Madanlal Bheel vs State Of M.P.
2021 Latest Caselaw 5100 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.732/2009

Appellant:                Madanlal Bhil s/o Shri Bherulal
(Accused in jail)         Aged-30 years, Occ.- Agriculturist
                          Thana Sitamau, Distt. Mandsaur.

                                   Vs.

Respondent:               State of Madhya Pradesh Through
                          Police Station Sitamau
                          District- Mandsaur (MP)


             Shri Vivek Singh, learned counsel for the appellant.
             Shri Amit Singh Sisodiya,learned Government
             Advocate for the State.


                           JUDGMENT

(Delivered on 07.09.2021) Per Vivek Rusia, J:

Appellant has filed this appeal against the judgment dated 25.06.2009 passed by Sessions Judge, Mandsaur by which he has been convicted under section 302 IPC and sentenced to undergo life imprisonment with a fine of Rs.500/-.

The prosecution story in short is as under:-

2. The appellant was married to Kantibai, daughter of Radheshyam 15-20 years ago. They had one son and a daughter. Since the last 6-7 months from the date of the incident, they were living in the house of Radheshyam. On the night of 10.5.2008, all went to sleep after taking dinner. The appellant and Kantibai were sleeping separately in a room. The appellant had already consumed the liquor in the evening. He was insisting his wife Kantibai returning with him to village Fatehpur for which she was not willing. Being annoyed with the aforesaid, he spread cattle dry grass (Chara ) over her and set her on the fire and ran away from the house. After hearing the screaming voice, the father and mother (Leelabai and Radheshyam) of Kantibai rushed inside the

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house and found that the chest, stomach and private parts of Kantibai were burnt. After extinguishing the fire they immediately took her to the Govt. hospital. The information (MLC) was sent at 1.30 hrs. to the police station Sitamau. She was referred to Civil Hospital Mandsaur for further treatment. Dr.Suryavanshi recorded the dying declaration of Kantibai vide Ex.P/12. The Nayab Tahsildar has also recorded her dying declaration vide Ex.P/20. She died on 15.5.2008 while taking treatment and the information to that effect was sent to the police station vide Ex.P/3. After registration of the Marg, police reached the spot, prepared Naksha Panchnama and the dead body was sent for postmortem. As per the postmortem report (Ex.P/21), deceased Kantibai was reported to be died due to burn injuries. Accordingly, an FIR was registered under section 302 IPC against the appellant. From the spot the police have recovered the burnt mattress and blanket and an empty bottle of liquor vide seizure memo Ex.P/9 and all those articles were sent to the FSL. After recording the statement of the witnesses u/s 161 Cr.P.C and completing the investigation charge sheet was filed before the JMFC, Sitamau for the offence punishable under section 302 I.P.C. against the appellant. The trial was committed to the Sessions Court and a charge under section 302 IPC was framed against the appellant which he denied and pleaded for trial.

3. The prosecution has examined 15 witnesses and got exhibited 20 documents as Ex.P/1 to Ex.P/20. In defence, the appellant did not examine any witness but got exhibited the statement of Leelabai and Radheshyam as Ex.D/1 and D/2 respectively. After evaluating the evidence that came on record learned Sessions Judge has convicted the appellant under section 302 IPC and sentenced to undergo with life imprisonment, hence the present appeal before this Court.

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

4. Uncontroverted facts are that the appellant and deceased were husband and wife. Their marriage took place 15-20 years ago. At the time of the incident, both husband and wife were in the house of

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Radheshyam, PW/4 and Leelabai PW/5. In the night after taking dinner, all went to sleep. Appellant and wife were sleeping inside the house and Leelabai and Radheshyam were sleeping outside the house. The deceased sustained burn injuries on the night of 10.5.2008 and succumbed to injuries on 15.5.2008.

The sole issue for consideration in this appeal is whether the appellant has committed the offence under section 302 IPC by putting Kantibai into the fire on 1.05.2008 which resulted in her death on 15.5.2008?

5. As per the testimony of Radheshyam and Leelabai P.W.4 and P.W.-5 the appellant and his daughter were sleeping in his house, the appellant wanted to take his daughter back to his village for which she was not ready. On 10.5.2008 they were sleeping outside their house and appellant was sleeping with his wife inside. They heard a screaming voice of Kantibai and they found her burning in the room alone and the appellant fled away. They immediately extinguished the fire by pouring water and other villagers also came to the spot after 10- 15 minutes. He has specifically denied using a kerosene lamp because he has an electricity connection in his house, therefore burning from lamp has been ruled out. Bhanwar PW/6 along with others also reached the spot and found Kantibai burning. He helped Leelabai and Radheshyam extinguishing the fire.

6. Dr.S.G.Suryavanshi, PW/8 attended Kantibai in the burnt condition when she was brought to the community health centre, Sitamau. According to him, she was 85 to 90% brunt. In his statement, he has described the percentage of burn injuries in various parts of the person of Kantibai. He has specifically disclosed in the court that he took a dying declaration for which the deceased was in a fit condition to record her statement. In her statement, she specifically alleged that the appellant has burnt her out of anger. Ramchandra Purohit, PW/13 Nayab Tahsildar also recorded her dying declaration (Ex.P/20) and took her thumb impression on it. In cross examination he has admitted that he put a question in Malvi language (local

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language) and Kantibai answered in the same language. Since the Hindi language is commonly known, therefore, he has recorded the statement in the Hindi language without any modification, addition or subtraction.

7. In both the dying declarations the deceased has disclosed that the appellant in drunken condition inserted dried grass in the Peticote and set her into the fire due to which she burnt completely. After putting her into the fire he ran away. Since the treating doctor has found 85 to 90% burning on her body, therefore, her thumb impression in the dying declaration is also not clear.

8. Learned counsel for the appellant has objected that when all fingers and thumb of the deceased was completely burnt but her thumb impression on the dying declaration is very clear which makes the dying declaration doubtful. The dying declaration Ex.P/12 recorded by Dr S.G.Suryavanshi PW/8 on 13.5.2008 bears the left thumb impression of the deceased which is very clear. Thereafter, the Nayab Tahsildar was called by the police who recorded the dying declaration on the same day, therefore, we have no reason to doubt all those two dying declarations.

9. In the case of State of M.P. v. Dal Singh, (2013) 14 SCC 159 the Supreme Court of India has held that the requirement of a certificate provided by a doctor in respect of such state of the deceased, is not essential in every case. A relevant part of the judgment is reproduced below:-

Whether 100% burnt person can make a dying declaration or put a thumb impression

14. In Mafabhai Nagarbhai Raval v. State of Gujarat this Court dealt with a case wherein a question arose with respect to whether a person suffering from 99% burn injuries could be deemed capable enough for the purpose of making a dying declaration. The learned trial Judge thought that the same was not at all possible, as the victim had gone into shock after receiving such high degree burns. He had consequently opined, that the moment the deceased had seen the flame, she was likely to have sustained mental shock. Development of such shock from the very beginning, was the ground on which the trial court had disbelieved the medical evidence available. This Court then held, that the doctor who had conducted her post-mortem was a competent person, and had deposed in this respect. Therefore, unless there existed some inherent and apparent defect, the court could not

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have substituted its opinion for that of the doctor's. Hence, in light of the facts of the case, the dying declarations made were found by this Court to be worthy of reliance, as the same had been made truthfully and voluntarily. There was no evidence on record to suggest that the victim had provided a tutored version, and the argument of the defence stating that the condition of the deceased was so serious that she could not have made such a statement was not accepted, and the dying declarations were relied upon. A similar view has been reiterated by this Court in Rambai v. State of Chhattisgarh.

15. In Laxman v. State of Maharashtra this Court held, that a dying declaration can either be oral or in writing, and that any adequate method of communication, whether the use of words, signs or otherwise will suffice, provided that the indication is positive and definite. There is no requirement of law stating that a dying declaration must necessarily be made before a Magistrate, and when such statement is recorded by a Magistrate, there is no specified statutory form for such recording. Consequently, the evidentiary value or weight that has to be attached to such a statement, necessarily depends on the facts and circumstances of each individual case. What is essentially required, is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind, and where the same is proved by the testimony of the Magistrate, to the extent that the declarant was in fact fit to make the statements, then even without examination by the doctor, the said declaration can be relied and acted upon, provided that the court ultimately holds the same to be voluntary and definite. Certification by a doctor is essentially a rule of caution, and therefore, the voluntary and truthful nature of the declaration can also be established otherwise.

16. In Koli Chunilal Savji v. State of Gujarat this Court held, that the ultimate test is whether a dying declaration can be held to be truthfully and voluntarily given, and if before recording such dying declaration, the officer concerned has ensured that the declarant was in fact, in a fit condition to make the statement in question, then if both these aforementioned conditions are satisfactorily met, the declaration should be relied upon. (See also Babu Ram v. State of Punjab.)

17. In Laxmi v. Om Prakash this Court held (SCC pp. 132-33, para

29), that if the court finds that the capacity of the maker of the statement to narrate the facts was impaired, or if the court entertains grave doubts regarding whether the deceased was in a fit physical and mental state to make such a statement, then the court may, in the absence of corroborating evidence lending assurance to the contents of the declaration, refuse to act upon it.

18. In Govindappa v. State of Karnataka it was argued that the Executive Magistrate, while recording the dying declaration did not get any certificate from the medical officer regarding the condition of the deceased. This Court then held, that such a circumstance itself is not sufficient to discard the dying declaration. Certification by a doctor regarding the fit state of mind of the deceased, for the purpose of giving a dying declaration, is essentially a rule of caution and therefore, the voluntary and truthful nature of such a declaration, may also be established otherwise. Such a dying declaration must be recorded on the basis that normally, a person on the verge of death would not implicate somebody falsely. Thus, a dying declaration must be given due weight in evidence.

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19. In State of Punjab v. Gian Kaur an issue arose regarding the acceptability in evidence, of the thumb impression of Rita, the deceased, that appeared on the dying declaration, as the trial court had found that there were clear ridges and curves, and the doctor was unable to explain how such ridges and curves could in fact be present, when the skin of the thumb had been completely burnt. The court gave the situation the benefit of doubt.

20. The law on the issue can be summarised to the effect that law does not provide who can record a dying declaration, nor is there any prescribed form, format, or procedure for the same. The person who records a dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making such a statement. Moreover, the requirement of a certificate provided by a doctor in respect of such state of the deceased is not essential in every case.

Even otherwise there is a corroboration of those dying declarations by the statements of PW/4, PW/5 & PW/6 who immediately attended the deceased while she was burning. Except the appellant, no one was with the deceased in the night of 10.5.2008 but the appellant has failed to give any explanation and evidence to disbelieve his presence on the spot.

10. At this stage, learned counsel for the appellant by way of alternate submission has prayed that the appellant has committed the offence without any pre-planning or pre-mediation. A dispute arose between the husband and wife in respect of sale of land as stated in the dying declaration Ex.P/12 and out of sudden provocation and anger he has committed the offence. As per the evidence of PW/4 & PW/5 he was in a drunken condition, therefore, the offence falls under section 304 Part-II IPC. He is in custody since 15.5.2008 and he has undergone almost 14 years of rigorous imprisonment, therefore, the sentence of life imprisonment be reduced to the period already undergone as he has to look after his two children who have reached marriageable age. The appellant is a first offender, therefore, one chance of reformation be also given to him.

11. The Hon'ble Supreme Court has laid down in Prabhakar Vithal Gholve v. State of Maharashtra, AIR 2016 SC 2292 that if the assault on the deceased could be said to be on account of the sudden fight without premeditation, in heat of passion and upon a

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sudden quarrel, the conviction of the appellant cannot be sustained under S. 302 and altered to one under Section 304 Part-I of IPC.

12. In Sikandar Ali Vs. State of Maharashtra, AIR 2017 SC 2614, the Court altered the conviction u/s 302 IPC to one u/s 304 part- II IPC in the following circumstances:

"7. We have no doubt about the complicity of all the accused in the homicide of Sarfraj. A-1 attacked the deceased with the knife and caused injury on his neck which resulted in his death. The other accused assisted him in committing the crime by holding the hands of the deceased. However, the only question that falls for our consideration is whether the accused are liable to be punished for an offence under Section 302 IPC. After considering the submissions made by the counsel for the Appellants and scrutinising the material on record, we are of the opinion that the accused are not liable to be convicted under Section 302 IPC. We are convinced that there was neither prior concert nor common intention to commit a murder. During the course of their business activity the accused reached the dhaba where the deceased was present. An altercation took place during the discussion they were having behind the dhaba. That led to a sudden fight during which A-1 attacked the deceased with a knife. Exception 4 to Section 300 is applicable to the facts of this case. As we are convinced that the accused are responsible for the death of Sarfraj, we are of the opinion that they are liable for conviction under Section 304 part II of the IPC. We are informed that A-1 has undergone a sentence of seven years and that A-2 to A-4 have undergone four years of imprisonment. We modify the judgment of the High Court converting the conviction of the accused from Section 302 to Section 304 part II of the IPC sentencing them to the period already undergone. They shall be released forthwith."

13. The Apex Court in the case of Ananta Kamliya vs. State of West Bengal reported in 2020 (1) Supreme 55 in which conviction u/s 302 IPC was converted into 304 Part-I of the IPC and sentenced to undergo imprisonment for 10 years in a case of death because of the injury caused by the accused on the head. As per the facts of the case accused was not carrying a weapon with him. He took out a lathi which was lying there and caused injury on the head of the deceased. Accordingly, there does not appear any intention on the part of the accused to cause very injury which ultimately led to the death of the deceased. There does not appear to be any pre-mediation or intention to kill the deceased. The death resulted due to the injury in qura, hence the case would fall under exception 4 to section 300. Learned counsel

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has also placed reliance over the judgment passed in the case of Ambalal Sarabhai Enterprise Ltd. vs. Ks Infraspace Llp Ltd. and another 2020 (1) Supreme 57. Because of the sudden fight and absence of pre-meditation, the act committed on the heat of passion the conviction u/s 302 IPC has been converted into 304 Part-II IPC, section 300 exception-4 by the Apex Court. In the case of Smt.Sandhya Jhadav Vs. the State of Maharashtra - 2006 AIR SCW 1678 the offence has been converted u/s 304 Part-II of the IPC instead of section 302 IPC because of the solitary blow causing death after considering the factual situation. Likewise, in the case of Shambhoo Singh vs. State of Rajasthan- AIR 2008 SC 3200 again due to the sudden quarrel incident taken place out of the land dispute the conviction of the accused of murder has been altered to conviction u/s 304 Part-I IPC. Learned counsel has also placed reliance on the judgment passed by the Division Bench of this Court in Antulal vs. State of M.P, Cri. Appeal No.1466/2010 was decided on 3.8.2019 in which by placing the reliance over the judgment passed by the Apex Court in the case of Arjun vs. State of Chhatisgarh- 2017 3 SCC 247, the conviction has been altered from 302 to 304 Part-I I.P.C.

14. Keeping in view the aforesaid factors it becomes evident that the case of the appellant would fall under Section 304 IPC as the incident took place due to a dispute that arose between the appellant and the de- ceased wife, therefore, we are of the considered opinion that the of- fence which would be covered by Section 304 Part-II IPC and not un- der section 302 IPC.

15. In view of the above discussion and verdicts of the Apex Court, the criminal appeal is partly allowed. The culpability of the appellant is maintained but conviction is altered to section 304 Part II of IPC, instead of Section 302 of IPC and accordingly sentenced him to the period of 10 years R.I. Since the appellant has already completed the jail sentence, he be released from jail, if he is not required in any other case.

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16. This criminal appeal is partly allowed. Record of the trial court be sent back along with a copy of this judgment.

          (VIVEK RUSIA)                            (SHAILENDRA SHUKLA)
             JUDGE                                        JUDGE

      Digitally signed by HARI KUMAR C
hk/   G NAIR
      Date: 2021.09.08 18:22:51 +05'30'