Ramsingh Dhumketi vs The State Of Madhya Pradesh
2021 Latest Caselaw 7341 MP

IN THE HIGH COURT OF JUDICATURE FOR MADHYA
            PRADESH AT JABALPUR

S.B : HON.SHRI JUSTICE SATYENDRA KUMAR SINGH

                    Cr.A. NO.2681/2015

                     Ramsingh Dhumketi
                              Vs.
                         State of M.P.

      Shri Raman Patel and Shri Arun Kumar Paroha, learned
      counsel for the appellant.
      Shri Anil Upadhyay, learned Panel Lawyer for the
      respondent/State.


                             ORDER

(12/11/2021)

The appellant has preferred this appeal under Section

374 (2) of the Code of Criminal Procedure, 1973 (2 of 1974)

against the judgment dated 21 st August, 2015 passed by the

Court of Sessions Judge, Mandla whereby the appellant has

been convicted under Section 326A of the Indian Penal Code

and sentenced to undergo rigorous imprisonment for 10 years

with fine of Rs.5,000/-, in default of payment of fine,

additional rigorous imprisonment for 6 months.

2. Prosecution story, in brief, is that on 13/4/2014 at about

9.00 p.m. when deceased-Indrabai and her younger son Yogesh

Dhumketi (PW-1), aged about 10 years, were sleeping in their

house, her husband-appellant came there and took kerosene

from the lantern into a steel glass, poured the same on the body

of the deceased and set her on fire with a match. On hearing

shriek of deceased, neighbour-Godhanlal (PW-8) reached on

the spot and along with Yogesh Dhoomketi (PW-1) tried to

save her by throwing towel and water. They along with other

people of the village took her to Primary Health Centre,

Bichhiya on 14/4/2014, where Dr. D.K. Taksande (PW-14)

admitted her in the hospital and vide letter Ex.D/1 informed

the Police Station, Bichhiya. On the same day, after getting

letter (Ex-P/21) from Police, medically examined the

deceased and found kerosene burnt injuries on various parts

of her body and gave report Ex.P/21A. On the same day, at

12.45 p.m. he recorded dying declaration of the deceased and

after providing preliminary treatment, vide letter (Ex.P/26)

referred her to District Hospital, Mandla, where at about 8.40

p.m., Dr. A. Husain (PW-11) examined and found her in 50%

burnt condition. Dr. Tilgam vide letter (Ex.P/17) informed

the Police of Police Station, Mandla for getting recorded her

dying declaration. On 15/4/2014 Executive Magistrate-

Vinod Kumar Maravi (PW-15) recorded her dying

declaration (Ex.P/18).

3. On 17.05.2014 deceased was discharged from District

Hospital, Mandla and her son and other relatives of the

deceased brought her to Village Ghurbada and thereafter her

sister's house in Village Bhada where on 13/6/2014 at about

7.00 p.m. she succumbed due to burn injuries. On 14/6/2014

at about 8.30 p.m. merg intimation report (Ex-P/1) was

registered at Police Station, Bichhiya, on the report of

Sanjeev Uikey (PW-2) brother of the deceased. On the same

day, Police prepared Naksha Panchayatnama (Ex-P/4) and

seized one lantern, iron tin having kerosene smell, one steel

glass having smell of kerosene, one match box having burnt

sticks from the spot and at the instance of appellant also

seized his apparels having kerosene smell and prepared

seizure memos Ex.P/11 and P/12 respectively. On the same

day, he sent the dead body of the deceased to Primary Health

Centre, Bichhiya where at about 11:30 a.m. Dr. D.K.

Taksande (PW-14) conducted post-mortem of the deceased

and opined that the cause of death of the deceased was

Toxemia developed due to burn injuries and prepared post-

mortem report (Ex.P/27).

4. After completion of investigation, charge sheet was

filed against the appellant under Sections 307, 302, 498-A of

Indian Penal Code before the Court of Judicial Magistrate

First Class, Mandla who committed the same to the Court of

Session vide order dated 15/7/2014.

5. Learned trial Court after considering the material,

prima facie, available on record, framed charge under Section

302 of the Indian Penal Code against the appellant. The

appellant abjured his guilt and prayed for trial. In his

statement recorded under Section 313 of Cr.P.C, the appellant

pleaded his false implication in the matter as deceased-

Indrabai resided separately from him and on the date of

incident he was sleeping with his first wife -Gangabai. In his

defence, appellant examined Gangabai and other two

witnesses in his defence.

6. Learned trial Court, after appreciating the oral as well

as documentary evidence available on record, recorded a

finding that prosecution proved the case beyond reasonable

doubt against the appellant under Section 326A of IPC,

therefore, vide impugned judgment dated 21 st August, 2015

convicted him under Section 326A of IPC and sentenced him

to suffer rigorous imprisonment for ten year along with fine

of Rs.5,000/- with default stipulation. Being aggrieved with

the said judgment of conviction and order of sentence, the

appellant has preferred this appeal for setting aside the

impugned judgment and discharging him from the charge.

7. Learned counsel for the appellant submits that learned

trial Court has committed a legal error while appreciating the

evidence available on record. Learned trial Court has totally

ignored the defence version to the effect that on the date of

incident deceased resided separately from the appellant and

the incident took place due to fire while lighting the stop.

Most of the prosecution witnesses have turned hostile and not

supported the prosecution story. It is also submitted by him

that deceased died after two months of the incident due to

infection upon her wounds. Dr. D.K. Taksande (PW-14), in

his statement recorded during trial, has deposed that the

injuries sustained by the deceased were of simple in nature

and were recoverable within 15-20 days. There is much

contradictions and omissions in the statement of the

prosecution witnesses recorded during investigation under

Section 161 of Cr.P.C. and recorded during trial. Learned

trial Court has totally ignored this important legal aspect.

The appellant has falsely been implicated. Thus, by setting

aside the impugned judgment of conviction and order of

sentence, the applicant may be acquitted from the charge.

8. Per contra, learned counsel for the respondent/State

while supporting the impugned judgment of conviction and

order of sentence, submits that the judgment passed by the

trial Court is based on proper appreciation of evidence and

material available on record as the same is well reasoned

establishing the guilt of the appellant beyond reasonable

doubt. It is also submitted by him that deceased succumbed

due to burnt injuries caused by the appellant and the

allegations alleged against the appellant are of serious in

nature, therefore, while affirming the impugned judgment of

conviction and order of sentence, the appeal filed by the

appellant may be dismissed.

9. Having considered the rival submissions of learned

counsel for the parties, statement of prosecution as well as

defence witnesses and other material produced on record

during trial, it is not disputed that the appellant after marrying

Gangabai (DW-1), kept deceased -Indrabai as a second wife

and was living with both of them separately for last more

than 20 years. The appellant is having three daughters with

Gangabai while two sons with deceased-Indrabai namely

Arvind aged about 18 years and Yogesh aged about 10 years.

10. It is also not disputed that on 13/04/2014 at about 9.00

p.m. deceased-Indrabai was burnt at her house. On hearing

her shriek, Godhanlal (PW-8) reached there and found her in

burning condition. Yogesh (PW-1) and Godhanlal (PW-8)

threw water and towel respectively on her body to save her.

On the next day, they along with other people took the

deceased to Primary Health Centre, Bichhiya where Dr. D.K.

Taksande (PW-14) attended and admitted her in the hospital

in burnt condition. He, vide letter Ex.P/21, informed Police

Station, Bichhiya about admission of the deceased in the

hospital.

11. It is also not disputed that Dr. D.K. Taksande (PW-14)

after receiving the letter Ex.P/21 from A.S.I. Ramakant

Sriwas (PW-13) examined deceased-Indrabai and found burnt

injuries on her face, neck, shoulder, chest, left hand and other

parts of the body having kerosene smell and gave his report

Ex.P/21-A. On the same day after providing preliminary

treatment, he vide letter dated 14/4/2014 (Ex.P/26) referred

the deceased-Indrabai to District Hospital, Mandla where on

the same day at about 8.40 p.m., Dr. A. Husain (PW-11)

attended deceased and found her in 50% burnt condition as

mentioned in Bed Head Ticket Ex.P/16. He treated her till

17/05/2014 and advised to shift her Jabalpur as facilities of

burn unit was not available at District Hospital, Mandla.

12. It is also not disputed that on 17/5/2014 deceased

discharged from District Hospital, Mandla and Sanjeev Uike

(PW-2), brother of the deceased along with Arvind Dhumketi

(PW-4), son of the deceased, took her first to Village

Ghurwada for local treatment and thereafter shifted to

deceased's sister's house at village Bhada where she died on

14/06/2014.

13. Now the disputed issues are as follows :

(i) Whether the deceased-Indrabai died due

to burn injuries sustained by her on the date of

incident.

(ii) Whether the appellant intentionally set her

fire to cause above injuries.

14. Dr. D.K. Taksande (PW-14) has deposed that on

14/042014 when he medically examined deceased-Indrabai,

he found burnt injuries on her face, neck, shoulder, chest, left

hand and other parts of the body. In para-16 of his cross-

examination, although he deposed that nature of all the

injuries found on the body of the deceased were simple in

nature but at the same time, he also deposed that he referred

the deceased to District Hospital, Mandla for further

treatment.

15. Dr. A. Husain (PW-11) deposed that on the same day

i.e. 14/4/2014 at about 8.40 p.m. he found deceased in 50%

burnt condition. He further deposed that he along with Dr.

Yadav treated the deceased in District Hospital, Mandla till

17/5/2014 and advised her to shift her to Jabalpur as her

condition was serious and facilities of burnt unit was not

available in District Hospital, Mandla. Dr. A. Husain (PW-

11) has admitted in his cross-examination that patient of burn

injuries' case requires care and treatment even after

improvement in their condition. He also admitted that during

treatment of the deceased at District Hospital, Mandla, her

condition was improved and if better treatment be provided to

her she could be saved.

16. In the present case, Sanjeev Uike (PW-2) and Arvind

Dhumketi (PW-4), both, have stated that due to their poor

financial condition, they brought the deceased to Village

Ghurbada for local treatment, therefore, it cannot be said that

after discharge from the District Hospital, Mandla, proper

care and treatment was not provided to the deceased and as

stated by Dr. D.K. Taksande (PW-14), Toxemia developed in

her body because of infection in her burnt injuries and she

died.

17. In view of aforesaid discussions, only on the basis that

initially the nature of injuries found on the body of the

deceased were of simple in nature and she died after about

two months of the incident, it cannot be said that her death

was not caused because of burnt injuries found on her body

on the date of incident. On the basis of medical evidence

produced on record, it is proved that deceased died due to

burn injuries sustained by her on the date of incident.

18. So far as the issue with regard to burn injuries found on

the body of the deceased were intentionally caused by the

appellant is concerned, prosecution case is mainly based on

the statement of deceased's son Yogesh (PW-1) aged about 10

years and her neighbour Godhanlal (PW-8) and also two

dying declarations of the deceased dated 14/04/2014

(Ex.P/20A) and 15/04/2014 (Ex.P/18) recorded by Dr. D.K.

Taksande (PW-14) and Executive Magistrate- Vinod Kumar

Maravi (PW-15) respectively.

19. The defence witnesses have tried to establish that

Yogesh was living with the appellant's first wife Gangabai

and at the time of incident also he was living with her and

was not present on the spot. Gangabai (DW-1) deposed that

she is not having any male child, therefore, deceased's

younger son Yogesh was living with her and at the time of

incident also he was with her in her house. Nainsingh

Dhumketi (DW-2) and Krishna Kumar Bakhde (DW-3) have

also deposed that at the time of incident, Yogesh was living

with Gangabai. But, the fact that at the time of incident

Yogesh was living with Gangabai and was not present on the

spot was not suggested on behalf of the appellant to Yogesh

(PW-1) during his cross-examination, however, on the

contrary in para-3 of his cross-examination, it has been

suggested that at the time of incident, no one except he and

his mother i.e. deceased were present on spot.

20. Godhanlal (PW-8), neighbour of the deceased has

stated that on hearing shriek of the deceased when he reached

the spot, deceased's younger son Yogesh was there and was

throwing water on her body to save her, therefore, statement

of defence witnesses with regard to this version seems to be

after thought and unbelievable at all. Yogesh (PW-1) is a

younger boy aged about 10 year. He, in para-4, of his cross-

examination, deposed that presently i.e. at the time of making

statement, he was living with her Badi Maa Gangabai,

therefore, probability to tutor him also come to an end.

21. Yogesh (PW-1) has deposed that on the date of incident

at about 9.00 p.m. when he was sleeping with his mother

deceased-Indrabai, his father came there and took kerosene

into steel glass from lanternand poured the same on his

mother and set her on fire. He further deposed that on

hearing his shriek, his neighbour Godhanlal came there.

Both of them threw water and towel on the body of the

deceased to save her. Godhanlal (PW-8) has turned hostile

but even then he stated that on hearing shriek of the deceased

when he reached deceased's house, he found deceased sitting

near the door of her house in burning condition. He further

stated that he threw his Gamchha over her while deceased's

younger son Yogesh was throwing water on her. There is

nothing on record due to which presence of Yogesh on the

spot and his statement about incident can be disbelieved.

22. Although ASI-Ramakant Srivas (PW-13) admitted in

para-10 and 12 that on 14/4/2014 at about 7.00 to 8.00 p.m.

when he reached the hospital, deceased told him that she

sustained burnt injuries to fire while lightening the stove as

mentioned in the application for medical examination

(Mulahija form) Ex.P/21. But, he also stated that deceased in

her statement recorded under Section 161 of Cr.P.C. had

stated that the appellant after pouring kerosene on her, set her

on fire.

23. Dr. D.K. Taksande (PW-14) deposed that on 14/4/2014

deceased in her dying declaration Ex.P/20A had stated that

the appellant took the kerosene in a steel glass from lantern

and poured the same on her body and then set her on fire.

Executive Magistrate Vinod Kumar Maravi (PW-15 also

deposed that on 15/4/2014, he, after getting fitness certificate

from the concerned doctor, recorded her dying declaration

Ex.P/18 in which she had stated that her husband poured

kerosene on her body and set her on fire in presence of his

son.

24. Defence witnesses Gangabai (DW-1), Nainsingh

Dhumketi (DW-2), Krishna Kumar Bakhade (DW-3) have

stated that when they reached the spot, deceased told them

that she herself set her on fire but their statement do not

found support from any other evidence produced on record.

Per contra, statement of prosecution witness Yogesh (PW-1)

finds support from the dying declarations Ex.P/20A and P/18,

recorded by Dr. D.K. Taksande (PW-14) and Executive

Magistrate Vinod Kumar Maravi (PW-15) respectively,

therefore, prosecution has very well proved his case beyond

reasonable doubt that on 13/4/2014 at about 9.00 p.m. the

appellant took kerosene from lantern into a steel glass and

poured the same on the body of the deceased and set her on

fire due to which she sustained burnt injuries and thereafter

died due to Toxemia developed because of infection on above

injuries.

24. Thus, in view of aforesaid discussions, this Court does

not find any illegality, perversity and arbitrariness in the

finding recorded by learned trial Court while convicting the

appellant, hence the impugned judgment of conviction and

order of sentence passed by learned trial Court is hereby

affirmed.

25. Accordingly, this appeal filed on behalf of the

appellant is hereby dismissed.

(Satyendra Kumar Singh) Judge ts

TULSA SINGH 2021.11.12 16:38:55 +05'30'