Madhya Pradesh High Court
Jabar Singh vs State Of M.P. on 7 August, 2024
Author: Vivek Rusia
Bench: Vivek Rusia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
CRIMINAL APPEAL No. 1045 of 2013
JABAR SINGH
Versus
STATE OF M.P.
Appearance:
(SHRI PRADEEP KATARE - ADVOCATE FOR THE APPELLANT)
(DR. ANJALI GYANANI - PUBLIC PROSECUTOR FOR THE
RESPONDENT/STATE)
---------------------------------------------------------------------------------
Reserved on : 31.07.2024.
Delivered on : 07.08.2024
---------------------------------------------------------------------------------
JUDGMENT
Per: Rajendra Kumar Vani, J.
This appeal has been filed under Section 374 of Cr.P.C by the
appellant against the judgment dated 17 th October, 2013 passed by
the Eleventh Additional Sessions Judge, Gwalior, in Sessions Trial
No.220 of 2013 whereby he has been convicted under Section 302 of
Rs.2,000/- with default stipulation.
2. Draped in brevity, the facts of the case are that on 28.3.2012 at
13.10 hours complainant Rai Singh @ Banti (PW-3) along with his
Tau Moharsingh, mother Munni Devi while taking Dhanto Bai in
burnt condition by 108 Ambulance lodged a report at police Station
Bijauli that he and his uncle Nihal Singh are residing adjacent in
village Sunarpura Mafi. Today at about 12 pm he saw that smoke
was coming out from the house of his uncle Nihal Singh, then he
reached there and found that his aunt Dhanto Bai in burnt condition
came out running and fell down, at that juncture, appellant
Jabarsingh came out from the backside of house of Nihal Singh and
fled away. He poured water on his aunt. She informed that Jabar
Singh with intention to kill her after pouring kerosene oil set her on
fire. His Tau Mohar Singh, mother Munni Devi, sister Uma also
came to the spot and they saw appellant Jabar Singh running away.
Dhanto Bai also narrated the incident to them. On the report, crime
No.39/2012 under Section 307 of IPC was registered against the
appellant. Matter was investigated. During treatment, Dhanto Bai
died, hence, offence under Section 302 of IPC was added. After
investigation, charge-sheet was filed in the Court of JMFC, Gwalior,
from where case was committed to the Court of Sessions. Charge
under Section 302 of IPC was framed against the appellant which he
denied and claimed for trial.
3. In order to bring home the charge, the prosecution examined
17 witnesses and proved the documents Ex.P/1 to Ex.P/26. However,
the appellant chose not to examine any witness in his defence.
4. The Sessions Court, on appreciation of evidence placed on
record, convicted the appellant as aforesaid.
5. It is submitted by learned counsel for the appellant that the
judgment of the trial Court is against the settled principles of law.
The prosecution witnesses are mainly related witnesses, however,
they did not support the prosecution version before the trial Court.
The learned trial Court relying on dying declarations of the deceased
(Ex.P/9 and Ex.P/15) has convicted & sentenced the appellant under
Section 302 of IPC, however, the deceased Dhantobai was not in a
condition to give any statement as she was 90% burnt in the incident
as per the opinion of the doctor. There is no mention in the dying
declaration that deceased was in fit mental state at the time of
recording of dying declarations. Learned trial Court has erred in
convicting the appellant. Therefore, prayed for allowing the appeal
by setting aside the impugned judgment of conviction and order of
sentence.
6. Learned counsel for the respondent/State supported the
impugned judgment by submitting that there is no ground for
interference in the impugned judgment.
7. Heard learned counsel for the rival parties and perused the
record.
8. Dr. Nikhil Agrawal (PW-9) stated that on 29.3.2012 he
conducted postmortem over the dead-body of Dhanto Bai and found
following injuries:
"(1) II and III degree fresh reddish coloured
antemortem burn with scorching present on :
chest, abdomen, pubis, right upper limb upto dorsum
and palm except fingers at palmar part with
loosening of skin left upper limb upto dorsum and
proximal half of palm except fingers at palmar
surface, right lower limb or thigh, left lower limb
upto knee.
At back -grand nape of neck with involvement of
occipital region to waist line, both buttocks to legs
posteriorly.
2. Reddish blue contusion present on right leg
anterolaterally at upper part size = 6 cm x 5 cm.
3. Reddish blue contusion present on right leg or and
part anteriorly size = 4 cm x 2.5 cm.
4. Reddish blue contusion present on left leg at mid
part size = 6 cm x 3.5 cm
5. Swelling present on vertex of head at mid size =
6.5 cm x 4.5 cm"
As per the opinion of the doctor, death was due to cardio respiratory
failure, as a result of burn. Evidence of antemortem injuries were
present. Duration of death is within 6 to 24 hours of examination and
nature of death could be decided on the basis of circumstantial
evidence. Beside burn injury, there were four more injuries found on
the body of the deceased in the form of contusion and swelling. In
that respect, Dr. Nikhil Agrawal admits in cross-examination that
these injuries may be caused when a woman while running in burnt
condition collided with wall and fell down. Police has made a query
to him in this regard and he vide his report (Ex.D/1) replied that such
injuries may occur in aforesaid circumstances. This fact is also
supported by Abid Khan (PW-13).
9. The case of the prosecution in this case is entirely rests on
dying declarations (Ex.P/15) and (Ex.P/9). Though as per the story of
prosecution Dhantobai in burnt condition ran out from her house and
thereafter appellant, who is uncle of informant Raisingh, came out
from the house. Dhantobai apprised the informant that present
appellant Jabarsingh after pouring kerosene oil over her, set her on
fire, but this witness Raisingh, who has been examined on behalf of
the prosecution as PW-3 did not support the prosecution case though
he admits his signatures on FIR. He explained that police has got his
signatures on this document. In this case, seizure was made vide
Ex.P/1 & Ex.P/2 and spot map was prepared vide Ex.P/6.
10. This witness Rai Singh (PW-3) stated that Dhantobai burnt
while she was preparing food. Similarly, other important witnesses
Uma (PW1), who is niece of the deceased, Anita (PW-2), who is
daughter of the deceased, Vinod Singh (PW-4), who is nephew of the
deceased, Mohar Singh (PW-6), who is brother-in-law of the
deceased and Nihal Singh (PW-7), who is husband of the deceased,
have not supported the version of prosecution, instead they deposed
that Dhantobai got burnt while preparing food. They denied the story
of the prosecution that present appellant after pouring kerosene oil
over the deceased set her on fire. All these witnesses have been
declared hostile by the prosecution. Raisingh (PW-3) in his cross-
examination stated that due to threat of the police, villagers
suggested them to implicate Kalyansingh, Jabar Singh and Machal
Singh, otherwise he himself would be implicated. Therefore, the
evidence of aforesaid witnesses are of no help to the prosecution.
11. So far as Ex.P/15 is concerned, this dying declaration has been
recorded by SHO Rajesh Gupta (PW-8) who has stated that on
28.3.2012 Dhantobai was brought by 108 Ambulance in burnt
condition and report (Ex.P/5) was lodged at the instance of Raisingh.
He recorded the statement of Dhantobai which is Ex.P/15. This
witness has not mentioned in his chief examination that what
Dhantobai has stated in Ex.P/15. Rajesh Gupta (PW-8) in his cross-
examination admits that there is overwriting in Ex.P/5 on the name
of accused Jabar Singh. In this behalf, he also admits that he has
mentioned version of FIR in Rojnamacha Sanaha, but copy of such
Rojnamacha has not been appended in this case. Having such
overwriting on Ex.P/5, such entry of Rojnamacha was required to be
produced in evidence.
12. Moreover, Rajesh Gupta (PW-8) stated that when Dhantobai
appeared at police Station, he had sent her with MLC form for her
examination, but there is no such form on the record. He also admits
that seizure memo (Ex.P/1) does not bear his signatures. He further
admits in para 9 of his cross-examination that statement of
Dhantobai Ex.P/15 does not bear time and place of its recording.
13. In the light of the statement of Rajesh Gupta (PW-8), the
statement of Dhantobai (Ex.P/15) could not be found to be proved &
trustworthy. The fact reveals from the statements of aforesaid
witnesses renders the entire story of prosecution doubtful as regards
Ex.P/15. Furthermore, the version stated in Ex.P/15 is quite different
from the dying declaration (Ex.P/9) which is said to be recorded by
Naib Tahsildar C.P.Singh Tomar (PW-5). The versions of both the
dying declarations are as follows :
"Ex.P/15
Þ/kUrks ckbZ ifRu fugky flg xqtZj 35 o"kZ fu- yTtkjke dk iqjk
SOODAN PRASAD lqukjiqjk ekQh&
Signing time: 07-08-2024
06:30:58 PM
us c;ku fn;k fd eS ukS fnu dh miklh Fkh vkt ?kj ij vdsyh Fkh
tcj flg us ?kj vk;k iwjs nw/k dh pk; cukus dh fy;k eSus euk
fd;k rks tcjflg us esjs mij feV~Vh dk rsy Mkydj tku ls ekjus
dks tyk fn;k gS HkkbZ mldks 'kg nsrs jgrs gSAß
Ex.P/9
Þvkidk uke crk nks & esjk uke /kUrksckbZ ifRu fugky flg xqtZj
mez 35 o"kZ fu- lqukjiqjk ekQh Fkkuk fctkSyh dh jgus okyh gaw
dSls tyh & vkt fnukad 28-03-2012 dh lqcg 10 cts dh ckr gS
esjs ?kj okys eaMh ls ----- cspdj vk;k rks esjs pfp;k llqj ds yMds
dYyk] tcjk] jes'k] epyk iq=x.k jkepj.k us vkdj ljlks cspus ds
iSls ekaxs rFkk eq>ls ipkl gtkj :i;k NqMkdj ys x;k vkSj eq>s
dejs esa candj feV~Vh dk rsy Mky fn;k blls esa ty xbZ ;gh esjk
dFku gS i<dj lquk;k x;k ------A
c;ku nsrs oDr ejht gks'k es jgk ß
14. There is substantial difference between the version revealed
from these two statements of the deceased. The learned counsel for
the appellant in his regard has submitted that the dying declaration
(Ex.P/9) is not believable as at the time of taking this dying
declaration the deceased was 90% burnt and she was not in a
position to utter anything. Moreover, the procedure adopted while
taking dying declaration by this witness renders the entire
proceeding doubtful.
15. When we travel through the testimony of Naib Tahsildar
C.P.Singh Tomar (PW-5), he stated in his examination that he has
taken a note of the doctor concerned on Ex.P/9 that patient is
conscious. However, there is no remark on Ex.P/9 that the patient is
capable of giving statement as regards her death and in fit condition.
He stated in his chief examination that he took toe impression of her
left leg on Ex.P/9. Dr. Nikhil Agrawal (PW-9) also stated that at the
time of postmortem he found a sign of blue ink towards toe of left
leg. He stated as infra :
Þ--------cka;s iSj ds vaxwBs dh vksj uhyh L;kgh dk fu'kku Fkk------ß
while Naib Tahsildar C.P.Singh Tomar (PW-5) stated that -
Þ-------eqfrdk ?kUrks ckbZ dk cka;s iSj dk fu'kkyh vaxwBk yxok;k
Fkk rFkk ch ls ch Hkkx ij MkWDVj ds gLrk{kj djk;s Fks-----ß
The statement of Dr. Nikhil Agrawal (PW-9) is self contradictory as
in the same para 2 of his chief examination he stated that body of the
deceased was covered by bandage of the hospital except her head
and face. Therefore as per this statement, her legs were also covered
by bandage and probably because of this reason he has not stated in
clear terms that blue ink sign was "on left toe" instead he has used
the words "towards left toe". It is not clarified categorically by
C.P.Singh Tomar (PW-5) that why he is bound to take left toe
impression of the deceased instead of her thumb impression.
16. C.P.Singh Tomar (PW-5) admits that in Ex.P/9 deceased has
not clarified as to who out of four accused has poured kerosene over
her and who set her on fire. He denied the suggestion that the
deceased was not in a condition to speak, but he admits that such
note is not there in Ex.P/9.
17. Mohar Singh (PW-6) admitted in his cross-examination that
Dhantobai after being burnt became unconscious and had not stated
anything. Dr. Nikhil Agrawal (PW-9) has stated in para 4 that there
was 65-70% burn over the body of the deceased. Dr. A.K.Bohare
(PW-11), who examined primarily the deceased, has stated that the
injured was brought in 80% burn condition while Dr. Arvind Sethiya
(PW-14) who has appended note on Ex.P/9 has stated that deceased
conscious before her statement, but in cross-examination he admits
that the fact is missing in Ex.P/9 that at that time the deceased was
capable to speak or to give her statement. He also admits
categorically that
Þ-----;g lgh gS fd ejht 90 izfr'kr tyk gqvk Fkk vkSj flj ls
ysdj uhps iSjksa rd tyk gqvk FkkA------ß
The statement of this witness shows that the deceased from head to
leg was in 90% burnt condition including left toe. Again this witness
reiterates in para 5 that -
Þejht dk izn'kZ ih&9 ij esjs lkeus vaxwBk yxok;k FkkA dkSu
ls vaxwBk yxok;k Fkk eq>s vkt ;kn ugh gS Lor% dgk fd eq>s
bruk ;kn gS fd gkFk dk vaxwBk yxok;k FkkA esjs lkeus e`frdk
/kUrks ckbZ ds iSj dk vaxwBk ugh yxok;k x;k FkkA ;g dguk
xyr gS fd esjs lkeus eqfrdk /kUrksckbZ dk gkFk vaxwBk izn'kZ
ih&9 ij ugh yxok;k x;k FkkA -----ß .
18. Dr. A.K.Bohare (PW-11) stated in his chief examination that
MLC report (Ex.P/19) did not contain any fact as to the capability of
the deceased to speak. He admits that -
Þ---;g ckr lgh gS fd vkgrk 80 izfr'kr tyh voLFkk esa Fkh]
bl dkj.k mldh csgks'kh dh voLFkk esa gksuk izrhr gksrk FkkAß
19. Having considered the various facts and circumstances as
regards preparation of Ex.P/9, it does not inspire confidence and not
find to be trustworthy. It is trite law that if dying declaration is found
to be true and voluntary and not a result of tutoring, prompting or
imagination, then dying declaration can be the sole basis for
conviction of the accused, but as discussed aforesaid, both the dying
declarations Ex.P/9 and Ex.P/15 are not found to be trustworthy and
SOODAN PRASAD such documents.
20. On foregoing discussion, it is found that the conclusion of the
trial Court as regards dying declarations is based on conjectures and
surmises and cannot be affirmed. The appellant in this case deserves
benefit of doubt.
21. In the backdrop of aforesaid discussion, the alleged offence of
Section 302 of IPC against present appellant is not sustainable,
therefore, by allowing this appeal and giving benefit of doubt to the
present appellant, he is acquitted of the charge under Section 302 of
IPC by setting aside the impugned judgment.
22. Fine amount, if deposited be refunded to him.
23. Appellant is in jail, he be released forthwith.
(VIVEK RUSIA) (RAJENDRA KUMAR VANI)
JUDGE JUDGE
ms/-
