Jahoor Khan vs The State Of Madhya Pradesh
2023 Latest Caselaw 12867 MP

                                   1



      IN THE HIGH COURT OF MADHYA PRADESH
                            AT I N D O R E
                 HON'BLE SHRI JUSTICE VIVEK RUSIA
                                   &
                 HON'BLE SHRI JUSTICE ANIL VERMA
                   CRIMINAL APPEAL No. 464 of 2014

BETWEEN:-
JAHOOR KHAN SON OF YASEEN KHAN,
AGED 38 YEARS, OCCUPATION VEGETABLE
SELLER, R/O SAKTALI PHATA, RALAYATI
PHATA, THANA SONKATCH, DISTRICT
DEWAS (MADHYA PRADESH)
                                                       .....APPELLANT
(BY SHRI VIVEK SINGH - ADVOCATE)

AND
THE STATE OF MADHYA PRADESH
THROUGH POLICE STATION SONKATCH
DISTRICT DEWAS (MADHYA PRADESH)
                                                     .....RESPONDENT
(BY SHRI AMIT RAWAL - GOVERNMENT ADVOCATE)


Reserved on             :     26/7/2023
Pronounced on           :      9/8/2023


      This appeal having been heard and reserved for orders, coming on
for pronouncement this day, the JUSTICE ANIL VERMA pronounced
the following:
                            JUDGMENT

The appellant has preferred present criminal appeal under Section 374 of Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') against the

impugned judgment dated 19/3/2014 passed by Additional Sessions Judge, Sonkatch District Dewas (M.P.) in Sessions Trial No.175/2012, whereby the appellant has been convicted for the offence under Section 302 of the Indian Penal Code, 1860 (in short 'IPC') and sentenced to undergo Life Imprisonment with fine of Rs. 10,000/- with usual default stipulation.

2. The facts of the case in brief are that deceased Rehana Bi was first wife of appellant Jahoor Khan and accused Yaseen (acquitted) was father in law of deceased and accused Bilkis Bi (acquitted) was the first wife of appellant. Appellant's first wife Bilkis Bi went to her matrimonial house in the year 1997 and she did not return, therefore, the appellant contacted second marriage with deceased Rehana Bi. After sometime, Bilkis Bi came back to her matrimonial house and started living together with appellant and deceased. Appellant and his father Yaseen used to harass deceased Rehana Bi therefore, Rehana Bi lodged two reports against them in the year 2003 and 2006. On the basis of her reports criminal cases were registered against the appellant but after sometime both the cases were compromised and Rehana Bi again returned to her matrimonial house and all of them started living together. On 8.3.2012 when Rehana Bi had gone to earn some livelihood and when she came back at 2.45 pm the appellant made allegation against her with regard to her character like she has physical relationship with others and why she goes out for work. At that time, Yaseen and Bilkis Bi came from inside and caught hold the deceased and appellant after pouring kerosene on her, set her on fire. On hearing the shrieks of the deceased, her brother in law Hussain Khan and sister in law Rukhsana

Bi came on the spot and doused the fire by pouring water on her. Sabbir Khan (PW-3) also reached on the spot and he had saw the injured in the burnt condition.

3. The prosecution story further in brief is that injured was taken to hospital by Hussain Khan in the car of Imran. Dr. H.K. Gupta (PW-13) has given the information of alleged incident to police station Sonkatch and further investigation was assigned to ASI G.P. Vyas (PW-

15), then first dying declaration of injured (Ex.P-16) was recorded by Dr. H.K. Gupta. Additional Tehsildar Sudeep Meena (PW-6) also recorded dying declaration of injured Rehana on 9.3.2012. Injured was examined and for the further treatment she referred to District Hospital Dewas. On the basis of the statement and dying declaration of injured Rehana, an FIR (Ex.P-18) was registered on 8.3.2012 at crime No. 95/2012 for an offence under section 307/34. During investigation, investigating officer prepared spot map (Ex.P-19) and recovered five liters kerosene from there. During treatment, injured Rehana Bi succumbed to injuries on 10.3.2012. The appellant and other co-accused persons were arrested by the police. Dr. Deepak Govali (PW-10) performed the postmortem of the deceased. Burned cloths of deceased were recovered by police and all the seized articles were sent by police for its chemical examination to FSL Sagar and FSL report Ex.P-25 has been received.

4. After completion of investigation, charge sheet was filed before the JMFC Sonkatch, who has committed the case to the Court of Sessions. Thereafter the case was transferred to the court of Additional Sessions Judge Sonkatch for trial. The trial Court on the basis of the

allegations made in the charge sheet framed charge under Section 302 of IPC against the appellant Jahoor Khan and other co-accused persons under section 302/34 IPC. Appellant and co-accused abjured their guilt and pleaded complete innocence. The defence of appellant is that wife of appellant Bilkis Bi came back and started living with appellant, therefore, the deceased was not happy with her and committed suicide by burning herself.

5. The trial Court after appreciating the evidence available on record, convicted and sentenced the appellant as mentioned herein above, but acquitted the other accused persons. Hence, the appellant has preferred this appeal.

6. Learned counsel for the appellant contended that the judgment of the trial Court is contrary to law and facts on record. It is neither legal nor proper nor correct. There is no iota of material against the appellant. Allegation of deceased does not get any support from the evidence available on record. In the instant case, prosecution has recorded multiple dying declarations and in those dying declarations different story has been given by the deceased. Deceased had sustained grievous burn injuries and in that situation it is highly impossible for any person to give multiple statements. Deceased had committed suicide but merely because of the pressure of her family members, a false case has been registered against the appellant. Conviction of the appellant is bad in law. He has placed reliance upon judgments in the cases of Ramveer Singh vs. State of MP reported in 2010(94) AIC 529, Shaikh Bakshu and other Vs. State of Maharashtra reported in (2008) 1 SCC (Cri) 679 Ramveer Singh. Hence, he prays that the appeal be allowed and

the impugned judgment of conviction and sentence passed by the trial Court be set aside and appellant be acquitted from the charge under Section 302 of IPC.

7. Per contra, learned counsel for the respondent / State opposes the prayer by supporting the impugned judgment passed by the trial Court and prays for dismissal of this appeal by submitting that trial Court after appreciating the entire evidence available on record in detail convicted the appellant. The trial Court has not committed any error in holding that the appellant is guilty for the offence under Section 302 of IPC. Hence, no interference in the impugned judgment is warranted, therefore, present appeal deserves to be dismissed.

8. We have heard learned counsel for both the parties at length and perused the entire record of the trial Court with due care.

9. In order to appreciate the merits of rival contentions in right perspective, it is necessary to first advert the medical evidence available on record.

10. Dr. H.K. Gupta (PW-13) has deposed that on 8.3.2012, Rehana Bi was brought in the hospital in 80% burnt and semi conscious condition. During examination he has found burn injuries over her face, neck, back side of neck on Rehana and her hairs were also found in a burnt condition. Her chest part, abdomen, upper part of thigh, posterior portion of back was also found burnt and smell of kerosene was present. His MLC report is Ex.P-17 and after the primary treatment referred her to the District Hospital Dewas.

11 Dr. Deepak Govali (PW-10) who has performed the postmortem of deceased found burn injuries all over the person of the

deceased and opined that death of deceased was due to cardio respiratory failure as a result of burn and its complications and duration of death was within 24 hours of postmortem. The postmortem report is Ex.P-10. However, on the issue of aforesaid injuries no cross examination was done by the accused person. In absence of any challenge to the medical reports on the aforesaid injuries we have no option but to accept the postmortem report and oral evidence of Dr. H.K. Gupta (PW-13) and Dr. Deepak Govali (PW-10) that the death of deceased was homicidal in nature and she has died due to several burn injuries and its complications.

12 Ameena Bi (PW-1) who is mother of deceased has deposed that marriage of her daughter deceased was solemnized with appellant Jahoor about 15 years ago and due to the wedlock she gave birth of a male child and a female child. The appellant and other accused persons used to commit marpeet with Rehana therefore, Rehana lodged report two reports at police station Sonkatch, in one case accused persons were convicted but said matter was eventually compromised and all of them started living together. Despite of the said incident, there was no improvement in the conduct and behaviour of accused persons and they used to commit marpeet with Rehana. She further deposed that Hakim informed her that Rehana has been burnt, he alongwith his son Asif went to Sonkatch hospital where Rehana narrated that she went to do some agriculture work in the field of her brother in law, therefore, accused persons became angry and told her why she goes out for work there and they started beating with her and Jahoor poured kerosene on her and set her on fire.

13 Ashiq Kha (PW-2) who is brother of deceased, Bhondu Kha (PW-3) who is father of deceased also corroborated the statement of Ameena Bi (PW-1). Inspector K.C. Malviya (PW-14) also proved the FIRs (Ex.P-26 and P-27) which were lodged by deceased Rehana Bi against appellant and other co-accused persons in the year 2003 and 2006. From perusal of both these FIRs it appears that both times offence under section 498A, 323 r/w section 34 of IPC was registered against the present appellant and other accused persons for harassing the deceased Rehana Bi for non fulfillment of demand of dowry. These two earlier FIRs lodged by deceased are sufficient to prove the previous conduct of appellant with her.

14 On minute perusal of the record, it is clear that there is no eye witness of the incident and the whole case of prosecution is based upon four dying declarations of deceased: First dying declaring (Ex.P16) which was recorded by Dr. H.K. Gupta (PW-13) on 8.3.2014; second dying declaration (Ex.P-29) was recorded by ASI G.P. Vyas; third dying declaration (Ex.P-5) recorded by Additional Tehsildar Sudeep Meena (PW-6) on 9.3.2012; and fourth dying declaration (Ex.P-20) recorded by investing officer K.C. Malviya. On 9.3.2012 in the form of statement under section 161 of Cr.P.C.

15 The learned trial court considered all dying declarations of deceased in paras 60 to 71 of the impugned judgment. Learned trial court expressed that there are two dying declarations, one Ex.P-5 written by Additional Tehsildar Sudeep Meena and second Ex. P- 20 written by Inspector K.C. Malviya (PW-14), both are inconsistent. The trial court has not relied upon other two dying declarations (Ex. P-16) which was

allegedly recorded by Dr. H. K. Gupta and Inspector G.P. Vyas.

16 So far as the dying declaration given by deceased in the hospital before Executive Magistrate/Tehsildar Sudeep Meena is concerned, we would like to mention here that Sudeep Meena categorically stated that when he recorded the dying declaration of Rehana Bi at that time duty doctor was present there and has given certificate that she is fit for giving statement. Concerned doctor also signed the statement. Sudeep Meena (PW-6) denied suggestion that the family members of deceased told how the incident had occurred. It is true that conviction can be accorded solely on the basis of dying declaration but it is equally proved that it should be clear, cogent and trustworthy. On the minute scrutiny of testimony of Sudeep Meena (PW-

6) we find that this witness has categorically stated that on seeing the physical condition of deceased and providing the medical certificate by duty doctor he was satisfied that she was mentally and physically fit to depose the dying declaration. Sudeep Meena categorically stated that deceased Rehana Bi categorically stated in her dying declaration that her father in law Yaseen caught hold her and her husband has poured kerosene oil upon her and set her ablaze. It is apparently clear that dying declaration (Ex.P-5) and the testimony of Tehsildar Sudeep Meena also have inconsistency in the similar way.

17 The Hon'ble Apex court in case of Javed Masad and others Vs. State of Rajasthan AIR 2010 SC 979 and in the case of Ashok Kumar Vs. State of M.P. I.LR (2011) MP 2532, it has been held as under:-

"Doctor, who wrote the tehrir for Dying declaration and Naib Tahsildar, who recorded the Dying declaration stating that deceased told them that she got burnt by stove while preparing the food- Both are Government Servants and are independent witnesses- Nothing in cross examination to disbelieve them- Held- The trial Court committed illegality in not placing reliance on testimony of these witnesses."

18 Inspector K.C. Malviya (PW-14) also deposed that on 9.3.2012 he has recorded the dying declaration (Ex.P-20) of deceased at Apex Hospital Dewas and at that time doctor has given certificate that deceased was mentally and physically fit to depose the dying declaration. Rehana Bi in her dying declaration deposed as under:-

" ....... jsgkuk ch us c;ku esa esjs le{k ;g Hkh crk;k Fkk fd fnukad 08- 03-2012 dks og etnwjh djus xbZ Fkh] nksigj dks okil vkbZ Fkh rks llqj ;klhu] ifr tgwj us mlls >xM+uk pkyw dj fn;k o cksys fd ckgj etnwjh ij D;ksa tkrh gS] nwljs yksxksa ls laca/k j[krh gS vkSj >xM+rs gq, llqj o lkSru fcfYdl us mldks idM+ fy;k o ifr tgwj us dsu ls ?kklysV mlds Åij Mky fn;k rFkk ekfpl ls vkx yxk nh ftlls og vf/kd ty xbZA jsgkuk ch us c;ku esa esjs le{k ;g Hkh crk;k Fkk fd vkx yxkus ls mlds igys diM+s lc ty x, FksA ikuh Mkydj vkx cq>kbZ FkhA nsoj gqlSu [kka o nsojkbZ :dlkuk ch mls lksudPN ysdj vk, fQj lksudPN esa eka vehuk ,oa HkkbZ vkf'kd vk x, mudks Hkh mlus ?kVuk crkbZA jsgkuk ch us c;ku esa eq>s ;g Hkh crk;k Fkk fd llqjky esa igys Hkh >xM+k gqvk Fkk ftldh fjiksVZ lu~ 2003 ,oa 2006 esa Fkkus ij dh Fkh ftlesa ckn esa le>kSrk gks x;kA jsgkuk ch ml le; tc eSaus mlds c;ku ys[kc) fd, c;ku nsus ds fy, ekufld o 'kkjhfjd :Ik ls vPNh fLFkfr esa FkhA eSus jsgkuk ch ds crk, vuqlkj tks & mlds c;ku ys[kc) fd, Fks] os iz- ih&20 gS ftuds , ls , Hkkx ij esjs gLrk{kj cus gq, gSaA"

19 The Hon'ble Apex court in the case of Amol Singh Vs. State of MP reported in (2008) 2 SCC (Cri) 537 has held as under:-

"Law relating to appreciation of evidence in the form of more than one dying declaration is well settled. Accordingly, it is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration. The statement should be consistent throughout. If the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration they should be consistent. (See: Kundula Bala Subrahmanyam v. State of A.P. [ (1993) 2 SCC 684]. However, if some inconsistencies are noticed between one dying declaration and the other, the court has to examine the nature of the inconsistencies, namely, whether they are material or not. While scruitinizing the contents of various dying declaration, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances."

20 The Hon'ble Apex court in case of Laxman Vs. State of Maharashra reported in(2002) 65 SCC 710 has held as under:-

"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."

21 Trial court observed that both the dying declarations of deceased (Ex.P-5) were recorded before Additional Tehsildar Sudeep

Meena and Inspector K.C.Malviya (PW-14) after obtaining certificate of doctor regarding fitness of mental and physical condition of the deceased to depose it. The substratum of both dying declarations remain inconsistence to the effect that appellant poured kerosene oil upon her and set her on fire. Both the dying declarations were duly corroborated by the medical evidence that the deceased died due to burn injuries. It is also proved that deceased was subjected to cruelty by her husband prior to the incident and before the aforesaid incident she had made two complaints regarding cruelty against appellant. Therefore, motive of crime was duly established by prosecution.

22 Learned counsel for appellant submits that dying declaration recorded by Tehsildar Shri Sudeep Meena (PW-6) contains the thumb impression of deceased, hence it could not be relied upon. Sudeep Meena has stated that signature could not be taken since she is not in a condition to sign the declaration because both of her hands were burnt. Dr. Deepak Gabli (PW-10) and Dr. H.K. Gupta (PW-13) also supported that both the hands of deceased were found burnt.

23 Reliance is placed upon the judgment of the Apex court in the case of Sukanti Moharana Vs. State of Orissa (2009) 9 SCC 163, wherein the Court took the view that there is no reason why a dying declaration which is otherwise found to be true, voluntary and correct should be rejected only because the person who recorded the dying declaration could not affix his signatures or thumb impressions on the dying declaration.

24 The appellant has taken a defence that at the time of incident he went to village Badiya, however he has examined his brother Hussain

Khan (DW-1) who was not the resident of village Badiya. Appellant neither examined any witness of village Badiya nor examined any witness who was present in the said social function. Therefore, in absence of cogent evidence, appellant has failed to prove his alibi at the time of incident.

25 Considering the totality of evidence including two dying declarations made by deceased, both of which are inconsistence with each other and the ocular evidence corroborated by medical evidence, we are satisfied that the prosecution has proved the case beyond reasonable doubts and the chain of circumstances is complete. Therefore, we are of the considered view that trial court has rightly convicted and sentenced the appellant for the offence under section 302 of IPC.

26 For the reasons assigned above, the appeal being devoid of merit and substance is hereby dismissed. As a result, the order of conviction of appellant by the trial court is hereby affirmed. The appellant is in jail. He shall remain in jail to undergo the remaining part of his jail sentence.

27 Registry is directed to send a copy of this judgment immediately to the trial Court along with the record of the trial Court for necessary compliance.

              (VIVEK RUSIA)                                                            (ANIL VERMA)
                J U D G E                                                                J U D G E
BDJ




                           Digitally signed by BHUNESHWAR DATT



                BHUNESH
                           DN: c=IN, o=HIGH COURT OF MADHYA PRADESH
                           BENCH INDORE, ou=HIGH COURT OF MADHYA
                           PRADESH BENCH INDORE,

2.5.4.20=3fb5bcda9fd75d95d6c7cdcbd092ee5a74a9 4a5534aed3a66d9385cfcfc201e0,

WAR DATT postalCode=452001, st=Madhya Pradesh, serialNumber=89FD75A8D0C99E05779A327974E46 BC85102826CE0604B211E4C91102B4D1269, cn=BHUNESHWAR DATT Date: 2023.08.10 18:07:09 -07'00'