Madhya Pradesh High Court
Omkar vs State Of M.P. on 5 May, 2022
Author: Rajeev Kumar Shrivastava
1
High Court of Madhya Pradesh
Bench at Gwalior
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DB:- Hon'ble Shri Justice G.S.Ahluwalia &
Hon'ble Shri Justice Rajeev Kumar Shrivastava
CRA 646 of 2011
Omkar and Others
Vs.
State of MP
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Ms. Chitra Saxena with Shri Rajiv Jain, Counsel for the
appellants.
Shri A. K. Nirankari, Counsel for the respondent/State.
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Reserved on : 26-04-2022
Whether approved for reporting : Yes/............
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JUDGMENT
(Delivered on 05/05/2022)
Per Rajeev Kumar Shrivastava, J:-.
The present Criminal Appeal under Section 374 of CrPC
has been preferred against the judgment dated 10-06-2011 passed
by First Additional Sessions Judge, Vidisha (MP) in Sessions
Trial No.03/2010, convicting and sentencing the appellants to
undergo for Life Imprisonment u/S 302 of IPC and fine of
Rs.5,000/- each and in default of payment of fine, they shall
further to undergo for Five Months additional rigorous
imprisonment.
(2) According to prosecution case, on 18-10-2009 at around
10:00 in the night on receiving an information, Head Constable
Bharat Singh Thakur (PW3) who was posted at Police Station
Kurwai, District Vidisha, reached Village Sarkhandi and on the
basis of information given by injured Smt. Rambai, a Dehati
Nalishi (Ex.P.6) was recorded at 0/2009 on the spot to the effect
that an evil term was going with Smt. Rambai with her neighbour
Pratap Kushwah since one year. At around 7:00 pm, Smt. Rambai
along with her daughter-in-law Shakunbai (PW7) had returned
home after cutting soyabean crops. In front of the door of her
house, Omkar, Pooran, Pratap, Chintu, Hukum & Kallu came
there and hurled abuses. Pooran took out a plastic container and
poured kerosene on her and Omkar set her on ablaze by
matchstick. Chintoo and Pooran both caught hold of her hands
and legs and the saree of injured Smt. Rambai became caught
fire. On hearing her weeping, her daughter-in-law Rupabai
(PW11) and his son Vinod (PW8) came there for rescue. Skin of
her face, chest, abdomen, thighs and hands were on fire. Her son
and daughter-in-law Rupabai put on clothes and water for save of
her life. On the basis of said Dehati Nalishi Ex.P6 recorded by
Head Constable (Writer) Bharat Singh Thakur (PW3), a Crime
was registered at PS Kurwai. Injured Smt.Rambai was sent for
medical examination to CHC Kurwai. Dr.PK Jain (PW6)
conducted MLC of Smt. Rambai vide Ex.8-A. On the basis of
Dehati Nalishi, Head Constable Bahadur Singh Yadav (PW13) of
PS Kurwai recorded an FIR Ex.P21 at Crime No.247 of 2009 for
offences under Sections 147, 148, 307 of IPC. The IO R.K.
Gautam (PW12) during investigation, prepared site plan Ex.P12
and recorded the statements of witnesses. Incriminating articles
like burnt clothes, matchbox and a five-liter plastic container
were seized vide seizure memo Ex.P9 on the basis of
memorandum of the witnesses Bhupendra Singh (PW4) and
Bhagwan Singh (PW5). Pratap Singh, Omkar, Hukum Singh,
Prahlad Singh, Pooran and Chintoo alias Maharaj Singh were
arrested vide arrest memo Ex.P14 to Ex.P19. Seized articles were
sent to FSL Sagar vide Ex.P20. Injured Smt. Rambai was
admitted in Burn Ward, Hamadia Hospital, Bhopal where on 20-
10-2009 at around 03:15 in the night, she died and information
regarding the death of deceased was given to Police Chowki
Kohefiza, Hamidia Hospital, Bhopal on the basis of which, a
merg No.495 of 2009 u/S 174 of CrPC was recorded by Head
Constable Abdul Harish (PW2) who, thereafter prepared safina
form of the witnesses Narayan (PW1), Vinod (PW4) and Udam
Singh (PW9) vide Ex.P1 and Naksha Panchnama of dead body
of deceased Smt. Rambai was prepared vide Ex.P2 and thereafter,
her dead body was sent for postmortem where the Senior
Forensic Specialist, Medico-legal Department, Bhopal, namely,
Dr.Ashok Sharma (PW10) had conducted the postmortem of
deceased. Postmortem report is Ex.P13 and thereafter, the corpse
was handed over to Narayan, Vinod & Udam Singh on
Supurdignama vide Ex.P3. On receiving Merg intimation No.495
of 2009, Suresh Kumar Sharma who was posted as Head
Constable in PS Kurwai recorded original Merg No.06 of 2009
on 29-10-2009. During investigation, medical examination of
Harisingh (husband of deceased Smt. Rambai) was also done by
Dr.P.K.Jain (PW6) vide MLC report Ex.P11. After completion of
investigation and other formalities, the police filed a charge sheet
before Court of JMFC, Kurwai under Sections 147, 148, 302 of
IPC and the case was committed to the Sessions Court for trial
and accused denied charges against them under Sections 148,
302, 149 of IPC and claimed their trial.
(3) Prosecution, in support of its case, has examined as many
as thirteen witnesses, namely, Narayan (PW1), Abdul Harish
(PW2), Bharat Singh Thakur (PW3), Bhupendra Singh (PW4),
Bhagwan Singh (PW5), Dr. PK Jain (PW6), Shakaun Bai (PW7),
Vinod (PW8), Udam Singh (PW9), Dr. Ashok Sharma (PW10),
Rupabai (PW11), Ram Kishore Gautam (PW12) and Bahadur
Singh (PW13).
(4) The statements of accused were recorded under Section
313 CrPC by the Trial Court and they denied the prosecution and
stated that they have been falsely implicated due to previous
enmity and on the date of incident, they were not present on the
place of occurrence. The appellants accused in their defence
examined only one witness Randhir Singh as DW1.
(5) The Trial Court, after appreciation of evidence available
on record, convicted and sentenced appellants, as indicated above
in para 1 of this judgment.
(6) The grounds of appeal raised are that the judgment of
conviction and sentence passed by trial Court is illegal. The trial
Court has erred in analyzing prosecution evidence. It is further
contended that trial Court has erred in convicting the appellants
only on the basis of evidence of interested witnesses and has not
considered contradictions and omissions therein. The trial Court
has committed an error in considering police statement of
deceased Smt. Rambai as Dying Declaration vide Ex.P7 and
Dehati Nalishi Ex.P6 and has wrongly convicted and sentenced
appellants without there being any credible evidence available
against them. There are contradictions and omissions in the
evidence of Shakunbai (PW7) and Vinod (PW8) who are alleged
to be eye-witnesses of the incident. No clarification was given by
prosecution regarding injuries caused to appellants by Vinod
(PW8) and his father Harisingh which creates prosecution story
doubtful. The husband of deceased Harisingh committed suicide
by setting him on ablaze in order to escape from criminal liability
and this aspect has not considered by trial Court while passing
the impugned judgment. There is no clinching and cogent
evidence to directly connect appellants with alleged offence.
Therefore, prayed for setting aside the impugned judgment of
conviction and sentence.
(7) Per contra, counsel for the State supported impugned
judgment and submitted that prosecution has proved its case
beyond reasonable doubt. The Trial Court has based its judgment
mainly relying upon the statement of deceased as ''Oral Dying
Declaration'' and Dehati Nalishi recorded by the deceased and the
eye-witnesses of the incident and, therefore, the same is very
well-proved and is well-connected with other evidence available
on record. The Trial Court after examining prosecution evidence
as well as defence evidence has come to the conclusion that
accused have committed murder of the deceased by setting her
on ablaze and, therefore, has rightly convicted and sentenced the
appellants for the offence in question. Hence, no case is made
out for interference and the appeal filed by appellants deserves
dismissal.
(8) Narayan (PW1) in his deposition stated that he had gone to
Hamadia Hospital, Bhopal after receiving information regarding
the death of deceased Rambai where Lash Panchnama Ex.P2 was
prepared and the dead body of the deceased was handed over on
Supurdignama vide Ex.P3.
(9) Abdul Harish (PW2), in his deposition stated that on 22-
10-2009, he was posted as Head Constable in Police Chowki
Kohefiza, Hamidia Hospital. This witness further deposed that he
had recorded Merg vide Ex.P.4 after receiving the information
from Telephone Attender on behalf of Dr.R.K.Ahirwar of
Hamadia Hospital that the deceased Smt.Rambai died due to burn
injuries and her dead body has been kept in mortuary. Thereafter,
he had summoned relatives of deceased, namely, Vinod, Ramu,
Udham Singh, Narayan and Kalyan Singh vide safina form Ex.P1
and in the presence of Panch witnesses, he had also prepared
Lash Panchnama Ex.P2. For conduction of postmortem, dead
body of the deceased was handed over to the son and husband of
deceased Vinod (PW8) and Harisingh on Supurdignama through
requisition form vide Ex.P5.
(10) Bharat Singh (PW3) in his deposition stated that on the
basis of information furnished, he had recorded Dehati Nalishi of
the deceased Ex.P6 at 09/2009 for offences under Sections 147,
148, 307 of IPC against accused Omkar, Pooran, Pratap, Chintu,
Hukum & Kallu, all residents of Village Sarkhandi and thereafter,
the statement of deceased was recorded vide Ex.P7 on the basis
of disclosure of the deceased and thereafter, he had sent Smt.
Rambai to PHC, Kurwai for medical examination vide requisition
form Ex.P8. This witness in his cross-examination admitted that
Harisingh, husband of deceased died by taking sulphur tablet
after three months of the death of deceased Smt. Rambai and
after recording Dehati Nalishi of deceased. This witness further
denied that he has falsely implicated accused on the say of son of
deceased Vinod (PW8).
(11) Bhupendra Singh (PW4) and Bhagwan Singh (PW5) have
not proved seizure memo Ex.P9 as in their evidence both of them
deposed that the said seizure memo was prepared in their absence
at the school situated near the house of deceased. Both these
witnesses in their cross-examination deposed that there is a good
relation of them with accused.
(12) Dr. P.K.Jain (PW6) in his deposition stated that on 18-10-
2009 he was posted as Medical Officer in PHC, Kurwai.
Constable Bharat Singh and Kishor Singh brought Smt. Rambai
in burnt condition to hospital through medical requisition form
Ex.P8 wherein, Smt. Rambai narrated that accused Pooran and
Omkar set her on ablaze. At the time of her medical examination,
face, both upper forearms, both thighs, chest, abdomen and back
of Smt. Rambai were found in burnt. According to the opinion of
doctor, burnt was 70% caused by kerosene, may be dangerous to
life. The MLC report is Ex.P8A. This witness in para 3 of his
evidence admitted that he had also medically examined
Harisingh, husband of Smt. Rambai on 30-10-2009 and the burn
injuries sustained by Harisingh were within 12 days and the same
were simple in nature. His MLC report is Ex.P11. This witness in
para 5 of his cross-examination admitted that Smt. Rambai did
not disclose either the name of village & fathers' name of Pooran
and Omkar or their age. This witness in his cross-examination
admitted that he could not mention as to whether burn injuries
sustained by deceased Smt. Rambai, was superficial or deep.
(13) Shakunbai (PW7) who is the daughter-in-law of deceased
Rambai, in para 3 of her evidence deposed that on the date of
incident, accused persons hurled abuses by saying that if anybody
opposes, they will set on ablaze. Her mother-in-law Rambai told
''how do you fire, look at it! Accused Pratap and Omkar told to
bring container and thereafter, they set Smt. Rambai on ablaze
and fled away from the spot. This witness in para 16 of her cross-
examination admitted that Pooran and Pratap both set Smt.
Rambai on ablaze and this fact has been narrated by her in her
Police Diary Statement Ex.D1 that she had heard this fact while
her mother-in-law was telling to police that both accused Pooran
and Pratap set her on ablaze. In paragraph 25 of her cross-
examination, this witness admitted that a case filed by accused
Chintu alias Maharaj Singh is pending against her husband
Vinod, Ramu and Bablu regarding commission of ''marpeet'' and
has falsely implicated to her husband Vinod. On that account,
there was a previous enmity of accused Chintu alias Maharaj
Singh with her husband and brother-in-law (Devar) and all
accused are of one family. This witness in para 26 of her cross-
examination denied that she has falsely implicated accused
persons in order to save her father-in-law Harisingh and her
husband Vinod.
(14) Vinod (PW8),the son of deceased Rambai in his deposition
stated that on the date of incident, accused persons were hurling
abuses him and his family members. He had objected and his
mother Smt. Rambai had also objected to it. In para 2 of his
evidence, this witness further deposed that accused Pooran
poured kerosene on his mother and accused Omkar set her on
ablaze. This fact had been disclosed by him to the police and he
could not tell as to why police did not mention this fact in his
Police Diary Statement Ex.D2. This witness further deposed that
he had telephoned to Police Kurwai and on reaching police, he
had brought his mother Smt. Rambai to Kurwai Hospital from
where his mother was referred to Hamadia Hospital, Bhopal and
after two-three days during treatment she died.
(15) Dr. Ashok Sharma (PW10) in his evidence deposed that on
22-10-2009 he had conducted the postmortem of deceased Smt.
Rambai and found burn injuries on her face, neck, chest, nipple,
abdomen, both upper forearms, back, both thighs at 2-3 degree.
According to opinion of doctor, the death of deceased was due to
cardio-respiratory failure as a result of burn injuries. Duration of
death was within 24 hours. This witness in his cross-examination
admitted that at the time of postmortem, he was unable to clarify
as to whether the death of deceased was either suicidal, homicidal
or accidental.
(16) Rupabai (PW11) who is the daughter-in-law of deceased
Smt. Rambai, in her evidence deposed that on the date of
incident, the accused persons hurled abuses to their family
members and threatened her mother-in-law for setting her on fire.
This witness in her cross-examination deposed that when she
came out from the house, she saw that her mother-in-law was in
burnt condition.
(17) Ram Kishore Gautam (PW12) who was posted as SHO at
PS Kurwai on 18-10-2009 in his evidence deposed that in
connection with Crime No.247 of 2009 registered for offences
under Sections 147, 148, 307 of IPC, he had prepared a spot map
on the basis of memorandum of witness Shakunbai (PW7) vide
Ex.P12. Burnt clothes, a matchbox and a plastic container were
seized in presence of witnesses Bhagwan Singh and Bhupendra
Singh vide seizure memo Ex.P9 and the said articles were sent to
FSL vide Ex.P20. Statements of witnesses Rupabai, Harisingh,
Preetam Adiwasi, Vinod and Sakunbai were also recorded. On
03-11-2009, formal arrest of accused Pooran and Chintu were
made vide Ex.P18 and Ex.P19 and rest of the accused were also
made vide arrest memo Ex.P14 to Ex.P17.
(18) Bahadur Singh (PW13) in his evidence deposed that on
18-10-2009 he was posted as Head Constable at PS Kurwai and
on the said date, Head Constable Bharat Singh had recorded a
Dehati Nalishi at Crime No.0/2009 for offences under Sections
147, 148, 307 of IPC. This witness further deposed that he had
recorded Original Crime No.247 of 2009 for the offences under
Sections 147, 148, 307 of IPC vide FIR, Ex.P21.
(19) We have heard the learned counsel for the parties and
have also perused the impugned record.
(20) So far as the contention of counsel for the appellants that
the witnesses are related to deceased and there are some
contradictions and omissions in their statements is concerned, it
is true that although there are minor contradictions and omissions
in the evidence of the witnesses, but in the opinion of this Court,
they are not so grave or of any significant nature, rather they are
trivial in nature and, therefore, on the basis of such contradictions
and omissions, whole evidence of the witnesses cannot be
discarded. It is settled principle of law that merely because
witnesses may be related to the deceased, their testimony may not
be rejected. There is no legal canon that only the unrelated
witnesses shall be considered credible. On the contrary, we are of
the view that it is not natural for related witnesses to implicate a
person falsely leaving aside the actual culprit. It is pertinent to
mention here that the only interested or chance witnesses want to
see real culprit is brought to book. In this regard, the Hon'ble
Apex Court in the case of Jayabalan vs. UT of Pondicherry
(2010) 1 SCC 199 has held as under:-
"23. We are of the considered view that in cases
where the Court is called upon to deal with the
evidence of the interested witnesses, the approach of
the Court, while appreciating the evidence of such
witnesses must not be pedantic. The Court must be
cautious in appreciating and accepting the evidence
given by the interested witnesses but the Court must
not be suspicious of such evidence. The primary
endeavour of the Court must be to look for
consistency. The evidence of a witness cannot be
ignored or thrown out solely because it comes from
the mouth of a person who is closely related to the
victim."
(21) The next contention of learned counsel for the appellants
that the seizure memo has not been found proved. Although from
the evidence of Bhupendra Singh (PW4) and Bhagwan Singh
(PW5), it is clear that in their presence the seizure memo Ex.P9
was not prepared but from the evidence of Investigating Officer
R.K Gautam (PW12), it is evident that the incriminating articles
like burnt clothes, matchbox and a five-liter container of kerosene
were seized vide seizure memo Ex.P9 and the same were sent to
FSL Sagar vide Ex.P20.
(22) So far as the contention of learned counsel for the
appellants that the trial Court while convicting and sentencing the
appellants has not taken into consideration evidence of Randhir
Singh (DW1) although he turned hostile and in his deposition he
denied the presence of accused and deposed that Harisingh, the
husband of deceased Rambai had set deceased Rambai on ablaze,
is concerned, but from para 4 of cross-examination of this
witness, it is apparent that even this witness was standing under a
mango tree at the time of incident happened but he did not try to
extinguish fire. As noticed, Dehati Nalishi Ex.P6 and statement of
deceased Ex.P7 are very crucial piece of evidence on the strength
of which edifice of prosecution is rested upon. Therefore, the
evidence given by this witness being creates a serious doubt and
is not reliable as he has only given his defence statement in order
to save the accused.
(23) So far as the contention of the counsel for the appellants
that the statement given by deceased Smt. Rambai cannot be
termed as ''Oral Dying Declaration'' is concerned, it would be
appropriate to discuss relevant provisions of law. Under Section
32 of Indian Evidence Act, 1872, a dying declaration is a relevant
factor in evidence. When a declaration is made by a person
whose death is imminent, the principle attributed to Matthew
Arnold that "truth sits upon the lip of a dying man" will come
into play. The whole idea of accepting a statement in the name of
Dying Declaration comes from a maxim "Nemo moriturus
praesumitur mentire" which means ''a man will not meet his
maker with a lie in his mouth''. There is neither rule of law nor of
prudence that Dying Declaration cannot be acted upon without
corroboration as held by Hon'ble Apex Court in the matter of
Mannu Raja v. State of M.P., [1976] 2 SCR 764. If the Court is
satisfied that that the Dying Declaration is true and voluntary, it
can base conviction on it without corroboration, as observed by
Hon'ble Apex Court in the matter of State of UP vs. Ram Sagar
Yadav [(1985) 1 SCC 552].
(24) In the matter of Nanhau Ram and Another vs. State of
MP (1999 Supp(1) SCC 152), it has been observed by Hon'ble
Apex Court that 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 eye-
witness has stated that the deceased was in a fit and conscious
state to make Dying Declaration, medical opinion cannot prevail.
(25) Similarly, in the matter of Laxman vs State Of
Maharashtra [(2002)6 SCC 710], a Five-Judge Bench of the
Hon'ble Apex Court has held that 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 eyewitnesses state that the deceased was in a fit and
conscious state to make the declaration, the medical opinion will
not prevail, nor can it be said that since there is no certification of
the doctor as to the fitness of the mind of the declarant, the Dying
Declaration is not acceptable. A Dying Declaration can be oral or
in writing and in any adequate method of communication
whether by words or by signs or otherwise will suffice provided
the indication is positive and definite. In most cases, however,
such statements are made orally before death ensues and is
reduced to writing by someone like a Magistrate or a doctor or a
police officer. When it is recorded, no oath is necessary nor is the
presence of a Magistrate is absolutely necessary, although to
assure authenticity it is usual to call a Magistrate, if available for
recording the statement of a man about to die. There is no
requirement of law that a Dying Declaration must necessarily be
made to a Magistrate and when such statement is recorded by a
Magistrate, there is no specified statutory form for such
recording. Consequently, what evidential value or weight has to
be attached to such statement necessarily depends on the facts
and circumstances of each particular 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. Where it
is proved by the testimony of the Magistrate that the declarant
was fit to make the statement even without examination by the
doctor, the declaration can be acted upon provided the Court
ultimately holds the same to be voluntary and truthful. A
certification by the doctor is essentially a rule of caution and,
therefore, the voluntary and truthful nature of the declaration can
be established otherwise.
(26) Regarding the principles governing Dying Declaration, the
Hon'ble Apex Court in the cases of State of UP vs. Ram Sagar
Yadav (1985) 1 SCC 522 and Ramawati Devi vs. State of
Bihar (1983) 1 SCC 211 has held that if the Court is satisfied
that the Dying Declaration is true and voluntary, then it can base
conviction on it without corroboration.
(27) Further, the Hon'ble Apex Court in the case of Surajdeo
Oza vs. State of Bihar 1980 Supp SCC 769 has held that
equally, merely because the Dying Declaration is a brief
statement, cannot be discarded and on the contrary, the shortness
of the statement itself guarantees truth.
(28) In the light of the above law laid down by Hon'ble Apex
Court, it is apparent that a Dying declaration can be oral or in
writing and in any adequate method of communication whether
by words or by signs or otherwise will suffice provided the
indication is positive and definite. In present case at hand,
statement given by the deceased Ex.P7 by orally before her death
ensues and the same was reduced to writing by the police. When
statement of deceased was recorded, no oath was necessary nor
presence of a Magistrate was absolutely necessary, although to
assure the authenticity it was necessary to call a Magistrate, if
available for recording the statement of a man about to die.
Therefore, the doctor while treating the deceased in the Hospital
concerned, has not recorded the statement of the deceased cannot
be disbelieved nor her statement will vanish in thin air. On
perusal of the statement given by deceased in the form of Dying
Declaration, it is apparent that deceased had given his statement
voluntarily and is trustworthy and same needs no corroboration
and appropriate certificate is also not required by doctor while
recording evidence of deceased.
(29) The next contention of learned counsel for the appellants
that since the deceased was burnt around 80% and her general
condition was not proper in order to speak or tell anything to the
doctor at the time of her treatment is concerned, the Hon'ble Apex
Court in the matter of Mafabhai Nagarbhai Raval vs.State of
Gujarat (1999) $ SCC 69 has held that a person suffering 99%
burn injuries could be deemed capable enough for the purpose of
making a Dying Declaration. Unless there exists some inherent
and apparent defect, the Court should not have substituted its
opinion for that of the doctor and the Dying Declaration is found
to be worth of reliance.
(30) Similarly, in the case of State of MP vs. Dal Singh (2013)
14 SCC 159, a two-Judge Bench of Hon'ble Supreme Court has
held that the patient who suffered 100% burn injuries is found
reliable and the mere fact that the patient suffered 92% burn
injuries would not stand in the way of patient giving a Dying
Declaration which otherwise inspires confidence of the Court and
is free from tutoring and can be found reliable.
(31) Further, in burn cases ''Rule of Nine'' as defined in Mody's
Medical Jurisprudence, Epidermal Burns under Second Degree
Burn comprise acute inflammation and blisters produced by
prolonged application of a flame, liquids at boiling point or solids
much above the boiling point of water. Blisters can be produced
by the application of strong irritants of vesicants, such as
cantharides. Blisters may also be produced on those parts of the
body which are exposed to decomposing fluid, such as urine or
faeces, and subject to warmth, as seen in old bed-ridden patients.
In deeply comatose persons, bullae may occur over pressure
areas. If burns are caused by flame or a heated solid substance,
the skin is blackened, and the hair singed at the seat of lesion,
which assumes the character of the substance used. No scar
results as only the superficial layers of the epithelium are
destroyed. However, subsequently, some slight staining of the
skin may remain. Also, Dermo-Epidermal Burns under Third
Degree burn refers to the destruction of the cuticle and part of the
true skin, which appears horny and dark, owing to it having been
charred and shrivelled. Exposure of nerve endings gives rise to
much pain. This leaves a scar, but no contraction, as the scar
contains all the elements of the true skin.
(32) From the aforesaid law laid down by the Apex Court as
well as on perusal of Mody's Medical Jurisprudence, it is clear
that the contention of the counsel for the appellants has no force
as the deceased Smt. Rambai who had received around 80% burn
injuries became conscious and she was able to speak/tell anything
before the police.
(33) On going through the postmortem report of deceased Smt.
Rambai Ex.P13, it is evident that as per the opinion given by Dr.
Ashok Sharma (PW10) who had conducted the postmortem of
deceased Smt. Rambai that the burn injuries on face, neck, chest,
nipple, abdomen, both upper forearms, back, both thighs of
deceased were at 2-3 Degree and the death of deceased was due
to cardio-respiratory failure as a result of burn injuries sustained
by deceased.
(34) The last contention of counsel for the appellants that due
to previous enmity the appellants have been falsely implicated as
it reflects from the evidence of eye-witnesses is concerned, it is
well-established principle of law that the enmity or animosity is a
double-edged weapon. It cuts both sides. It could be a ground for
false implication and it could also be a ground for assault. Just
because the witnesses are related to the deceased would be no
ground to discard their testimony, if otherwise their testimony
inspires confidence. In the given facts of present case, we have
no reason to disbelieve the testimony of the eye-witnesses.
Similarly, being relatives, it would be their endeavour to see that
real culprits are punished and normally, they would not implicate
wrong persons in the crime so as to allow the real culprits to
escape unpunished. It is, therefore, not a safe rule to reject their
testimony merely on the ground that the complainant party and
the accused party were on inimical terms. Similarly, the evidence
could not be rejected merely on the basis of relationship of
witnesses with the deceased. In such a situation, it only puts the
Court with solemn duty to make a deeper probe and scrutinize
evidence with more than ordinary care which precaution has
already been taken by the trial Court while analyzing and
accepting the evidence.
(35) On scanning the evidence of eye-witnesses Shakunbai
(PW7), Rupabai (PW11) and Vinod (PW8) it is crystal clear that
although there appears some contraction in their evidence, but
their evidence is fully corroborated the prosecution version as
well as medical evidence and there is ample and direct evidence
to show that even prior to the alleged incident in question, the
appellants- accused had hurled abuses and set deceased on ablaze
by pouring kerosene on her. The Trial Court has rightly relied
upon their evidence as well as Dehati Nalishi Ex.P6 and the
statement of deceased Ex.P7 treating it as true disclosure of facts
by deceased Smt. Rambai and the medical evidence also fully
corroborates the version given by the deceased. After analyzing
the prosecution evidence, the Trial Court has rightly come to the
conclusion that deceased was burnt to death by three appellants
by setting her on fire after pouring kerosene on her.
(36) In view of foregoing discussions, we are of the opinion that
the Trial Court has rightly convicted and sentenced the appellants
for the offence aforesaid. Thus, we upheld the conviction and
sentence awarded by Trial Court to the appellants for offence
who have been charged with, does not call for any interference by
this Court. The appeal lacks merit. It is, accordingly, dismissed.
The impugned judgment dated 10-06-2011 passed by First
Additional Sessions Judge, Vidisha (MP) in Sessions Trial
No.03/2010 is also affirmed.
(37) The appellants accused are stated to be in jail. They shall
remain in jail to serve out the remaining jail sentence awarded by
Trial Court.
Let a copy of this judgment be sent to Jail authorities
concerned forthwith and also a copy of this judgment along with
LCR be sent to the concerning Trial Court for necessary
information and follow-up action.
(G. S. Ahluwalia) (Rajeev Kumar Shrivastava)
Judge Judge
MKB
Digitally signed by MAHENDRA
BARIK
Date: 2022.05.05 16:49:15 +05'30'
