Back
IN THE HIGH COURT OF MADHYA PRADESH
Vivek Rusia and Binod Kumar Dwivedi, JJ.
Abrar v. The State of Madhya Pradesh
Criminal Appeal No. 1418 of 2014 (Indore): against the judgment dated 28.8.2014 passed by the 3rd Additional Sessions Judge, Ujjain in Sessions Trial No. 92 of 2014;
Decided on 7.1.2025
(1) Dying Declaration -- may form sole basis of conviction if it is found reliable and inspiring confidence. [Para 14
(2) Dying Declaration -- deceased brought to hospital with 80% burns -- no certificate given by doctor that deceased was in fit mental condition for giving statement -- he was not the treating doctor -- witnesses deposed that when they saw deceased after incident, she was not in her senses -- none of them had any conversation with deceased regarding incident -- her brother specifically mentioned that deceased did not return to her senses for two to three days and thereafter she passed away -- becomes doubtful that alleged dying declaration was taken in fit mental condition of deceased.
[Paras 15 & 16
(3) Evidence Act, 1872 -- S. 32 -- in dying declaration recorded at hospital and dehati nalishi, if they are taken as dying declarations, there is material difference about place where deceased was at time of incident -- there is also difference with regard to time of incident -- these differences cast serious doubt on veracity of these documents -- to base conviction on dying declaration, Court must be satisfied that it is wholly reliable, and it should not suffer from any major infirmity. 1995 Supp. (4) SCC 498, (2001) 5 SCC 254, (1970) 2 SCC 113 and (1999) 7 SCC 69 followed. [Paras 17 to 19
(4) Penal Code, 1860 -- Ss. 302 and 449 -- prosecution has not proved beyond doubt that dying declaration was true, voluntary and not influenced by any extraneous consideration -- investigating agency did not ascertain whether incident was suicidal or homicidal -- probability of deceased committing suicide not eliminated -- there also exists doubt about mental condition of deceased at the time she made dying declaration -- plea of alibi proved by tower location of mobile of appellant/accused, which is supported by witnesses -- no eye witness account available to support prosecution case -- no infirmity in defence witnesses could be pointed out by prosecution -- trial Court committed factual and legal error in holding appellant guilty for murder of deceased by trespassing her house, pouring kerosene and setting her ablaze -- appellant entitled to benefit of doubt -- conviction and sentence set aside. [Paras 23, 26 & 29
(5) Plea of Alibi -- has to be proved with absolute certainty by positive evidence so as to completely exclude possibility of presence of appellant in the particular premises at relevant time. (2010) 8 SCC 430 followed. [Para 27
(6) Witness -- defence witness -- should also be given due weightage if testimony is free from infirmities -- evidence tendered by defence witnesses cannot always be said to be tainted by reason of witnesses being examined by defence -- defence witnesses are entitled to equal respect and treatment as that of prosecution -- their testimony cannot be discarded unless there is some inherent infirmity on the face of record. (2002) 1 SCC 351 followed. [Paras 28 & 29
¼1½ e`R;qdkfyd dFku && voyacuh; vkSj fo'oklksRiknd ik;k tk, rks nks"kflf) dk ,dek= vk/kkj gks ldrk gSA ¼iSjk 14
¼2½ e`R;qdkfyd dFku && e`rdk dks 80 izfr'kr fonX/krk ds lkFk fpfdRlky; yk;k x;k && fpfdRld }kjk dksbZ çek.ki= ugha fn;k x;k fd e`rdk dh ekufld voLFkk dFku nsus ds fy, mi;qä Fkh && og mipkj djus okyk fpfdRld ugha Fkk && lkf{k;ksa us vfHklk{; fn;k fd tc ?kVuk ds i'pkr~ mUgksaus e`rdk dks ns[kk rc og gks'k esa ugha Fkh && muesa ls fdlh dk Hkh e`rdk ls ?kVuk ds laca/k esa okrkZyki ugha gqvk && mlds HkkbZ us fofufnZ"Vr% mYys[k fd;k fd e`rdk dks nks&rhu rd fnu gks'k ugha vk;k vkSj fQj mldk nsgkar gks x;k && lansgkLin gks tkrk gS fd vfHkdfFkr e`R;qdkfyd dFku e`rdk dh mi;qä ekufld voLFkk esa fy;k x;k FkkA ¼iSjk 15 ,oa 16
¼3½ lk{; vf/kfu;e] 1872 && /kkjk 32 && fpfdRlky; esa vfHkfyf[kr e`R;qdkfyd dFku vkSj nsgkrh ukfy'kh esa] ;fn mUgsa e`R;qdkfyd dFku ekuk tk, rks] ml LFkku ds ckjs esa rkfRod folaxfr gS tgk¡ e`rdk ?kVuk ds le; Fkh && ?kVuk ds le; ds ckjs esa Hkh folaxfr gS && bu folaxfr;ksa ls bu nLrkostksa dh lR;rk ds ckjs esa xaHkhj lansg mRiUu gksrk gS && e`R;qdkfyd dFku ij nks"kflf) vk/kkfjr djus ds fy, U;k;ky; dk lek/kku gksuk vko';d gS fd og iw.kZr% fo'oluh; gS] rFkk og fdlh egRoiw.kZ 'kSfFkY; ls xzLr ugha gksuk pkfg,A 1995 lIyh- ¼4½ ,llhlh 498] ¼2001½ 5 ,llhlh 254] ¼1970½ 2 ,llhlh 113 rFkk ¼1999½ 7 ,llhlh 69 vuqlfjrA ¼iSjk 17 ls 19
¼4½ naM lafgrk] 1860 && /kkjk 302 rFkk 449 && vfHk;kstui{k us lansg ds ijs lkfcr ugha fd;k fd e`R;qdkfyd dFku lR;] LoSfPNd vkSj cká ckrksa ls vçHkkfor Fkk && vUos"k.k vfHkdj.k us vfHkfuf'pr ugha fd;k fd ?kVuk vkRegR;k dh Fkh ;k ekuoo/k dh && e`rdk }kjk vkRegR;k fd, tkus dh vf/klaHkkO;rk nwj ugha dh xbZ && e`rdk }kjk e`R;qdkfyd dFku fd, tkus ds le; mldh ekufld voLFkk ds ckjs esa Hkh lansg gS && vU;= gksus dk vfHkokd~ vihykFkhZ@vfHk;qä ds eksckby ds ehukj ds fBdkus ls lkfcr] tks lkf{k;ksa }kjk lefFkZr && vfHk;kstu i{kdFku ds leFkZu ds fy, dksbZ çR;{kn'khZ lk{; miyC/k ugha && vfHk;kstui{k çfrj{kk lkf{k;ksa esa dksbZ 'kSfFkY; minf'kZr ugha dj ldk && fopkj.k U;k;ky; us vihykFkhZ dks e`rdk ds ?kj dk vfrpkj dj ml ij fdjksflu m¡Msy dj çTTofyr djds mldh gR;k djus dk nks"kh vfHkfu/kkZfjr dj rF;kRed vkSj fof/kd xyrh dh && vihykFkhZ lansg ds Qk;ns dk gdnkj && nks"kflf) vkSj naMkns'k vikLrA ¼iSjk 23] 26 ,oa 29
¼5½ vU;= gksus dk vfHkokd~ && fu.kkZ;d lk{; }kjk vkR;afrd fuf'prrk ls bl çdkj lkfcr fd;k tkuk gksrk gS fd lqlaxr le; ij ml fof'k"V ifjlj esa vihykFkhZ dh mifLFkfr dh laHkkouk iw.kZr% vioftZr gks tk,A ¼2010½ 8 ,llhlh 430 vuqlfjrA ¼iSjk 27
¼6½ lk{kh && çfrj{kk lk{kh && ifjlk{; 'kSfFkY;jfgr gks rks mls Hkh lE;d~ egRo fn;k tkuk pkfg, && çfrj{kk lkf{k;ksa }kjk fn, x, lk{; dks lnSo lkf{k;ksa ds çfrj{kki{k }kjk ijhf{kr fd, tkus ds dkj.k nwf"kr ugha dgk tk ldrk && çfrj{kk lk{khx.k vfHk;kstu lk{khx.k ds leku gh vknj vkSj O;ogkj ds gdnkj gksrs gSa && mudk ifjlk{; rc rd R;ä ugha fd;k tk ldrk tc rd fd vfHkys[k dks ns[krs gh dksbZ varfuZfgr 'kSfFkY; çdV ugha gksA ¼2002½ 1 ,llhlh 351 vuqlfjrA ¼iSjk 28 ,oa 29
JUDGMENT
Dwivedi, J. -- 1. This Criminal Appeal is directed against the judgment dated 28.8.2014 passed by III Additional Sessions Judge, Ujjain in Sessions Trial No. 92/2014 whereby the appellant has been convicted for the offence punishable under sections 302 and 449 IPC and sentenced to undergo imprisonment for life with fine of Rs.1,000/- in each of the offence with default stipulation.
2. The prosecution story briefly stated is that information was received by Police Station Banganga Indore from Sainik 326 Sanjay Parmar that deceased Arbina who was admitted in Aurobindo Hospital on 8.12.2013 at about 11:50 by her brother Arshad Mohd. on account of burn injuries, died on 9.12.2013 at about 5:45 pm. On this information, merg No.70/2013 (Ex.-P/14) was registered and inquiry was set in motion. It was found that deceased Arbina lodged Dehati Nalishi (Ex.P/12) on 4.12.2013 at 10:30 pm at Burn Ward, District Hospital, Ujjain recorded by Sub Inspector Rohit Yadav (PW-10) mentioning that she has four brothers and four sisters. Accused Abrar was his neighbor and she was having love affair with him. Appellant wanted to marry her. On the aforesaid date in the afternoon, Abrar gave him mobile phone and told her to talk to him. While talking to him on mobile, her sister Shah Bano noticed her. Thereafter Shah Bano talked to accused Abrar on phone, then Abrar told her that Arbina was his time pass. She is illiterate, therefore he would not marry her. In case, she insists for marriage, he would finish her.
3. Thereafter with an intention to kill her, accused Abrar came to her house with one plastic cane of kerosene. When she was standing at back door of her house, appellant came there and poured kerosene upon her, set her ablaze and fled away. She cried for help and hearing her cry, members of her family tried to rescue her. With the help of neighbor Shahrukh @ Golu and her brother Ashique got her admitted to District Hospital, Ujjain. She has sustained serious burn injuries on her face, both hands, stomach and feet. Dr. A.L.Agrawal (PW-8) on 4.12.2013 at about 10:10 pm recorded Dying Declaration (Ex.P/10) of the deceased wherein also she levelled allegations of setting her ablaze by pouring kerosene against the appellant. On death of the deceased, Naksha Panchayatnama (Ex.P/2) was prepared in the presence of witnesses Shahnawaz, Ashique, Irfan, Tyra Bi and Arshad. To ascertain the cause of death, the dead body was sent for conducting autopsy. The autopsy was conducted and postmortem report (Ex.P/12) was given by Dr. Pradip Mishra which was proved by Dr. N.M. Unda who opined that deceased died due to failure of cardiac and respiratory system which was result of burn injuries and complexities arising therefrom. Thereafter, Police registered FIR (Ex.P/19) and investigation ensued.
4. During investigation, white cotton was used to collect sample of kerosene from the spot and kerosene cane was seized along with other items. Seizure memo (Ex.P/13) was prepared. Spot map (Ex.P/17) was prepared at the instance of sister-in-law (bhabhi) of deceased Arbina. Before this, on 4.12.2013 at District Hospital, Ujjain the statements of deceased Arbina (dying declaration, Ex.-P/10) was recorded. On 5.12.2013, statements of witnesses Sherbano (PW-3), Ashique (PW-5), Shahrukh @ Golu (PW-4) were recorded. Statements of sister-in-law (bhabhi) Shahnaz (PW-6), Arshad (PW-7) and independent witnesses Hanif and her daughter Arzoo (PW-9) were recorded. On the same day, statement of Dr. A.L.Agrawal (PW-8) was also recorded. The accused was arrested on 6.12.2013 and arrest memo (Ex.P/15) was prepared. During investigation, he gave information of recovery of Samsung Mobile dual Sim having Sim of Vodaphone and Reliance. The same was seized at the instance of appellant and seizure memo (Ex.P/16) was prepared. From the brother of appellant, Arshad, a mobile phone given by the appellant to the deceased was seized and seizure memo (Ex.P/13) was prepared. Call details were
Dying declarations can constitute sole evidence for conviction if found voluntary and truthful; the burden of proof for alibi rests solely with the appellant.
A dying declaration can serve as the sole basis for conviction if it is credible and corroborated, emphasizing its legal admissibility in murder cases.
The judgment establishes that multiple inconsistent dying declarations cannot serve as a reliable basis for conviction in a murder case, emphasizing the need for corroborative evidence.
Criminal Law - Criminal Trial - Accused set deceased on fire with the intention to kill her - Plea of alibi - When presence of the accused at the scene of occurrence is established satisfactorily by ....
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.
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
