Rambabu Ahirwar vs State Of M.P.
2022 Latest Caselaw 1091 MP

                                         1
                             Cr.A. No.707/2010



            THE HIGH COURT OF MADHYA PRADESH
                    BENCH AT GWALIOR
                     (DIVISION BENCH)
                  Criminal Appeal No.707/2010
Rambabu Ahirwar & ors.                                       ..... Appellants
                                      Versus
State of M.P.                                              ..... Respondent
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CORAM

            Hon. Mr. Justice G.S. Ahluwalia, Judge.

            Hon. Mr. Justice Deepak Kumar Agarwal, Judge.

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Presence

       Shri R.K.S. Kushwah, learned counsel for appellants.
       Shri R.K. Awasthi, learned Public Prosecutor for the
respondents/State.
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                                 JUDGMENT

( 24th January, 2022)

PER JUSTICE DEEPAK KUMAR AGARWAL

The present criminal appeal filed u/S 374(2) of IPC assails the

judgment dated 31.08.2010 passed in S.T. No. 171/2008 by which

appellants have been convicted u/S 302 of IPC and sentenced to suffer

life imprisonment with a fine of Rs. 500/- with default clause.

2. Death of one Sooraj Bai (wife of the appellant no. 1 Rambabu

Ahirwar) who died due to burn injures in an incident dated 21.04.2008

Cr.A. No.707/2010

has given rise to the prosecution in question where appellant No.1

Rambabu Ahirwar, appellant No.2- Biharilal Ahirwar and appellant

No.3-Puniya Bai (husband, father-in-law and mother-in-law

respectively of the deceased) are convicted and sentenced as

aforesaid.

3. Appellant No.2- Biharilal Ahirwar died during pendency of this

appeal and, therefore, appeal against him stands abated.

4. Bare facts giving rise to the prosecution in question are that on

20.04.2008, at around 08:00 pm, husband of deceased Soorajbai

demanded money from the deceased for purchasing liquor. Father-in-

law and mother-in-law of deceased tried to persuade her to fulfill the

demand of their son but when she pleaded her inability to meet his

demand, her husband by pouring Kerosene on her body set the her on

fire. When deceased was burning, her mother-in-law and father-in-law

shut the door of the house. Deceased having suffered burns fell down

on the floor. After about two hours, her husband by keeping her on a

cart brought her to the hospital but did not get her treated. On the

morning of very next day, her brother-in-law and brother admitted her

in the hospital. Thereafter, report was lodged which also bore thumb

impression of the deceased. On the basis of said Dehati Nalishi Ex.P-

17, FIR Ex.P-15 bearing crime No. 69/2008 was registered. Before

recording of Dehati Nalishi Ex.P-17, when deceased was admitted in

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the hospital, her dying declaration (Ex.P-21) was recorded by

Executive Magistrate Lateri Shri Brajesh Kumar Sharma (PW-13).

During treatment, deceased was referred to Hamidiya Hospital where

on 22.04.2008, deceased succumbed to the said burns. Postmortem of

the deceased vide Ex.P-22 was conducted. Spot map vide Ex.P-09

was prepared. Burnt and partially burnt materials and other materials

were seized. Seizure memo is at Ex.P-01. Glass vial Ex. P-2 was

seized. Clothes of Appellant No.1 Rambabu was seized vide Ex.P-3 .

Memorandum of appellant No.-1 (Ex. P-05) was prepared. Arrest

memo of appellant No.1- Rambabu is exhibited as Ex. P-06. Visra

(Ex.P-14) was seized. Arrest memo of appellant No.2- Biharilal is

exhibited as Ex. P-19 and arrest memo of appellant No.3-Puniya Bai

is exhibited as Ex. P-18. Intimation regarding death of deceased Ex.P-

16 was prepared. Seized contraband article was sent for chemical

examination to Forensic Science Laboratory, Sagar through

Superintendent of Police, Vidisha vide draft letter Ex. P/20 and the

information sent by Director of Medical Institute to Police Station

Kohafiza is exhibited as Ex.P-23.

5. The dying declaration was recorded by the said Executive

Magistrate Brajesh Kumar Sharma PW-13 on the basis of certification

recorded by Dr. Prashant Kumar Jain PW-15 , Medical Officer, CHC

Cr.A. No.707/2010

Lateri that the patient was conscious and was able to give her

statement.

6. The dying declaration discloses that appellant no.1 husband of

deceased poured kerosene over her and set her on fire while appellant

No.2- Biharilal Ahirwar and appellant No.3-Puniya Bai (father-in-law

and mother-in-law of deceased) shut the door of the house.

7. The deceased in the incident sustained burn injuries and was

brought to the hospital by her brother-in-law and brother where her

dying declaration was recorded on 21.04.2008, after certifying her to

be conscious. Deceased after being clinically examined was found to

have suffered superficial deep burns over neck, chest, abdomen with

some patches of burn injury present over different parts of the body.

The burn injuries were opined to be caused due to dry heat and

duration of injury was opined to be within 24 hours of examination.

8. Investigation in the matter was conducted and necessary

formalities therein were completed. Chargsheet was filed. After

committal of the case to the Court of Sessions, charges were framed

u/S 302 IPC against the appellants. The appellants abjured guilt.

9. After death of the deceased, post-mortem was conducted. The

report in that regard (Ex. P-23) discloses following injuries:

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(i) 2nd to 3rd degree burn present over cheeks, chest, neck on both

sides all over right arm, forearm, dorsum of hand and thumb and

thenar eminable all over except elbow joint and antecubital region i.e.

healthy.

(ii) 2nd to 3rd degree burn present over left deltoid region and medial

½ of arm on anterior aspect, forearm on joint all over.

(iii) 2nd to 3rd degree burn present over anterior aspect of legs, lower

½ of both thighs on posterior aspect all over.

(iv) 2nd to 3rd degree burn present over chest and abdomen upto the

iliac crest and on back on lateral ½ from shoulder joint to the iliac

crest on both sides and neck to the T2 level. Blisters present over both

ankle region.

(v) The cause of death of deceased was opined to be due to cardio-

respiratory failure, as a result of burning and its complications.

10. The prosecution supported its case by producing 15 prosecution

witnesses namely Nirale Bahi PW-1, Ashif Khan PW-2, Smt. Sunita

Bai PW-3, Puran Chand PW-4, Banshi Bai PW-5, Parma PW-6,

Yadvendra Dubey PW-7, Munshi Lal PW-8 , Santosh Bhargav PW-9,

Mohd. Ikbal PW-10, Anit Tiwari PW-11, Rakesh PW-12, Brajesh

Kumar Sharma PW-13, Dr. Geeta Rani Gupta PW-14 and Dr. Prashant

Cr.A. No.707/2010

Kumar Jain PW-15 while the defence produced two witnesses namely

Ramprasad DW-1 and Kumal Prasad DW- 2.

11. Appellant No.1 in his statement recorded under section 27 of

Evidence Act admitted that he himself set the deceased on fire due to

some dispute.

12. Learned trial Judge after marshalling the evidence recorded

finding of guilt and convicted and sentenced the appellants as detailed

supra.

13. Learned counsel for the appellants has raised the following

grounds in support of his contentions:

(i) Learned counsel for the appellants attacking the dying declaration

Ex. P-21 submits that the same is not in question and answer form. It

is submitted that there is no certification on Ex. P-21 that the dying

declaration was read over to the deceased after being written and what

was the basis for arriving at the satisfaction by the doctor that the

deceased was capable to give dying declaration.

(ii) It is further submitted that Dr. Prashant Kumar Jain PW-15 did not

mention the pulse rate, blood pressure, temperature, heart beat in the

endorsement made by him on the dying declaration. If a person suffers

80% burn injuries, his/her blood pressure becomes low and the person

Cr.A. No.707/2010

becomes unconscious. Hence, the trial Court has erred in law by

relying upon the said dying declaration.

(iii) It is also submitted that there is a marked contradiction between

the testimonies of PW-15 Dr. Prashant Kumar Jain and PW-13 Dr.

Brajesh Kumar. Dr Prashant Kumar Jain (PW-15) on one hand

admitted in his statement that he made endorsement after recording of

statement of deceased but since no opinion was taken by him before

recording of dying declaration, there is no endorsement available prior

to commencement of recording of the so-called dying declaration

while Dr. Brajesh Kumar PW-13 in Para 6 of his statement stated that

he asked the deceased at the time of recording of her statement and

she orally replied that she is able to give her statement and therefore

in this factual background, it is submitted that recording of dying

declaration was impossible and thus a doubt is cast at the very

existence of dying declaration by terming it to be a manufactured

document to embellish and strengthen the prosecution story, which

was otherwise untenable.

(iv) Neither family members of deceased nor Nirale Bhai (PW-1)

and Asif Khan (PW-2) have supported the story of prosecution.

14. Learned counsel for the State supported the impugned judgment

of conviction and sentence and submitted that there is no infirmity in

the impugned judgment of conviction and sentence and findings

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recorded by the trial Court do not require any interference by this

Court. Hence prayed for dismissal of the appeal.

15. We have heard learned counsel for rival parties and also perused

the record of the trial court.

16. The entire prosecution case hinges upon the dying declaration.

It is trite law that conviction can be based solely on dying declaration

if it is true and inspires confidence.

17. The Apex court in the case of Atbir Vs. Government of NCT

of Delhi reported in (2010) 9 SCC 1, has culled out the following

principles to be kept in view while dealing with a case based upon

dying declaration:

"(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the Court.

(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.

(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.

(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.

(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.

(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.

(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.

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(viii) Even if it is a brief statement, it is not to be discarded.

(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.

(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration."

18. Testing the present case on the anvil of the above law laid down

by the Apex court in the case of Atbir (supra) it is noticed that dying

deescalation of deceased (Ex.P/21) was recorded by the Executive

Magistrate at the time when she was brought in a burnt state at the

Community Health Centre Lateri wherein the deceased clearly stated

that the appellant No.1 husband of deceased was arguing with her and

asking for money to drink liquor which request was declined by her

and enraged by her response, the appellant No.1-husband of deceased

poured kerosene over her and set her on fire resulting into the

deceased suffering burn injuries and when she was burning her father-

in-law and mother-in-law shut the door of the house. The said dying

declaration was recorded by Shri Brajesh Kumar Sharma, Executive

Magistrate (PW-13) on 21.04.2008 at 3:30 pm. which bears

certification of the doctor that the deceased was conscious during

recording of statement. Ex.P/21 more or less contains clear allegation

against the appellants about the commission of the offence punishable

Cr.A. No.707/2010

under section 302 of IPC. The said dying declaration Ex.P/21 is

reproduced in toto as follows:-

Þ dFku fnukad 21-04-2008 le; 3%30 PM LFkku 'kkldh; fpfdRlky; yVsjh

uke & lwjt HkkbZ mez 25 o"kZ iRuh jkeckcw tkfr & gfjtu firk xaxkjke fljkSat ifr dk /ka/kk & dkjhxjhA

eSa 'kiFk iwoZ dgrh gwWA esjs ifr 'kjkc ih ds yM+rk gSA eq>ls 'kjkc dks iSls ekWxs esjs euk djus ls eq>s ekjk ihVk esjh lkl us dgk fd iSlk D;ks ugha ns nsrh esus iSlk ugha fn;s rks esjs Åij rsy Mkydj vkx yxk nh lk&llqj Hkh FksA ckgj dh lkWdj yxkdj pys x;sA dqN nsj ckn esjs ifr vk;s lkWdj [kksydj esjs Åij ikuh MkykA esjs vLirky ys tkus dks dgk rks dgh ?kqekdj okfil ?kj ys vk;kA vkt essjh cfgu lquhrk ckbZ dks cqyok;k esjh cfgu vLirky ysdj vkbZ tks bykt djok jgh gSA esjs llqj dk uke fcgkjh gSA lkl dk uke iqfy;k ckbZ gSA

Note: c;ku ysus ds nkSjku ejht iwjh rjg ls gks'kks gok'k esa FkkAß

19. Dr. Prashant Kumar Jain (PW-13) has proved the said dying

declaration and testimony of this witness could not be discredited by

the defence in cross-examination.

20. The trial court further found that the dying declaration Ex.P/21

does not show any contradiction. Essentially and substantially the

allegation contained in Ex.P/21 clearly implicate the appellants.

21. The trial court has discussed the said dying declaration in detail

in the impugned judgment and has also taken into account various

decisions of the Apex Court and after weighing the evidence on record

has found the dying declaration to be trustworthy and beyond any pale

of doubt.

22. The said dying declaration having been proved and having been

recorded after following pre-requisites which render a particular dying

Cr.A. No.707/2010

declaration admissible in evidence, implicates the appellants

exclusively in no uncertain terms and beyond all reasonable doubts for

the murder of deceased-Sooraj Bai.

23. It is true that family members of deceased have not supported

the story of prosecution but looking to the clinching evidence on

record in shape of dying declaration implicating the appellants which

is duly supported by the Dehati Nalishi lodged by the deceased herself

and evidence of Brajesh Kumar Sharma, Executive Magistrate (PW-

13) and Dr. Prashant kumar Jain (PW-15), the same is of no avail to

the appellants.

24. In view of the aforesaid, the appellants have been rightly

convicted u/S. 302 I.P.C., for life imprisonment with fine as

enumerated in para 51 of the impugned judgment, which in the

considered opinion of this Court warrants no interference.

25. Consequently, the appeal has no merit and therefore is

dismissed.

26. Appellant No.1- Rambabu Ahirwar is in jail while appellant No.3-

Puniya Bai is on bail, she is directed to surrender before the trial Court

to serve remaining jail sentence on or before 07.03.2022, failing

which the trial Court shall be at liberty to issue arrest warrant against

her.

Cr.A. No.707/2010

(G.S. AHLUWALIA) (DEEPAK KUMAR AGARWAL) JUDGE JUDGE

ojha

YOGENDR A OJHA 2022.01.22 13:36:15 +05'30'