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Supreme Court of India
THE HONOURABLE MR. JUSTICE P. SATHASIVAM & THE HONOURABLE DR. JUSTICE B.S. CHAUHAN
Lakhan
Versus
State of M.P.
CRIMINAL APPEAL NO. 2297 of 2009
Decided on : 09-08-2010
AIR 1958 SC 22; AIR 1974 SC 332; AIR 1976 SC 1994; AIR 1981 SC 617; (2001) 5 SCC 254; (2003) 12 SCC 490; (2005) 9 SCC 113; AIR 2007 SC 2020; (2010) 2 SCC 85 – Relied upon
(b) Indian Evidence Act, 1872 – Section 32 – Dying declaration – True and reliable, recorded in fit physical and mental condition to make it, not made under any tutoring/duress/ prompting – Can be sole basis for recording conviction. (Para 20)
(2010) 5 SCC 451; (1998) 9 SCC 303; (1999) 6 SCC 545; (1999) 9 SCC 562; (2008) 2 SCC 516; AIR 1974 SC 2165; (2007) 12 SCC 562; (2004) 9 SCC 713; AIR 2008 SC 1426; (1999) 2 SCC 126; (2008) 5 SCC 468; (1993) 2 SCC 684; (2009) 12 SCC 671; (2009) 15 SCC 120 – Relied upon
(c) Indian Evidence Act, 1872 – Section 32 – Two dying declarations – First declaration not supported by medical evidence – Rightly discarded by courts below – Second declaration supported by medical and oral evidence – Rightly relied upon by courts below for recording conviction. (Para 25, 26, 28)
Facts of the case:
The appellant got married to Smt. Savita on 22.6.1999. She was brought to the hospital by her in-laws on 27.2.2000 at about 7 p.m. in a burnt condition.
She died on 20.3.2000.
The trial Court found the appellant guilty of offence under Section 302 IPC and sentenced him to imprisonment for life.
The appellant preferred Criminal Appeal before the High Court which has also been dismissed.
Finding of the Court:
There is no infirmity in the concurrent fin dings of the courts below.
Result:
Appeal dismissed.
Judgment :-
Dr. B.S. CHAUHAN, J.
1. This appeal has been preferred against the judgment and order dated 9.7.2008, passed by High Court of Madhya Pradesh, at Jabalpur, in Criminal Appeal No.2304/2000 by which the High Court has dismissed the said appeal, affirming the judgment and order of the Sessions Judge, Sagar, dated 31.8.2000 in Sessions Trial No.180/2000 and convicted the appellant under Section 302 of the Indian Penal Code, 1860 (hereinafter called "IPC") and sentenced him to life imprisonment.
2. Facts and circumstances giving rise to this case are that the appellant got married to Smt. Savita (hereinafter referred to as "deceased") on 22.6.1999. She was brought to the hospital by her in-laws on 27.2.2000 at about 7 p.m. in a burnt condition. Dr. Subhash Jain informed the Police Station, Gopalganj, about the arrival of the deceased, Smt. Savita, and a police party arrived at the hospital. The dying declaration was recorded by the Executive Magistrate, Smt. Madhu Nahar (DW.1), vide Exh.D/2, wherein, the deceased stated that when she was cooking, kerosene oil had been put behind her back, and when she moved herself back, her Saree caught fire. On 29.2.2000, ASI, Damodar Prasad Mahure (PW-19), on the instructions of the Superintendent of Police recorded the second dying declaration (Ex.P/2), wherein, the deceased stated that appellant brought a kuppi (a metallic container for lighting) full of kerosene and poured it on her body and as a result of which kerosene oil spread all over her body. Thereafter, the fire was lit by chimney by him and she was burnt. She also stated that she had been brought to the hospital by her in-laws. After recording the dying declaration dated 29.2.2000, ASI Damodar Prasad (PW-19), recorded the Dehati Nalishi (Ex.P/14), at 10.40 p.m. on its basis. The kupee, as referred to in the dying declaration, was seized from the house of the appellant on 2.3.2000.
3. Smt. Savita died on 20.3.2000, and thus, there was an alteration of offences from 307/201 IPC to 302 IPC. After completing the investigation, charge sheet was filed against the appellant before the court and the case was committed to the Court of Sessions where the appellant was tried. During trial, the prosecution examined as many as 19 witnesses and in the form of documentary evidence, reliance was placed on the statement of Savita, deceased, in the form of dying declaration dated 29.2.2000 (Ex.P/2), Dehati Nalishi (Ex.P/14), FIR (Ex.20), deposition of ASI (PW-19) dated 29.2.2000 and case diary etc. In defence, appellant placed reliance on the statement of the deceased dated 27.2.2000 (Ex.D/2), and examined Smt. Madhu Nahar (DW.1). The appellant made a statement under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter called as "Cr.P.C."), that he was, by no means, involved in the case. However, the appellant did not explain under what circumstances his wife was burnt. The trial Court, vide judgment and order dated 31.8.2000, found the appellant guilty of offence under Section 302 IPC and accordingly sentenced him to imprisonment for life.
4. Being aggrieved, the appellant preferred Criminal Appeal No. 2304 of 2000 before the High Court of Madhya Pradesh, at Jabalpur, which has also been dismissed vide judgment and order dated 9.7.2008. Hence, this appeal.
5. Shri Sudhir Kulshreshtha, learned counsel appearing for the appellant, has submitted that it is a case of circumstantial evidence as no eye-witness has been examined by the prosecution in support of its case. There has been no allegation of a demand of dowry, though the marriage had taken place only 9-10 months prior to the death of the deceased, Savita. The only allegation against the appellant had been of harassment, as alleged by the parents of the deceased, who were examined as prosecution witnesses before the trial Court. There were two dying declarations in the case. The first was recorded by Ms. Madhu Nahar, the Executive Magistrate (DW.1), which should have been ac
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