Madhya Pradesh High Court
Saeed Kha And Anr. vs The State Of Madhya Pradesh on 29 November, 2023
Author: Vivek Rusia
Bench: Vivek Rusia, Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE ANIL VERMA
CRIMINAL APPEAL No. 277 of 2013
BETWEEN:-
1. SAEED KHA S/O RAFEEQUE KHA
AGED ABOUT 26 YEARS,
2. SMT. RAAJBI W/O RAFEEQUE,
AGED ABOUT 50 YEARS,
OCCUPATION - LABOURER
BOTH R/O: NAGJHIRI SANWER,
P.S. SONKUTCH, DISTRICT DEWAS
(MADHYA PRADESH)
.....APPELLANTS
(BY SHRI ASHISH GUPTA - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
THROUGH P.S. SONKUTCH, DISTRICT
DEWAS (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI TARUN KUSHWAH - GOVERNMENT ADVOCATE)
Reserved on : 08/11/2023
Pronounced on : 29/11/2023
____________________________________________________________
This appeal having been heard and reserved for orders, coming on
for pronouncement this day, JUSTICE ANIL VERMA pronounced the
following:
JUDGMENT
The appellants have preferred the present Criminal Appeal under
Section 374 of the Code of Criminal Procedure, 1973 (in short
"Cr.P.C.") against the judgment dated 31.12.2012 passed by the Addl.
Sessions Judge, Sonkatch, District Dewas (M.P.) in S.T. No.25/2011,
whereby both the appellants have been convicted for the offence under
Section 302/34 of IPC and sentenced to undergo Life Imprisonment
with fine of Rs.1,000/- each, with usual default stipulation.
2. Brief facts of the case are that deceased Shabana was the wife of
the appellant No.1 and daughter-in-law of the appellant No.2. Marriage
of the deceased was solemnized with the appellant No.1 about 4 years
prior to the incident, but after her marriage both the appellants used to
torture the deceased by impeaching her character. On 15.10.2010
appellant No.1 after beating the deceased, went to Mandi. Thereafter at
about 3 p.m. he along with the appellant No.2 returned to his home and
they blamed to deceased that she is a woman of bad character and many
other men used to visit her. Thereafter, appellant No.2 asked the
appellant No.1 to burn her. Then both the appellants after pouring
kerosene oil on the deceased, set her on fire. When the deceased cried
for help, on account of burning, her neighbours and maternal aunt came
on the spot and tried to rescue her. Thereafter they took her to the
hospital. Deceased lodged Dehati Nalishi in the hospital. Thereafter
Naib Tehsildar Smt. Sangya Chaturvedi recorded her dying declaration.
Ultimately the deceased succumbed to burn injuries on 19.10.2010.
3. Further prosecution story is that appellant No.1 also sustained
some burn injuries on his hand and his MLC was conducted by Dr.
Rahil Nidhan (PW-3). Postmortem of the deceased was done by Dr.
Neelam Shrivastava (PW-7) and she opined that cause of death of
deceased was homicidal in nature. After the Merg inquiry, offence has
been registered against the appellants and they have been arrested.
Investigating officer Laxman Singh Gurjar (PW-16) recovered plastic
can of kerosene oil, some burnt clothes and soil from the place of
incident. Seized articles were sent to the forensic science laboratory for
its chemical analysis and as per the FSL report, kerosene was found on
the clothes of the deceased.
4. After completion of the investigation, charge sheet was filed
before the JMFC Sonkatch, District Dewas, who committed the case to
the Court of Sessions, Dewas. Later on it has been transferred to the
Court of Addl. Sessions Judge, Sonkatch. Learned trial court on the
basis of the allegation made in the charge sheet, framed the charges
under Section 302/34 of IPC. Both the appellants abjured their guilt and
pleaded complete innocence.
5. In order to bring home the charges, the prosecution has examined
as many as 17 prosecution witnesses, while the defence has examined
two witnesses. The trial court after considering the evidence available
on record, convicted both the appellants for the aforementioned offence
and sentenced them as mentioned in the impugned judgment.
6. Learned counsel for the appellants contended that the judgment
passed by the trial Court is contrary to the law and facts. There are
material contradictions and omissions in the statement of the deceased,
her statement under Section 161 of Cr.P.C. and the alleged dying
declaration. The alleged dying declaration relied is not at all
trustworthy. The intimation to the Magistrate was sent at 4.50 p.m. and
starting time for recording of Dying Declaration is also 4.50 p.m.,
which creates doubt on the genuineness of the dying declaration. There
are several infirmities found in the dying declaration. Therefore, dying
declaration alone cannot be sole criteria for convicting the accused
persons. Dehati Nalishi was recorded after recording the alleged dying
declaration. Appellants were not present at the time of incident and they
have no intention to kill the deceased. Judgment passed by the trial
court is neither legal, nor proper nor correct. When the witnesses
reached on the spot, they found that the room was bolted from outside
and they entered into the room after somehow opening the same.
Hence, he prays that the appeal be allowed and both the appellants be
acquitted from all the charges.
7. Per contra, learned counsel for the respondent/State has supported
the impugned judgment by submitting that the learned trial court has
rightly recorded the conviction on proper appreciation of evidence
available on record and the same does not call for any interference.
8. Heard learned counsel for both the parties and perused the entire
record of the trial court with due care.
9. In order to appreciate the merits of the rival contentions in right
perspective in the instant case, first of all it is to be considered as to
whether the death of the deceased is homicidal in nature or not?
10. Dr. Ritu Chaure (PW-1) initially examined the victim Shabana
when she was brought to the Community Health Centre, Sonkatch and
she referred the victim to the District Hospital, Dewas by Ex.P/1 and
also deposed that Shabana informed that she was burnt by kerosene oil,
her body was completely burnt, but she was in conscious condition.
11. Dr. Neelam Shrivastava (PW-7) who has performed the
postmortem of the deceased in Gandhi Medical College, Bhopal, has
given the postmortem report (Ex.P/8). She deposed that burn injuries of
2 to 3 degree have been found over mouth, neck, chest, abdomen, back,
both the hands and both the legs and all over body of the deceased
Shabana and as per her opinion deceased died due to the
cardiorespiratory failure as a result of burn injuries and its
complications. In absence of any serious challenge to the postmortem
report (Ex.P/8) and the statement of Dr. Neelam Shrivastava (PW-7),
we have no doubt, but to accept the autopsy report and the statement of
Dr. Neelam Shrivastava that death of the deceased is homicidal in
nature.
12. It is noteworthy that there is no eyewitness in the instant case,
although prosecution has examined Kaniza Bee (PW-6) and Afroza Bee
(PW-2) to prove that in their presence deceased stated that accused
persons poured kerosene oil upon her and set her on fire, but Afroza
Bee (PW-2), who happens to be mother of the deceased has
categorically stated in her statement that she has no querrel with her
son-in-law. Afroza Bee (PW-2) has been turned hostile, but in para 4 of
deposition, she deposed that after hearing hue and cry of Shabana, she
reached on the spot, but Shabana did not say anything against the
accused persons. She also deposed in para 6 that there was previous
enmity between Chand Khan and accused persons and Chand Khan in
the hospital tried to instigate the Shabana Bee to depose against the
accused persons, but Shabana replied that she will not give any false
statement, therefore, it is clear that mother of the deceased did not
support the case of the prosecution.
13. Kaniza Bee (PW-6), who is the sister of the Afroza Bee (PW-2)
also deposed that at the time of incident she went to the Nagjiri in her
brother's home and when she reached on the spot, she found that
Shabana was lying on the earth in unconscious condition. There is
material contradiction and omissions in the Court statement and police
statement (Ex.P/7) of the Kaniza Bee. She has categorically stated that
Shabana did not inform her anything on mobile phone that she was
harrassed by her husband and mother-in-law. Kaniza Bee (PW-6) also
deposed in para 7 that there was previous enmity between Chand Khan
and accused persons and Chand Khan instigate the Shabana to falsely
implicate the accused persons. Accordingly, Kaniza Been (PW-6) did
not support the case of the prosecution.
14. Dev Karan (PW-13), who is the neibhour of accused persons also
deposed that at the time of incident after hearing noise, he reached on
the spot and found that door was closed from inside the house and he
opened the door and saw that wife of the Saeed was burning. He tried to
save her, due to which his hands, hair and shirts have been burnt. Dev
Karan (PW-13) categorically stated that at the time of incident Saeed
was not present there and Shabana did not state anything against the
accused persons. Dev Karan (PW-13) has not supported the case of the
prosecution. Shakur Khan (PW-14) has also been turned hostile, he
denied all the relevant version his of police statement (Ex.P/13) and did
not disclose anything against the accused persons.
15. Now the entire case of the prosecution is based upon the dying
declaration of the deceased, which has been recorded by the Tehsildar
Smt. Nimisha Pandey (PW-11) and certification regarding the mental
and physical fitness of the deceased was given by Dr. Ritu Chourey
(PW-1). Smt. Nimisha Pandey (PW-11) has contemporaneously
recorded that Shabana told her that her husband and mother-in-law
poured kerosene oil upon her and set her on fire. The dying declaration
is (Ex.P/10). Dr. Ritu Chourey (PW-1) has also deposed that she has
given certification that Shabana was mentally fit and capable for
deposing and was in her sense, then Tehsildar Smt. Nimisha Pandey
(PW-11) has recorded her dying declaration.
16. It is settled position of law that dying declaration, which inspires
confidence needs no corroboration to sustain itself, but in the instant
case counsel for the appellants submits that deceased was 100% burnt.
Her mother Afroza Bee (PW-2), Masi Kaniza Bee (PW-6) and Dev
Karan (PW-13) admitted that just after the incident Shabana was not in
a fit condition to speak something, therefore, she was not in a good
condition to depose such dying declaration. Dr. Ritu Choure (PW-1)
admits in para 1 of her statement that Shabana was burnt 100%. Afroza
bee (PW-2), Kaniza Bee (PW-6) and Dev Karan (PW-13) also
corroborated that Shabana was not capable of deposing, therefore, such
certification given by Dr. Ritu Chourey (PW-1) appears to be doubtful.
It is also noteworthy that she did not state in detail about the different
parameter of medical condition of the Shabana in the dying declaration
(Ex.P/10).
17. From perusal of the (Ex.P/1), it reveals that Shabana was brought
to the hospital on 15.10.2010 at 4:50 PM, which has been recorded by
Dr. Ritu Chourey, but in the dying declaration (Ex.P/10) the same time
4:50 PM was mentioned for the certification of the victim Shabana
Bee's medical conditions. It is very surprising on the same date on 4:50
PM, she has written entire document (Ex.P/1) and has also given the
certification (Ex.P/10). Nothing has been proved by the prosecution that
who has informed the Tehsildar Smt. Nimisha Pandey (PW-11) for
recording the dying declaration of victim Shabana Bee. In view of the
above, the dying declaration (Ex.P/10) appears to be doubtful.
18. The defence has proved certain documents regarding the dying
declaration of other victim Anita was recorded on the same day by
Tehsildar Smt. Nimisha Pandey (PW-11). Smt. Nimisha Pandey (PW-
11) in para 12 of her cross-examination admits that on the same day, she
has recorded the dying declaration (Ex.P/3) of Anita in the same
hospital. It is remarkable that dying declaration (Ex.P/10) of victim
Shabana was ended at 5:15 PM and as per the certification given by Dr.
Ritu Chourey (PW-1) certification about medical fitness of Anita at 5:17
PM, then how is it possible for Tehsidar and Dr. Ritu Chourey to record
and write down the entire dying declaration of the Shabana within few
minutes and after two minutes recorded the another dying declaration of
Anita. Looking to the very short time gap in both the dying
declarations. Dying declaration (Ex.P/10) of Shabana appears to be very
doubtful and suspicious.
19. From perusal of the Dehati Nalishi (Ex.P/15) and dying
declaration (Ex.P/10), it reveals that although Dehati Nalishi (Ex.P/15)
was lodged by the deceased and she has also given dying declaration,
but dying declaration is not in consonance with the Dehati Nalishi
(Ex.P/15). According to her, in Dehati Nalishi (Ex.P/10) role of pouring
kerosene by the appellants upon the deceased was not mentioned,
whereas in the dying declaration there is an improvement by the
deceased by stating that her husband and mother-in-law both of them
have poured kerosene upon her and set her ablaze. In Dehati Nalishi
(Ex.P-15) she has stated that appellant No.2 Raajbi told that "set her
ablaze" (Jla dena), but same was not found in the dying declaration. In
Dehati Nalishi (Ex.P/15), deceased stated that her mother Afroza Bee
(PW-2), Masi Kaniza Bee (PW-6) took her to the hospital, but same was
not mentioned in the Dehati Nalishi (Ex.P/15). Looking to the above
material contradictions and omissions, both the documents appears to
be doubtful.
20. Dr. Ritu Chourey (PW-1) deposed that Shabana was brought in
100% burnt condition and she gave primary treatment to her. Her
dressing was done by Silver Sulfadiazine Cream and Xylocaine Jelly,
but she did not note down the body temperature of Shabana. In para 24
of her cross-examination, she admits that she has injected Tetanus
Toxoid Injection and one Pain Killer Injection, therefore, judicial notice
can be taken of the fact that after the pain killer injection is given to
patient Shabana, she would not have normal altertness. Appropriate care
was not taken at the trial stage to cross-examine the doctor with
reference to these aspects, therefore, full credit cannot be given to the
certificate of the doctor that deceased Shabana was in a fit condition to
make the statement, therefore, it becomes doubtful that Shabana was in
a good mentally fit condition while making such dying declaration.
Under these circumstances, it is very unsafe to convict the appellants
entirely on such type of suspicious dying declaration.
21. On bare perusal of the Section 34(1) of the Indian Evidence Act,
it is clear that the statement as to death must be made by the person
herself/himself and if any discrepancies arises, the same cannot be
relied upon. Hon'ble the Apex Court in the case of Atbir Vs.
Government of NCT of Delhi, (2010) 2009 SCC 1 has summarized
the principles laid down earlier, as under:
"(i) Dying declaration can be the sole basis of conviction if it
inspires the full confidence of the Court.
(ii) The Court should be satisfied that the deceased was in a
fit state of mind at the time of making the statement and that it was
not the result of tutoring, prompting or imagination.
(iii) Where the Court is satisfied that the declaration is true
and voluntary, it can base its conviction without any further
corroboration.
(iv) It cannot be laid down as an absolute rule of law that the
dying declaration cannot form the sole basis of conviction unless it
is corrobated. The rule requiring corrobation is merely a rule of
prudence.
(v) Where the dying declaration is suspicious, it should not
be acted upon without corroborative evidence.
(vi) A dying declaration, which suffers from infirmity such as
the deceased was unconscious and could never make any
statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain all
the details as to the occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be discarded.
(ix) When the eyewitness affirms that the deceased was not in
a fit and conscious state to make the dying declaration, medical
opinion cannot prevail.
(x) If after careful scrutiny, the Court is satisfied that it is
true and free from any effort to induce the deceased to make a
false statement and if it is coherent and consistent, there shall be
no legal impediment to make it the basis of conviction, even if
there is no corrobation."
22. Hon'ble the Apex Court in the case of Kake Singh @ Surendra
Singh Vs. State of Madhya Pradesh AIR 1982 SCC 1021 has held as
under:
"The deceased was burnt and a good part of the brain was also
burnt and therefore, the possibility is that he must have become
unconscious. This is intrinsically supported by another important
factor. The doctor found not only burns on the body of the
deceased but also other injuries which could have been inflicted
on him by lathis which had caused lacerations and haematoma. In
his statement the deceased makes no mention at all of any such
injuries although one of the injuries caused to him resulted in
fracture of sternum. There is no reference at all to the manner in
which the deceased could have got the fracture of the sternum.
The cumulative effect of these circumstances therefore leads to the
irresistble conclusion that the deceased was unconscious and
never made any such statement. Once the dying declaration is
disbelieved, then there remains no legal evidence on the basis of
which the appellant could be convicted."
23. It cannot be ignored that the dying declaration of deceased was
taken in the Intensive Care Unit of the hospital, where apart from the
patient, the doctor and the police officers, none else was present, though
the relatives of the deceased were present in the hospital premises.
Ordinary human conduct would have required calling one of those
relatives for being present when the statement was made, particularly
because it was not known by them as to what statement of deceased
would make in regard to cause of her injuries. Mother of the deceased
Afroza Bee (PW-2) and Masi Kaniza Bee (PW-6) were present in the
hospital, but they were not called there, at that time of recording the
such dying declaration, therefore, above dying declaration appears to be
doubtful. Particularly, Afroza Bee (PW-2) and Kaniza Bee (PW-6) both
of them have deposed in their Court statement that there was previous
enmity between one Chand Khan and accused persons and Chand Khan
was present in the hospital while the dying declaration of the
prosecutrix was recorded and Chand Khan instigate the Shabana to
falsely implicate the accused persons in the aforementioned incident,
therefore, set of these evidence are sufficient to show that some
fabrication has been done such in the dying declaration. Dying
declaration (Ex.P/10) suffers from material infirmity and discripencies
and it is not inspiring confidence, therefore, conviction could not be
based thereupon.
24. Hon'ble the Apex Court in the case of Thurukanni Pompiah
AIR 1965 SC 939 held that:
20.3 "This Court held that while a truthful and reliable dying
declaration may form the sole basis of conviction, even without
corrobation but the Court must be satisfied about its truthfulness
and reliability; and if the Court finds that the declaration is not
wholly reliable and a material portion of the deceased's version of
the occurrence is untrue, the Court may, in the circumstances of a
given case, may consider it unsafe to convict the accused on the
basis of the declaration alone without further corroboration. This
Court observed, inter alia, as under as:
"10 Under clause (1) of Section 32 of the Indian Evidence
Act, 1987, a statement made by a person, who is dead, as to
the cause of his death or as to any of the circumstances of
the transaction which resulted in his death is a relevant fact
in cases in which the cause of that person's death comes into
questions, and such a statement is relevant whether the
person who made it was or was not, at the time when it was
made, under expectation of death, and whatever may be the
nature of the proceeding in which the cause of his death
comes into question. The dying declaration of Eranna is
therefore relevant and material evidence in the case. A
truthful and reliable dying declaration may form the sole
basis of conviction, even though it is not corroborated. But
the Court must be satisfied that the declaration is truthful.
The reliability of the declaration should be subjected to a
close scrutiny, considering that 'it was made in the absence
of the accused who had no opportunity to test its veracity by
cross-examination. If the Court finds that the declaration is
not wholly reliable and a material and integral portion of the
deceased's version of the entire occurrence is untrue, the
Court may, in all the circumstances of the case, consider it
unsafe to convict the accused on the basis of the declaration
alone without further corroboration."
20.4 In the case of Uka Ram Vs. State of Rajasthan AIR 2001
SC 1814 (supra), this Court again emphasised on the
requirement that the Court should be satisfied about
trustworthiness of the dying declaration, its voluntary nature and
fitness of the mind of the deceased and it was held that:
"6. Once the Court is satisfied that the dying declaration was true,
voluntary and not influenced by any extraneous consideration, it can
base its conviction without any further corroboration as rule requiring
corroboration is not a rule of law but only a rule of prudence"
20.4.1 In the said case of Uka Ram (supra), however, the
Court found that the deceased was a mental patient and there
existed a doubt about mental condition of the deceased at the
time of making the dying declaration. In the given circumstances,
this Court found that to be a fit case to extend the benefit of
doubt to the accused.
25. So far as the presence of the appellant No.1 Saeed Kha on the
place of incident is concerned, he categorically stated in his accused
statement that at that time, he was working as a Hammal in the Krishi
Upaj Mandi, Sonkatch. His statement is well supported by Hanif Khan
(DW-1), who deposed that on 15.10.2010 accused Saeed worked with
him in Krishi Upaj Mandi as a Hamal from 9:00 AM to 4:13 PM.
Thereafter, when Saeed's jijaji came there, then Saeed went with him.
Same fact is also proved by the Attendence Register (Ex.D-9). In
contrary, no prosecution witness has deposed that nobody has seen
appellant No.1 Saeed Khan soon before or just after the incident on the
place of occurrence, therefore, presence of appellant No.1 Saeed is not
established.
26. Hon'ble the Apex Court in the case of Nesar Ahmed Vs. State of
Bihar 2001 (II) MP Weekly notes held that if it is found that the
presence of the appellants at the crucial time has not been established in
the house, all other circumstanaces would not complete to chain of
circumstantial evidence to lead to irresistable conclusion consistent
only with the hypothesis of the guilt of the appellants and inconsistence
with their innocence.
27. In the instant case, the deceased was aged about 25 years at the
time of her death. According to the medical evidence, she died of burn
injuries. She was pregnant also. It is an unfortunate case, but for what
we have said about, we do not find it possible to hold that the
prosecution has established the guilt of the appellants beyond a
reasonable doubt. The chain of circumstantial evidence is not so
complete as to be consistent only with the hypothesis of the guilt of the
appellants. Under these circumstances, the benefit of doubt must go to
the appellants.
28. Thus, in light of the above discussions, we are of the considered
opinion that the entire foundation of the prosecution story has never
established and prosecution has failed to prove the case beyond
reasonable doubt, therefore, conviction of appellants cannot be
sustained.
29. We, therefore, allow the appeal and set aside the conviction and
sentence recorded against the appellants under Section 302 read with
Section 34 of IPC. Both the appellants are in jail. They be released
forthwith, if not required any other case. Disposal of the property shall
be as per the order of the trial Court.
30. Let a copy of this judgment along with record of both the trial Court
be sent back to the concerned Court for information and
necessarycompliance.
Certified copy as per rules.
(VIVEK RUSIA) (ANIL VERMA)
JUDGE JUDGE
Anushree
