Shobhelal vs The State Of Madhya Pradesh
2022 Latest Caselaw 3732 MP

   HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
                     JABALPUR

Case No.                              CRIMINAL APPEAL NO.1414/2010
Parties Name                           Shobhelal S/o Ram Singh Gond, aged
                                        about 40 years, R/o Village Pondi,
                                             P.S.Bandol District Seoni
                                                        vs.
                                         State of Madhya Pradesh through
                                             P.S.Bandol, District Seoni

Date of Judgment                      16/03/2022
Bench Constituted                    Division Bench :
                                     Justice Sujoy Paul
                                     Justice Dwarka Dhish Bansal
Order passed by                      Justice Dwarka Dhish Bansal
Whether approved for                 No
reporting
Name of counsels for parties         For appellant: Ms. Sarita Acharya,
                                     Advocate
                                     For respondent/State: Shri Yogesh
                                     Dhande, Government Advocate
Law laid down                             -

Significant paragraph                     -
numbers

                               JUDGMENT

16/03/2022

Per : Dwarka Dhish Bansal J.

The appellant has filed this appeal under Section 374(2) of the Code of

Criminal Procedure against the judgment of conviction and order of sentence

dated 29.6.2010 passed by First Additional Sessions Judge, Seoni in

S.T.No.154/2009 convicting him under Section 302 of IPC and sentencing him to

imprisonment for life with fine of Rs.1,000/- with default stipulation.

Cr.A.No.1414/2010.

- 2 -

2. The prosecution case in nutshell is that the parents of the deceased Vinita

Bai received information regarding burning of their daughter by her husband-

accused/appellant Shobhelal, thereupon mother of the deceased Vinita reached to

the house of the accused/appellant and came to know about burning of the

deceased Vinita, as she stated that her husband has set her on fire by pouring

kerosene. Thereafter, she was admitted in the District Hospital Seoni and upon

information the case was registered by the Police Station Bandol under Section

307 of IPC at Crime No.139/2009 and dying declaration was recorded by Naib

Tehsildar Anita Bhoyar (P.W.16). The deceased remained in District Hospital

Seoni w.e.f. 27.6.2009 to 29.6.2009 and thereafter she was referred to Nagpur for

treatment where she was admitted in Mevo Hospital on 29.6.2009 and during

treatment she died on 30.6.2009 at 4.00 p.m.

3. After investigation, charge sheet was filed under Section 302 of IPC in the

Court of Chief Judicial Magistrate, Seoni, wherefrom case was committed to

Sessions Court for further proceeding on 9.10.2009. The Sessions Court framed

the charges under Section 302 of IPC against the appellant, who abjured the guilt

and pleaded false implication. According to him, the deceased got burn injury due

to accident.

4. Learned Sessions Judge after trial and upon appreciation of evidence

adduced in the case held the accused guilty mainly relying upon dying declaration

(Ex.P.12) and found that the appellant had set the deceased on fire and convicted

him under Section 302 of IPC.

5. Criticizing the findings arrived at by the Court below Ms. Sarita Acharya,

learned counsel for the appellant submitted that no complaint was made by

anybody and on the basis of dying declaration, FIR was lodged. There are major Cr.A.No.1414/2010.

- 3 -

omissions and contradictions in the statements of the witnesses and no witness has

supported the case of prosecution. It was argued that dying declaration does not

contain actual condition of the deceased and the same is not admissible in

evidence due to major contradictions in the testimony of doctor and Naib

Tahsildar, who recorded the same.

6. Learned counsel for the appellant has placed reliance on the judgment of

Hon'ble Apex Court in the case of Jayamma and Anr. Vs. State of Karnataka

reported in (2021) 6 SCC 213 and argued that dying declaration has not been

proved properly by the prosecution because the deceased sustained 90% burn

injuries, therefore she was not in fit state of mind to give statement and it is

suspicious.

7. Per contra, Shri Yogesh Dhande, learned Government Advocate supported

the impugned judgment and contended that it is based on proper appreciation of

evidence and application of mind. Hence, no interference can be made.

8. No other point is pressed by the parties.

9. We have heard the learned counsels for the parties at length and perused the

record.

10. Sumatiya Bai (P.W.1) and Sadaram (P.W.3) are mother and father of the

deceased Vinita Bai and both these witnesses have not supported the prosecution

case and turned hostile. Savit Lal (P.W.5), Phoola Bai (P.W.6) and Bijendra

Kumar Rai (P.W.7), who are said to be eyewitnesses but from their testimonies it

is clear that at the time of incident they were not present on the spot and they

reached there after occurrence of the incident, however, they have also not

supported the prosecution story and declared hostile. Mankasi (P.W.2) is the

witness of seizure memo but she also did not support the prosecution story.

Cr.A.No.1414/2010.

- 4 -

11. Bare perusal of the impugned judgment it is clear that conviction of the

appellant is solely based upon the dying declaration (Ex.P.12), which reads as

under :

ej.kklUu dFku C;ku izkjaHk le; & 1%00 PM.

Ukke & fofurk] ifr dk uke & lwcsyky mez 24 o"kZ fuoklh & ikSM+h she is fully conscious and able to give her statement Signature of Dr. 27.6.

1:00 PM

eS 'kiFk iwoZd dgrh gwa fd esjs ifr us fnukad [email protected]@2009 dks jkr 12 cts feV~Vh rsy Mkydj ekfpl ls vkx yxk fn;kA igys eq>s lkr&vkB lky ls 'kjkc ihdj ekjrk&ihVrk jgrk gSA esjk ifr 'kjkc ihdj ges'kk ekjrk ihVrk gSA eq>s esjs lkl&llqj us flouh&vLirky esa dy jkr dks ysdj vk;s vkSj HkrhZ fd;k gSA esjk iwjk 'kjhj ty x;k gSA esjs ifr dks ltk feyuk pkfg;s vkSj dqN dguk gSA ugha eq>s dqN ugh dguk gSA C;ku lekfIr dk le; 1%05 PM.

she was fully conscious and able to give her statement Signature of Dr. 27.6.

1:05 PM Lkgh fouhrk ckbZ

gLrk{kj [email protected]@2009 uk;c rglhynkj caMksy ¼flouh½

12. Perusal of dying declaration shows that Dr. M. R.Vasnik (P.W.9) has before

and after recording of dying declaration, put note on it regarding mental status of Cr.A.No.1414/2010.

- 5 -

the deceased. In starting of dying declaration the Doctor has stated "she is fully

conscious and able to give her statement" and in later part the Doctor has put note

that "She was conscious and able to give her statement". The previous note was

put by the doctor at 1:00 p.m. whereas later note was put at 1:05 p.m.

13. Dr.M.R.Vasnik has been examined by the prosecution as P.W.9, who in

paragraph 7 and 8 of his testimony stated as under :

7& 1%35 ij efgyk lftZdy okMZ esa vkgr dks Hkjrh dj fn;k x;k FkkA 1%45 cts Fkkuk izHkkjh dksrokyh dks iz0ih0&11 dh lwpuk nh xbZA ;g lgh gS fd iz0ih0&12 esa esjs }kjk fn, x, vfHker ds lkFk eSaus vkgr ds ch ih ,oa iYl jsV dk mYys[k ugha fd;k gS Lor% dgk fd mDr ckrksa dk mYys[k bykt iphZ ij gSA 8& eSaus lwpuk iz0ih0&11 iqfyl ds ikl Hksth FkhA uk;c rglhynkj caMksy ds ikl eSaus dksbZ lwpuk ugha HksthA iqfyl dks lwpuk iz0ih0&11 Hkstus ds ckn gh uk;crglhynkj caMksy vLirky vkbZ FkhaA mlds ckn gh iz0ih012 ds ej.kklkUu dFku ys[k fd, x, gSaA

14. From the testimony of the Dr. M.R.Vasnik (P.W.9), it is clear that the

deceased was admitted in the hospital in surgical ward at 1:35 p.m. and at 1:45

p.m. intimation was sent to police station Kotwali vide Ex.P.11. In paragraph 8 of

his statement the Doctor has clearly stated that only after sending the intimation

(Ex.P.11) to the police, Naib Tahsildar Bandol came to the hospital and only

thereafter dying declaration (Ex.P.12) was recorded. Extract of Intimation

(Ex.P.11) is as under :

izfr Fkkuk izHkkjh dksrokyh uke & fouhrk W/O lwcsyky Cr.A.No.1414/2010.

- 6 -

mez& 35 o"kZ xksUM fuoklh & iksUMh Fkkuk cUMksy vkx ls tyuk crk jgs gSa A iwjk 'kjhj ty pqdk gSaA F.S.W esa HkrhZ gSA vko';d dk;Zokgh gsrqA at 1:45 AM gLrk{kj vLi"V 27-06-2009 (Dr.Vashnik)

15. Hon'ble Apex Court in the case of Jayamma and Anr. (Supra) placing

reliance on its previous judgment in the case of Sham Shankar Kankaria Vs.

State of Maharashtra reported in (2006) 13 SCC 165 reiterated as under :

"(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of M.P.[(1976) 3 SCC 104]);

(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of U.P. v. Ram Sagar Yadav [(1985) 1 SCC 552 and Ramawati Devi v. State of Bihar [(1983)1 SCC 211]);

(iii) The Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy v. Public Prosecutor [(1976) 3 SCC 618]);

(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P. [(1974) 4 SCC 264]);

(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be Cr.A.No.1414/2010.

- 7 -

rejected. (See Kake Singh v. State of M.P. [1981 Supp SCC 25]);

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P. [(1981) 2 SCC 654]);

(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (See State 14 (1992) 2 SCC 474 ¶ 18. Page | 15 of Maharashtra v. Krishnamurti Laxmipati Naidu [1980 Supp SCC 455]);

(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha v. State of Bihar [1980 Supp SCC 769]);

(ix) Normally the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of M.P. [1988 Supp SCC 152]);

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan [(1989) 3 SCC 390]);

(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra [(1982) 1 SCC 700])"

16. It is clear from the impugned judgment of conviction that it is solely based

on dying declaration (Ex.P.12), which prima-facie appears to be suspicious Cr.A.No.1414/2010.

- 8 -

because the timing of recording the dying declaration mentioned therein is

contrary to the intimation (Ex.P.11) given to the police, so also is contrary to the

statement given by doctor in paragraph 7 and 8 of his testimony. In such

circumstances, it cannot be said that dying declaration is true and at the time of

recording the statement the deceased was conscious and fit/able to give her

statement.

17. In view of aforesaid discussion, we are of the considered view that it is

unsafe to rely upon dying declaration (Ex.P.12). We deem it proper to give the

benefit of doubt to the appellant Shobhelal. Resultantly, we are inclined to hold

that prosecution could not prove and establish its case beyond reasonable doubt

that appellant Shobhelal set his wife deceased Vinita Bai on fire after pouring

kerosene.

18. As analyzed above, this Criminal Appeal deserves to be and is hereby

allowed. Consequently, the judgment passed by the Sessions Judge in Sessions

Trial No.154/2009 dated 29.6.2010 is set aside. Appellant Shobhelal is acquitted

by giving him benefit of doubt. Appellant is in jail, hence he be set at liberty

forthwith, if his presence is not required in any other case.

Appeal is allowed to the extent indicated above.

      (SUJOY PAUL)                                                              (DWARKA DHISH BANSAL)
        JUDGE                                                                         JUDGE


kkc

KRISHAN

Digitally signed by KRISHAN KUMAR CHOUKSEY DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh,

KUMAR 2.5.4.20=3272dbc12b8afa65c5ca4224a016adac256bd5e4820a a613e2a4019c0e1186d1, pseudonym=956C86C82E8C7FFB60ACB16A99482E465B98A1 91,

CHOUKSEY serialNumber=ADBADB468E6966E0CC942E57A3C9809D776D 306D12638E97A9332ECF197B0209, cn=KRISHAN KUMAR CHOUKSEY Date: 2022.03.16 12:51:13 +05'30'