Madhya Pradesh High Court
Nandkishore vs The State Of Madhya Pradesh on 2 May, 2024
Author: Anil Verma
Bench: Vivek Rusia, Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE ANIL VERMA
CRIMINAL APPEAL No. 1750 OF 2015
BETWEEN:-
NANDKISHORE S/O HEERALAL CHOUHAN, AGED
ABOUT 63 YEARS, R/O 5/3 BHERUGARH MUKTI
MARG, DISTRICT DEWAS (MADHYA PRADESH)
.....APPELLANT
(BY SHRI Z.A. KHAN, LEARNED SENIOR COUNSEL
WITH SHRI RAMESH CHANDRA GANGARE -
ADVOCATE)
AND
STATE OF M.P. THROUGH POLICE STATION -
KOTWALI, DISTRICT DEWAS (MADHYA PRADESH)
....RESPONDENT
(BY MS. VARSHA THAKUR - GOVERNMENT
ADVOCATE)
CRIMINAL APPEAL No. 1786 OF 2015
BETWEEN:-
1. VIKAS S/O NANDKISHORE CHOUHAN, AGED
ABOUT 23 YEARS, R/O: 5/3 BHERUGARH MUKTI
MARG, DISTRICT DEWAS (MADHYA PRADESH)
2. SARITA W/O NANDKISHORE CHOUHAN, AGED
ABOUT 54 YEARS, OCCUPATION: HOUSEWIFE,
R/O: 5/3 BHERUGARH MUKTI MARG, DISTRICT
DEWAS (MADHYA PRADESH)
.....APPELLANTS
2
(BY SHRI Z.A. KHAN, LEARNED SENIOR COUNSEL
WITH SHRI RAMESH CHANDRA GANGARE -
ADVOCATE)
AND
STATE OF M.P. THROUGH POLICE STATION -
KOTWALI, DISTRICT DEWAS (MADHYA PRADESH)
....RESPONDENT
(BY MS. VARSHA THAKUR - GOVERNMENT
ADVOCATE)
(SHRI NAVNEET KISHORE VERMA - ADVOCATE FOR
THE COMPLAINANT)
---------------------------------------------------------------------------------------
Reserved on : 25/04/2024
Pronounced on : 02/05/2024
These appeals having been heard and reserved for orders, coming
on for pronouncement this day, JUSTICE ANIL VERMA passed the
following:
JUDGMENT
Since both these appeals have been filed against the common
impugned judgment, therefore, they are being decided by this common
judgment.
1. Appellants have preferred both the Criminal Appeals under
Section 374 of the Code of Criminal Procedure, 1973 (in short "Cr.P.C.")
against the impugned judgment of conviction and order of sentence
dated 27.11.2015 passed by the 3rd ASJ, Dewas (M.P.) in S.T.
No.181/2013. The appellants have been convicted and sentenced as
under:-
Name of the Conviction u/S Sentence Fine amount Imprisonment in
appellant lieu of payment
of fine.
Nandkishore 498-A IPC 3 years R.I. Rs.5,000/- 3 months R.I.
Vikas 498-A IPC 3 years R.I. Rs.5,000/- 3 months R.I.
302 IPC Life Rs.10,000/- 1 year R.I.
Imprisonment
Sarita 498-A IPC 3 years R.I. Rs.5,000/- 3 months R.I.
302 IPC Life Rs.10,000/- 1 year R.I.
Imprisonment
2. The prosecution story, in brief, is that marriage of the appellant
Vikas was solemnized with Swati (deceased) on 21.4.2008 in the group
marriage ceremony (lEesyu) in presence of all the relatives of both the
sides. After 2-3 months deceased was harassed by her husband, mother-
in-law, father-in-law and sisters-in-law for bringing less dowry. She was
mentally and physically harassed day-to-day and money was demanded
from her parents. On 19.3.2013 some quarrel was taken place in the
matrimonial house of the deceased. Deceased Swati informed her father
Umesh. When the parents of the deceased reached at the matrimonial
home of Swati, they saw her in burnt condition. Deceased Swati in her
dying declaration deposed that her father-in-law, mother-in-law, sister-
in-law and husband poured kerosene oil upon her and set her ablaze.
During the treatment, deceased has been died. The death was reported to
the police station and investigation was started.
3. Further prosecution story is that the MLC of the deceased has
been done and after the death her postmortem was conducted by Dr.
Prashant Rajput (PW-18) and as per the postmortem report, her death
was homicidal in nature. Investigating officer has seized the treatment
papers of the deceased. Investigating officer Mr. Mahendra Tarnekar
(PW-17) has recovered marriage card of the deceased from the
possession of her father. Merg has been registered. Investigating officer
prepared spot map. MLC of accused Vikas was also done by Dr.
Sandeep Jatav and OPD slip has been recovered from his possession. All
the accused persons were arrested. ASI N.S. Kanesh (PW-13) recovered
a plastic can containing smell of the kerosene oil, matchstick box and
burnt matchstick from the spot.
4. After completion of the investigation, charge sheet has been filed
before the JMC, Dewas who has committed the case to the Court of
Sessions. Later on, the case was transferred to 3 rd ASJ, Dewas. The trial
court on the basis of the allegations made in the charge sheet, framed the
charges under Section 304-B, 498-A & 302 of IPC against the appellants
and co-accused Vandana and Veena. The accused persons abjured their
guilt and pleaded complete innocence. Trial court after completion of
trial, scrutinized the entire evidence available on record and convicted
and sentenced the appellants for the offences as mentioned hereinabove
and acquitted the co-accused Vandana and Veena from all the charges.
Being aggrieved by the impugned judgment, the appellants have
preferred both the criminal appeals before this Court.
5. Learned counsel for the appellant Nandkishore (in CRA
No.1750/2015) contended that the judgment of the trial Court is contrary
to the law and facts available on record. It is neither legal, nor proper,
nor correct. The trial court was wrong in believing the prosecution
witnesses and discarding the defence version. There is material
contradictions in the statement of the prosecution witnesses. There was
no continuous demand of dowry. Trial court has ignored these aspects.
Prior to the incident no FIR has been lodged against the appellants.
There are so many lapses in the investigation. Hence, he prays that the
appeal be allowed and the appellant be acquitted from all the charges.
6. Learned counsel for the appellants Vikas and Sarita (in CRA
No.1786/2015) contended that at the time of recording the alleged dying
declaration, deceased was not in a position to speak clearly. Many of the
words were not understandable and her dying declaration was recorded
with the help of her father Umesh. There are material contradictions in
both the dying declarations. Deceased was 95% burnt. The dying
declaration filed in this matter is bad in the eyes of law. Intention was
not proved. There is nothing on record that the appellants had
premeditation of mind to commit murder of the deceased by burning her.
The trial court has appreciated the evidence by pick and choose method,
which is illegal and incorrect. The trial court has failed to appreciate
defence version of the appellants and it has been ignored. Hence he
prays that the impugned judgment be set aside and both the appellants be
acquitted from all the charges.
7. Per contra, learned counsel for the respondent/State opposes the
prayer by supporting the impugned judgment passed by the trial Court
and prays for dismissal of this appeal by submitting that the impugned
judgment is based upon proper appreciation of evidence and the trial
Court has rightly convicted and sentenced all the appellants and same
does not call for any interference. Hence, both the appeal deserve to be
dismissed.
8. We have heard learned counsel for the parties at length and
perused the entire record of the trial Court with due care.
9. So far as the offence under Section 498-A of IPC is concerned,
admittedly appellant Vikas is the husband of the deceased Swati and
other appellants Nandkishore and Sarita are the father-in-law and
mother-in-law of the deceased. Marriage of the deceased was
solemnized with Vikas on 21.4.2008 about 5 years prior to the incident.
10. Umesh (PW-1) and Manju (PW-2) who happens to be father and
mother of the deceased Swati, although in examination-in-chief deposed
that their daughter Swati told them that after 2-3 months of the marriage
accused persons taunted her for not bringing the sufficient dowry and
they quarreled with her and mentally harassed her, but Umesh (PW-1) in
para-8 of his cross-examination categorically admits that his financial
condition is poor and at his request Nandkishore had agreed to
solemnize marriage in the Sammelan and at that time no question arised
regarding dowry. Manju (PW-2) also admits in para-7 that after the
marriage behaviour of the accused persons with her daughter Swati was
satisfactory. Both the witnesses deposed that accused Vikas has lost
motorcycle of the Nandoi of the deceased, therefore, Vikas has paid
Rs.40,000/-. Dilip (PW-3) also admits in his cross-examination that he
does not know the cause of the incident. Amrit (PW-4) and Hemraj (PW-
6) did not state anything regarding the demand of dowry by the accused
persons.
11. Prior to the incident, deceased or her parents did not lodge any
report against the accused persons regarding demand of dowry. There are
material contradictions and omissions in the statements of Umesh (PW-
1), Manju (PW-2), Dilip (PW-3) and Amrit (PW-4) in their police
statements and court statements regarding the demand of dowry. Not a
single witness has deposed that before him accused persons demanded
any dowry from the deceased or her parents. It is also remarkable that
deceased Swati in her statement (Ex.P/5) stated that her mother-in-law
demanded dowry, but she did not state anything regarding the other
accused persons for demand of dowry. Therefore, on the basis of the
aforesaid offence, we are of the considered opinion that regarding the
demand of dowry statement of the prosecution witnesses are very vague
and doubtful. Therefore, prosecution has failed to prove that after the
marriage of the deceased accused persons mentally and physically
harassed the deceased for demand of dowry. But the trial court has not
considered all these facts in true perspective and convicted the
appellants/accused persons for the offence under Section 498-A of IPC
without appreciating the evidence available on record. The prosecution
has failed to prove its case under Section 498-A of IPC against the
accused persons. Therefore, the appellants deserve to be acquitted for the
offence under Section 498-A of IPC.
12. So far as the offence under Section 302 of IPC is concerned, Dr.
R.K. Sharma (PW-11), who has primarily done treatment of the deceased
Swati before her death, categorically stated that during the examination
he found that patient Swati was 100% burnt and Kerosene smell was
found over her body, but she was conscious. Her medical examination
report is Ex.P/29.
13. Dr. Prashant Rajput (PW-18) who has conducted the postmortem
of the deceased, categorically stated in his statement that during the
examination it is found that there was 95% superficial to deep burn all
over her body except the half portion of the face, internal parts of both
the thighs and both the hands and deep burn was found over the chest,
abdomen and on the back. All the burns are antemortem. He opined that
cause of death of the deceased was due to the cardio-respiratory failure
as a result of burn and its complications. Postmortem report is Ex.P/46.
During the cross-examination, the statement of Dr. Prashant Rajput (PW-
18) and portmortem report (Ex.P/46) was not seriously challenged by the
accused persons. Therefore, there is no reason to disbelieve the medical
opinion given by Dr. Prashant Rajput (PW-18). On the basis of the
aforesaid trial Court has rightly held that death of the deceased was
homicidal in nature and caused by fatal burn injuries over the vital parts
of the body.
14. Admittedly there is no eyewitness in the instant case and the case
of the prosecution is based upon circumstantial evidence, mainly based
upon the dying declaration of the deceased, which was recorded by ASI
Mr. Gulab Singh Verma (PW-10), who categorically stated in his
statement that he has recorded the statement of the deceased Swati in
Bombay Hospital, Indore and she deposed that her mother-in-law oftenly
demands for dowry and at the time of incident quarrel was taken place
with her mother-in-law on the issue that why she cooked dinner too early
and she poured kerosene oil upon her and set her ablaze. Dr. Animesh
Dammani (PW-8) also stated in his statement that at about 2.20 a.m.
Swati told him that her mother-in-law poured kerosene oil upon her and
set her ablaze by matchstick. Under the tap, by using the water, Swati
extinguished the fire and her husband was present there, but he did not
set her on fire. From perusal of the dying declaration (Ex.P/5), it is clear
that deceased has deposed only against her mother-in-law/appellant
Sarita but she did not state anything against other appellants regarding
the said incident.
15. Learned counsel for the appellants contended that deceased was
giving her statement in Hindi, whereas Dr. Animesh Dammani (PW-8)
has recorded her statement in English and doctor has not taken her
thumb impression. There was no independent witness at the time of
recording the statement, therefore, the dying declaration recorded by Dr.
Animesh Dammani (PW-8) is doubtful and it cannot be considered for
the purpose of conviction of the appellants.
16. But the statement of Dr. Animesh Dammani (PW-8) and Gulab
Singh Verma (PW-10) is well supported by the dying declaration
(Ex.P/5), which was recorded in presence of the duty doctor and thumb
impression of the deceased was also taken upon it. The dying declaration
of the deceased is also supported by her statement under Section 161 of
Cr.P.C. (Ex.P/5), which was recorded by the police officer. It is the
settled position of law that the dying declaration, which inspires
confidence, needs no corroboration to sustain itself. The Hon'ble 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."
17. The Hon'ble Apex Court in the case of Uka Ram Vs. State of
Rajasthan AIR 2001 SC 1814 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."
18. On the basis of the aforesaid law laid down by the Hon'ble Apex
Court and also in view of the fact that deceased was conscious at the
time of recording of her dying declaration and her mental and physical
condition has been duly observed by the medical experts. In the given
circumstances, we are of the considered opinion that the dying
declaration of the deceased is wholly reliable without any further
corroboration. The conviction could be based upon the aforesaid dying
declaration but it is to be remembered that the deceased's dying
declaration is found only against the appellant Sarita and not against the
other co-accused persons.
19. So far as the case of the appellant Nandkishore is concerned,
deceased Swati in her dying declaration did not state anything against
the appellant Nandkishore. Presence of the appellant Nandkishore at the
crucial time has not been established in the said house. Deceased and her
parents did not state anything against the appellant Nandkishore
regarding murder of the deceased. No incriminating article has been
recovered from the possession of appellant Nandkishore. Therefore,
prosecution has failed to prove its case against the appellant
Nandkishore and he deserves for clean acquittal.
20. So far as the case of the appellant Vikas is concerned, deceased
Swati did not state anything against her husband Vikas regarding the
incident except indicating his presence at the time of incident. Although
the appellant Vikas was present on the spot and it has been argued on
behalf of the appellant Vikas that he tried to save his wife. Dr. Sandeep
Jatav (PW-16) who has conducted MLC of Vikas categorically stated
that during his examination, superficial burn has been found on the left
arm and left side of the chest. His MLC report is Ex.P/37. From the
statement of Dr. Sandeep Jatav (PW-16) and MLC report Ex.P/37, it is
proved that appellant Vikas sustained burn injuries over his left arm,
chest and right hand and such injuries may be caused during his efforts
for saving his wife from the fire. Therefore, there is no evidence on
record against the appellant Vikas that he has committed murder or
involved in the murder of the deceased. The trial court has erred in not
appreciating the evidence against the appellant Vikas. Therefore,
appellant Vikas deserves to be acquitted from all the charges.
21. But so far as the case of the appellant Sarita is concerned,
deceased Swati in her dying declaration categorically deposed that her
mother-in-law poured kerosene oil upon her and set her ablaze and at the
crucial time of incident only her mother-in-law had quarreled with her
on the issue of early cooking of the dinner. Other prosecution witnesses
also deposed against the appellant Sarita for her direct involvement in
the said incident. Therefore, on the basis of the evidence available on
record, the trial court has rightly appreciated the evidence and based
upon the evidence, rightly held that appellant Sarita has murdered the
deceased by setting her on fire. Accordingly appellant Sarita has been
rightly convicted for the offence under Section 302 of IPC.
22. For the reasons cited hereinabove, we find that the prosecution has
failed to prove its case against the appellants Nandkishore and Vikas.
There is no legal evidence to connect both these appellants with the
aforementioned offence. Therefore, appeal filed by the appellants
Nandkishore and Vikas is allowed and their conviction and sentence for
the offence under Section 498-A & 302 of IPC is set aside. The
appellants Nandkishore and Vikas are acquitted from the charge under
Section 498-A & 302 of IPC. Appellant Nandkishore is on bail, his bail
and surety bonds stand discharged. Appellant Vikas is in custody, he be
released forthwith, if not required in any other case.
23. The prosecution has successfully proved its case against the
appellant Sarita. Therefore, we find no force in the appeal filed by the
appellant Sarita and her appeal being devoid of merit and substance is
hereby dismissed. Appellant Sarita is acquitted from the charge under
Section 498-A of IPC, but the conviction of the appellant Sarita under
Section 302 of IPC is upheld. Appellant Sarita is in jail, she shall remain
in jail to undergo remaining part of her jail sentence.
24. Registry is directed to send a copy of this judgment immediately
to the trial Court along with the record for necessary compliance.
(VIVEK RUSIA) (ANIL VERMA)
JUDGE JUDGE
Trilok/-
TRILOK SINGH SAVNER
2024.05.02 17:51:35 +05'30'
