Madhya Pradesh High Court
Angad Adiwasi vs State Of M.P` on 28 March, 2023
Author: Satyendra Kumar Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ROHIT ARYA
&
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
ON THE 28th OF MARCH, 2023
CRIMINAL APPEAL NO.271 OF 2013
BETWEEN:-
ANGAD ADIWASI, S/O SHRI VISHNU ADIWASI,
AGED - 35 YEARS, R/O - VILLAGE - DHUVAI
TENTAI, POLICE STATION - BADARWAS
DISTRICT - SHIVPURI (MADHYA PRADESH).
PERMANENT ADDRESS - SAME.
........APPELLANT
(BY SHRI D.S. RAJAWAT - ADVOCATE)
AND
STATE OF MADHYA PRADESH THROUGH
POLICE STATION - BADARWAS, DISTRICT -
SHIVPURI (MADHYA PRADESH).
........RESPONDENT
(BY SHRI RAJESH SHUKLA - DEPUTY ADVOCATE GENERAL)
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Reserved on : 16th of February, 2023
Pronounced on : 28th of March, 2023
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This Criminal Appeal having been heard and reserved for
judgment, coming on for pronouncement this day, Hon'ble Shri Justice
Satyendra Kumar Singh pronounced the following:
2
JUDGMENT
The appellant has preferred this appeal under Section 374(2) of
the Code of Criminal Procedure, 1973 (2 of 1974) (for brevity
"Cr.P.C.") being aggrieved by the judgment dated 24/1/2013, passed by
the Court of Sessions Judge, Shivpuri (Madhya Pradesh) in Sessions
Trial No.163/2012, whereby the appellant has been convicted for the
offence punishable under Section 302 of Indian Penal Code (for brevity
"IPC") and sentenced him as under:-
Conviction Sentence
Section Act Imprisonment Fine Imprisonment
in lieu of fine
302 IPC Life Rs.2000/- RI for 3 months
Imprisonment
2. The prosecution case in brief is that the appellant Angad Adiwasi
and co-accused Maya Bai are the brother and sister-in-law of the
complainant/ deceased Sarupibai's husband Chhote Adiwasi. On
28/3/2012 at about 10.00 hours, when complainant/ deceased- Sarupibai
had gone to meet her mother-in-law Kalabai at her house, co-accused
Mayabai, seeing the complainant/ deceased, started abusing filthy
languages to her. Thereafter, appellant came there under intoxicated
condition and after abusing the complainant/ deceased, he poured
kerosene oil on her body and set her on fire, due to which, she was
badly burnt. After seeing her in burnt condition, her husband Chhote
Adiwasi alongwith others rushed to the spot, took her to Community
Health Centre, Badarwas, District Shivpuri, where at about 11.20 hours,
Dr. R.R. Mathur attended her and after finding her 100% burnt,
informed to P.S. Badarwas vide letter, Ex.P/12, and thereafter, medically
examined her and found burn injuries on all over her body, as per MLC
report, Ex. P/13.
3. On the same day, at about 11.45 hours, Head Constable Ashok
Dubey after receiving the information, Ex. P/12, from CHC Badarwas,
rushed to the hospital, recorded Dehati Nalishi, Ex. P/15, on the basis of
statements given by the complainant/ deceased Sarupibai, and vide
letter Ex. P/14-A, requested the doctor concerned to record her dying
declaration, whereafter, at about 12.00 hours, Dr. R.R. Mathur recorded
the dying declaration, Ex. P/14, of the deceased. On the same day at
about 12.35 hours, on the basis of the Dehati Nalishi, Ex. P/15, Head
Constable Rajkumar registered the FIR, Ex. P/16, against the appellant
and his wife co-accused Maya Bai at Police Station Badarwas, District
Shivpuri for the offences punishable u/S 307 r/W 34 of IPC.
4. On the same day, I/O ASI Satyendra Singh went to the place of
occurrence, seized the plain and kerosene soaked soil, a burnt green
colour plastic cane, from which smell of kerosene was coming out, a
white colour plastic cane containing 1-1½ liters kerosene oil and pieces
of burnt blanket and clothes as per seizure memo, Ex. P/19. On the same
day, deceased was brought to J.A. Hospital/ G.R. Medical College,
Gwalior, where during treatment, on 3/4/2012 at about 12.40 hours, she
succumbed to the injuries sustained by her. Dr. Nikhil Chopra vide
letter, Ex. P/4, informed the police about the death of the deceased, on
the basis of which, H.C. Ramesh Chand Goud registered the Merg
Intimation Report, Ex. P/5, at P.S. Kampu, District Gwalior. He went to
J.A. Hospital/ G.R. Medical College, Gwalior, prepared Naksha
Panchayatnama, Ex. P/6, of the body of the deceased and sent her body
for postmortem examination.
5. On 5/4/2012 at about 12.00 hours, Dr. Nikhil Chopra and Dr. Ajay
Gupta conducted the postmortem of the body of the deceased and
prepared the postmortem report, Ex. P/8, and opined that the death of
the deceased was caused due to cardio-respiratory failure, as a result of
burn injuries and its complications within 24-48 hours since postmortem
examination. On 4/6/2012 and 13/6/2012, I/O ASI Satyendra Singh
recorded the statements of prosecution witnesses. He sent all the seized
articles to FSL Sagar for forensic examination, obtained the FSL Report
and after completion of investigation, filed the charge-sheet against the
appellant and his wife co-accused Maya Bai, before the Court of
Judicial Magistrate First Class, Kolaras, District Shivpuri, who
committed the case to the Court of Sessions Judge, Shivpuri.
6. Learned Trial Court considering the material prima facie available
on record framed the charge under Section 302 and 302 r/w 34 of IPC
against the appellant and co-accused Maya Bai respectively, who
abjured their guilt and prayed for trial.
7. Learned Trial Court after appreciating the oral as well as
documentary evidence available on record, acquitted the co-accused
Maya Bai, while convicted the appellant for the offence punishable
under Section 302 of IPC and sentenced him as mentioned in para 1 of
this judgment.
8. Being aggrieved by the said judgment of conviction and order of
sentence, the appellant has preferred this appeal for setting aside the
impugned judgment and discharging him from the aforesaid charge
framed against him.
9. Learned counsel for the appellant submits that none of the
eyewitnesses have supported the prosecution case and appellant's
conviction is only based on the dying declarations, said to be made by
the deceased. Learned Trial Court mainly relied upon the dying
declaration, recorded by HC Ashok Dubey in the form of Dehati
Nalishi, Ex. P/15, on the basis of which FIR, Ex. P/16 was registered
and also the dying declaration, Ex. P/14, recorded by Dr. R.R. Mathur.
He submits that Dr. R.R. Mathur, himself stated in his MLC report,
Ex.P/13, that the general condition of the deceased was very poor and
the room, where he recorded the dying declaration of the deceased, was
noisy and he was not able to hear her voice, therefore, the dying
declaration recorded by him cannot be said to be reliable. Other dying
declarations, i.e. Dehati Nalishi Ex.P/15 as well as statement of the
deceased recorded under Section 161 of Cr.P.C. were recorded by the
Head Constable Ashok Dubey, whose statements are confusing. There is
nothing else on record which indicates the involvement of the appellant
in the crime. He further submits that as per prosecution case itself, at the
time of incident a quarrel was going on between the appellant's wife co-
accused Maya Bai and deceased and when appellant reached there,
incident took place all of sudden, therefore, learned Trial Court has
committed an error in holding appellant guilty for the offence
punishable under Section 302 of IPC. The impugned judgment is not
sustainable, hence, the same may be set aside and appellant may be
acquitted from the charge framed against him.
10. 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. Statements of prosecution
witness Dr. R.R. Mathur (PW-9) as well as Head Constable Ashok
Dubey (PW-10) are consistent on the point that deceased in her
statements made before them specifically stated that appellant poured
kerosene oil on her body and set her on fire. There is no inconsistency
in the dying declaration, recorded by HC Ashok Dubey in the form of
Dehati Nalishi, Ex. P/15 and the dying declaration, Ex.P/14, recorded
by Dr. R.R. Mathur and in the statements of HC Ashok Dubey and Dr.
R.R. Mathur on the aforesaid point. It is a settled position of law that
conviction can be based solely on the dying declaration, hence, learned
Trial Court has not committed any error in holding the appellant guilty.
Therefore, confirming the judgment of conviction and order of sentence,
the appeal filed by the appellant deserves to be dismissed.
11. Heard learned counsel for both the parties and perused the record.
12. Prosecution case is based on circumstantial evidence and
prosecution in its support has examined in all 13 prosecution witnesses
including deceased- Sarupibai's husband Chhote Adiwasi (PW-6) and
Maharaj Singh (PW-7), who reached the spot just after the incident and
deceased told them about the incident. Other material witnesses are
Head Constable Ashok Dubey (PW-10), who recorded the Dehati
Nalishi, Ex.P/15, on the basis of statements given by the deceased
Sarupibai. Dr. R.R. Mathur (PW-9), who medically examined the
deceased and recorded her dying declaration, Ex.P/14. Dr. Ajay Gupta
(PW-5), who conducted the postmortem examination of the body of the
deceased. ASI Satyendra Singh (PW-13), who has investigated the case.
13. From the statements of complainant/ deceased- Sarupibai's
husband Chhote Adiwasi (PW-6), Kalyan Adiwasi (PW-1), Maharaj
Singh (PW-7) and Hakki (PW-8), this fact appears undisputed that on
the date of the incident at about 10-11 AM, after hearing the screams of
the deceased, when they reached the spot, they found complainant/
deceased- Sarupibai in burnt condition. Chhote Adiwasi (PW-6)
deposed that he alongwith others took the deceased to the Community
Health Center, Badarwas, from where she was referred to Gwalior. Dr.
R.R. Mathur (PW-9) deposed that on the same day, when deceased was
brought to the Community Health Center, Badarwas, he after informing
to the Police Station Badarwas vide letter Ex.P/12, medically examined
the deceased and found her 100% burn from head to heel by kerosene
oil with fire as per MLC report, Ex. P/13.
14. Deceased- Sarupibai's husband Chhote Adiwasi (PW-6) deposed
that from Community Health Center, Badarwas, his wife deceased was
referred to District Hospital Shivpuri and thereafter, to J.A. Hospital/
G.R. Medical College, Gwalior, whereafter about 4-5 days of the
incident, she succumbed to the injuries sustained by her. H.C. Ramesh
Chandra Gaud (PW-5) deposed that on 3/4/2012, after receiving the
information about the death of the deceased vide letter, Ex. P/4, he
registered the Merg Intimation Report, Ex. P/5, at P.S. Kampu, District
Gwalior. He deposed that thereafter, he went to J.A. Hospital/ G.R.
Medical College, Gwalior, prepared Naksha Panchayatnama, Ex. P/6, of
the body of the deceased and sent her body for postmortem
examination. Dr Ajay Gupta (PW-5) deposed that on 5/4/2012 at about
12.00 hours, he alongwith Dr. Nikhil Chopra conducted the postmortem
of the body of the deceased and observed as follows :
"Description of Antemortem injuries:
II and III degree, antemortem infected burn wounds
present on following parts of the body:
Scalp on top and on occipital, frontal region,
face, neck, chest, abdomen, genitalia both upper limbs
up to dorsum & palm except fingers & thumb at
palmar aspect with degloving, both lower limbs up to
dorsum & sole.
At back:- from occipital to heels posteriorly.
Longitudinal burn lacerations present on right
& left leg medially & both thighs.
Opinion:
Death was due to cardiorespiratory failure as a
result of burn & its complications.
Duration of death within 24 to 48 hours since
postmortem examination.
Nature of death should be decided on the basis
of circumstantial evidences"
15. Dr Ajay Gupta (PW-5) deposed that he prepared the postmortem
report, Ex. P/8, and opined that the death of the deceased was caused
due to cardio-respiratory failure, as a result of burn injuries found on her
body and its complications within 24-48 hours since postmortem
examination. Appellant has not seriously challenged the aforesaid facts,
therefore, this fact is established that on the date of incident i.e.
28/4/2012, at about 10.00-11.00 hours, deceased Sarupi Bai was badly
burnt by kerosene oil with fire and thereafter, died due to cardio-
respiratory failure, as a result of burn injuries found on her body and its
complications. Since burn injuries were found on all over her body from
head to heel and nothing material has been produced on record to show
that she sustained above injuries in an accident or she committed
suicide, therefore, looking to the nature of burn wounds and other
material produced on record, this fact is also established that she was set
on fire after pouring kerosene oil on her body and nature of her death
was homicidal.
16. So far as the issue whether the deceased was set on fire after
pouring kerosene oil on her body by the appellant is concerned,
prosecution case is based on oral dying declarations made by the
deceased Sarupibai just after the incident to her husband- Chhote
Adiwasi (PW-6) and witness Maharaj Singh (PW-7), and also on the
dying declaration, recorded by Head Constable Ashok Dubey (PW-10)
in the form of Dehati Nalishi, Ex. P/15, and the dying declaration,
Ex.P/14, recorded by Dr. R.R. Mathur (PW-9) at the Community Health
Center, Badarwas. Chhote Adiwasi (PW-6) and Maharaj Singh (PW-7)
in their earlier statements, Ex.P/9 and Ex.P/10 respectively, recorded
under Section 161 of Cr.P.C., although stated that after the incident
when they reached the spot, the deceased told them that appellant
poured kerosene oil on her body and set her on fire, but in their
statements recorded during trial they have turned hostile and not
supported the prosecution case.
17. Deceased's husband Chhote Adiwasi (PW-6) deposed that after
the incident, he took the deceased to Community Health Center,
Badarwas. Dr. R.R. Mathur (PW-9) deposed that when the deceased was
brought to the hospital, he immediately at about 11:20 hours, informed
the police vide letter Ex.P/12. Head Constable Ashok Dubey (PW-10)
deposed that after receiving the above letter Ex.P/12 from the hospital,
he at about 11:45 hours, endorsed the same in the Rojnamcha Sanha
bearing No.886 and thereafter rushed to the Community Health Center,
Badarwas and at about 11:55 hours, recorded the Dehati Nalishi,
Ex.P/15, on the basis of the statements of the deceased, wherein she
stated that when she had gone to her mother-in-law Kalabai's house to
meet her, then deceased's sister-in-law, co-accused Mayabai started
abusing her. In the meantime, appellant came their under intoxicated
condition and after assaulting her, he poured kerosene oil on her body
and set her on fire.
18. Head Constable Ashok Dubey (PW-10) deposed that the
Executive Magistrate/Tahsildar was not available to record the dying
declaration of the deceased, therefore, he vide letter Ex.P/14-A
requested the doctor concerned to record the dying declaration of the
deceased. Dr. R.R. Mathur (PW-9) deposed that after medically
examining the deceased as per MLC report, Ex.P/13, he at about 12:00
hours, recorded the dying declaration, Ex.P/14, of the deceased, wherein
she stated that when appellant's wife was quarreling with her, appellant
came on the spot under intoxicated condition and after pouring kerosene
oil on her body, he set her on fire. Head Constable Ashok Dubey (PW-
10) deposed that thereafter, he at about 12:10 hours, recorded the
statements of the deceased under Section 161 of Cr.P.C., wherein she
reiterated the same version.
19. It has vehemently been argued on behalf of the appellant that
admittedly deceased's husband Chhote Adiwasi (PW-6) and Maharaj
Singh (PW-7) reached the spot just after the incident, and both of them
have specifically deposed that when they reached the spot, they found
the deceased unconscious. Dr. R.R. Mathur (PW-9) himself admitted
that he found the deceased in 100% burnt condition, therefore, this fact
is highly suspicious that the dying declaration, Ex.P/14, and Dehati
Nalishi report, Ex.P/15, were recorded on the basis of statements made
by the deceased.
20. In this regard, statements of Dr. R.R. Mathur (PW-9) are relevant,
who in para 1 of his statement specifically deposed that when the
deceased was brought to the hospital, he found her in fully conscious
condition. He stated that when he asked the deceased as to how she
sustained burn injuries, she narrated the incident and told that when
appellant's wife was quarreling with her, appellant came on the spot
under intoxicated condition and after pouring kerosene oil on her body,
he set her on fire. He specifically denied the fact that at that time the
deceased was unable to speak and to get recorded her statements. He is
a government employee and an independent witness. His statements are
consistent and find support from the statement of Head Constable Ashok
Dubey (PW-10) and also from the Dehati Nalishi, Ex.P/15, recorded by
him. Nothing material has been extracted during his cross-examination,
on the basis of which his aforesaid statement can be disbelieved or
doubted. In this regard, observation made by Hon'ble the Apex Court in
the case of Mesu Dhondiba Vidhate Vs. State of Maharashtra, (2001)
10 SCC 63, which has been relied upon by the Trial Court in his
impugned judgment, is material. Relevant para thereof is as follows:-
6. Further, in our view, in the present case, there is
no reason to disbelieve the evidence of a totally
independent witness Dr Savale (PW-5) who had
recorded the case history which is produced as Ext.
19 on record. The dying declaration recorded by him
in the case history is complete and is recorded within
1½ hours of the incident. In our view, there was no
reason for the trial court not to rely upon the said
dying declaration recorded by a totally independent
person.
20.1 In this regard, judgment passed by the Hon'ble Apex Court in the
case of Shakuntala v. State of Haryana, AIR 2007 SC 2709 is also
material, wherein 100% burnt patient was found able to get recorded her
dying declaration. Relevant para thereof reads as under:-
12. The evidence of PWs 5 and 6 clearly
established that the dying declaration was made when
the deceased was in a fit condition to give declaration.
It is to be noted that the accident occurred on 6-4-
1997 at about 9.00 a.m. but the deceased breathed her
last on 11-4-1997. The doctor (PW 5) has
categorically stated that the deceased was in a fit
condition to give the statement. The Judicial
Magistrate (PW 6) also stated that the deceased was
in a fit condition to give the statement and was able to
understand what was being asked and she answered
specifically. In the aforesaid background, it cannot be
said that the dying declaration is not believable.
21. It is settled law 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 nothing on record to show that dying declarations, Ex.P/14
and Ex.P/15, made by the deceased are suspicious, therefore, learned
Trial Court has not committed any error in relying upon the aforesaid
dying declarations and finding this fact as proved that appellant poured
kerosene oil on all over the body of the deceased and set her on fire.
22. From dying declarations, Ex.P/14 and Ex.P/15, made by the
deceased, it is apparent that on the fateful day, at the time of incident,
appellant reached the spot under intoxicated condition, when a quarrel
was going on between appellant's wife and deceased. Thus, the element
of premeditation cannot be attributed to the appellant. Hence, the
submissions made by the learned counsel for the appellant in this regard
that the appellant in an inebriated condition, upon altercation with the
deceased, abused her and in a heat of passion immolated her by pouring
kerosene oil upon her, have force. Therefore, the alleged act of the
appellant cannot be said to be falling within the scope of Section 302 of
IPC.
23. As the appellant was certainly having an intention to cause death
of the deceased or to cause such bodily injury as is likely to cause her
death, therefore, his act clearly falls within the scope of Section 304
Part-I of IPC. Accordingly, the conviction of the appellant for the
offence under Section 302 of IPC is liable to be set aside and hence, is
set aside and he is convicted for the offence punishable under Section
304 Part-I of I.P.C.
24. So far as the issue with regard to the quantum of sentence
awarded to the appellant for the aforesaid offence is concerned, as
already pointed out, the alleged incident took place in the heat of
passion without any premeditation. The incident took place in the year
2012 and appellant has suffered till now about 10 years and 11 months
incarceration. Under these circumstances, this Court is of the considered
opinion, that the jail sentence already undergone by the appellant would
serve the justice.
25. Accordingly, for the offence punishable under Section 304 Part-I
of IPC, the appellant is awarded jail sentence which has already been
undergone by him. The fine sentence with corresponding default
stipulation, as awarded by the Trial Court, is maintained.
26. With the aforesaid modifications, this criminal appeal filed
against the judgment dated 24/1/2013, passed by the Court of Sessions
Judge, Shivpuri, District Shivpuri (M.P.) in S.T. No.163/2012 is
disposed of accordingly.
27. The appellant is in jail. Subject to deposit of fine amount, if not
already deposited, he be released forthwith if not required in any other
offence.
28. The Registry is directed to immediately supply a copy of this
judgment to the appellant, free of cost.
29. Let the record of the Trial Court be sent back immediately, along
with copy of this judgment, for necessary information and compliance.
30. Appeal succeeds and is Allowed in part.
(ROHIT ARYA) (SATYENDRA KUMAR SINGH)
JUDGE JUDGE
Arun*
ARUN KUMAR MISHRA
2023.03.29 14:35:07 +05'30'
