Gopal vs State Of M.P

Gopal ..Appellant

Versus

State of M.P. ..Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of the Division Bench of

the Madhya Pradesh High Court at Jabalpur, upholding the conviction

and sentence of the appellant for the offence punishable under

Section 302 read with Section 34 of the Indian Penal Code, 1860 (in

short the `IPC') and sentence of imprisonment for life and fine of Rs.2,000/- with default stipulation. Appellant Gopal was arraigned in

the charge sheet as A1.

3. Prosecution version as unfolded during trial is as follows:

Saraswati Bai-deceased was a woman of questionable character.

After being deserted by her husband Motilal, she developed illicit

relationship with Amol Singh (A2) who ultimately kept her as mistress. At

the relevant point of time, she was residing in Tapariya (hut) at village

Bichhua.

On 17th March, 1992 at about 8.00 p.m. hearing screams of Saraswati

Bai, persons residing in the neighbourhood viz. Rajesh Gupta (PW6),

Santosh Gudda (PW2), Mukundi Lal (PW4), Kaliram (PW5), Chhindami

Lal (PW3), and Chandra Bhushan rushed towards her hut. In the transit,

some of them had seen A1 running away. They found Saraswati Bai lying

in a severely burnt condition in the courtyard of the hut. On being enquired,

she revealed that both the accused persons had sprinkled kerosene over her

body and set her ablaze. According to her, A2 was enraged by her act of

2 taking land belonging to his adversary Raju Seth for cultivation as Bataidar

(crop-sharer).

It was upon the report (Ex. P-1) lodged by Kotwar Prahlad Singh

(PW1) and ASI Balram (PW8) registered a case under Section 307 read with

Section 34 IPC against the appellant. He along with Prahlad proceeded to

the spot and recorded Saraswati's dying declaration (Ex.P-3) in the presence

of Chhidami Lal (PW3), Kaliram (PW5), Babulal and Chandra Bhushan.

Saraswati Bai was immediately taken to the Government Hospital at

Gadarwara. Observing that her condition was serious, Dr. B.P. Gupta

(PW11) not only admitted her for treatment but also sent a memo (Ex.P-13)

to the SHO requiring him to take necessary action to get dying declaration

recorded. Naib Tahsildar and Executive Magistrate R.K. Dimole (PW9),

after obtaining necessary certificate as to fit state of her mind, recorded

Saraswati Bai's dying declaration between 4.35 a.m. and 4.50 a.m.

thereafter, at 9.10 a.m., Saraswati Bai breathed her last in the hospital.

Accordingly, the case was altered to one under Section 302 IPC.

3 After inquest proceedings, dead body of Saraswati Bai was sent for

post-mortem, Dr. D.S. Choudhary (PW7) found that body of Saraswati Bai,

who was carrying more than 3 months pregnancy, had been burnt to the

extent of 89%. According to him, the cause of Saraswati Bai's death was

shock due to extensive burns. However, he preserved the remaining pieces

of burnt saree and blouse, earrings, nathni, Bangles and bunch of scalp hair

for forensic examination.

During investigation, burnt pieces of saree and blouse, one kupiya

(Container) of kerosene, a matchbox, one pair of shoes belonging to A2, a

lathi and a broken mala (necklace) were seized from the spot; the appellants

were apprehended and a burn injury was also found by Dr. R.K Patel

(PW10) on the right forearm of A2.

4. Two accused persons faced trial for offence punishable under Section

302 IPC and in alternative under Section 302 read with Section 34

IPC, as they abjured the guilt. To prove the accusations prosecution

examined 11 witnesses. On consideration of the evidence, the trial

court found the accused persons guilty of death of the deceased in

furtherance of their common intention. Accordingly, they were

4 convicted and sentenced as afore-stated. Both of them preferred

separate appeals before the High Court.

5. Before the High Court, the primary stand was to the acceptability of

the dying declaration. The High Court rejected the plea and held that

though there were more than one dying declarations, the extent of

variance between the two was insignificant. It was noted that the

dying declarations were consistent in substance as to the complexity

of the accused persons causing burn injury to the person of the

deceased and, therefore, there was no infirmity in the judgment of the

trial court to warrant interference. Accordingly the appeals were

dismissed.

6. In support of the appeal learned counsel for the appellant submitted

that there was great variance in the so called dying declarations,

which affected credibility of the evidence.

7. Learned counsel for the respondent-State on the other hand submitted

that minor variance in the dying declarations have no relevance.

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8. Law relating to appreciation of evidence in the form of more than one

dying declaration is well settled. Accordingly, it is not the plurality

of the dying declarations but the reliability thereof that adds weight to

the prosecution case. If a dying declaration is found to be voluntary,

reliable and made in fit mental condition, it can be relied upon

without any corroboration. The statement should be consistent

throughout. If the deceased had several opportunities of making such

dying declarations, that is to say, if there are more than one dying

declaration they should be consistent. (See: Kundula Bala

Subrahmanyam v. State of A.P. [(1993) 2 SCC 684]. However, if

some inconsistencies are noticed between one dying declaration and

the other, the court has to examine the nature of the inconsistencies,

namely, whether they are material or not. While scruitinizing the

contents of various dying declaration, in such a situation, the court

has to examine the same in the light of the various surrounding facts

and circumstances.

9. It is to be noted that the High Court had itself observed that the dying

declaration (Exh.P11) scribed by the Executive Officer, (PW9) at

about 0435 hours in the same night was not in conformity with the

6 FIR and the earlier dying declaration (Exh.P3) scribed by ASI Balram

(PW 8) as different motives have been described. That is not the only

variation. Several other discrepancies, even as regards the manner in

which she is supposed to have been sprinkled with kerosene and

thereafter set on fire.

10. Therefore, the discrepancies make the last declaration doubtful. The

nature of the inconsistencies is such that they are certainly material. That

being so, it would be unsafe to convict the appellant. The conviction is set

aside and appellant is acquitted of the charges. He be set at liberty forthwith

unless required to be in custody in connection with any other case.

11. The appeal is allowed.

.........................................J. (Dr. ARIJIT PASAYAT)

...........................................J. (ASOK KUMAR GANGULY) New Delhi, March 27, 2009

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