Devkaran vs State of M. P. - 2021 Supreme(MP) 326

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(MP) 326

IN THE HIGH COURT OF MADHYA PRADESH
Vivek Rusia and Shailendra Shukla,JJ.
Devkaran v. State of M. P.
Criminal Appeal No.333 of 2008 (Indore): against the judgment and sentence dated 28.2.2008 passed by the Additional Sessions Judge, Shujalpur, District Shajapur in Sessions Trial No. 205/2006; Decided on18.8.2021

Advocates:
Deepak Rawal for appellant;
Amit Singh Sisodiya, Government Advocate for respondent/State.

Headnote:
(1) Evidence Act, 1872 -- Ss. 32, 60, 155 and 157 -- Criminal P.C. 1973 -- S. 162 -- dying declaration -- injured witness survived after recording of dying declaration -- statement cannot be considered to be dying declaration -- however, statement made to Naib Tahsildar does not suffer from restrictions of S.162 of CrPC because it is not made to police under S. 161 of CrPC -- hence admissible -- is former statement made by witness relating to same fact -- can be used for corroborating or contradicting testimony of such witness. (1999) 5 SCC 30 followed. [Paras 17 & 18]
(2) Legal Maxim -- nemo moriturus praesumitur mentire -- truth sits on lips of dying person. (1789) 1 Leach 500 referred to. [Para 22]
(3) Evidence Act, 1872 -- S. 32 -- dying declaration – sanctity -- general perception -- dying person would be speaking truth -- dying declarations admissible andcan be relied upon even for convicting accused persons -- however, before -- convicting accused only on basis of dying declaration, Court must act with prudence, due caution and care. AIR 1958 SC 22, AIR 2002 SC 526 and (1970) 2 SCC 113 followed. [Para 22]
(4) Penal Code, 1860 -- S. 302 -- Evidence Act, 1872 -- S.32 -- altercation between deceased and appellant/husband -- led to engulfment of deceased in flames -- deceased stated that she was set ablaze by appellant -- appellant states that it was deceased who set herself on fire and he got burnt in process of saving her -- story of dying declaration by deceased suffers from contradictions and omissions -- burn injuries on appellant quite extensive -- show overt act on his part to save deceased -- statements of appellant supported by prosecution witnesses -- dying declaration requires corroboration in this case but lacks in this regard -- prosecution not able to prove beyond reasonable doubt that it was appellant who set deceased ablaze and committed her murder -- conviction and sentence set aside. [Paras 20, 21, 27 & 28]
¼1½ lk{; vf/kfu;e] 1872 & /kkjk 32] 60] 155 rFkk 157 & naM ÁfØ;k lafgrk] 1973 & /kkjk 162 & e`R;qdkfyd dFku & e`R;qdkfyd dFku vfHkfyf[kr fd, tkus ds i'pkr~ {kfrxzLr lk{kh cp x;k & dFku dks e`R;qdkfyd dFku ugha ekuk tk ldrk & rFkkfi] uk;c rglhynkj dks fn;k x;k dFku naM ÁfØ;k lafgrk dh /kkjk 162 ds fucZ/kuksa ls ÁHkkfor ugha D;ksafd og naM ÁfØ;k lafgrk dh /kkjk 161 ds v/khu iqfyl dks ugha fn;k x;k & blfy, xzkg~; & mlh rF; ds laca/k esa lk{kh }kjk fd;k x;k iwoZrj dFku gS & ml lk{kh dk ifjlk{; laiq"V ;k [kafMr djus ds fy, mi;ksx fd;k tk ldrk gSA ¼1995½ 5 ,l lh lh 30 vuqlfjrA ¼iSjk 17 ,oa 18½
¼2½ fof/kd lw= & uheks eksfjV~;wjl fÁlwfeVj esaVk;j & ej.kklUu O;fDr ds vk/kkjksa ij lR; fojkteku gksrk gSA ¼1789½ 1 yhp 500 fufnZ"VA ¼iSjk 12½
¼3½ lk{; vf/kfu;e] 1872 & /kkjk 32 & e`R;qdkfyd dFku & 'kqfprk & lk/kkj.k vo/kkj.k & ej.kklUu O;fDr lR; cksysxk & e`R;qdkfyd dFku xzkg~; gksrs gSa vkSj vfHk;qDr O;fDr;ksa dks fl)nks"k Bgjkus ds fy, voyac fy;k tk ldrk gS & rFkkfi] vfHk;qDr dks dsoy e`R;qdkfyd dFku ds vk/kkj ij fl)nks"k Bgjkus ds iwoZ U;k;ky; dks ÁKk] lE;d~ lrdZrk vkSj lko/kkuh cjruk vko';dA , vkb vkj 1958 ,l lh 22] , vkb vkj 2002 ,l lh 526 rFkk ¼1970½ 2 ,l lh lh 113 vuqlfjrA ¼iSjk 12½
¼4½ naM lafgrk] 1860 & /kkjk 302 & lk{; vf/kfu;e] 1872 & /kkjk 32 & e`rdk vkSj vihykFkhZ@ifr ds e/; dgklquh & e`rdk ds vfXu&fueXu gksus esa ifj.kr & e`rdk dk dguk fd mls vihykFkhZ us tyk;k & vihykFkhZ dk dguk fd e`rdk us gh Lo;a dks vkx yxkbZ vkSj mls cpkus ds nkSjku og tyk & e`rdk }kjk e`R;qdkfyd dFku fn, tkus dh dgkuh fojks/kkHkklksa vkSj yksiksa ls xzLr & vihykFkhZ dks tyus dh {kfr;ka dkQh vf/kd & mlds }kjk e`rdk dks cpkus dk ÁR;{k ÑR; n'kkZrh gSa & vihykFkhZ ds dFku vfHk;kstu lkf{k;ksa }kjk lefFkZr
& bl dkj.k esa e`R;qdkfyd dFku dh laiqf"V visf{kr ijarq mldk vHkko & vfHk;kstui{k lansg ls ijs lkfcr djus esa vleFkZ fd vihykFkhZ us gh e`rdk dks vkx yxkbZ vkSj mldh gR;k dh & nks"kflf) vkSj naMkns'k vikLrA ¼iSjk 20] 21] 27 ,oa 28½

JUDGMENT

Shukla, J -- 1. This appeal has been filed under section 374 CrPC against the judgment of conviction and sentence dated 28.2.2008 pronounced in S.T. No.205/06 by the ASJ, Shujalpur, District Shajapur, whereby the applicant has been sentenced to Life Imprisonment and fine of Rs.200/- for committing offence under section 302 of IPC. In lieu of payment of fine, the appellant has been directed to undergo one month’s additional imprisonment.

2. It is admitted that deceased Sangeeta Bai was the wife of the appellant (marriage contracted through Natra) and that she had succumbed to her burn injuries.

3. The prosecution story, in short, was that on 22.8.2006 at about 12 to 12.30 pm deceased Sangeeta Bai resident of Village Panch Dehriya, District Shajapur was at her house and an altercation ensued between deceased and appellant, since the appellant had refused to give her 10 Rupees for purchasing clip and rubber. Appellant had also assaulted deceased and then as per prosecution story, he poured kerosene oil over Sangeeta Bai and set her ablaze. Sangeeta Bai was brought in burnt condition at Civil Hospital, Shujalpur. Her dying declaration was recorded by Naib Tehsildar. She was subsequently shifted to Hamidia Hospital at Bhopal but succumbed to her injuries on 25.8.2006. Merg intimation was sent to Coafiza Police Station at Bhopal. After instituting the Merg, the dead body was subjected to postmortem and that report was sent to police station Avantipur Badodiya, District Shajapur, in which case under section 307, 302 IPC was registered at Crime No.191/06. Investigation was initiated by investigating officer, who drew spot map and seized incriminating items which were sent to FSL. After completing the investigation, the charge sheet was filed before the JMFC, Shujalpur who committed the case after taking cognizance to Sessions Judge, Shajapur, who made over the case to ASJ, Shujalpur.

4. The trial Court framed charge under section 302 of IPC. The accused abjured his guilt and his defence was that it was deceased Sangeeta Bai who had put herself on fire and the appellant had tried to save her and in the process he himself suffered serious burn injuries.

5. The trial Court has examined 15 witnesses, whereas the appellant has not examined any defence witness.

6. The presiding officer vide impugned judgment has found charge framed against the appellant proved on the basis of available evidence and convicted and sentence the appellant, as described earlier.

7. In the appeal which has been filed, it has been stated that the trial Court has erred in appreciating the evidence available on record, that there was clear evidence that deceased had ablazed herself and in the process of saving her, the appellant himself had sustained serious burn injuries and his defence has been accepted by the prosecution witnesses only, that the trial Court has gone on to convict the appellant only on the basis of dying declaration without assessing the truthfulness of the same and the citations which had been filed by the appellant in support were looked over by the trial Court. On these grounds the appeal has been sought to be allowed.

8. The question before us is, whether in view of the grounds contained in appeal and submissions made by learned counsel for the appellant, the appellant deserves to be acquitted?

9. There are two sets of witnesses led by the prosecution. One set of witnesses have stated that they had seen smoke billowing out of the house of appellant Devkaran and Devkaran came rushing over, who was made to climb on the upper storey where the fire was raising, that Devkaran entered and tried to save Sangeeta Bai who was already in flames at that point of time and appellant also got burnt in the process. The other set of witnesses are the relatives of deceased Sangeeta Bai, who claimed to have heard Sangeeta Bai telling them that she was burnt by appellant. These witnesses apart, Naib Tehsildar Smt. Asha Parmar (PW-11) has also recorded the