Ganraj @ Dhanraj Sahu vs The State Of Madhya Pradesh
2021 Latest Caselaw 8660 MP

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             HIGH COURT OF MADHYA PRADESH
               PRINCIPAL SEAT AT JABALPUR

                Criminal Appeal No.1771/ 2011

                             Ganraj

                              Vs.

                  The State of Madhya Pradesh


Counsel for the Appellant      : Mr.Sanjay Ram Tamrakar
                                 learned Advocate

Counsel for the Respondent     : Mr. Piyush Bhatnagar, Ld.
/State                           Panel Lawyer


          Coram: Hon'ble Mr. Justice Atul Sreedharan
                 Hon'ble Mrs. Justice Sunita Yadav

                        JUDGMENT

(13/12/2021)

Per: Atul Sreedharan, J :

The present appellant is aggrieved by the judgment

and finding dated 12.5.2011 passed by the Court of the

learned Sessions Judge Chhindwara in Sessions Trial

No.12/2009 by which the appellant was convicted for an

offence under section 302 IPC and sentenced to suffer

rigorous imprisonment for life and a fine of Rs.2000/- with

the default stipulation of one year. He was also convicted

for an offence under section 498-A IPC and sentenced to

suffer rigorous imprisonment for one year.

2. The appellant has been in jail since 13.12.2008 first

as an under trial and thereafter as a convict. In all he

has completed more than 13 years of incarceration. There

are no eyewitnesses in this case and the evidence on the

basis of which the appellant has been convicted is the dying

declaration of the deceased.

3. The incident has taken place on 5.12.2008 in which

the deceased had suffered burn injuries at her matrimonial

home. The FIR was registered after the death of the

deceased on 13.12.2008 at 7.25 pm. The FIR is marked as

Ex.P.26. The FIR was registered under sections 302 and

304-B and 498 IPC. The appellant herein was the sole

accused. The case of the prosecution is that from the time

the deceased married the appellant she was being

harassed for bringing inadequate dowry and also was being

pressed to bring dowry even after marriage and on her

inability to do so was being inflicted with harassment.

4. The learned counsel for the appellant submits that the

appellant has falsely been implicated in this case only on

account of him being the husband and that the case of the

prosecution itself is not of murder. He further states that

the incident could have taken place either by way of an

accident or by suicide. He has drawn the attention of this

Court to the dying declaration of the deceased and in order

to show the infirmities in the same has drawn our attention

to P.W.5, who is a doctor who registered the MLC and also

given an endorsement with regard to her fitness to give the

dying declaration. In paragraph 2 of the statement of this

witness he says that the deceased had suffered 100%

burns. He further states that when he examined her for

the first time her pulse was 94 and the blood pressure

was 100/60.

5. On 5.12.2008, he says that around 4 o'clock the

Tahsildar came there to record the statement of the

deceased and that he has signed at the end of the

statement. Thereafter, the learned counsel has straight

away drawn our attention to Ex.P/7, which is the dying

declaration of the deceased. In the dying declaration also,

on the top left hand side, the pulse is recorded as 94 and

Blood Pressure as 100/60. The date of recording is given

as 5.12.2008 starting at 4.00 pm. There was an

endorsement that the patient is able to give dying

declaration. However, there is no signature of the doctor

below the said endorsement or certification, which has been

admitted to by P.W.5. In the dying declaration, the

deceased has said that the appellant herein poured

kerosene oil over her and set her on fire. There is an

endorsement at the end of the statement by the doctor that

the patient was conscious during the recording of the dying

declaration. The right thumb impression of the deceased

has been taken as also, the right thumb impression of the

mother of the deceased, as a witness. The recording of

dying declaration came to end at 4.25 pm. Learned

counsel for the appellant has submitted that this dying

declaration is not worthy of any credence. In order to prove

his argument he has drawn our attention to the statement

of P.W.13.

6. P.W.13 is the Head Constable who was on duty at the

hospital. He says that on the date of the incident, he

received an intimation with regard to the deceased having

been brought to the hospital at 3.50 pm. Thereafter, he

says that it took him 10 to 15 minutes to prepare the letter

of intimation to be sent to the Tahsildar to record the

statement of the deceased. Under the circumstances,

learned counsel for the appellant submits that the

intimation to the Tahsildar relating to his requirement at

the hospital did not go before 4.00 or 4.05 pm. Therefore,

the Tahsildar having commenced the recording of the dying

declaration of the deceased at 4.00 pm itself is incredible.

Thereafter he has also drawn our attention to the testimony

of the Tahsildar before the Trial Court who has been

examined as D.W.8. D.W.8 in paragraph no.6, says that

upon receiving the intimation sent from the hospital, he

reached the hospital within one hour. Learned counsel for

the appellant has connected the statement of P.W.13 who

says that he had sent the intimation to the Tahsildar

around 4.00 or 4.05 pm. If that be the case and if the

Tahsildar states that he had reached the hospital within

one hour thereafter, that would make the time of arrival of

the Tahsildar in the hospital between 5.00 or 5.05 pm.

However, the entire dying declaration is recorded between

4.00 and 4.25 pm. The right thumb impression that has

been taken of the deceased, on visually seeing the same is

smudged and not clear.

7. Learned counsel for the appellant thereafter has drawn

our attention to the MLC prepared in this case which bears

an overwriting with regard to the time on which it was

prepared. What originally appears to have been 7.40 pm,

the seven has been over written with five to make it appear

as if the document was prepared at 5.40 pm. The doctor

P.W.5 was cross-examined on this aspect and he admits

that there is an overwriting in the document but he is

unable to recollect whether the overwriting was done by

him or someone else. In the said MLC, the doctor has

observed that the deceased was drowsy and the pulse was

94 and the blood pressure was 100/60. It has also

recorded the fact that the respiration of the deceased was

shallow and laboured and that the body was completely

burnt and smell of kerosene was present 100%. In the

opinion of the doctor, there was 100% "deep burns".

8. Learned counsel for the appellant has thereafter drawn

our attention to the statement of Urmila Bai who is the

mother of the deceased and has been examined as P.W.6.

She has initially given information relating to the alleged

demand for dowry but at the same time he has also stated

that certain amounts were asked by the appellant herein

by way of augmenting his investment in his business. In

another part she has also stated that once an amount of

Rs.10000/- is taken as loan which the appellant said that

he would return. However, later she has also testified that

no amounts taken by the appellant were ever returned to

her. However, the learned counsel for the appellant has

drawn our attention to paragraph no.12 of this witnesses'

statement where she says that when she reached the

residence of her daughter, the deceased was in a state of

unconsciousness, her speech was slurred and what ever

she was saying could not be comprehended by P.W.6.

9. Learned counsel for the appellant says that where the

mother of the deceased herself could not comprehend what

her daughter, the deceased, was speaking it was next to

impossible for the Tahsildar to understand what the

deceased was speaking about.

10. Learned counsel for the State, on the other hand,

submits that the prosecution has been able to prove its

case beyond reasonable doubt. He says that the

aberrations that have been brought out by the learned

counsel for the appellant are minor in nature and the same

does not go to the root of the prosecutions case.

11. Heard the learned counsel for the parties and perused

the record of the learned trial Court. The incident has

taken place on 05.12.2008. The FIR has been registered at

7:25 pm of 13.12.2008. The incident is stated to have taken

place at 10:00 am of 05.12.2008. The delay in the

registration of the FIR is on account of inquest proceeding

preceded it. The main piece of evidence on the basis of

which the appellant has been convicted is the dying

declaration of the deceased, the same is exhibit P/7. The

Doctor has recorded her medical condition before the

commencement of the dying declaration, the pulse is

recorded as 94 per minute and the blood pressure is

100/60. The commencement of the dying declaration is at

4:00 pm and there is an endorsement that the deceased is

able to give the dying declaration which however has not

been signed by PW-5. This is the admitted position. In the

dying declaration, she has stated that it was the appellant

herein who poured the kerosene oil on her and set her on

fire. The right thumb impression is faint on the lower left

hand side of the dying declaration and the Doctor has

endorsed that the deceased was conscious during the dying

declaration. The Tehsildar has also given the endorsement

that the dying declaration was recorded on 05.12.2008

between 4:00 pm to 4:25 pm.

12. Exhibit P/6 is the MLC of the deceased, which was

recorded on 05.12.2008. Initially it appears that it was

recorded at 7:40 pm where "7" has been overwritten with

"5". PW-5 has been confronted with the overwriting which

he has admitted, is ambivalent on the question as to who

carried out this overwriting. The contents of the MLC has

been referred to herein-above but what is of importance is

that the pulse rate which was 94 per minute and the blood

pressure which is 100/60 alleged to have been recorded

5:40 pm is identical to what has been recorded in the dying

declaration which was recorded between 4:00 to 4:25 pm. It

appears highly improbable that the deceased who died at

6:35 pm as per exhibit P/15 (which is the intimation given

to the police) reveals that the deceased in a stable condition

for 1 hours and 20 minutes after the dying declaration with

no change either in her pulse rate or blood pressure. The

MLC appears to have been tampered with after the error

came to the notice of the Investigation Agency that the time

on which it was recorded was after the deceased died. It

also raises a doubt, and a credible one at that, the MLC has

been prepared originally after the death of the deceased and

thereafter the time has been overwritten to show that it was

made at the time when the deceased was still alive. In the

said MLC, it is also relevant to mention here that the

Doctor has recorded that that the deceased's respiration

was shallow and laboured and the body was completely

burnt and that the burns were deep.

13. PW-6 is the mother of the deceased. She states in

paragraph no.12 that when she reached the residence of

her daughter, she found that she was unconscious and

there was slurring in her speech and whatever was being

told to her by the deceased was incomprehensible. It does

appear that if the speech of the deceased was

comprehensible to the mother of the deceased when the

deceased spoke to her at the time which was before the

recording of the dying declaration, it seems highly

improbable that she was cogent and comprehensible at the

time of giving her dying declaration.

14. As regards the thumb impression which has been

placed on the dying declaration, the postmortem report

which is exhibit P/5 reveals that the deceased had suffered

burns over the whole face, both forearms, hands and

palms. We examined the original dying declaration and the

thumb impression placed thereupon allegedly by the

deceased and find that there is no sign of soot on the

thumb impression, whose presence would have been

natural in the light of the postmortem report. Had the

finger been cleaned before the thumb impression was

taken, the same would have been noticed in the

postmortem report.

15. The next document that we would like to refer is

exhibit P/4, which is a site-map prepared by the Patwari.

As regards the room in which the incident had taken place,

the Patwari has marked the same as room no.2 and has

detailed it as the place where on 05.12.2008 in the morning

around 10:00 am, the deceased Anju W/o Ganraj Sahu had

locked both the doors of the room and then set herself on

fire with kerosene oil. This is the prosecution's own case

and the prosecution is bound by it. The second hypothesis

of the appellant having killed the deceased, has to be tested

on the anvil of this undisputed prosecution document

which goes to reveal that the only way in which deceased

could have suffered burns was suicidal.

16. In view of what we have observed herein-above, we

find that the prosecution's case failed on several counts

and that it can not be said that the case against the

appellant has been proved beyond reasonable doubt.

17. As regards the offence under section 498-A IPC, the

same is pivoted upon the testimony of PW-6, the mother of

the deceased. Having read the statement in its entirety, it

appears that there was matrimonial strife between the

appellant and the deceased where she was being harassed.

However, the testimony of PW-6 does not categorically

reveal that physical violence was ever metted out to the

deceased. As regards the question of dowry, in several

places we see that the appellant had asked for money from

the said witness for augmenting his business and in some

places it appears that he had taken a loan with a promise

to return it but which the witness says, the appellant never

returned. Asking from the in-laws money to augment

business or a loan cannot be said to be a demand for dowry

and the same is the settled position in law.

18. Under the circumstances, the offence under section

498-A IPC is also not clearly made out.

19. The appeal is allowed and the impugned judgment

dated 12.05.2011 passed by the learned trial Court is set-

aside. The appellant has been in jail for more than 13

years. He shall be set at liberty forthwith, if not required in

any other case.

With the above, the appeal is finally disposed of.

 (Atul Sreedharan)                                  (Sunita Yadav)
      Judge                                             Judge




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