Gopal Vs. State of
M.P. [2009] INSC 635 (27 March 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 564 OF 2009
(Arising out of SLP (Crl.) No.9194 of 2008) Gopal ..Appellant Versus State of
M.P. ..Respondent
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 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.
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.
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