Ganpati vs The State Of Madhya Pradesh
2021 Latest Caselaw 7555 MP

                                                                        Cr.A. No.230/2012

                                          1
               HIGH COURT OF MADHYA PRADESH
                 PRINCIPAL SEAT AT JABALPUR
                            Criminal Appeal No.230/2012

                                       Ganpati

                                         Vs.

                            The State of Madhya Pradesh


Counsel for the Appellant         : Ms. Shristhi Kashyap, Ld. Adv.

Counsel for the Respondent/State : Mr. Manhar Dixit, Ld. Panel
                            Lawyer

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

                                JUDGMENT

(18/11/2021)

Per: Atul Sreedharan, J :

The present appeal has been filed against the judgement dated 19.12.2011 passed by the learned Ist Additional Sessions Judge, Chhindwara in Sessions Trial No.250/2009, by which the appellant has been convicted for the offence under Section 302 of IPC and sentenced to suffer rigorous imprisonment for life and fine of Rs. 1,000/- and additional six months simple imprisonment in default thereof.

2. The case of the prosecution is that on 13.05.2009, deceased Jyoti, a resident of Gayatri Colony, Pandurna was sleeping in the house and her husband was sleeping outside when the appellant Ganpati Dhole came there, poured kerosene oil on her and set her on fire. Her husband, PW-2 is stated to have poured water on her and put out the fire. After initial treatment, the deceased was referred to Nagpur for further treatment, where on 17.06.2009 she died. The post-mortem report reflects that the cause of death is septicemia on account of the burns. The prosecution examined twelve witnesses and the defence examined two witnesses.

3. PW-1 is Ammi Lal, who is a witness stays in vicinity. In his brief examination- in-chief, he says that he does not know that how the deceased has caught fire and that he was about 30 to 40 feet away from where she caught fire. In cross-examination this Cr.A. No.230/2012

witness only says that the deceased could not scream because she was on fire. He further states that it is correct to suggest that on the date of incident he did not see Ganpati, the appellant herein. He further says that he is ignorant of the fact whether the husband (PW-2) is the person who had set her on fire.

4. PW-2 is Jahumosas. He says he was sleeping outside the house on the date of incident as it was a warm summer night. He says the door of the dwelling place was open and around 10:00 p.m. and 11:00 p.m., he heard his wife screaming for help and there he saw from the back of the appellant herein leaving the house. He says he poured water over the deceased from a pot which quelled the fire. He further says that he took her to the hospital and from there he took her to Nagpur for further treatment. The two main witnesses in this case on whom the trial court has relied for the purpose of conviction are PW-4 and PW-7. Reliance has also been placed on the dying declaration which is Ex. P-4. PW-4 is the doctor who performed the MLC.

5. Learned counsel for the appellant has drawn our attention to the statement of PW-4 where in his examination-in-chief the doctor says that the deceased was brought to him in the night approximately at about 10:30 p.m. and he was informed that she was set on fire after pouring kerosene oil on her by some one.

6. Learned counsel for the appellant has submitted that the FIR is suspicious as the time on which the incident is supposed to have been taken place, which is noted in the FIR, is an overwriting which according to the learned counsel for the appellant was initially written as 10:00 a.m. and thereafter, corrected to 10:20 p.m. She also draws our attention specifically to the time of recording the incident before the police which is shown as 11:35 p.m. She further says that "3" is actually overwritten over "0". Under the circumstances, the learned counsel for the appellant submits that the FIR is anti-dated and anti-time as over writing is apparent. She further refers to the contents of the FIR in which the deceased says that she was awake at the time of the incident when the appellant had poured kerosene oil over her and set her on fire. This, the learned counsel for the appellant says is at complete variance with her dying declaration (Ex.P-4) wherein she says that she was asleep and after the kerosene oil was poured on her she suddenly woke up and saw that the appellant was setting her on fire. In the course of the argument while opposing the appeal, learned counsel for the State has drawn our attention to the endorsement on Ex. P-4 (dying declaration) by PW-4 where the doctor (PW-4) has noted that the deceased was conscious and fit to give statement. Recording of the statement commenced on 11:50 a.m. and ended 20 minutes thereafter at 12:10 at noon time on 14.05.2009. The right thumb impression Cr.A. No.230/2012

of the deceased is taken and the doctor has endorsed at the end that the deceased was conscious throughout. PW-10 is the scribe of the FIR. He has testified before the learned court that on 13.05.2009, he was Inspector who was on duty and he has registered the FIR bearing Crime No. 213/2009. No suggestions have been given to the witness with regard to the alleged interpolations in the FIR (Ex. P-12).

7. Leaned counsel for the State while opposing the appeal has once again referred to Ex. P-4 which is dying declaration in which the deceased has clearly stated that it was the appellant herein who had poured kerosene oil over her and set her on fire and that her husband put out the fire. Learned counsel for the State has also referred to the statement of PW-10, who was the Inspector at Police Station Pandurna, on the relevant date. Learned counsel for the State has also referred to the statement of PW-7 who is head constable at Police Station Ajni in Nagpur, who had recorded the dying declaration of the deceased, which is Ex. P-6, in Marathi, and he says on 13.05.2009 he had recorded the statement of the deceased who informed that the appellant had poured kerosene oil over her and set her on fire.

8. Learned counsel for the appellant submits that the appellant has falsely been implicated as first of all the motive has not been proved in this case and that the seizure memo only shows that a bottle of kerosene was recovered from the scene of occurrence but the measure of contents within the bottle has not been specified. She has also submitted that it is not clear from the case of the prosecution whether there was sufficient kerosene to set the deceased on fire that could have resulted in the magnitude of burns suffered by her, which is 76%. She has also further submitted that the case would be one under Section 304 Part II IPC as the deceased has died not on account of burns but due to the septicemia which had set in on account of the burns.

9. Learned counsel for the State, on the other hand, while countering the arguments put forth by learned counsel for the appellant, submits that this is not a case of circumstantial evidence where motive would play a vital role that its absence would go to the root of the prosecution's case. According to the learned counsel for the State, the dying declaration (Ex.P/4), the statement of Dr. Pradeep Dhaakad (P.W.4) and the statement of Sanjay (P.W.7) who is the police official from Nagpur who had recorded the first dying declaration in Marathi (Ex.P/6), corroborate each other along with the contents of the FIR, that it was the appellant who had committed the murder. As regards the discrepancy between the dying declaration and the FIR with regard to the State in which the deceased was at the time when the kerosene was Cr.A. No.230/2012

poured on her (which, as per the arguments of learned counsel for the appellant, is reflected in the FIR, showing that the deceased was awake and in the dying declaration that she was asleep) is insignificant. According to him, the deceased had suffered more than 70% burns and in that state minor discrepancies in the FIR and the dying declaration cannot be seen as fatal to the prosecution's case. He further submits that the FIR was merely a document to commence investigation. Likewise, he has referred to the MLC of the deceased and has argued that there is no necessity to give full description with regard to the assailant in the MLC and only purpose of the MLC is to disclose the nature of the injuries suffered by the victim and no more than that and, therefore, the absence of the appellant's name in the MLC is not fatal. Under the circumstances, learned counsel for the State submits that the findings arrived at by the learned trial court is just and proper and, therefore, the appeal be dismissed.

10. Heard the learned counsel for the parties and perused the record of the trial court.

11. We have seen the statements of the witnesses. Ammi Lal (P.W.1) is not of great relevance. His statement does not aid the prosecution or the defence. As regards Jahumosas (P.W.2), the husband of the deceased, his statement is only relevant with regard to the subsequent events as he says that he had only seen the appellant from the back. That coupled with the time at which the incident took place without any description of the lighting conditions inside the dwelling place, it would not be safe to rely upon the statement of Jahumosas (P.W.2) with regard to the identification of the appellant as he himself does not say that he saw the appellant herein committing the crime. His statement is relevant to the extent that he put out the fire which corroborates the dying declaration given by the deceased and that he had taken her to Nagpur for further treatment. It is also relevant to mention here that no oral dying declaration has been given to Jahumosas (P.W.2).

12. Learned counsel for the appellant has also referred to the statement of Rekha Bai, who is the mother of the deceased, who was examined before the learned trial court as P.W.9. Even though as prosecution witness, she had initially given her statement in support of the accused and says that an oral dying declaration was given by the deceased to her in which the deceased had stated that her husband Jahumosas (P.W.2) is the one who had burnt her. She also says that she did not recognize the appellant who was also produced before the trial court and that the deceased had not taken the name of anyone other than her husband. In her cross-examination she further states that there was tension between Jahumosas (P.W.2) and the deceased on Cr.A. No.230/2012

account of the deceased being unable to bear a child even after four years of her marriage.

13. Though this witness had turned hostile while recording her statement-in-chief on 18.1.2011, she was not declared hostile by the prosecution. Subsequently, an application was moved under section 311 Cr.P.C. belatedly and she was further examined by the trial court on 26.11.2011 where the prosecution had declared her hostile and cross-examined her.

14. Learned counsel for the appellant has submitted that the procedure adopted was unfair. She further says that under section 311 Cr.P.C. it is prohibited for the court to allow either of the parties to recall a witness for further examination in order to fill up the lacuna created in the first instance. Here, according to the learned counsel for the appellant, the further examination having done belatedly, after a passage of almost ten months, the statements made therein ought not to be given any credence.

15. As regards the statement of PW-9, with regard to the oral dying declaration which is directly opposed to the dying declaration given by the deceased is concerned, we have adequate reasons to reject the same. The witness does not give the place, date or time when the deceased had made such a statement to her. It appears more as a bald statement, an afterthought which has been stated by the witness in order to affect the case of the prosecution. It is not necessary that PW-9 had to give the precise time on which the deceased had given her the oral dying declaration but it would be essential to atleast state the location and date on which such an oral dying declaration is given especially when the same is in contradiction to the dying declaration given by the deceased herself. It may have been a different situation where the oral dying declaration was given and there was no dying declaration given to the Executive Magistrate, doctor or the police. There, the considerations may have been different. In this case, in view of the dying declaration given to the doctor who recorded the same after taking all precautions with regard to the condition and the ability of the deceased to give the dying declaration and thereafter to endorse at the end of the dying declaration that she was in a continuous state of consciousness during the time her dying declaration was recorded, compels us to give greater credence to Ex.P-4 rather than to the singular statement of PW-9 which is in contradiction to Ex.P-4.

16. Even though the overwriting in the FIR is apparent, the Investigating Officer or the scribe of the FIR has not specifically being questioned on the same. Neither has the learned counsel for the appellant been able to bring out how the same critically affects the case of the prosecution. As regards the discrepancy between the FIR and Cr.A. No.230/2012

the dying declaration with regard to the state in which the deceased was when kerosene oil was poured on her, we subscribe to the submissions putforth by the learned counsel for the State that the condition of the deceased was such that the minor variation in FIR which states that she was awake when the kerosene oil was poured on her and the slight difference brought out in the dying declaration where she says that she woke up when the kerosene oil was poured on her, is insignificant. However, if one goes by the dying declaration and the FIR, what does appear to be proved is that at the time when she was set on fire, the deceased was awake. Besides, the FIR is merely a document that initiates investigation, so minor discrepancies in the FIR would not go to affect the prosecution's case. Likewise, as regards the MLC, the doctor is not expected to give an elaborate background with regard to the case as to how the deceased had caught fire and suffered the injuries. All that the MLC is required to disclose is the number of injuries suffered by the victim, the nature of the injuries and the manner by which the injuries may have been caused. As regards the contention of the learned counsel for the appellant that the offence would be one under Section 304-II of IPC, we are unable to agree with the same. The act of the appellant was so inherently dangerous that it would have in all probabilities only caused the death of the deceased which was well known to the appellant also. In the present case, the act of the appellant cannot be brought into any of the four exceptions of Section 300 of IPC by which we could arrive at the conclusion that his act would qualify not as murder but one of culpable homicide not amounting to murder.

17 Therefore, in view of what has been argued and considered by us herein above, we find no merit in this appeal and the same is dismissed.

18. We, however observe that according to the learned counsel for the appellant, the appellant has completed more than 17 years of his jail sentence including the period of remission. If that be so, the State shall be at liberty to consider granting remission to the appellant, if it is of the opinion that this is a fit case to do so.

19. With the above, this appeal is finally disposed of.

         (Atul Sreedharan)                                         (Sunita Yadav)
            Judge                                                      Judge


ps/vinay/astha
Digitally signed by
VINAY KUMAR VERMA
Date: 2021.11.23
17:55:24 +05'30'