Sonu @ Sanjay vs The State Of Madhya Pradesh
2021 Latest Caselaw 3784 MP

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 HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
      DIVISION BENCH: HON'BLE SHRI JUSTICE VIVEK RUSIA &
           HON'BLE SHRI JUSTICE SHAILENDRA SHUKLA
                 CRIMINAL APPEAL No.343/2014

                Sonu @ Sanjay s/o Mahendra Parmar
                                vs.
                           State of M.P

                                  ******

            Smt.Sharmila Sharma, learned counsel for the appellant.
            Shri Sudanshu Vyas, learned Govt. Advocate for the State.

                             JUDGMENT

(Delivered on 31.07.2021) Per Vivek Rusia, J:

Appellant has filed the present appeal being aggrieved by the judgment dated 17.01.2013 passed in Sessions Trial No.564/2011 by 14th A.S.J, Indore whereby he has been convicted under section 302 IPC and sentenced him to undergo life imprisonment with fine of Rs.1,000/-, in default of payment of fine, further RI for 2 months.

2. As per prosecution story, on 18.01.2011 near about 17.30 hrs. deceased Smt.Mohini along with her four children, out of her ex- husband reached to the house of her second husband i.e. the appellant situated at 540, Bhil Colony, Musakhedi, Indore. The appellant objected as to why she has brought her children with her and started a quarrel. Thereafter, he closed the door and poured kerosene oil on her from the stove and set her ablaze. The deceased has got extinguished the fire by pouring water from the pot. After hearing her screaming voice, her brother-in-law Santosh, mother Leelabai and sister Meenabai went inside the house and after braking the window of the room rescued her took her to M.Y Hospital, Indore.

3. On 20.01.2011 at 19.00 hrs. Mohini lodged a report against the appellant that she got married with the appellant one and half years ago but he was not ready to accept her with 4 children and thereafter started harassing her and after leaving her first husband, she is residing with him. She has further alleged that on the date of incident i.e. 18.01.2011 her brother-in-law Santosh, mother Leelabai and sister Meenabai went to leave her in the house of the appellant because they

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had an apprehension that he would create a dispute in respect of keeping her children along with them. On the basis of the aforesaid report, a Dehati Nalishi was registered followed by registration of an FIR at crime No.64/2011 for the offence punishable u/s 307 IPC. On 20.01.2011 at 01.30 hrs. the Nayab Tahsildar, Indore recorded the dying declaration of the deceased Mohini. The contents of the dying declaration are reproduced below:

dFku uke %& Jhefr eksfguh ifRu lksuw mez 37 o"kZ, fuoklh 540 Hkhy dkyksuh ewlk[ksM+h bankSj dFku ysus dk LFkku %&0 ,e-ok; gkWfLiVy] bUnkSj fnukad o le; %& [email protected]@2011 at 1%30 P.M. iz'u %& rqEgs D;k gqvk gSA mŸkj %& eSa ty xbZ gwaA iz'u %& ;s lc dSls gqvkA mŸkj %& esjs ifr lksuw us ?kklysV Mkydj tyk fn;kA iz'u %& fdlh ls >xM+k gqvk Fkk FkkA mŸkj %& esjs ifr ls >xM+k gqvk FkkA jkst lksuw 'kjkc ih ds ?kj vkrk FkkA iz'u %& dgka ij tyk;kA mŸkj %& Hkhy dkyksuh ew[kk[ksM+h es tyk;kA iz'u %& ?kj ij ml le; dkSu & dkSu FksA mŸkj %& dksbZ ugh FkkA iz'u %& dqN dgukA mŸkj %& dqN ughA

izrki dqekj vxkfl;k uk;c rglhynkj rglhy bUnkSj

4. During treatment Mohini succumbed to the burn injuries on 01.02.2011. Accordingly, section 302 IPC was added, and charge sheet was filed before the JMFC, Indore. The trial was committed to the Sessions Court on 18.07.2011. The charge of section 302 IPC was framed against the appellant which he has denied and pleaded for trial.

5. In order to prove the sole charge against the appellant the prosecution has examined 14 witnesses and got exhibited 22 documents as Ex.P/1 to Ex.P/22. In defence, the appellant did not examine any witness but got exhibited the statement of Meenabai and Santosh recorded by the police under section 161 of the Cr.p.C as Ex.D/1 & D/2.

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6. After appreciating the evidence came on record, learned Sessions Judge has held the appellant guilty for the offence punishable under section 302 IPC and sentenced him to undergo life imprisonment, hence the present appeal before this Court.

7. We have heard Smt.Sharmila Sharma, learned counsel for the appellant and Shri Sudanshu Vyas, learned Govt. Advocate for the State. Perused the record.

The sole issue which is under consideration in this criminal appeal as whether the appellant has committed offence under section 302 of the I.P.C.?

8. The prosecution has examined Akhilesh as PW/1 who was residing in the same locality where the appellant was living and according to him there was a minor dispute between the appellant and his deceased wife. He deposed before the court that the wife of the appellant has ablaze herself and accordingly, he was declared as hostile witness. In cross examination he has stated that when the police came, the room in which the incident had taken place was found locked from outside. Siddharth PW/2 was examined as the seizure witness, but he has been declared as hostile witness because he has denied his statement recorder by the appellant before the police. Likewise, Sachin PW/3, the seizure witness has also turned hostile.

9. The prosecution has examined Dr.A.K.Lanjewar PW/7 who conducted the postmortem and according to him the deceased was burnt 40% and died because of its complication and cardiac failure. In cross examination he has admitted that all the fingers of the deceased were burnt including the thumb. Pratap Kumar Agasiya, the Naib Tahsildar was examined as PW/8 who recorded the dying declaration of deceased, and according to him, the deceased had told him that her husband used to quarrel with her daily after consuming liquor and he has burnt her by pouring kerosene oil. In cross examination he has admitted that before recording the statement he did not consult with the treating doctor . He has also admitted that she was not in a position to put the thumb impression on her in dying declaration and he had to hold her thumb for getting her thumb impression on the dying declaration.Therefore, it is clear from the aforesaid evidence that

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before recording the dying declaration the Naib Tahsildar did not obtain any opinion from the treating doctor as to whether the deceased was in a position to give her statement or not. The prosecution has not examined any doctor to establish as to whether she was in a position to give the dying declaration or not. According to the treating doctor P.W.-7 , all the fingers and thumb of the deceased were burnt but the thumb impression on the dying declaration is very clear which makes the dying declaration doubtful. In the case of K.Ramachandra Reddy and another vs. The Public Prosecutor reported in AIR 1976 SC 1994 the Apex Court has held that before recording the dying declaration there has to be an opinion by a doctor that the patient is in a position to give the dying declaration and according to the Naib Tahsildar (PW/8), the deceased was not in a position to lift her hand and put her thumb impression on the dying declaration. Hence the appellant could not have been convicted only on DD .

10. The prosecution has examined Jitendra PW/10 and according to him the incident took place one year ago and at that time he was working in the house of the appellant. Deceased came along with her brother-in-law Santosh, mother Leelabai and sister Meenabai in the house of the appellant . She called Sonu the appellant inside the room and he remained there for five minutes. Thereafter his wife has closed the door and started shouting that "vkx yx xbZ gS] vkx yx xbZ gS". They all went inside the house , they had to broke the window of the room where she was on fire . He saw her pouring water on body through a pot and thereafter she was taken to the hospital. He was declared as hostile witness. The prosecution has produced three photographs the spot map from which it is seen that there is broken window in the house of the appellant, therefore, there is no reason to doubt the testimony of PW/10 that when the wife of the appellant was burning he was not inside the house and thereafter they heard the voice "vkx yx xbZ gS] vkx yx xbZ gS" and entered into the room after breaking the window.

11. Learned trial Court has convicted the appellant on the testimony of PW/12 & PW/13. PW/12, although they are supporting the case of

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the prosecution to some extent but according to them also after hearing the screaming voice of Mohini, they entered in the house after breaking the window and Mohini was running towards bathroom in a burning condition and poured water on her. No one has deposed that at that time the appellant was in the house. It has also come in the evidence that Mohini, her mother, sister and the appellant all had consumed liquor and started fighting. In the hospital the appellant donated his blood to the deceased. According to PW/13 also after hearing the voice of Mohini from inside the house he entered the house after breaking the window and took her out. He has also not stated about the presence of the appellant in the room. He has also admitted that the appellant gave blood to the deceased in the hospital. She remained alive for 15 days after the alleged incident, therefore, it is clear from the aforesaid evidence that the prosecution has failed to prove the case beyond reasonable doubt that the appellant has burnt deceased Mohini by pouring kerosene oil on her, hence the appellant is entitled for the benefit of doubt. All the evidence which came on record suggests that she has sustained 40% burn injuries but when she was seen burning by PW/10, PW/12 & PW/13 the appellant was not there. According to PW/10 he had already come out from the house. They all entered inside the house by breaking the window. From the evidence it is established that she herself has poured the kerosene oil from the stove on her body and ablaze herself and when she could not bear the pain, she poured water on her body from the pot. It has also come on record that the appellant has created the dispute when she reached his house along with the children and according to her, he used to quarrel with her after consuming liquor. She was living as a wife with the appellant without taking legally divorce. On the basis of the evidence came on record Mohini committed the suicide by burning herself, therefore, it is an offence punishable under section 306 instead of offence under section 302 IPC as the appellant has abetted her to commit suicide.

12. In view of the above, the appeal is partly allowed and the conviction of the appellant is converted from the offence under section 302 IPC to the offence under section 306 IPC and sentenced him to

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undergo RI for ten years by maintaining the fine amount . If the appellant has already undergone ten years RI, he shall be released forthwith, if not required in any other case.

         (VIVEK RUSIA)                           (SHAILENDRA SHUKLA)
            JUDGE                                       JUDGE



       Digitally signed by HARI KUMAR C
       G NAIR
       Date: 2021.08.02 15:19:40 +05'30'
hk/