JAMNALAL PANDE Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) The appellant stands convicted and sentenced as under with the direction that both the custodial sentences shall run concurrently- Convicted under Section Sentenced to 306 of the IPC undergo R. I. for 7 years and to pay fine of Rs. 1000/- and in default, to suffer R. I. for 6 months. 498A of the IPC undergo R. I. for 3 years and to pay fine of Rs. 1000/- and in default, to suffer R. 1. for 6 months. The corresponding judgment delivered on 13-1-1995 by Eighth Additional Sessions Judge, Bhopal in S. T. No. 283/1990 is the subject-matter of challenge in this appeal. By that judgment only, co-accused Vijay Kumar Pande, the younger brother of the appellant, was acquitted of the charges. Admittedly, no appeal has been preferred by the State against the order of acquittal.

(2.) The prosecution story, in short, may be narrated thus (i) Manju (since deceased) was the daughter of Vishnucharan Joshi (PW2) & Kamla Devi (PW3) and sister of Ghanshyam Joshi (PW5), who is the husband of Nirmala Joshi (PW17). Marriage of Manju was solemnized with the appellant on 20-6-1983. In the wedlock, they were blessed with a son and a daughter named as Akshay Kumar and Gulla. At the relevant point of time, Manju was employed as Lower Division Clerk in the Police Headquarters at Bhopal whereas the appellant was working as Sub-Engineer in the PHE Department at Bhopal only. They were residing together in Quarter No. 102 of the Transit Hostel situated near Mata Mandir, T. T. Nagar, Bhopal. However, their matrimonial life was not happy and smooth in view of the fact that Manju had been persistently subjected to cruelty and harassment due to non-satisfaction of demand for a motorcycle and also for various other reasons. (ii) Ultimately, on 25-5-1990 at about 6.30 p.m., Manju was; taken in a severely burnt condition by the appellant to the Hamidia Hospital, Bhopal. After a preliminary examination, Dr. M. K. Upadhayay (P.W. 11), the CMO, admitted Manju to the Hospital; referred the case to RSO and also informed the police accordingly through the telephone attendant S. H. Kamar. Dr. B. L. Boriwal (P.W. 12), the RSO, while noticing that almost the entire body of Manju was burnt, opined that the burn.injuries were dangerous to life. (iii) The information about the incident (Ex. P-7), as communicated by S. H. Kamar, was recorded by Head Constable Chandrabhan Singh (PW9) at Serial No. 2485 in Rojnamcha of P. S. T. T. Nagar. Accordingly. Sub-Inspector Bhagwan Dayal Mishra (PW10) requested the Executive Magistrate to record Manju's dying declaration and proceeded to the quarter that was found to be locked. The dying declaration (Ex. D-10) as recorded by Nisar Ahmed Rizvi (DW1) suggested that Manju had sustained the burn injuries while preparing tea in the kitchen on a kerosene stove as LPG gas cylinder was found to be empty. However, on the following day only, after getting the spot inspected by Forensic Science Laboratory team headed by Dr. Azad Shrivastava (PW13), the Technical Officer, Bhagwan Dayal was able to ascertain falsehood of the dying declaration due to absence of the supportive circumstances at the spot. He, accordingly, registered a case by scribing FIR (Ex. P-9) under Section 498A of the IPC at P. S. T. T. Nagar, Bhopal. During investigation, he inspected the spot and seized the following articles therefrom - (a) LPG gas cylinder and hot plate (b) Kerosene stove (c) Can containing Kerosene Oil (c) Burnt matchsticks (e) Burnt clothes of Manju (f) pieces of burnt clothes and burnt skin sticking to and lying in washbasin (g) Mangalsutra (vi) For further examination and treatment, Manju was shifted to T. Choitram Hospital, Indore where she breathed her last on 26-6-1990. Accordingly, a marg (death case) was registered by ASI G. D. Verma (PW14) at Police Station, Rajendra Nagar, Indore. After inquest proceedings, dead body of Manju was sent to M. Y. Hospital, Indore for post-mortem. It was conducted by panel of doctors comprising Assistant Surgeons Dr. Surendra Bapat and Dr. R. K. Singh. According to them, cause of Manju's death was cardio-respiratory failure as a result of extensive burns and their complications. The case was then converted into one under Section 306 of IPC. (v) After due investigation, charge-sheet was submitted in the Court of CJM, Bhopal who committed the case to the Court of Session for trial.

(3.) The appellant denied the charges and pleaded false implication at the instance of his brother-in-law Ghanshyam Joshi (PW5). Although, it was suggested in the cross-examination of Ghanshyam that he used to interfere in the domestic affairs of the appellant yet, no corresponding assertion was made in the examination under Section 313 of the Code of Criminal Procedure (for short 'the Code'). To bring home the charges, the prosecution examined as many as 19 witnesses including the parents, brother & Bhabhi (sister-in-law) of the deceased, the next-door neighbour and domestic servant. The defence tendered in evidence two dying declarations - the first recorded by Executive Magistrate Nisar Ahmad Rizvi (DW1) on 25-5-1990 and the second one (photocopy of which was placed on record as (Exhibit D-11) said to have been recorded by Executive Magistrate G. R. Raghuwanshi (DW3) on 27-5-1990 in T. Choitram Hospital, Indore. The appellant also called Dr. H. N. Sahu (DW2) to prove existence of a superficial burn on his left hand in order to substantiate the suggestion that he had tried to save Manju.