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IN THE HIGH COURT OF MADHYA PRADESH
Ravi Malimath, CJ, and Vishal Mishra, J.
Brajkishore Mandloi v. The State of Madhya Pradesh
Criminal Appeal No. 990 of 2010 (Jabalpur): against the judgment and sentence dated 14.5.2010 passed by the 1st Additional Sessions Judge, Harda in Sessions Trial No. 102/2006;
Decided on 5.1.2024
(1) Witness -- child witness -- minor daughter of deceased -- eye-witness to incident -- narrated entire incident -- argument that her statement was recorded after considerable delay is of no help to appellant as there is nothing on record to show that she was tutored to give such statement -- her testimony is duly supported by subsequent statement of deceased -- remained firm in her statement throughout -- defence has failed to destroy her statement. [Paras 15 & 19]
(2) Evidence Act, 1872 -- S. 32 -- multiple dying declarations -- two dying declarations -- both contrary to each other -- no allegation against husband/appellant in first dying declaration -- deceased/wife stated that her clothes caught fire from gas while working in kitchen -- thereafter, she was immediately taken to hospital -- there were burns on her face, neck, chest, abdomen, upper limbs, both legs and thighs -- first dying declaration contains thumb impression of deceased -- no clarification regarding thumb impression -- second dying declaration clarifies that thumb impression of left leg of deceased was taken and why it was taken -- PW-12 stated that he received phone call from hospital that injured wants to give her statement -- prior to recording dying declaration, he took certification from doctor regarding health condition of injured/deceased -- injured/deceased explained in dehati nalishi why she has not given correct statement when first dying declaration was recorded -- second dying declaration appears to be correct and genuine as it has more corroborative and evidentiary value. [Paras 16 & 22]
(3) Penal Code, 1860 -- S. 302 -- eye-witness, minor daughter of deceased and appellant, narrated that appellant was beating deceased, he took deceased to kitchen, poured kerosene on her and set her ablaze -- almost 70% burn injuries on body of deceased from head to toe -- doctor noticed smell of kerosene coming from entire body of deceased as well as from her burnt clothes -- prosecution established its case beyond reasonable doubt -- it was for appellant to explain entire circumstances -- defence that appellant also has burn injuries on his hands is of no help -- entire record clearly points out that death was homicidal in nature and resulted from being set ablaze by appellant after pouring kerosene -- deceased clarified in dehati nalishi that she could not state correct facts in first dying declaration because she was under threat as her husband was working in police department and she was continuously being harassed and beaten by him -- second dying declaration duly corroborated by eye-witness who is daughter of deceased -- trial Court rightly held appellant guilty. (2021) 5 SCC 222 followed. [Paras 17, 19, 20 & 22 to 24]
(4) Evidence Act, 1872 -- S. 32 -- multiple dying declarations -- Court is required to consider each dying declaration independently on its own merit as to its evidentiary value -- one cannot be rejected because of contents of the other. (2021) 5 SCC 222 followed. [Para 21]
(5) Witness -- hearsay independent witnesses -- eye-witness account supporting second dying declaration as well as dehati nalishi -- explanation given by prosecution for recording second dying declaration -- non-supporting version of independent witnesses will be of no help to appellant. [Para 23]
¼1½ lk{kh & cky lk{kh & e`rdk dh vo;Ld iq=h & ?kVuk dh çR;{kn'khZ lk{kh & laiw.kZ ?kVuk dk o`Ùkkar lquk;k & ;g rdZ vihykFkhZ ds fy, lgk;d ugha fd mldk dFku dkQh foyac ds i'pkr~ vfHkfyf[kr fd;k x;k] D;ksafd vfHkys[k ij ;g n'kkZus ds fy, dqN ugha fd mls ,slk dFku nsus ds fy, fl[kk;k@iढ+k;k x;k & mldk ifjlk{; e`rdk ds i'pkRorhZ dFku ls lE;d#is.k lefFkZr & vk|ksikar vius dFku ij –ढ+ jgh & çfrj{kki{k mlds dFku dk [kaMu djus esa vlQy jgkA ¼iSjk 15 ,oa 19½
¼2½ lk{; vf/kfu;e] 1872 & /kkjk 32 & ,dkf/kd e`R;qdkfyd dFku & nks e`R;qdkfyd dFku & nksuksa ijLij çfrdwy & çFke e`R;qdkfyd dFku esa ifr@vihykFkhZ ds fo:) dksbZ vfHkdFku ugha & e`rdk@iRuh us dgk fd jlksbZ esa dk;Z djrs le; mlds oL=ksa esa vkx yx xbZ & rRi'pkr mls rqjar fpfdRlky; ys tk;k x;k & mlds psgjs] xnZu] o{k] mnj] ckgqvksa] nksuksa iSjksa vkSj ta?kkvksa ij nkg {kfr;‚a & çFke e`R;qdkfyd dFku esa e`rdk dk vaxq"B fpUg & vaxq"B fpUg ds ckjs esa dksbZ Li"Vhdj.k ugha & f}rh; e`R;qdkfyd dFku esa Li"VhÑr fd e`rdk ds ck,¡ iSj dk vaxq"B fpUg fy;k x;k vkSj D;ksa fy;k x;k & vlkŒ 12 us dgk fd mls fpfdRlky; ls nwjHkk"k ij d‚y vk;k fd vkgr viuk dFku nsuk pkgrh gS & e`R;qdkfyd dFku vfHkfyf[kr djus ds iwoZ mlus vkgr@e`rdk ds LokLF; dh n'kk ds ckjs esa fpfdRld ls çek.ku fy;k & vkgr@e`rdk us nsgkrh ukfy'kh esa Li"V fd;k fd tc çFke e`R;qdkfyd dFku vfHkfyf[kr fd;k x;k rks mlus lgh dFku D;ksa ugha fn;k & f}rh; e`R;qdkfyd dFku lgh vkSj çkekf.kd çrhr gksrk gS D;ksafd mldk laiks"kd vkSj lkf{;d ewY; vf/kd gSA ¼iSjk 16 ,oa 22½
¼3½ naM lafgrk] 1860 & /kkjk 302 & çR;{kn'khZ lk{kh us] tks e`rdk vkSj vihykFkhZ dh vo;Ld iq=h gS] crk;k fd vihykFkhZ e`rdk dks ihV jgk Fkk] og e`rdk dks jlksbZ esa ys x;k] ml ij fdjksflu m¡Msyk vkSj mls vkx yxk nh & e`rdk dh nsg ij flj ls iSj rd yxHkx 70 Áfr'kr nkg {kfr;k¡ & fpfdRld dk è;ku e`rdk dh laiw.kZ nsg ds lkFk gh mlds tys gq, oL=ksa ls vk jgh fdjksflu dh xaèk ij x;k & vfHk;kstu us viuk i{kdFku ;qfä;qä lansg ds ijs lkfcr fd;k & vihykFkhZ dks laiw.kZ ifjfLFkfr;ksa dk Li"Vhdj.k nsuk Fkk & ;g çfrj{kk lgk;d ugha fd vihykFkhZ ds gkFkksa ij Hkh nkg {kfr;k¡ gSa & laiw.kZ vfHkys[k ls Li"V minf'kZr fd e`R;q ekuo o/k ç—fr dh Fkh rFkk vihykFkhZ }kjk fdjksflu m¡Msys tkus ds mijkar vkx yxk, tkus ls ifj.kr gqbZ & e`rdk us nsgkrh ukfy'kh esa Li"V fd;k fd [krjs esa gksus ds dkj.k og çFke e`R;qdkfyd dFku esa lgh rF; ugha crk ldh D;ksafd mldk ifr iqfyl foHkkx esa dk;Zjr gS rFkk mls ifr }kjk fujarj rax fd;k vkSj ihVk tk jgk Fkk & f}rh; e`R;qdkfyd dFku çR;{kn'khZ lk{kh }kjk] tks e`rdk dh iq=h gS] lE;d#is.k laiq"V & fopkj.k U;k;ky; us vihykFkhZ dks nks"kh Bhd gh vfHkfu/kkZfjr fd;kA ¼2021½ 5 ,llhlh 222 vuqlfjrA ¼iSjk 17] 19] 20 ,oa 22 ls 24½
¼4½ lk{; vf/kfu;e] 1872 & /kkjk 32 & ,dkf/kd e`R;qdkfyd dFku & çR;sd e`R;qdkfyd dFku ds lkf{;d ewY; ds laca/k esa U;k;ky; }kjk çR;sd e`R;qdkfyd dFku ds xq.kkxq.k ij Lora= :i ls euu fd;k tkuk visf{kr & ,d dks nwljs dh varoZLrq ds dkj.k ukeatwj ugha fd;k tk ldrkA ¼2021½ 5 ,llhlh 222 vuqlfjrA ¼iSjk 21½
¼5½ lk{kh & vuqJqr Lora= lk{kh & f}rh; e`R;qdkfyd dFku ds lkFk gh nsgkrh ukfy'kh çR;{kn'khZ lk{kh o`Ùkkar ls lefFkZr & f}rh; e`R;qdkfyd dFku vfHkfyf[kr djus ds fy, vfHk;kstui{k }kjk Li"Vhdj.k fn;k x;k & Lora= lkf{k;ksa dk leFkZu ugha djus okyk o`Ùkkar vihykFkhZ dks lgk;d ughaA ¼iSjk 23½
Based on the provided legal document, the key points are as follows:
The appellant, who is the husband of the deceased and a member of the police force, was convicted under section 302 of the IPC for the murder of his wife by setting her ablaze with kerosene (!) (!) .
The prosecution's case primarily relies on two dying declarations, which are contradictory in content. The first dying declaration recorded on the day of the incident states that the deceased's clothes caught fire accidentally while working in the kitchen, with no mention of the appellant's involvement (!) (!) .
The second dying declaration, recorded about a month later, implicates the appellant, stating that he poured kerosene on the deceased and set her on fire. This declaration is supported by the testimony of the eyewitness, PW5 Kritika, the deceased's daughter, who narrated the incident consistently and remained firm in her statement (!) (!) (!) (!) .
The court evaluated each dying declaration independently, considering their evidentiary value, and found the second declaration to be more credible and genuine due to its corroboration with medical evidence, the statement of PW5, and other supporting documents (!) (!) (!) .
The medical and post-mortem reports support the prosecution's case, indicating that the injuries sustained by the deceased were consistent with being set on fire with kerosene and that her death resulted from homicidal burns (!) (!) (!) .
The defense argued that the first dying declaration should be preferred as it was recorded promptly and supported by independent witnesses, who did not support the prosecution story. They also contended that the deceased's death was due to improper medical treatment, not the appellant's actions (!) (!) (!) (!) (!) .
The court noted that the independent witnesses' testimonies were hearsay and not directly supportive of the prosecution's version, whereas the eyewitness testimony of PW5 and the second dying declaration provided substantial corroboration of the appellant's guilt (!) (!) (!) .
The appellant's efforts to extinguish the fire and his receipt of burn injuries did not sufficiently explain the nature of the burns or negate the evidence indicating that he was responsible for setting the deceased ablaze (!) (!) .
The court emphasized that in cases with multiple dying declarations, each must be considered on its own merits, and the more credible declaration, supported by medical and eyewitness evidence, should be given precedence (!) (!) .
The appeal was dismissed, and the conviction along with the sentence of life imprisonment and fine was affirmed, as the evidence conclusively established the appellant's guilt beyond reasonable doubt (!) (!) .
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JUDGMENT
1. This appeal has been preferred against the judgment dated 14.5.2010 passed by First Additional Sessions Judge, Harda District Harda in S.T. No.102 of 2006, whereby the appellant-accused stood convicted under section 302 of IPC and sentenced to undergo R.I. for life and fine of Rs.15,000/- and in default, to suffer R.I. for 3 years.
2. As per the prosecution story, the incident took place on 10.7.2006 at the house of the accused wherein he poured kerosene on his wife Anuradha who succumbed to the burn injuries on 17.8.2006. In pursuance of the information by the hospital situated at Timarni, the police authorities got registered an FIR (Ex.P/24) for the offence under section 307 of IPC; collected various documents during investigation; recorded the statements of the parents of the deceased and related persons as well as dying declaration of the deceased on two occasions. After completion of the investigation, the police submitted charge sheet against the accused. The accused was charge-sheeted for the offence under section 302 of IPC, he denied the allegation and therefore, was put to trial. To establish the charge, the prosecution examined as many as 27 witnesses and exhibited several material documents including two dying declarations. In defence, Akhilesh was examined as DW1. Upon completion of the trial, the learned trial Judge vide impugned judgment dated 14.5.2010 has convicted and sentenced the accused as under:
| Conviction | Sentence Imprisonment | Fine | In default of fine |
| 302 of IPC | For Life | Rs. 15000/- | R.I. for 3 years |
3. The aforesaid judgment was put to challenge by filing this appeal.
4. Legality and propriety of the impugned judgment of conviction has been challenged by the accused/appellant on the ground of misappreciation of evidence on record. The counsel for the appellant has submitted that there is no cogent and reliable evidence in support of the accusations of ill-treatment or beating by accused. Further, there is no evidence to show that accused poured kerosene oil and set his wife Anuradha on fire. No motive whatsoever has been established by prosecution inspite of examining as many as 27 witnesses. There are material contradictions and omissions in the statements of prosecution witnesses. Hence, the impugned conviction cannot be sustained.
5. The counsel appearing for the accused has challenged the judgment of conviction basically on the ground that there are two dying declarations recorded by the authorities which are contrary to each other. It is argued that the first dying declaration which was recorded by Naib Tahsildar (PW7) on 10.7.2006 was a prompt dying declaration exhibited as Ex.P/4. The deceased (injured at relevant time) has not stated anything against the appellant; on the contrary, she has stated that while she was working in kitchen, her clothes caught fire resulting into burn injuries. Her husband has made efforts to save her by extinguishing the fire and she was taken to the hospital by him. The opinion of the doctor was reflected in the dying declaration that she was in a conscious state to give oral statement. The dying declaration was recorded by the Naib Tahsildar. It is argued that there was no occasion for the prosecution to record the second dying declaration which was recorded on 13.8.2006 i.e. after one month of the incident whereas the appellant has been implicated for burning his wife by pouring kerosene. Both the dying declarations are contrary to each other. This creates a serious doubt on the genuineness of the dying declarations. The prosecution should have explained why and under what circumstances there was a requirement of recording of second dying declaration and in absence of any explanation, the same could not have been believed. It is further pointed out that the first dying declaration (Ex.P/4) was recorded on 10.07.2006 i.e. on the same day of the incident whereas the second dying declaration was recorded on 13.8.2006 i.e. almost after a mo
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The reliability and consistency of dying declarations are crucial in criminal cases, especially when multiple contradictory declarations are present.
Dying declarations can only support a conviction if consistent and made in a fit mental state; inconsistencies create reasonable doubt.
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Murder of wife - Conviction upheld - Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission o....
A dying declaration can serve as the sole basis for conviction if it is credible, voluntary, and corroborated by other evidence, despite inconsistencies in earlier statements.
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