit in this appeal. We uphold the conviction of the appellant and sentence of life imprisonment awarded under Section 302 of IPC. The appeal fails and is hereby dismissed. (P.K. Jaiswal, J.) (I.S. Shrivastava, J.) rcs*