Mahesh vs State Of M.P.
2021 Latest Caselaw 7212 MP

                                  - : 1 :-




HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
         D.B.: Hon'ble Shri Justice Vivek Rusia
       Hon'ble Shri Justice Shailendra Shukla, JJ.

                    Criminal Appeal No.1123/2008
       Mahesh S/o Bharatlal Prajapati, aged
       about     47      years,    Occupation- Appellant (s)
       Agriculturist, R/o Dhargaon Maheshwar,
       Khargone

                                 Versus
       State of Madhya Pradesh through Police
       Station - Mandleshwar, District Respondent (s)
       Khargone, M.P.
Shri Girish Desai, learned counsel for the appellant.( Through Legal
Aid)

Shri Amit Singh Sisodia, learned Government Advocate for the
respondent/State.


                          JUDGMENT

(Heard and reserved on 23.10. 2021) (Delivered on 10.11.2021)

PER VIVEK RUSIA, J: -

Appellant has preferred this appeal under Section 374 of the Code of Criminal Procedure, 1973 (in short "Cr.P.C.") against the judgment of conviction dated 08.08.2008, passed by Special Additional Sessions Judge, SC/ST West Nimar in Sessions Trial No.182/2007, by which the appellant have been convicted for an offence under Sections 302 of Indian Penal Code (for short "IPC") and sentenced to undergo life imprisonment.

(2) The case of the prosecution, in brief, is as follows: -

(a) As per admitted facts of this case Chandrakala (PW-4) is wife, Reena (hereinafter referred to as " deceased") and Lokesh (PW-3) are daughter and son of Mahesh (hereinafter referred to as " appellant/accused"). At the time of the incident, they were residing

- : 2 :-

near the house of Inder Singh at Village Dhargaon. On 20.08.2007 near about 03:00 Pm Bhuvan Singh (PW-1), a neighbour of the appellant/accused, was crossing the house of the appellant/accused saw that the appellant poured kerosene oil upon his daughter Reena and set her into the fire. She came outside the house shouting for help . Inder Singh (PW-2), Mandan (PW-5), Kailwash (PW-6) and Vimal (PW-7) came to rescue her. Chandrakala (PW-4), the mother of the deceased also came there and extinguished the fire by putting mattress (Godari). As per the admitted fact, the appellant/accused was tied up by the rope and handed over to the police. The deceased was admitted to the Mandleshwar Hospital where she was medically examined by a medical officer, who found burn injuries all over the body and looking to her serious condition referred to M.Y. Hospital vide Ex.P/8. She remained in the treatment 4-6 days and succumbed to burn injuries. Her dying declaration was recorded in which she had specifically alleged that her father i.e. the appellant poured kerosene and ablaze because he wanted to sale the house. The doctor has certified that the patient was fully conscious before, during and after recording the statement at 04:30 PM on 20.08.2007.

(b) Initially an FIR was registered under Section 307 of I.P.C. on 20.08.2007 against the appellant/accused on the basis of Dehati Nalish No.0/07 (Ex.P/1) and FIR Ex. P/1-A respectively. The deceased died on 26.08.2007. Information was sent to the Police Station. Safina form was drawn and thereafter Naksa Panchanama (Ex.P/4) was prepared in presence of five witnesses. The dead body was sent for postmortem and the same was carried out by Dr. N.M. Und (PW-8) opined that death was a cardiac respiratory failure as a result of burn and its complication. The police have seized five-litre plastic cane, burn cloths with the smelling kerosene and sent them to FSL. The police recorded the statement of witnesses and completed the investigation, filed the charge-sheet before the Judicial Magistrate First Class, who committed the case to the Additional Sessions Judge on 28.11.2007.

- : 3 :-

(3) The learned Additional Sessions Judge framed the charges on 02.01.2008 under Sections 302 of I.P.C. against the appellant/accused, which was denied by the appellant and pleaded for trial.

(4) The prosecution has examined as many as 14 witnesses as PW-1 to PW-14 and got marked 15 documents as Ex.P/1 to Ex. P/15. In defence, the appellant examined himself and got exhibited 8 documents while cross-examining the prosecution witnesses.

(5) The appellant came up with defence that his wife Chandrakala (PW-4) was having illicit relationship with Bhuvan Singh (PW1), Vimal (PW-7), he used to object their visiting in his house hence to eliminate him, he has been falsely implicated by all of them. He had also lodged a report in the police station against them. On 19.03.07, he went to Village Kavana and stayed there the night. On the next date i.e. 20.08.2007 near about 02:30 to 02:45 Pm he came back home and found a crowd in front of his house including Bhuvan Singh (PW-1), Inder (PW-2), Manohar, Popsingh, Vimal (PW-7) etc. They assaulted him and tied him and thereafter brought him to the police station. He did not set his daughter on fire , he has been falsely been implicated by the Bhuvan Singh, Inder, Vimal etc in connivance with his wife.

(6) After evaluating the evidence that came on record, the learned Additional Sessions Judge has held that the defence taken by the appellant is not acceptable for want of evidence but on the basis of evidence produced by the prosecution, the appellant did ablaze her 19 years daughters ,did not try to save her and ran away due to which she died, hence, he has held guilty for the offence punishable under Section 302 of I.P.C. Accordingly, he has been punished as stated above.

(7) Shri Desai, learned counsel for the appellant/accused submitted that this appellant/accused has falsely been implicated in this case by his wife and all the prosecution witnesses. He had lodged a report against Bhuwan Singh (PW-1), Indar Singh (PW-2) and Vimal (PW-7) in Police station which Chandrakala (PW-4) has admitted in her cross-

- : 4 :-

examination. The earlier appellant with his family used to live in Mandleshwar, after selling the house they came to village Dhargaon. Here also her wife has indulged in sinful activities, therefore, he was insisting on selling the house but wife, son and daughter were not agreed to it. On the date of the incident, he was not on the spot but he came there, later on, he was beaten, tied up and produce before the police. He was medically examined in which certain injuries were found. All the witnesses against whom the appellant/accused made allegation for false implication are interested witnesses , therefore, they are no trustworthy witnesses and their testimony is liable to be discarded. It is further submitted that the appellant is in jail since 14 years if this court concludes that he ablazed his daughter then it would be a case of culpable homicide not amounting to murder, hence offence under Section 304 Part I of I.P.C. is made out for which he has already undergone more than 10 years jail sentence, hence, he may kindly be released from jail.

(8) Learned Government Advocate opposing the aforesaid prayer, has argued in support of findings given by learned Additional Sessions Judge that not only the witnesses, his wife and son deposed in the court against him. There is a dying declaration against him, which was given by the deceased in full conscious condition. The defence put forth by the appellant is not supported by the evidence, hence, rightly been discarded by the Court. Thus appeal is liable to be dismissed.

We have heard learned counsel for the parties and perused the record of the trial court.

(9) Prosecution has examined C.L. Darbi as PW-14 stated that on the date of incident he was posted as Sub-Inspector at P.S. Mandleshwar. He received information through telephone near about 03:05 pm on 20.08.2007 from Bhuwan Singh (PW-1) that the appellant has set fire his daughter by pouring kerosene. He recorded the same in the Rojnamacha No.974 Ex. P/14 and proceeded to the address given on the telephone. He found a crowd in front of the house of the

- : 5 :-

appellant/accused and Bhuwan Singh was also found there. He recorded the Dehati Nalishi on the spot, took the statement of Bhuwani Singh and arrested the appellant/accused. Injured Reena had already been taken to the hospital by her mother. He prepared a spot panchanama Ex. P/2, recovered five-litre kerosene cane (yellow color), half-burned Duptta,Salvar and Kurti.

(10) Dr. Sarika Mandloi (PW-9) posted at Community Health Center Mandleshwar states that on 20.08.2007 Omprakash brought daughter of the appellant in the burn condition at 04:06 pm. He sent MLC to the Mandleshwar Police Station. She examined her and found burn injuries all over her body and the smell of kerosene. She was conscious but serious, hence, she has referred her to M.Y. Hospital. In the hospital during treatment one police officer recorded the statement of the deceased as she was fit for the giving statement i.e. Ex.P/9.At the time of giving the dying declaration, Reen's brother, her brother's wife and mother were also present. In Ex.D/7, she admitted her signature. She has denied the suggestions given by the defence counsel that she did not record the statement and prepared the Ex.D/7 in connivance with brother of the deceased. In view of the above, we have no reason to doubt the statement Dr. Sarika Mandloi (PW-9) and dying declaration. . Appellant was produced by Constable Rajendra and from his shirt also there was the smell of kerosene. Minor scratches were found behind his ear. She remained in the hospital for four days and succumbed to injuries. Her autopsy was conducted by Dr. N.M. Unda and according to him, she died because of death was a cardiac respiratory failure as a result of burn and its complication. He was not cross-examined by the defence counsel, therefore, there is no reason to disbelieve his testimony and there is no challenge to it, hence, we hereby held that the death of Reena is homicidal.

(11) Now the issue is whether the appellant has rightly been convicted under Section 302 of I.P.C. for committing murder of her daughter ?

- : 6 :-

(12) Apart from other witnesses like Bhuwan Singh (PW-1), Indar Singh (PW-2), Madan (PW-5), Kailash (PW-6) and Omprakash (PW-

10), the prosecution has examined son i.e. Lokesh as PW-3.According to him on the date of the incident at 03:00, he was sitting in his shop. Sunita Bai informed her that his father put the Reena on fire and She has been taken to the Mandleshwar Hospital. In the Mandleshwar Hospital as well as in M.Y. Hospital Reena has told him that the appellant has set her on fire after pouring kerosene. He further deposes that prior to the date of incident, his father used to quarrel in the house, even on the night of Sunday, he had an altercation with others in respect of the sale of house, consumption of liquor and because of his conduct, a report has also been registered at Police Station. In cross-examination, he has stated that the house at Mandleshwar was sold by his father and his brother with their consent. Thereafter, his father purchased the house in Dhargaon village and they are residing for the last eight years. He has denied that his father used to object to visiting Bhuwani Singh and Vimal in his house. He had no information about the lodging of report against them. He has supported the dying declaration and denied the allegation that Reena was three months pregnant at the time of the incident. He has also denied the relation of her mother with Bhuwani Singh and Indar and because of this, his father wanted to sell the house and settle some other place.

(13) Chandrakala (PW-4) has also been examined and she fully supported the case of the prosecution. According to her when her daughter Reena was polishing the idols, after hearing the voice, she reached near to Reena and found her burning at that time the appellant was sitting next to her. She has put the mattress (Godari) and extinguished the fire. They took her to Mandleshwar hospital, thereafter Choithram Hospital and after three days, she died. She has stated that her husband used to demand money for the consumption of liquor and fight her. In presence of the Doctor and police, the deceased gave her statement against this appellant. She has also denied the

- : 7 :-

allegation of illicit relations with others and the false implication of this appellant. At the time of the incident, Kailash was major and aged about 22 years. He was capable to understand the implication of the statement before the Court. He has fully supported the case of the prosecution. The appellant has not given any suggestion as to why his son has given evidence against him. He has made an allegation against her wife and other witnesses about false implication but no allegations have been made against Reena and Kailash that they have also involved his false implication. When the prosecution has been able to prove the cause of death and dying declaration in examining the son and wife of the appellant in which they have specifically alleged against the appellant to establish the guilt of accused beyond a reasonable doubt. As per as per illustration A of section 106 of the Indian Evidence Act, when a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. He came up with the defence that he has been falsely implicated because his wife was having an illicit relationship with other witnesses namely Bhuwan Singh and Vimal but he has failed to discharge himself from the aforesaid burden.

(14) Apart from this, Bhuwan Singh (PW-1) has found the deceased coming out of the house in burn condition and shouting for help. The appellant was trying to flee away from the spot but he was caught by him and others and tied up, however, he admitted that Reena was coming out by rolling is not recorded in the police statement. There is also an omission that she was shouting. Indar (PW-2) deposed that at about 03:00 pm, he ran towards the house of appellant along with Kailash, Madan and Vimal and extinguish the fire and thereafter called the police. He took her to the hospital along with mother and brother. He has also supported the seizure of five-litre cane and burn clothes etc. He has denied enmity with the appellant and lodging the report against him and Bhuwan Singh.

- : 8 :-

(15) Madan (PW-5) has supported the case of the prosecution and according to him he saw Reena coming out in burn condition and other witnesses reached there and extinguish the fire and took her to the hospital. He has admitted that he is an employee of Bhuwan Singh since the last nine years and Bhuwan and Indar used to visit the house of the appellant. Kailash has been examined as PW-6, who has also supported the case of the prosecution against whom the appellant has not made any allegation about illicit relation, therefore, there was no reason for Kailash to depose against this appellant. Likewise, Vimal (PW-7), Omprakash (PW-10) have also supported the case of the prosecution. Over and above all there is a dying declaration of the deceased herself in presence of the doctor.

(16) In view of the above discussion, we hereby affirm the judgment of conviction dated 08.08.2008, passed by Special Additional Sessions Judge, SC/ST West Nimar in Sessions Trial No.182/2007.

This Criminal Appeal is hereby dismissed.

Let a record of the trial court be sent back along with judgment.

Certified copy as per Rules.

               ( VIVEK RUSIA )                       ( SHAILENDRA SHUKLA )
                   JUDGE                                    JUDGE


               praveen/-


Digitally signed by PRAVEEN
NAYAK
Date: 2021.11.11 09:44:49
+05'30'