Judgement
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE
JURISDICTION 1 CRIMINAL APPEAL NO. 2048 OF 2012 (Arising out of S.L.P. (Crl.)
No. 2689 of 2012)
Ram Viswas .... Appellant(s)
Versus
The State of Madhya
Pradesh .... Respondent(s)
P.Sathasivam,J.
1) Leave granted.
2) This appeal is directed against the judgment and order dated 07.05.2009
passed by the High Court of Judicature at Jabalpur, Madhya Pradesh in Criminal
Appeal No. 884 of 2000 whereby the Division Bench of the High Court dismissed
the appeal filed by the appellant herein.
3) Brief facts:
(a) This case relates to one Maladeep, resident of village Semaria, District
Rewa, Madhya Pradesh, who was burnt to death by her husband-Ram Viswas, the
appellant herein by pouring kerosene oil.
(b) Maladeep (the deceased) and Ram Viswas were married to each other but
were not in good terms. The appellant herein was not happy with his married life
and often used to quarrel with Maladeep. He was actually forcing his wife to
leave her matrimonial home which was not agreeable to her.
(c) In order to get rid of her, on 03.02.1998, in the midnight, the appellant
herein poured kerosene oil on Maladeep and set her on fire. On hearing her
cries, a number of persons gathered on the spot and tried to extinguish the
fire. The appellant herein also tried to douse the fire and got his hands burnt.
(d) Maladeep was taken to the G.M. Hospital, Rewa and a First Information
Report (FIR) being No. 10/98 was registered against the appellant herein with
the Police Station Semaria. On 04.02.1998, the CMO, G.M. Hospital Rewa, opined
that she had sustained 100% burn injuries and at about 03:05 p.m., the statement
of Maladeep was recorded wherein while narrating the whole story, she named her
husband-the appellant herein for the overt act.
On 07.02.1998, she succumbed to her injuries.
(e) After filing of the charge sheet, the case was committed to the Court of
Sessions Judge, Rewa, (M.P.) and numbered as Session Case No. 80/98.
The trial Court, by order dated 22.04.1999, convicted the appellant under
Section 302 of the Indian Penal Code, 1860 (in short ‘the IPC’) and
sentenced him to suffer RI for life along with a fine of Rs. 100/-, in default,
to further undergo RI for 1 month.
(f) Being aggrieved, the appellant herein preferred Criminal Appeal No.
884 of 2000 before the High Court. By judgment and order dated 07.05.2009,
the High Court dismissed the appeal filed by the appellant herein.
Questioning the same, the appellant has filed this appeal by way of special
leave before this Court.
4) Heard Mr. S.C. Patel, learned counsel for the appellant-accused and Ms.
Vibha Dutta Makhija, learned counsel for the respondent-State.
5) Learned counsel for the appellant, after taking us through the entire
material relied on by the prosecution, reasoning of the trial Court and the High
Court submitted that there are material omissions in the dying declaration –
Exh. P-11 which also differ from the contents of the First Information Report
(Exh. P-4), hence, the courts below ought not to have accepted the prosecution
case. He further submitted that in the absence of smell of kerosene from the bed
sheet, quilt and the pillow, the entire statement in the form of dying
declaration is to be rejected. He finally submitted that even if the case of the
prosecution is acceptable, in view of the fact that the appellant tried to
extinguish the fire and by such conduct at the most, he would be punishable only
under Section 304 Part II IPC and not under Section 302. On the other hand, Ms.
Vibha Dutta Makhija, learned counsel for the State submitted that the very same
contentions were raised by the accused before the trial Court and the High Court
and taking note of the statement of the deceased in the form of dying
declaration, all other relevant materials and compliance of all the formalities,
the said objections were rejected, hence, there is no valid and acceptable
ground for interference with the concurrent findings of the courts below by
exercising jurisdiction under Article 136 of the Constitution of India.
6) We have carefully considered the rival submissions and perused all the
relevant materials.
7) As rightly pointed out by the counsel for the State, it is seen from the
FIR (Exh.P-4) that the accused was not happy with his married life and they had
frequent quarrels. A perusal of the FIR further shows that on 03.02.1998, in the
midnight, when the accused and the deceased alone were in the house, the accused
poured kerosene oil on the deceased and set her on fire. It is further seen that
on hearing the cry of the deceased, a number of persons entered into the room
when the accused himself opened the door from inside and a report was made to
the police. No doubt, a perusal of the FIR shows that her husband, the present
appellant also tried to extinguish the fire.
8) In the light of the contents of the FIR (Ex.P-4), now we have to consider
the dying declaration which is Exh.P-11 made by the deceased recorded by
Rajendra Tiwari, Naib Tahsildar, (PW-11) wherein it was stated that her husband
abused her and compelled her to go away from his house.
She further stated that on the fateful night, when they were sleeping
together, he poured kerosene oil on her and set fire. She further narrated that
when she shouted for help, neighbours came in and she was taken to G.M.Hospital,
Rewa. The above statement was recorded at 3.25 p.m. on 04.02.1998.
9) Before recording the above statement, the doctor concerned certified that
she was fit for giving a statement. The doctor also certified that the patient
was conscious while giving the dying declaration. Inasmuch as the Tahsildar
(PW-11) recorded her statement after fulfilling all the formalities and her
condition was also specified as seen from the certificate of the doctor, there
is no reason to reject the same, on the other hand, as rightly accepted by the
trial Court and the High Court, we are also of the view that the prosecution is
fully justified in relying on the same. No doubt, in her statement as stated in
the FIR (Exh. P-4) that her husband tried to save her was not stated in the
dying declaration.
Inasmuch as the dying declaration satisfied all the prescribed conditions and
procedure, we are not inclined to accept the stand taken by learned counsel for
the appellant.
10) As rightly observed by the trial Court and the High Court, merely because
there was no sign of smell of kerosene oil from the bed sheet, quilt and pillow,
the case of the prosecution cannot be thrown out. Since the dying declaration
(Exh.P-11) is proved beyond doubt, as discussed above, we reject the argument of
the counsel for the appellant. For the same reasons, the appellant cannot be
convicted only under Section 304 Part II IPC.
11) It is clear from the prosecution case that the accused was the only
person inside the room at the time of the incident along with his wife.
Even if it is accepted that in the course of the said incident he sustained
some burn injuries, it is not a ground for exonerating his guilt. We have
already observed that Dr. Manish Kaushal (PW-8) has stated that on 04.02.1998 he
examined the injured – Maladeep and found her conscious and fit to make a
statement. The said report has also been marked as Exh.P-11 and the statement of
the deceased was recorded by the Executive Magistrate in his presence.
12) In the light of the above discussion and on going through the entire
material relied on by the prosecution and the defence, we are unable to agree
with the argument of the counsel for the appellant, on the other hand, we concur
with the conclusion arrived at by the courts below.
Consequently, the appeal fails and the same is dismissed.
13) Learned counsel for the appellant by pointing out the fact that the
appellant had served more than 14 years in prison, prayed for appropriate
direction for his release as per Jail Manual. Without expressing any opinion on
the merits of his claim, inasmuch as we dispose of his appeal, the State is free
to consider the same in accordance with the Rules/Instructions/Jail Manual
applicable to the appellant. With the above observation, the appeal is
dismissed.
J.................................
(P. SATHASIVAM)
J................................
(RANJAN GOGOI) NEW DELHI;
DECEMBER 14, 2012.
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