Vijay Singh Rajput vs State Of M.P.
2023 Latest Caselaw 4556 MP

                                             (1)

     IN THE HIGH COURT OF MADHYA PRADESH,
                  AT GWALIOR
                          BEFORE
               HON'BLE SHRI JUSTICE ROHIT ARYA
                                         &
    HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
          CRIMINAL APPEAL NO.1000 OF 2013
BETWEEN :-

        VIJAY SINGH RAJPUT S/O SHRI DAULAT SINGH
        RAJPUT, AGED ABOUT 45 YEARS, R/O GAYATRI
        NAGAR, LADDA AGENCY WALI GALI, GANJBASODA,
        DISTRICT VIDISHA (MADHYA PRADESH)

                                                                .....APPELLANT
(BY SHRI SUSHIL GOSWAMI-ADVOCATE)

AND
        STATE OF MADHYA PRADESH THROUGH POLICE
        STATION   GANJBASODA, DISTRICT VIDISHA
        (MADHYA PRADESH)



                                                             .....RESPONDENT

(BY SHRI RAJESH SHUKLA - DEPUTY ADVOCATE GENERAL)

--------------------------------------------------------------------------------------
                       Reserved on            :         16/02/2023
                       Pronounced on :                  23/03/2023

       This appeal having been heard and reserved for judgment,
coming on for pronouncement this day, Hon'ble Shri Justice Rohit
Arya pronounced the following:
                                       (2)

                           JUDGMENT

This appeal, under Section 374 of the Cr.P.C., arises out of the

judgment dated 30.10.2013 passed by Additional Sessions Judge,

Ganjbasoda, District Vidisha in Sessions Trial No.05/12, whereby the

appellant stands convicted for the offence punishable under Section 302

of the IPC and sentenced to undergo imprisonment for life with fine of

Rs.1,000/-, in default to suffer SI for one month.

2. Prosecution story, as found proved, is that on 21/10/2011 at about

5.30 AM, a Dehati Nalishi (Ex.P/17) was recorded at Government

Hospital, Ganjbasoda at the instance of Kavita (since deceased) to the

effect that she and appellant Vijay Singh had entered into marriage

about 10 years back and in the wedlock were blessed with two

daughters namely Deepali and Rupali. After a few years of marriage

appellant had started abusing and manhandling Kavita under

intoxication of liquor. On 20/10/2011 at about 11 PM, appellant had

come home after consuming liquor and started assaulting Kavita. He

asked her to leave the home and on being refused, with an intention to

kill, poured kerosene oil upon her and set her ablaze. On her screams,

neighbour Rajjo Bai (PW1) came there. Having suffered burn injuries

at various places, she rushed to her nearby parental home and informed

about the incident to her father. Then her father and brother Takhat

Singh brought her to Civil Hospital, Ganjbasoda where such Dehati

Nalishi was recorded and pre-MLC of Kavita was conducted by Dr.

B.L.Nagesh (PW4).

On such allegations made in the Dehati Nalishi (Ex.P/17),

criminal law set into motion leading to registration of FIR (Ex.P/18) at

Crime No.800/11. The dying declaration of deceased was recorded at

the Hospital by Tahsildar/Executive Magistrate Anil Singh Kushwaha

(PW12). On 25/10/2011 at about 3.30 AM, Kavita succumbed to the

burn injuries so suffered at LBS Hospital, Bhopal. During

investigation, statements of witnesses Rajjo, Ushaai, Shanti Bai,

brother Sonu Rajput, father Prem Singh Rajput were recorded.

Thereafter, appellant was apprehended on 8/11/2011 vide arrest memo

(Ex.P/14).

After completion of the investigation, charge-sheet against the

appellant was submitted in the Court of JMFC, Ganjbasoda, who

committed the case to the Court of Sessions for trial.

3. Appellant on being charged with the offence punishable under

section 302 of the IPC, abjured the guilt. In the examination under

section 313 of the Code of Criminal Procedure, he pleaded false

implication.

4. On consideration of the evidence on record, the learned trial

Judge, for the reasons recorded in the impugned judgment, found the

appellant guilt of the offence charged with. He, therefore, convicted

and sentenced him as indicated hereinabove.

5. Before adverting to the rival contentions, it would be expedient

to consider the medical evidence available on record.

On 21/10/2011 pre-MLC of deceased had been conducted by Dr.

B.L.Nagesh, who noted Ex.P/5 as under:-

"P.MLC Kavita 26 yrs. W/o Vijay Singh, R/o-Ward No. 65 Basoda, 21 m B/B - Prem Singh (father) P/S - Basoda

O/E

(i) Superficial burn - on chest

(ii) Superficial burn - on both legs

(iii) Superficial burn on both upper arms

(iv) Kerosene oil smelling came out from body & Paticote Superficial burn about 60%"

After her death, the post mortem examination of deceased was

conducted by Dr.C.S.Jain (PW7), who noted as under in autopsy report

(Ex.P/10):

Burn (A) On anterior aspect - II - III degree and infected burns at places on chin, neck, chest, upper abdomen, lower abodmen On posterior aspect -

Infected burn on both thighs, right leg, right lumbar region, right upper arm, left upper arm.

In his opinion, death was due to cardiorespiratory failure as a result of

burns and its complications. Duration of death was within 24 hours

since post mortem examination.

6. Learned counsel for the appellant submits that the conviction of

the appellant is based on mis-appreciation of evidence on record.

Eye-witness Rajjo Bai (PW1) and Usha Bai (PW2) have not supported

the prosecution version. Deepali (PW3), a child witness who is niece of

the deceased, has deposed that the deceased had self-immolated herself.

Dr. C.S.Jain (PW7) has admitted that there were no other injuries

except infected burns . Looking to the nature of injuries, as recorded in

pre-MLC (Ex.P/5), the same could also be a result of accident/ attempt

to commit suicide. No reliance could have been placed by the trial

Court on dying declaration (Ex.P/6), for more than one reasons - firstly

the name of victim's husband is mentioned therein as "Vishnu Singh

Thakur" which is not the name of the present appellant and secondly

Prem Singh (PW6), father of the deceased who had taken her to the

hospital and had remained throughout with her, has deposed that having

suffered burn injuries, deceased was not in a position to speak and it

was he who had narrated the incident to Tahsildar which was recorded

and thumb impression of deceased were taken thereon. The dying

declaration is not corroborated by evidence of any prosecution witness.

Besides, Dehati Nalshi (Ex.P/17) allegedly recorded at the instance of

deceased, as well as dying declaration (Ex.P/6) allegedly bear thumb

impression of the deceased, but there is no evidence on record with

regard to authenticity of those thumb impressions. In such

circumstances, the trial Court completely misdirected itself in placing

reliance on the said dying declaration while ignoring other exculpatory

evidence available on record.

With the aforesaid submissions, it is contended that the

impugned judgment is liable to be set aside and the appellant deserves

to be acquitted.

Per contra learned Public Prosecutor, while referring to the

incriminating pieces of evidence on record, has supported the

impugned judgment contending that the conviction of the appellant is

justified and the instant appeal deserves to be dismissed at the

threshold.

7. Heard, learned counsel for the parties.

8. From the evidence of Prem Singh (PW9) and Shanti Bai (PW13),

parents of deceased, it is clear that marriage of appellant was

solemnized with their another daughter Sushila, while that of deceased

was solemnized with one Jodhan Singh but appellant had kept the

deceased. As deposed by child witness Deepali (PW2), she is the

daughter of Sushila.

9. Adverting to the evidence available on record, PW1 Rajjo Bai

alias Raj Bai and PW2 Usha Bai have turned hostile, and PW3 Deepali,

a child witness has deposed that deceased had self-immolated herself

when she was at home and had also poured a water-filled pitcher on

herself and walked outside. The evidence of these witnesses has rightly

not been relied upon by the trial Court for the reason that had it been a

case of suicide, there was no reason for the deceased to pour water

upon herself or to walk outside the house and go to her father's house

situated nearby to narrate the entire incident. It is noteworthy that

Deepali (PW3) being daughter of appellant and Sushila is an interested

witness.

10. PW9 Prem Singh is father of the deceased. In his examination-in-

chief, he has deposed that deceased had lived with appellant for 8-10

years and during this period appellant used to fight with her under

inebriation. In paragraph 2, he has deposed that in the night of 21 st

December, appellant had set the deceased ablaze after pouring kerosene

oil and kept her at his door, wherefrom he had taken her to hospital. It

is noteworthy that after his initil examination on 10/1/2013, this witness

was again cross-examined after 25 days on 5/2/2013, wherein in

paragraph 15 he has deposed that deceased had informed him that she

had caught fire while cooking. However, no such deposition was made

in the initial round of examination and it was only after a period of

about 25 days that such exculpatory deposition was given. Further, had

deceased caught fire while cooking, there would have been no kerosene

smell emanating from her body contrary to what has been recorded in

pre-MLC (Ex.P/5). Thus, the learned trial Court has rightly found him

to be a won-over witness in paragraph 43 of the impugned judgment.

11. PW5 Brahm Singh is the Head Constable who has proved

morgue intimation (Ex.P/7). Head Constable Komal Singh (PW6) has

inter alia proved panchnama (Ex.P/8), Naksha Panchayatnama

(Ex.P/9). Susheel Majoka (PW8), SI has proved spot map (Ex.P/12),

seizure of white can containing kerosene, black blouse with broken

buttons, a burnt Saari, one matchbox containing matchsticks and a

burnt matchsticks from the spot vide seizure memo (Ex.P/13). He had

recorded the statements of Rajjobai, Ushabai, Shantibai, Sonu,

Premsingh, Savita and Deepali. He has also proved arrest memo

(Ex.P/14). In paragraph 7 he has denied the suggestion that appellant

and deceased lived in separate houses.

PW11 P.R.Dawar, SI is the Investigating Officer. He has proved

Dehati Nalishi (Ex.P/17), FIR (Ex.P/18) and statements of deceased

and her father recorded at the hospital. In paragraph 5 of his cross-

examination, he has denied the suggestion that he had recorded the

dying declaration on the narration of Prem Singh. He has also denied

the suggestion that thumb impression of Prem Singh was taken instead

of deceased on the dying declaration. In his cross-examination, nothing

substantial to their advantage could be elicited by the defence.

12. In her dying declaration (Ex.P/6), deceased has categorically

stated that it was her husband who had set her ablaze. This dying

declaration has been recorded by Executive Magistrate Anil Kumar

Kushwah (PW12) on 21/10/2011 at 5.54 AM. The same has been

harped by learned counsel for the appellant on the ground that it

contains name of husband of deceased as "Vishnu Singh" and not name

of appellant which is "Vijay Singh". This apparently appears to be a

clerical error. Moreover, there is no cross-examination of the Executive

Magistrate or for that matter of Dr.B.L.Nagesh (PW4) on this point. As

such the defence cannot claim any leverage on this count. The dying

declaration has also been assailed on the strength of evidence of Prem

Singh (PW9), father of the deceased, who has deposed that it was

recorded at his instance and that deceased was not in a position to

speak. However, the learned trial Court has rightly discarded such

version of Prem Singh in the teeth of evidence of Executive Magistrate

Anil Kumar Kushwah (PW12) and Dr. B.L.Nagesh (PW4) who have

categorically deposed that the dying declaration was recorded at the

instance of deceased only. The same is further corroborated by the

evidence of Dr.Nagesh who has deposed that the deceased was

conscious and in a fit state to give the dying declaration. Further, mere

presence of relatives and well-wishers of deceased at the time of

recording of dying declaration would not render the entire dying

declaration doubtful. In fact, the situation in which a person is on

deathbed is so solemn and serene when he is dying that the grave

position in which he is placed, is the reason in law to accept the

veracity of his statement, as engrafted in the maxim nemo moriturus

proseumitur mentiri - a man will not meet his maker with lie in his

mouth. Besides, the contents of dying declaration are also corroborated

by Dehati Nalish (Ex.P/17) recorded at the instance of deceased herself

as proved by Investigating Officer P.R.Dawar (PW11). It is noteworthy

that deceased had suffered burn injuries to the extent of 60% and, there

is nothing on record to suggest that her thumb was also burnt and that

she was not in a position to affix the thumb impression on the dying

declaration and Dehati Nalishi. Hence, no exception could be taken to

the dying declaration on such counts. Although deceased's mother

Shanti Bai (PW13) and brother Sonu Rajput (PW10) have not

supported the prosecution version, yet the same does not assume

importance as they were not present at the place of incidence.

Moreover, it is well settled that dying declaration can be the sole basis

for conviction if the same is found to be true and voluntary. In the

instant case there is no reason to doubt the dying declaration. As such,

the learned trial Court has not committed any error in relying upon the

dying declaration.

13. This brings us to the nature of offence committed by the

appellant. As per Dehati Nalishi (Ex.P/17) lodged at the instance of

deceased, soon after marriage appellant had started assaulting the

deceased under intoxication. On the fateful day, at about 11 PM, after

consuming liquor appellant had come home. Under intoxication, he

started abusing the deceased and asked her to leave. On being denied,

he poured kerosene oil upon her and set her ablaze. Similar version has

been given by the deceased in her dying declaration (Ex.P/6). Thus, it is

apparent that appellant in an inebriated condition, upon altercation

with deceased, abused her and in a heat of passion immolated her by

pouring kerosene oil upon her. As such in the state of intoxication

element of mens rea and premeditation cannot be attributed to the

appellant, though he certainly had the intention and knowledge of

causing her death. Hence, his act clearly falls within the scope of

section 304 Part I of the IPC.

14. As regards sentence, the incident is of the year 2011 and more

than eleven years have elapsed. Appellant has suffered more than nine

years and seven months of incarceration. During this period he has also

suffered the ordeal of trial and appeal. Hence, in our considered

opinion, his custodial sentence deserves to be reduced to the period

already undergone. Accordingly, the conviction of the appellant

from section 302 is altered to one under section 304 Part I of the IPC

and the custodial sentence is reduced to the period already undergone

although the fine sentence with corresponding default stipulation, as

awarded by the trial Court, is maintained.

Appellant is in Jail. Subject to depositing the fine amount, if not

already deposited, he be released forthwith if not required in any other

offence.

A copy of this order along with the record of the trial Court be sent to the trial Court for compliance.

                 (ROHIT ARYA)                    (SATYENDRA KUMAR SINGH)
                   JUDGE                                 JUDGE
(and)
        ANAND
        SHRIVASTAVA
        2023.03.23
        15:09:45
        +05'30'