Madhya Pradesh High Court
Kanta Prasad Verma vs The State Of Madhya Pradesh on 6 August, 2024
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
1 CRA-3491-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 6 th OF AUGUST, 2024
CRIMINAL APPEAL No. 3491 of 2024
KANTA PRASAD VERMA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Manoj Chaturvedi - Advocate for the appellant.
Shri Manas Mani Verma - Government Advocate for the respondent/State.
ORDER
Per: Justice Vivek Agarwal
Heard on I.A.No.7697 of 2024, an application under Section 378(4) of
the Cr.P.C. for leave to appeal filed by the complainant being aggrieved of
the judgment dated 29/12/2023 passed by the learned Third Additional
Sessions Judge, Sehore (M.P.) in S.T. No.28/2021, whereby acquitted the
accused persons from the charges under Section 304-B/ 34 of IPC.
2 . Shri Manoj Chaturvedi, learned counsel for the appellant submits
that Ex.P/11, is the dying declaration of the deceased. This dying declaration
is doubtful. It is pointed out that in Ex.P/11, there is over writing in the date.
'16' has been made as '17' and month has also been manipulated. It is
submitted that on the basis of a doubtful dying declaration, acquittal could
not have been recorded.
3. Shri Chaturvedi, learned counsel for the appellant also places
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reliance on Rojnamcha Sahna (Ex.D/9) to point out that on Tehrir received
from the Assistant Sub Inspector Tiwari, Tehsildar Mukesh Gupta had
refused to record dying declaration and had said that lady will record dying
declaration. Thus, it is submitted that no competent authority has recorded
the dying declaration and therefore, the judgement of acquittal be set aside.
4. Reading from the evidence of the daughter of the deceased Gunjan
Chandrawanshi (PW-18) who was examined on 13/12/2023, it is submitted
that this girl has deposed that she was playing on a mobile when she had seen
her father putting her mother on fire. Reading this evidence, it is submitted
that there is sufficient evidence of a child witness to record conviction
against the accused persons.
5. Shri Manas Mani Verma, learned Government Advocate for the
respondent/State, in his turn, opposes the prayer and submits that there are no
grounds to record conviction.
6. Learned trial Court has rightly recorded the acquittal. It is pointed
out that Ex.P/11 is the dying declaration in which the deceased has admitted
that she was pouring kerosene oil in the chimney when she caught fire and
her husband had come to save her but he too got burnt. She specifically
answered that nobody had put her on fire.
7. Dr. Dharmendra Rathore (PW-7) in whose presence, dying
declaration (Ex.P/11) was recorded, said that he had put his signatures from
'A to A' part and had certified from 'B to B' part that patient was in a fit
condition to give statement.
8. After recording of the statements of the injured, he had certified
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that patient was alive and was in a condition to give statements. He has also
admitted that Ranjana and Ritesh both were brought to the hospital at the
same time for treatment. Ranjana had not made any complaint in regard to
her catching fire at the time of examination.
9. Dr. Geetarani Gupta (PW-9), Senior Forensic Specialist (Medical),
Medicolegal Institute of M.P., Bhopal in her cross-examination admitted that
apart from the signs of burning, there were no signs of any beating or other
injuries. Thus, this negates the evidence of PW-4 who has deposed that his
daughter was being tortured and beaten for demand of dowry.
10. Dolly Raikwar (PW-10) is the Tehsildar who had recorded dying
declaration. There is no suggestion to this witness that why there is over
writing on Ex.P/11. Thus, the plea of over writing on Ex.P/11 now being
raised by Shri Manoj Chaturvedi, is of no consequence.
11. Prosecution had sufficient opportunity to get it clarified during
the cross-examination of the Tehsildar Dolly Raikwar (PW-10) who had
recorded dying declaration (Ex.P/11) or from the Doctor who had certified
the patient to be in a fit condition to record her statement i.e. PW-7.
12. As far as, evidence of Gunjan Raghuwanshi (PW-18) is
concerned, the interesting aspect on which Shri Manoj Chaturvedi is silent is
that in examination-in-chief, she has categorically said that she had not seen
as to what had happened with her mother. She in reply to another question as
to whether she was near her mother when she died, she said 'No'. Thereafter,
there are irrelevant and incongruent answers but somewhere she has admitted
that she is being taken care of by her Nanaji i.e. present appellant and she
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was tutored as to what she is required to speak in the Court.
13. This aspect is examined from the perspective of the age of the
witness at the time of incident in the year 2020, as deposed by PW-4, her
own Nana, that she was three years of the age, then her independent thought,
knowledge and congruence to give independent deposition.
14. In view of such facts, merely on the basis of incongruent
statements of the daughter of the deceased, it is not sufficient to record
conviction especially when there is a dying declaration giving clean chit to
the respondents.
15. In view of such facts, the permission for grant of leave to appeal
filed under Section 378 (4) of the Cr.P.C. is not granted. Hence, I.A.No.7697
of 2024 is dismissed.
16. The appeal fails and is hereby dismissed. Parties to bear their
own costs.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
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