KALU RAM Vs. STATE OF M.P.

JUDGEMENT

(1.) APPELLANTS , being aggrieved by their conviction u/s 306 of the Indian Penal Code and sentence of rigorous imprisonment of five years each, for an offence u/s 306 of the I.P.C. by the IIIrd Addl. Sessions Judge, Jabalpur in Sessions Trial No. 228/85 have preferred this appeal.

(2.) ADMITTED facts of the case are that the deceased Krishna Bai was the daughter of Dalchand P.W. 3 and she was married to appellant No. 1 Kaluram in the year 1982. It is further an admitted position that appellant No. 2 Premlal is the younger brother of appellant No. 1 and the deceased Krishna Bai set herself on fire on 9.4.85 and she died on 12.4.85.

(3.) ACCORDING to the prosecution, on 9.4.1985 at 6 p.m. when the deceased was at her Sasural she was assaulted by the appellants and she poured Kerosene oil on her body and set herself on fire. On 9.4.1985, in the hospital, dying declaration (Ex.P -11) of the deceased was recorded by Naib Tehsildar, S.S. Patel. The said dying declaration was recorded after receipt of the certificate by the doctor that she is in fit state to give dying declaration. On 12.4.1985 Dr. A.K. Yadu P.W. 1 conducted the postmortem on the body of the deceased and found burn injuries on her body, face, chest, back and on internal examination he opined that the deceased died on burn injury. After investigation, police charge -sheeted the appellants for offence u/s 305 of the I.P.C. In support of its case prosecution examined altogether 12 witnesses. Defence of the appellants is denial of the offence and their stand is that they never harassed the deceased. In support of their case they have examined 4 defence witnesses. P.W. 1 is Dr. A.K. Yadu who has conducted post -mortem on the body of the deceased, he has stated in his evidence that on examination he found that the deceased had burn on chest below breast, abdomen back, genitalia, front of both thigh, upper limbs, legs and scalp hairs. In the post -mortem report, he has stated that the cause of death was shock due to burn injury. P.W. 2 is a relation of the deceased and he has stand in his evidence that on 12.4.1985 when he has gone to the Medical College to see the deceased, she has stated that Kerosene oil was poured by her Dewar (appellant No. 2) from behind and thereafter he fired away. In the cross examination this witness has stated that he was never examined by the police during investigation. P.W. 3 Dalchand is the father of the deceased and he has stated that the deceased was married to appellant No. 1 in the year 1982. He has further stated in his evidence that appellant Kaluram and his father demanded a sum of Rs. 10,000/ - as dowry for construction of the house but on account of paucity of fund, he could not meet the demand. He has further stated in his evidence that the deceased, when used to reside at her parents place, she used to narrate about the assault by appellant No. 1 Kaluram. This witness has further stated in his evidence that the deceased wrote him a letter (Ex.P -4) stating therein that she was assaulted by the appellant. He has further deposed that on 1st February, 1985, he had gone to Krishna Bai in -laws place, to bring her for participating in the marriage of his another daughter, where he was told that she was assaulted by her husband by electrical wire. He has further stated in his evidence that the deceased came to his place alongwith her father -in -law and when the appellant came to take her to her in -laws place, he narrated that he will send his daughter only when he will undertake in writing that she will be treated nicely. Thereafter, an agreement was entered into (Ex.P -5) stating that the deceased shall be kept nicely and thereafter she was sent to her in -laws place. This witness has further stated that on receipt of the information that the deceased has sustained burn injury and admitted in Medical College Jabalpur, he went to the hospital and on enquiry the deceased stated that quarrel has taken place and thereafter her brother -in -law (appellant No. 2) poured Kerosene oil and set her on fire. In the cross -examination this witness has stated that in the hospital she has not stated that her husband used to threaten her to divorce. P.W. 4 is the Patwari who has prepared the sketch map (Ex.P -6) of the place of occurrence. P.W. 5 Battu Prasad Tiwari is the police photographer who has taken the photographs of the deceased (Exs. P -7, P -8 and P -9), besides he has also proved the negative of these photographs (P -7A, P -8A and P -9A). P.W. 6 is the Naib Tehsildar who has recorded the dying declaration of the deceased. In his evidence, he has stated that on 9.4.1985 he received a request (Ex.P -10) from the officer incharge of the police station for recording the dying declaration of the deceased u/s 164 of the Code of Criminal Procedure. At this, according to this witness he went to the Medical College and inquired about the condition of the deceased from the incharge medical officer and on his certification (Ex.P -10), he recorded the dying declaration of the deceased (Ex.P -11) which contains signature of the medical officer. In his cross examination this witness has stated that when he went to the medical college for recording the dying declaration the officer incharge was also with him and before the dying declaration was recorded the deceased relations were also present near the bed. He has specifically stated in the cross examination that at the time of recording of the dying declaration he has removed all her relation and officer incharge from the ward. He has further stated in the cross examination that before recording the statement he has stated to the relation of the deceased to leave the room and not to tutor anything to the deceased. Dying declaration of the deceased has been recorded in the question answer form, relevant portion of which on translation are as follows -