Back
IN THE HIGH COURT OF MADHYA PRADESH
Sujoy Paul and Achal Kumar Paliwal, JJ.
Sonu @ Ballu Hathkaiya v. P.S. Katangi, The State of Madhya Pradesh
Criminal Appeal No. 220 of 2014 (Jabalpur): against the judgment dated 25.7.2012 passed by the Sessions Judge, Jabalpur in Sessions Trial No. 465/2011; Decided on 3.7.2023
(1) Evidence Act, 1872 -- S. 32 -- multiple dying declarations -- one written dying declaration and two oral dying declarations -- written dying declaration recorded by Tehsildar -- he had no enmity with appellant or any reason or motive to falsely implicate him -- deceased physically and mentally fit to give statement -- no family member present at time of recording of dying declaration -- not proved that before recording of dying declaration, deceased was tutored by family members -- not proved that deceased had enmity with appellant or any reason to falsely implicate him – presence of appellant’s wife at time of incident also clearly proved, but deceased has not implicated her -- appellant had motive due to dispute regarding partition of house -- postmortem report shows that front parts of deceased’s body had burn injuries whereas back parts were not burnt -- corroborates dying declaration that kerosene was poured over deceased from behind, on account of which she caught fire from chulha -- written dying declaration is voluntary and truthful. (1992) 2 SCC 474, AIR 1958 SC 22, (2022) 8 SCC 576, AIR 2012 SC 3265, AIR 2021 SC 1290, State of U.P. v. Veerpal (2022) 4 SCC 741, (2019) 8 SCC 779, AIR 2016 SC 3209 and (2002) 6 SCC 710 followed. [Paras 22 (e) to 22 (q), 23 & 27]
(2) Evidence Act, 1872 -- S. 11 -- plea of alibi -- appellant stated that day before incident, he was in his sasural in Katni -- similar statement of defence witness -- but appellant has not examined any person from his sasural to prove it -- has also neither clarified in his examination nor through any other evidence that if at time of incident he was in Katni, then when did he return to his house at Jabalpur and whether he came suo motu or after receiving information about incident -- not proved from evidence on record that he was not present at scene of incident. [Para 22 (r)]
(3) Evidence Act, 1872 -- S. 32 -- dying declaration -- no requirement of law that written dying declaration has to be sealed after recording. [Para 22 (t)]
(4) Recovery -- witnesses of memorandum and recovery memo completely hostile -- one witness is real brother of deceased whereas other witness is related to both deceased’s family and accused’s family -- cannot be said that recovery was made from appellant vide recovery memo. [Para 29]
(5) Penal Code, 1860 -- Ss. 302 and 304 Pt. II -- deceased preparing food on chulha -- appellant poured kerosene on her from behind -- deceased caught fire from chulha -- not proved that after pouring kerosene, appellant set her ablaze or pushed her into chulha -- act of merely pouring kerosene on deceased and doing nothing more, would not come within purview of S. 302 -- would come within purview of S. 304 Pt. II. [Para 33]
¼1½ lk{; vfèkfu;e] 1872 & èkkjk 32 & ,dkfèkd e`R;qdkfyd dFku & ,d fyf[kr e`R;qdkfyd dFku rFkk n¨ e©f[kd e`R;qdkfyd dFku & fyf[kr e`R;qdkfyd dFku rglhynkj }kjk vfÒfyf[kr & mldh vihykFkÊ ls d¨Ã 'k=qrk vFkok mls feF;k vkfyIr djus dk d¨Ã dkj.k ;k gsrq ugha Fkk & e`rdk 'kkjhfjd v©j ekufld :i ls dFku nsus ;¨X; & e`R;qdkfyd dFku vfÒfyf[kr fd, tkrs le; dqVqac dk d¨Ã lnL; mifLFkr ugha & lkfcr ugha fd e`R;qdkfyd dFku d¢ vfÒys[ku d¢ iwoZ e`rdk d¨ dqVqac d¢ lnL;¨a }kjk fl[kk;k x;k & lkfcr ugha fd e`rdk dh vihykFkÊ ls d¨Ã 'k=qrk vFkok mls feF;k vkfyIr djus dk d¨Ã dkj.k Fkk & ÄVuk d¢ le; vihykFkÊ dh iRuh dh mifLFkfr Òh Li"Vr% lkfcr] ijarq e`rdk us mls vkfyIr ugha fd;k & edku d¢ foÒktu ls lacafèkr fookn d¢ dkj.k vihykFkÊ d¢ ikl gsrq Fkk & 'ko ijh{k.k çfrosnu ls nf'kZr fd e`rdk dh nsg d¢ vxys Òkx ij tyus dh {kfr;ka Fkha tcfd fiNyk Òkx ugha tyk Fkk & e`R;qdkfyd dFku dh laiqf"V g¨rh gS fd e`rdk ij fdj¨flu ihNs ls mM+syk x;k Fkk] ftld¢ dkj.k mlesa pwYgs ls vkx yxh & fyf[kr e`R;qdkfyd dFku LoSfPNd v©j lR; gSA ¼1992½ 2 ,l lh lh 474] , vkb vkj 1958 ,l lh 22] ¼2022½ 8 ,l lh lh 576] , vkb vkj 2012 ,l lh 3265] , vkb vkj 2021 ,l lh 1290] ¼2022½ 4 ,l lh lh 741] ¼2019½ 8 ,l lh lh 779] , vkb vkj 2016 ,l lh 3209 rFkk ¼2002½ 6 ,l lh lh 710 vuqlfjrA ¼iSjk 22¿bZÀ ls 22¿D;wÀ] 23 ,oa 27½
¼2½ lk{; vfèkfu;e] 1872 & èkkjk 11 & vU;= g¨us dk vfÒokd & vihykFkÊ us dgk fd ÄVuk d¢ ,d fnu iwoZ og dVuh esa viuh llqjky esa Fkk & çfrj{kk lk{kh dk Òh ,slk gh dFku & ijarq vihykFkÊ us ;g lkfcr djus d¢ fy, viuh llqjky ls fdlh O;fDr dh ijh{kk ugha dh & mlus u r¨ viuh ijh{kk esa v©j u fdlh vU; lk{; ls Li"V fd;k fd ;fn ÄVuk d¢ le; og dVuh esa Fkk r¨ og tcyiqj esa vius Äj dc y©Vk] rFkk og Loçsj.kk ls y©Vk ;k fQj ÄVuk d¢ ckjs esa tkudkjh çkIr g¨us d¢ i'pkr~ y©Vk & vfÒys[kxr lk{; ls lkfcr ugha fd og ÄVukLFky ij mifLFkr ugha FkkA ¼iSjk 22¿vkjÀ½
¼3½ lk{; vfèkfu;e] 1872 & èkkjk 32 & e`R;qdkfyd dFku & fofèk dh ,slh d¨Ã vis{kk ugha fd fyf[kr e`R;qdkfyd dFku vfÒfyf[kr fd, tkus d¢ i'pkr~ eqgjcan fd;k tkuk vko';d gSA ¼iSjk 22¿VhÀ½
¼4½ cjkenxh & Kkiu v©j cjkenxh Kkiu d¢ lk{khx.k iwo.kZr% i{kæ¨gh & ,d lk{kh e`rdk dk lxk Òkà tcfd nwljk lk{kh e`rdk d¢ dqVqac v©j vfÒ;qDr d¢ dqVqac] n¨u¨a dk ukrsnkj & ;g ugha dgk tk ldrk fd cjkenxh Kkiu d¢ ekè;e ls vihykFkÊ ls cjkenxh dh xÃA ¼iSjk 29½
¼5½ naM lafgrk] 1860 & èkkjk 302 rFkk 304 Òkx 2 & e`rdk pwYgs ij [kkuk idk jgh Fkh & vihykFkÊ us ihNs ls ml ij fdj¨flu mM+syk & e`rdk d¨ pwYgs ls vkx yxh & lkfcr ugha fd fdj¨flu mM+syus d¢ i'pkr~ vihykFkÊ us mls çTtofyr fd;k vFkok mls pwYgs esa èkDdk fn;k & e`rdk ij d¢oy fdj¨flu mM+syus v©j mlls vfèkd dqN ugha djus dk ÑR; èkkjk 302 dh ifjfèk esa ugha vk,xk & èkkjk 304 Òkx 2 dh ifjfèk esa vk,xkA ¼iSjk 33½
JUDGMENT
1. This is an appeal filed under section 374(2) of the Code of Criminal Procedure, 1973 (In short “Cr.P.C.”) against the judgment dated 25.7.2012 passed in Sessions Trial No. 465/2011 by Sessions Judge, Jabalpur whereby appellant was held guilty for committing an offence punishable under sections 302 of IPC and directed him to undergo sentence of R.I. for life with fine of Rs. 500/-, in default to suffer further RI for one month.
2. The prosecution story, in brief, is that on the date of incident i.e. 14.2.2011, in the evening at 06-07 pm, when deceased Gunja was preparing meal, appellant/accused, who is brother-in-law (Devar) of deceased Gunja, poured kerosene oil on her & thereafter, set her ablaze. Chaman Lal, elder brother of appellant, took her to Medical College, Jabalpur & got admitted there for treatment. On 15.2.2011, Tehsildar P.S. Tripathi recorded dying declaration of Gunja Ex.P-10. Initially Offence punishable u/s 307 of IPC was registered against appellant by ASI JP Dwivedi & lodged FIR Exh. P-8. On 15.2.2011, SI Lokendra Singh received information Exhibit P-15 about deceased’s admission & when deceased succumbed to injuries, he received information relating to death of deceased Exhibit P-14.
3. Tehsildar P.S. Tripathi prepared Naksha Panchayatnama Exhibit P- 2. Dr. Ashok Jain conducted postmortem & prepared report Exhibit P-7 & sealed scalp hairs of deceased & handed over to the concerned police constable & same were seized by SI Lokendra Singh vide seizure memo Exhibit P-16. During investigation, SI J.P. Dwivedi prepared site map Exhibit P-8 & recovered plastic can from appellant vide recovery memo Exhibit P-4 in pursuance information( Exhibit P-3) provided by appellant. SI Hakam Singh recorded statements of Dharmendra, Rajendra, Kandhilal, Ram Ji, Chaman Lal, Mamta Bai, Shekhar & Nitesh. During investigation, he sent seized articles for FSL examination vide Exhibit P- 11 & report thereof is Exhibit P-12. After investigation charge sheet was filed before the Court of learned JMFC, Patan where from the case was committed to the court of learned Sessions Judge, Jabalpur.
4. After the case was committed to the Sessions Court, Sessions Court framed the charge against appellant under section 302 of IPC and he denied the charge and stated that he be tried. Thereafter, learned trial Court recorded the prosecution evidence and examined the appellant under section 313 of Cr.P.C. wherein appellant stated that he did not burn Gunja & he was in his sasural in Katni, a day ago when incident occurred. Appellant examined one witness Sourabh (DW-1) in his defence.
Submissions of Appellant:-
5. Learned counsel for the appellant submits that there is no eye witness to the incident. Learned trial court has convicted appellant on the basis of dying declaration (Exhibit P-10) recorded by Tehsildar P.S. Tripathi, (PW-7) and oral dying declarations as deposed by prosecution witnesses Babulal and Rajendra but there are material contradictions in oral dying declarations allegedly made to Rajendra and Babulal and written dying declaration (Exhibit P-1) recorded by P.S. Tripathi on the point that as to whether appellant alone set on fire deceased or whether alongwith appellant, Amit and Sonu also set on fire deceased & whether appellant did anything more after pouring kerosene over deceased . Mother of deceased Laxmi Bai (PW-4) has stated that she is not aware about circumstances as to how her daughter got burnt and died. The burning is accidental. Nothing incriminating has been recovered from the appellant.
6. Learned counsel for the appellant has also contended that even if dying declaration (Exhibit P-10) is relied upon, still, offence under section 302 of IPC is not made out, as in above dying declaration itself, only it is mentioned that appellant poured kerosene over the deceased and deceased caught fire from the chulha and therein, it is not mentioned that appellant after pouring kerosene over the deceased, set her to ablaze. T
The admissibility of dying declaration and the determination of the appropriate legal provision for the conviction based on the nature of the offence and the actions of the accused.
The reliability and consistency of dying declarations are crucial in criminal cases, especially when multiple contradictory declarations are present.
The dying declaration of the deceased, supported by medical evidence and circumstantial evidence, can be sufficient to establish guilt under Section 302 of IPC.
The main legal point established in the judgment is the reliance on dying declaration as a sole basis for conviction under Section 302/34 of IPC, the interpretation of Section 498A of IPC, and the ap....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
