Madhya Pradesh High Court
Rajesh @ Nana vs The State Of Madhya Pradesh on 16 September, 2022
Author: Subodh Abhyankar
1
Cr.Appeal No.953/2017
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
ON THE 16th OF SEPTEMBER, 2022
CRIMINAL APPEAL No. 953 of 2017
BETWEEN:-
RAJESH @ NANA S/O AMRATLAL BAGDI, AGED ABOUT 25
YEARS, OCCUPATION: DRIVER VEDVYAS COLONY KHATIK
MOHALLA RATLAM (MADHYA PRADESH)
.....APPELLANT
(BY MS. SHARMILA SHARMA)
AND
THE STATE OF MADHYA PRADESH STATION HOUSE OFFICER
THROUGH PS INDUSTRIAL AREA RATLAM (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI A.S. SISODIYA, GOVT. ADVOCATE)
Reserved On: 04.08.2022
This appeal coming on for judgment this day, this Court passed
the following:
JUDGMENT
Satyendra Kumar Singh, J.,
Appellant has preferred this appeal under Section 374(2) of the
Code of Criminal Procedure, 1973(2 of 1974) [in short Cr.P.C.] being
aggrieved by the judgment dated 30.03.2017 passed by the Court of
Special Judge (SC/ST Act) & Additional Sessions Judge, Ratlam in S.T.
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No. 33/2012, whereby the appellant has been convicted for the offence
punishable under Section 304-B of Indian Panel Code, 1860 (in short
'IPC') and sentenced him to life imprisonment with fine of Rs.1500/-
with default stipulation.
2. The prosecution case in brief is as follows:
(i) Appellant Rajesh @ Nanna and deceased Reena were husband
and wife and their marriage was solemnized about 5 years prior to the
incident. After about one and a half years of their marriage, appellant
alongwith co-accused persons i.e. appellant's father Amratlal, mother
Kalabai and sister Pinky started dowry demand cruelty with her. They
were demanding an amount of Rs.2 lakhs for starting the business of
the appellant and when their demands were not fulfilled, they harassed
her mentally and physically about which she had made complaint
against them, on the basis of which FIR dated 26.08.2011 (Ex.P-16) for
the offences punishable under Section 294, 323, 498-A and 506 of IPC
was registered against them at Police Station- Mahila Thana, Ratlam.
(ii) In the aforesaid matter, after filing of the chargesheet, during trial
of the case appellant entered into a compromise with the deceased and
about 10 days prior to the incident of the present case, he took the
deceased to his house, and thereafter, again started harassing her
mentally and physically. On the date of incident i.e. 12.10.2011 at about
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09:10 hours, appellant started shifting his luggage to his another house
and when deceased told him to take her also with him, he refused and
told her that he will bring another woman. Thereafter, a quarrel took
place between them on which appellant poured kerosene oil on her
body and set her on fire. Appellant's mother co-accused Kalabai threw
water on her and took her to District Hospital, Ratlam, where at about
11.00 hours, Dr. Gopal Yadav finding burn injuries on all over her body
and also finding her general condition poor, prepared Pre MLC Report
(Ex.P-14), admitted her in the hospital for treatment and vide letter
(Ex.P-15) informed P.S. Industrial Area, Distt. Ratlam.
(iii) SI Rajendra Prasad Shrivas after receiving the information about
the incident, reached the burn ward of the District Hospital, Ratlam and
at about 12:30 hours, on the basis of deceased's oral complaint,
recorded dehatinalsi report (Ex.P/23) and informed to the Executive
Magistrate for recording her dying declaration. Executive Magistrate/
Additional Tehsildar Vijay Saxena reached the hospital and after
getting the fitness certificate from the concerned duty doctor, at about
13:00 hours, recorded her dying declaration (Ex.P-1) and vide letter
(Ex.P-2) sent the same to the Chief Judicial Magistrate, Ratlam. On the
same day at about 18.05 hours, H.C. Madanlal, on the basis of
dehatinalsi report (ExP-23), registered the FIR (Ex.P-22) against the
Cr.Appeal No.953/2017
appellant and co-accused persons his father Amratlal, mother Kalabai
and sister Pinky for the offences punishable under section 307 r/w 34
and 498-A of IPC at P. S. Industrial Area, Ratlam.
(iv) During investigation SI Rajendra Prasad went to the place of
occurrence, prepared spot map (Ex.P-11), seized a blue colored plastic
can containing about 100 gm of kerosene, a match box, a burnt match
stick and hairs found on the spot as per seizure memo (Ex.P-4) and
deceased's burnt clothes found near the spot as per seizure memo (ExP-
5). He also collected and seized deceased's hair as per seizure memo
(ExP-6). On 22.10.2011 at about 02.45 hours, deceased died in the
hospital during treatment. Dr. Shailendra Mathur vide letter (Ex.P-8)
informed the police about the death of the deceased, on the basis of
which H.C. Madanlal at about 07.05 hours, registered the merg
intimation report (Ex.P-21A). SI Rajendra Prasad went to the hospital,
called the witnesses through Safina Form (Ex.P-9). Additional
Tehsildar Sanjay Waghmare prepared naksha panchayatnama (Ex.P-
10) of the body of the deceased. SI Rajendra Prasad vide letter (Ex.P-
25) sent the body of the deceased for postmortem examination.
(v). Dr. Aman Ohry conducted the postmortem examination of the
deceased's body and finding all organs of her body congested, prepared
postmortem report (Ex.P-13) and opined that the deceased death was
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caused due to cardio respiratory failure as a result of septic shock by
burn within 24 hours from the time of postmortem examination and the
burn injuries found on her body were anti-mortem in nature. I/O C.S.P.
Rajendra Singh Vardhman arrested the appellant as per arrest memo
(Ex.P-19) and vide letter (Ex.P-20) sent all the seized articles to FSL,
Sagar, obtained FSL report (Ex-P-21). After completion of
investigation filed the chargesheet against the appellant as well as co-
accused persons namely; Amratlal, Kalabai and Pinky before the Court
of Judicial Magistrate First Class, Ratlam, who committed the case to
the Court of Additional Sessions Judge, Ratlam.
3. Learned trial Court considering the material prima-facie
available on record framed the charges u/S 498-A, 302 and 304(B) of
IPC against the appellant and co-accused persons namely; Amratlal,
Kalabai and Pinky, who abjured their guilt and prayed for trial.
4. Learned trial Court after appreciating the oral as well as
documentary evidence available on record, acquitted the co-accused
persons from all the charges, while convicted the appellant for the
offence punishable u/S 304(B) of IPC and sentenced him as stated in
para 1 of this judgment. Being aggrieved by the said judgment of
conviction and order of sentence, appellant has preferred this appeal for
setting aside the impugned judgment and discharging him from the
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aforesaid charges framed against him.
5. Learned counsel for the appellant submits that the learned trial
Court has committed legal error while appreciating the evidence
available on record. Admittedly, appellant and deceased's marriage was
solemnized in a Samuhik Vivah Sammelan organized under Chief
Minister's Scheme and at that time there was no demand of dowry from
either side. Omnibus allegations about the dowry demand cruelty have
been alleged against the appellant. The appellant and other co-accused
persons have been acquitted in the criminal case registered against
them in this regard. Statements of prosecution witnesses, who are
closed relatives of the deceased are inconsistent and co-accused
persons have already been acquitted from all the charges, therefore, on
the same set of evidence, conviction of the appellant is not sustainable.
Deceased herself poured kerosene on her body and set herself on fire.
Thus, impugned judgment of conviction and order of sentence deserves
to be set aside and appellant may be acquitted from the charge framed
against him.
Learned counsel for the appellant also submits that as the
incident took place due to sudden fight without any premeditation and
the act of the appellant was an outcome of the heat of passion upon
such sudden quarrel, therefore, the appellant's case squarely falls within
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Exception 4 to section 300 of IPC. In support of his above contention,
he has placed reliance on the judgment rendered by the Apex Court in
the cases of K. Ravi Kumar Vs State of Karnataka ( Cr. Appeal No
2494 of 2014).
6. Per contra, learned counsel for the respondent/State while
supporting the impugned judgment of conviction and order of sentence
submits that judgment so passed by the trial Court is based on proper
appreciation of evidence available on record. Therefore, confirming the
impugned judgment of conviction and order of sentence, the appeal
filed by the appellant deserves to be dismissed.
7. Heard learned counsel for both the parties at length and perused
the record.
8. Prosecution has examined in all 18 prosecution witnesses
including deceased's sister Krishnabai (PW-5), brother Suresh (PW-7)
and sister-in-law Chandrabai (PW-18), who reached the hospital just
after the incident. Other material witnesses are Executive Magistrate/
Tehsildar Vijay Saxena (PW-1), who recorded her dying declaration.
Dr. Shailendra Mathur (PW-4), who first time medically examined the
deceased and admitted her in the hospital, Dr. Abhay Ohri (PW-10),
who conducted the postmortem examination of the body of the
deceased, S.I. Rajendra Prasad Shrivas (PW-17), who recorded the
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dehatinalsi report and conducted merg inquiry. Head Constable
Madanlal (PW-16), who lodged the FIR (EX.P-22) as well as merg
intimation report (Ex.P-/21) and C.S.P. Rajendra Singh Vardhman (PW-
15), who investigated the matter and filed the charge sheet.
9. Deceased's elder sister Krishnabai (PW-5) deposed that about 5
years ago deceased Reena was married to the appellant. Her brother
Suresh (PW-7) also stated so and during cross-examination of
Krishnabai, co-accused persons themselves suggested her that
deceased's marriage was solemnized in the year 2007, therefore, this
fact seems undisputed that deceased was married to the appellant about
4-5 years prior to the date of incident.
10. Admittedly, incident took place on 12.10.2011 and deceased's
mother-in-law Kalabai herself took the deceased, in burnt condition, to
the District Hospital, Ratlam, where on 22.10.2011 at about 02:45AM,
she died during treatment due to cardio respiratory failure because of
septic shock by burn injuries and her death was unnatural. Therefore,
this fact is established that deceased died unnatural death within seven
years of her marriage.
11. So for as the issue whether appellant caused dowry death of the
deceased by pouring kerosene oil on her body and setting her on fire is
concerned, S.I. Rajendra Prasad Shrivas (PW-7) deposed that at the
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relevant point of time, when incident took place, he was present at the
Police Chowki Haat and after hearing the noise of the quarrel, when he
reached the place of incident, he was informed that deceased's mother-
in-law had taken the deceased to the hospital. He then reached to the
burn ward of District Hospital, Ratlam, where after about half an hour
of her treatment he met with her and recorded dehatinalsi report (Ex/.P-
23) on the basis her oral complaint.
12. Executive Magistrate/ Tehsildar Vijay Saxena (PW-1) deposed
that on the date of incident after receiving a Tahrir (Letter) from the
police to record the statement of the deceased, he went to the hospital
and after getting fitness certificate from the concerned duty doctor, at
about 13.00 hours recorded the statement i.e. dying declaration (Ex.P-
1) of the deceased, wherein she had stated that on the date of incident at
about 09.00 hours when her husband and her mother-in-law both were
present in the house, a quarrel took place between them as appellant
was not ready to keep her with him and was saying that he will bring
another woman. Appellant thereafter, poured kerosene oil on her body
and set her on fire.
13. Appellant has challenged the reliability of dehatinalsi report
(Ex/.P-23) and dying declaration (Ex.P-1) on the ground that at the
time of recording of dehatinalsi report (Ex.P-23) as well as dying
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declaration (Ex.P-1), the deceased was not capable to get her
statement recorded. S.I. Rajendra Prasad Shrivas (PW-7) admitted in
his cross-examination that he recorded the dehatinalsi report (Ex.P-23)
without making inquiry from the duty doctor about the capability of the
deceased to get her statement recorded, but Executive Magistrate Vijay
Saxena (PW-1) deposed that he after getting the fitness certificate about
the capability of the deceased from the concerned duty doctor, recorded
her dying declaration (Ex.P-1). Perusal of the above dying declaration
(Ex.P-1) reveals that the duty doctor had certified, at the beginning of
the statement, as " Pt is able to give her statement", and at the end of
the statement as "Throughout the duration of statement pt. was
conscious & oriented".
14. Although, the doctor who had given the said fitness certificate
about the capability of the deceased has not been examined, but
admittedly deceased died after about 10 days of the incident and all the
prosecution witnesses namely Krishnabai (PW-5), Jitendra (PW-6),
Suresh (PW-7) and Chandrabai (PW-18), who reached the hospital after
the incident and had met with the deceased, deposed that the deceased
was able to speak at that time and had stated almost similar statements
as that of the dehatinalsi report (Ex.P-23) and the dying declaration
(Ex.P-1).
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15. Executive Magistrate/ Tehsildar Vijay Saxena (PW-1) is an
independent witness and responsible officer and the dying declaration
(Ex.P-1) recorded by him finds support from the deceased's oral dying
declarations made before Krishnabai (PW-5), Jitendra (PW-6), Suresh
(PW-7) and Chandrabai (PW-18) and also from the dehatinalsi report
(Ex.P-23), lodged just after the incident. Nothing material has been
extracted during his cross-examination, which makes his statement
doubtful, therefore, there is no reason to disbelieve the same.
16. From the unchallenged testimony of SI Ganga Chouhan (PW-13),
this fact also seems not disputed that prior to the incident, deceased had
lodged an FIR dated 26.08.2011 (Ex.P-16) against the appellant as well
as his father and mother for the offences punishable under Section 498-
A, 294, 323 and 506 of IPC at Police Station Mahila Thana, Ratlam.
From the statements of deceased's sister Krishnabai (PW-5), brother
Suresh (PW-7) and sister-in-law Chandrabai (PW-18), it is established
that about ten days prior to the incident, appellant entered into a
compromise with the deceased and took her to his house from the
Court.
17. During the course of arguments it has been argued on behalf of the
appellant that criminal case registered in the aforesaid matter has been
disposed of and the appellant as well as his other family members have
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been acquitted from the charges alleged therein, but neither the copy of
the said judgement has been produced nor it has been brought on
record that on what ground they were acquitted in the aforesaid matter.
Therefore, although the allegations alleged in the aforesaid matter may
not be found proved beyond reasonable doubt, but this fact cannot be
denied that at the time of incident a dispute between deceased and
appellant with regard to the dowry demand cruelty was pending in the
court and appellant's relations with the deceased were strained.
18. Deceased was burnt and died within seven years of her marriage
while living with the appellant in his house and neither appellant nor
his mother Kalabai, who took the deceased from the place of incident to
the hospital after the incident, have not stated anything in their
statement recorded u/S 313 of Cr.PC as to why and how deceased was
burnt. They had taken a defence that deceased herself poured kerosene
oil on her body and set herself on fire, but there is nothing on record,
which indicates that she herself poured kerosene oil on her body and
committed suicide.
19. In this regard statements of SI Rajendra Prasad (PW-17), who
prepared the spot map (Ex.P-11) and seized a blue colored plastic can
having about 100 gm of kerosene alongwith other articles as per seizure
memo (Ex.P-4) is relevant. He in para 2 of his examination in chief
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specifically deposed that after the incident when he went to the place of
incident he had found a blue colored plastic can covered with lid
containing about 100 gm of kerosene oil. As it was neither probable nor
possible that the deceased herself could cover the above can with lid
after pouring kerosene on her body and setting herself on fire, therefore
defense taken by the appellant that she committed suicide is not
probable at all.
20. In this regard statements of Dr Abhay Ohri (P.W.-10), Dr. Gopal
Yadav (PW-11) and Tehsildar Sanjay Waghmare (PW-12) are also
relevant who deposed that while postmortem examination, medical
examination and inquest proceeding they had found burn injuries on all
over the body of the deceased as per postmortem report (Ex.P-13), Pre
MLC Report (Ex.P-14) and Nakshapanchyatnama (Ex.P-10)
respectively, which was normally not possible in suicidal cases. Hence
circumstances produced on record specifically negates the defense
taken by the appellant and there is no reason to disbelieve or doubt the
prosecution case.
21. As it has already been found established that prior to the incident
of this case a dispute between the deceased and appellant with-regard
to dowry demand cruelty was pending in the court and about 10 days
prior to the date of the incident of this case, appellant himself took the
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deceased to his house from the court. Deceased in her dehatinalsi
report (Ex.P-23) as well as in her dying declaration (Ex.P-1)
specifically stated that on the date of incident appellant was shifting his
luggage in his another house saying he will not keep the deceased with
him and will bring other woman, which itself shows that his dowry
demand cruelty with the deceased was still going on at the time of
incident.
22. In view of the above, it can also not be said that the incident took
place due to sudden fight without any premeditation and the act of the
appellant was an outcome of the heat of passion upon such sudden
quarrel. Facts of the case K. Ravi Kumar Vs State of Karnataka ( Cr.
Appeal No 2494 of 2014), cited by the appellant is entirely different,
wherein after about 9 years of happy marriage life, all of sudden a
quarrel had taken place between the accused and deceased wife only
because deceased wife was not agreed to leave immediately to see her
father-in law, hence the same is of no assistance to the appellant.
23. Thus, in view of the aforesaid discussion, there is no reason to
disbelieve the prosecution story. This Court does not find any illegality,
perversity and arbitrariness in the finding recorded by the learned Trial
Court while convicting the appellant for the offence punishable u/S
304-B of IPC, hence the impugned judgement of conviction and order
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of sentence passed by learned Trial Court is liable to be affirmed and is
hereby affirmed.
24. Accordingly, this appeal filed on behalf of the appellant is
hereby dismissed.
25. The Registry is directed to send back the Trial Court record
forthwith alongwith the copy of this judgment.
(Subodh Abhyankar) (Satyendra Kumar Singh)
Judge Judge
vibha/-
VIBHA PACHORI
2022.09.16
18:28:20 +05'30'
