HIGH COURT OF MADHYA PRADESH: JABALPUR
CRIMINAL APPEAL NO. 1768/2000
Noor Ali, son of Toti Khan, aged about
36 years, R/o 245 Abbas Nagar, Jahangirabad
Bhopal ( M.P.)
.......Appellant
-Versus-
State of Madhya Pradesh through
Police Station Jahangirabad, Bhopal (M.P.).
........Respondent
For the appellant: Shri Umesh Shrivastava, Advocate.
For the respondent: Shri S.K.Rai, Government Advocate.
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Present: Hon'ble Justice Shri Rakesh Saksena
Hon'ble Justice Smt. Sushma Shrivastava
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Date of hearing : 12.01.2010
Date of judgment: 19.01.2010
JUDGMENT
Per Rakesh Saksena, J.
Appellant has filed this appeal against the judgment
dated 13th March,2000 passed by Sessions Judge, Bhopal in Sessions
Trial No.288/99 convicting him under section 302 of the Indian Penal
Code and sentencing him to imprisonment for life with fine of
Rs.500/-.
2. According to prosecution, Badroon Bi, the deceased, who
was a widow lady, was residing in a hut situated in Abbas Nagar,
Bhopal. On 28.6.1999 at about 1 o’ clock in the night, accused went
in the hut of Badroon Bi and set fire to her by match stick and ran
away. She suffered burn injuries on her neck, hands and legs. She
shouted and informed this fact to neighbours who reached there. In
the morning, she went to police station, Jahangirabad and lodged the
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first information report (Ex.P/1). She was sent to hospital for
treatment and medical examination. Dr. Anup Dabe examined her
injuries and found burn injuries on her body as per MLC report Ex.
P/13. For the treatment, she was admitted in the hospital. While in
hospital, her dying declaration Ex.P/12 was recorded by Executive
Magistrate Makhan Singh (PW16). In the dying declaration, she
stated that accused entered her hut in the night and set fire to her
clothes. She remained alive till 2.7.1999. After her death on 2.7.1999
her body was sent for postmortem examination. Dr.V.K.Athwal (PW6)
conducted the postmortem examination and vide his report Ex.P/5,
found second to third degree burn injuries on anterior aspect of her
neck, both breasts, chest, abdomen, umbilicus region, hands, lower
limbs, right lumber region and upper arms. Her death was caused
due to cardio respiratory failure as a result of burns and its
complication. Accused was arrested on 30.6.1999 and after requisite
investigation, charge sheet was filed under section 302 I.P.C.
3. Accused abjured his guilt. As per his statement recorded
under section 313 of the Code of Criminal Procedure, Badroon Bi
had self ignited her and had falsely implicated him. To substantiate
its case, prosecution examined 17 prosecution witnesses. Accused
also examined Sher Ali (DW1) as a defence witness to prove that the
deceased had herself set fire.
4. Mohd. Rafique (PW1), Mushir (PW2), Ayub (PW3),
Bahadur (PW4) and Ladli Begam (PW11), to whom Badroon Bi
narrated the occurrence after the incident, did not support the
prosecution case. They were declared hostile. However, relying on
the evidence of eyewitness Bilkis (PW5), the daughter of deceased,
and the evidence of written dying declarations Ex.P/11 and Ex.P/12
and the oral dying declaration made by deceased to Mohd. Siraj
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(PW8) and Salma Begam (PW10), learned trial Judge held the
accused guilty of setting fire to deceased and convicted and
sentenced him as mentioned above.
5. Shri Umesh Shrivastava, learned counsel for the
appellant, submitted that the evidence of dying declarations Ex.P/11
and Ex.P/12 was not reliable. The version given in the F.I.R. Ex.P/11,
which was treated as dying declaration, was inconsistent with the
version given in the dying declaration Ex.P/12 recorded by the
Executive Magistrate. The evidence of oral dying declaration was
also not reliable as it was vague. He submitted that there was no
motive for the accused to kill the deceased and that deceased had
died after four days of the occurrence, therefore, the conviction of
accused under section 302 I.P.C. was not justified, at the most he
could have been held liable under section 304 Part II I.P.C. On the
other hand, Shri S.K.Rai, learned Government Advocate, submitted
that the evidence of dying declarations was consistent, cogent and
trustworthy. Besides that, the evidence of eyewitness Bilkis (PW5)
was also reliable. Trial Court committed no error in holding the
accused guilty of the offence under section 302 I.P.C. He placed
reliance on the ratio of Supreme Court decision reported in AIR
1968 SC 881 (State of Madhya Pradesh Vs. Ram Prasad).
6. We have heard the learned counsel for the parties and
perused the impugned judgment and evidence on record carefully.
7. Bilkis (PW5), the daughter of Badroon Bi, deposed that at
the time of occurrence, she was asleep with her mother. She woke
up on hearing the cries of her mother and saw her in the burnt
condition. Accused Noor Ali was present there. None else was there.
Accused then fled away. According to her, accused used to say her
mother to do “Nikah” with him, but she had refused for it. This
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witness was cross examined, but she stood firm on her statement.
There appears nothing to disbelieve the evidence of this witness.
8. Narendra Pratap Singh (PW15), head constable of police
station, Jahangirabad, deposed that on 28.6.1999 at about 8:30 in
the morning, Badroon Bi came to police station in burnt condition
and lodged the report Ex.P/11 stating that she was a labourer.
Accused Noor Ali resided at a distance of 4-5 huts from her hut. Her
husband had died 5-6 years back. Noor Ali used to come to her house
since about one year. In the past, she had lodged a report with police
against him due to which he had been arrested since then he
entertained grudge against her. In the last night at about 1 o’clock
when she was sleeping in her hut, Noor Ali came and set fire to her
clothes by a match stick and abused her saying that she had lodged
the report against him. She extinguished the fire by her hands, but
she suffered injuries in her both hands, legs and neck. On her
shouting, Haidar Lala and Ayub Moulana came there but accused
fled away. She could not get the conveyance in the night therefore
she could not go to police station to lodge the report. Narendra
Pratap Singh (PW15) categorically stated that he had recorded the
aforesaid first information report as narrated by Badroon Bi. She had
put her thumb impression on the aforesaid report. According to him,
she had come alone in an Auto. He did not know her from before. He
did not add anything out of his will in the said report. Since her
thumb was not burnt he obtained her thumb impression on the
report. There appears nothing in his cross examination to render the
testimony of this witness unreliable. In our opinion, it stood proved
that F.I.R. Ex.P/11 was got recorded by the deceased. Since the
statement made by Badroon Bi in the first information report
pertained to the cause of her death, first information report (Ex.P/11)
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could be treated as dying declaration under section 32 of the
Evidence Act.
9. After recording the first information report, Badroon Bi
was sent to Dr. Anup Dabe (PW17) for medical examination and
treatment. According to Dr. Anup Dabe, at about 10:05 in the
morning on 28.6.1999, he examined the injuries of Badroon Bi. On
his asking, Badroon Bi had told to him that at about 1 o’ clock in the
night, Noor Ali had ignited her by match stick while she was in her
house. There were burn injuries in her neck, palm, thighs, hips and
other parts of her body. He recorded the injuries of Badroon Bi in his
report Ex.P/13 and referred her to burn unit for further treatment.
The evidence of Dr. Anup Dabe was not seriously challenged in the
cross examination. Simply a suggestion was put to him that he had
recorded the aforesaid statement of Badroon Bi in Ex.P/13 on the
behest of police, however, the suggestion was denied.
10. On the requisition of police, Executive Magistrate
Makhan Singh Nagar (PW16) went to Hamidiya hospital to record
the dying declaration of Badroon Bi on 28.6.1999. According to him,
he asked the doctor whether she was fit to give her dying
declaration. After examining the condition of Badroon Bi, doctor told
him that she was capable to give her statement. He then recorded
her dying declaration Ex.P/12. It was in question and answer form.
She stated that:
“Her name was Badroon Bi. Husband’s name was
Mohd. Yakoob. She lived in hut No.259, Abbas Nagar
Jahangirabad. On 28.6.1999 at about 1 ‘O clock in the
morning, Noor Ali S/o Toti Khan, who resides in the
same locality, entered her house and set fire to her after
pouring kerosene on her. She herself extinguished the
fire and shouted. People of the locality assembled there.
On their asking she told to them that Noor Ali had burnt
(6) Cr.A.1768/2000her. Since she could not get an Auto therefore she could
not go to lodge the report in the night. In the morning at
about 8 o’ clock she went to police station Jahangirabad
with Yasin and Sadim and lodged the report. Police got
her admitted in the hospital. Since Noor Ali had
committed misdeed with her she had lodged the report
in the police station, therefore, he used to intimidate her
as to why she had lodged the report. When he got the
opportunity he ignited her. At her house, there was her
mother and 7 year old daughter. Her husband had died
in an accident. She earned her livelihood by sweeping
and cleaning utensils. She had no complaint against
anybody except Noor Ali.”
11. According to Makhan Singh Nagar (PW16), this
statement was recorded in presence of doctor and was read over to
Badroon Bi. She had put her thumb impression on it and he had also
signed it. During cross examination, Makhan Singh deposed that he
did not know as to what Badroon Bi had disclosed to police and that
to whom she had met. He did not know as to what medicines were
administered to her. He stated that at the time of recording the
dying declaration, except him and the doctor none else was present.
He denied the suggestion that the facts recorded in the dying
declaration were given to him by the police.
12. It is true that in Ex.P/12 deceased stated that accused
had set fire after pouring kerosene on her, but this fact was not
mentioned in the first information report Ex.P/11. In our opinion, this
inconsistency cannot be held to be a material contradiction sufficient
for discrediting the evidence of dying declaration recorded by the
Executive Magistrate. There appears nothing on record to indicate
that the dying declaration Ex.P/12 was a fabricated or concocted
document. The incident had taken place on 28.6.1999 and on the
same day this statement was recorded. Deceased had died on
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2.7.1999, that is about four days after recording the said statement.
It is evident that the deceased was fully conscious and was capable
to give the aforesaid statement.
13. Mohd. Siraj (PW8) deposed that in the night when he
went out of his house, he saw Badroon Bi sitting at her door. She was
groaning. On his asking, she told that Noor Ali burnt her. Similarly,
Salma Begam (PW10) deposed that at about 8 o’ clock in the
morning when she went to the house of Badroon Bi, she told that she
was burnt by Noor Ali in the night. Her whole body was in burnt
condition and she was sitting at the door. In the past, Badroon Bi had
told her that accused used to insist her for “Nikah” but she refused.
Badroon Bi told her that Noor Ali had opened her “Tattar” (bamboo
strip door) and had set fire to her.
14. On appreciating the evidence of F.I.R. Ex.P/11 which
amounts to dying declaration, the dying declaration Ex.P/12 which
finds support from the evidence of Mohd.Siraj (PW8), Salma Begam
(PW10) and Dr. Anup Dabe (PW17), we are of the firm opinion that
the dying declarations are truthful and trustworthy and by them, it
has been established beyond doubt that it was accused Noor Ali, who
set Badroon Bi on fire. This fact is further reinforced from the
evidence of Bilkis (PW5), who categorically stated that in the night
Noor Ali had come in her house.
15. It is evident from the evidence of Dr. V.K. Athwal (PW6),
who conducted the postmortem examination of the body of Badroon
Bi, that her body was burnt. Second and third degree burn wounds
were present on almost all the parts of her body and she had died as
a result of burns and its complication.
16. We are unable to accept the arguments advanced by the
learned counsel for the appellant that accused had no motive or
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intention to cause the death of deceased and he could be convicted
only under section 304 Part II I.P.C.
17. In State of M.P. Vs. Ram Prasad (supra), Supreme
Court held:
“Although clause fourthly is usually invoked in those cases
where there is no intention to cause the death of any particular
person (as the illustration shows) the clause may on its terms be
used in those cases where there is such callousness towards the
result and the risk taken is such that it may be stated that the
person knows that the act is likely to cause death or such bodily
injury as is likely to cause death.
…………………….since no special knowledge is needed to know
that one may cause death by burning if he sets fire to the
clothes of a person it is obvious that the accused must have
known that he was running the risk of causing the death of the
victim or such bodily injury as was likely to cause her death. As
he had no excuse for incurring that risk, the offence must be
taken to fall within 4thly of S.300, Penal Code, in other words,
his offence was culpable homicide amounting to murder even if
he did not intend causing the death. He committed an act so
imminently dangerous that it was in all probability likely to
cause death or to result in an injury that was likely to cause
death”.
18. We are accordingly of the opinion that the learned
Sessions Judge was justified in holding that the offence committed by
the accused fell within the scope of the definition of ‘murder’. We
accordingly affirm the finding of conviction of the accused under
section 302 of the Indian Penal Code recorded by the Sessions Judge
and also affirm the sentence of life imprisonment awarded to him.
19. In the result, appeal fails and is dismissed.
(Rakesh Saksena) (Smt. Sushma Shrivastava)
Judge Judge
b
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