Madhya Pradesh High Court
Narendra @Bunty vs The State Of Madhya Pradesh on 16 June, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
NEUTRAL CITATION NO. 2025:MPHC-JBP:26123
1 CRA-177-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 16th OF JUNE, 2025
CRIMINAL APPEAL No. 177 of 2023
NARENDRA @BUNTY
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Vishal Vincent Rajendra Daniel - Advocate for the appellant.
Shri Manas Mani Verma - Government Advocate for the
respondent/State.
ORDER
Per: Justice Vivek Agarwal
This Criminal Appeal is filed under Section 374(2) of Cr.P.C.
being aggrieved of judgment dated 22.12.2022 passed by learned 3rd
Additional Sessions Judge, Seoni (M.P.) in ST No. 52 of 2017, whereby
learned trial Court has convicted the appellant under Section 302 & 506
Part-II IPC and has sentenced him to undergo Life Imprisonment under
Section 302 of IPC with fine of Rs.3000/- with default stipulation of six
months additional RI. Similarly he has been convicted under Section 506
Part-II IPC with one year RI and fine of Rs.1000/- with default
stipulation of two months additional RI.
Signature Not Verified
Signed by: AMITABH
RANJAN
Signing time: 24-06-2025
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2. Learned counsel for the appellant Shri Vishal Vincent
Rajendra Daniel submits that, prosecution story in short is that, on
08.01.2017, incident took place in night. Injured Dharam Raj was taken
to the hospital by Dial-108.
3. Thereafter, he was examined by PW-5 Dr. Vinod Kumar
Dahayat, Medical Officer. He had examined the witness at Community
Health Center, Kurrai, where he was posted as Medical Officer and
stated in his examination in chief that when injured was brought to him
to the Community Health Center, then he had informed that, he had
caught fire with a ‘Chimni’. A pre-MLC was prepared at 11:05 hrs.
Doctor Stated that, the injured was fully conscious. There were burn
marks on his chest, stomach, back, both the hands and behind the neck.
The burns were superficial and skin deep. Hair were also burn. Extent of
burn was 45 to 50%. After preliminary treatment he was referred to
District Hospital, Seoni. It is submitted that the intimation which was
sent by Dr. Vinod Kumar Dahayat to the Police Station Kurrai is Ex.P-9.
Query Report is Ex.P-10.
4. It is pointed out that, in cross-examination, this witness PW-5
Dr. Vinod Kumar Dahayat remained stable and stated that Dharam Raj
had in fact informed him that he had sustained burns on his own from
‘Chimni’.
5. It is thus submitted that, Executive Magistrate recorded
statements of the deceased as are contained in Ex.P-11 on 10.01.2017 at
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RANJAN
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01:20 p.m. Thereafter, Dehati Nalishi (Ex.P-24) was recorded on
11.01.2017 at 15:00 hrs. Thus, it is pointed out that, prosecution case is
built on the foundation that Dharam Raj was married in the family of
appellant i.e. appellant’s Bua namely Urmila (PW-2) is married to
Dharam Raj.
6. It is submitted that, prosecution case states that, Dharam Raj
for last 2-3 years was residing in his in-laws house. As per the
prosecution case, appellant Narendra @ Bunty had borrowed a
motorcycle from Dharam Raj for an hour or two but he did not return it
for a period of two days which resulted in slight altercation. When,
motor-cycle was returned then Dharam Raj had scolded present
appellant. Thereafter, in the evening, present appellant had approached
Dharam Raj and had poured Kerosene/Petrol over Dharamraj and had lit
a fire.
7. It is submitted that, this prosecution story is improbable. In as
much as, the first dying declaration which will be oral dying declaration
will be the one which was given to PW-5 Dr. Vinod Kumar Dahayat.
Thus, all the three dying declarations are required to be seen in the light
of the first oral dying declaration given to PW-5 Dr. Vinod Kumar
Dahayat.
8. It is pointed out, that there is recovery of ‘Chimni’ from the
spot as can be seen from Ex.P-4 which shows that, a ‘Chimni’ was
recovered from the spot by the Investigating Officer. In Ex.P-6 (Spot
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Signing time: 24-06-2025
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map) also there is no material to demonstrate that incident took place as
per the prosecution story.
9. Thus, it is pointed out that, after more than two days, if any
dying declaration is recorded, there are sufficient chances of it being
tutored and that dying declaration alone cannot be taken into
consideration to record conviction of the appellant.
10. Shri Manasmani Verma, learned Government Advocate in
his turn submits that, PW-12 Deepali Bhalavi sister of the deceased has
supported prosecution case and she has stated that, she had received
intimation from the Sarpanch of Village Khavasha namely Anita Singh,
that her brother caught fire. She alongwith her husband Shri Dinesh
Bhalavi had gone to hospital at Kurrai, where she had met her brother
who was still in Ambulance. Her brother Dharam Raj had informed her
that accused Narendra had put petrol on him and had put him on fire.
11. Thus, it is submitted that, in the light of the judgment of
Supreme Court in the case of State of U.P. Vs. Veerpal & another
(2022)4 SCC 741, even if there are multiple dying declarations, then it is
the duty of the Court to scrutinize all the dying declaration and come to
a conclusion after appreciating the evidence in the correct prospective.
He opposes the prayer for reversing the findings of conviction and
recording a finding of acquittal.
12. After hearing learned counsel for the parties and going
through the record. PW-1 is the father of the deceased. PW-1 Shri
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Ramajee Uike has turned hostile. He has not supported the prosecution
case. Even otherwise he is a hearsay witness.
13. However, in cross-examination PW-1 has admitted that,
Dharam Raj was consuming Alcohol. He also admitted that, Dharam Raj
was sleeping after consuming alcohol. He has stated that, he cannot say,
as to on the fateful day whether Dharam Raj was under the influence of
Alcohol or not. He has also stated that, he cannot say as to whether,
Dharam Raj sustained burn injuries on account of fall of ‘Chimni’ or
not.
14. PW-2 Urmila Uike is the wife of the deceased. She has
categorically stated that on the fateful day, she had gone to Jawar Paani
to meet her sister. She too has turned hostile. However, in cross-
examination, she has admitted that Dharam Raj was consuming Alcohol
on daily basis. She has further admitted that, she had gone to hospital
alongwith Dharam Raj where Dharam Raj stated before the doctor that
he had sustained burn injuries on account of fall of ‘Chimni’.
15. Thus, statements of PW-2 Urmila Uike wife of deceased
corroborates the statement of PW-5 Vinod Kumar Dahayat, Medical
Officer, Community Health Center, Kurrai has stated in his examination
in chief and which remained unrebutted in his cross-examination.
16. As far as witnesses who had rushed to the place of the
incident after hearing the cries namely Hanshlal (PW-4) and Satyafula
(PW-11) are concerned. Both of them have turned hostile and have not
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supported the prosecution case.
17. As far as evidence of PW-12 Dipali Bhalavi is concerned,
there are material omissions and contradictions in her testimonies in as
much as when she was confronted with her statements given under
Section 161 Cr.P.C. she admitted that there is clear mention of the fact
of Dharam Raj stating before the Doctor that he had sustained burn
injuries on account of fall of a ‘Chimni’. Thus, when these aspects are
taken into consideration, then, when evidence of PW-5 Dr. Vinod Kumar
Dahayat is taken into consideration, then it is surprising to note that
prosecution or the Public Prosecutor who conducted the trial, did not
deem it proper to declare this Doctor as hostile witness and put leading
questions after Doctor had stated that Dharam Raj himself had informed
him that he had sustained burn injuries on account of fall of a ‘Chimni’.
18. Thus, when all these aspects are taken into consideration,
then the statement given to PW-5 Dr. Vinod Kumar Dahayat will be
treated as oral dying declaration. This oral dying declaration is supported
by PW-2 Urmila Uike, wife of the deceased. Thus when examined, then
Ex.P-11 which is the dying declaration recorded before the Executive
Magistrate, Tehsildar Seoni i.e. Smt. Chhama Sarraf is to be seen. She
has been examined as PW-9 before the trial Court. Smt. Chhama Sarraf
(PW-9) has admitted in her cross-examination that she cannot comment
as to whether statements which were given by Dharam Raj were part of
some conspiracy or not.
Signature Not Verified
Signed by: AMITABH
RANJAN
Signing time: 24-06-2025
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19. Similarly, Dehati Nalishi recorded on 11.01.2017 is Ex.P-24
and is proved by PW-16 Jayendra Pal. This witness PW-16 Jayendra Pal
has admitted in para-19 of his cross-examination that prior to lodging of
Dehati Nalishi he had not obtained any concurrence of the concerned
treating Doctor as to the status of health of the injured. This witness also
admitted that in case of burn injuries, patients are excessively drugged
which results in a state of semi-consciousness so to avoid expression of
pain. This witness further admits that he can not say as to whether, the
injured himself had informed PW-5 Dr. Vinod Kumar Dahayat while
giving his first oral dying declaration that he had sustained injuries on
account of fall of ‘Chimni’.
20. It is also admitted that PW-16 Jayendera Pal had not carried
out complete investigation in the case, because SHO had stopped him
from carrying out further investigation in the matter. Thus, when the
documents as are available on record namely dying declaration Ex.P-11
and Dehati Nalishi Ex.P-24 are when taken into consideration, then there
is no explanation for long time lapse, is recording of dehati Nalishi &
dying declaration.
21. In Ex.P-9 issued by PW-5 Dr. Vinod Kumar Dahayat, it is
mentioned that intimation was sent to the Police on 08.01.2017 itself.
There is no explanation by the Investigation Officer that when intimation
was received on 08.01.2017 then what was the reason for delay in
recording Dehati Nalishi till 11.01.2017 when it was recorded at 15:00
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RANJAN
Signing time: 24-06-2025
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hrs.
22. In fact the law on the subject as laid down by Hon’ble
Supreme Court in the case of State of U.P. Vs. Krishna Master & Ors.
(2010)12 SCC 324, is that to appreciate the evidence the principle is that
Court should read evidence as a whole. It should be so read if it appears
to have a ring of truth, then discrepancies, inconsistencies, infirmities or
deficiencies of minor nature not touching core of the case cannot be
ground for rejecting the evidence. Court should sift the evidence to
separate falsehood from truth. It should not adopt a hypothetical
approach.
23. It is further held that appellate Court should give due weight
to appreciation of evidence made by trial Court, as it has advantage of
observing demeanor of witnesses and general tenor of evidence. When
these facts are taken into consideration, then as discussed above, PW-5
Dr. Vinod Kumar Dahayat has stated in unequivocal terms that injured
Dharam Raj had informed him that, he had sustained burn injuries on
account of fall of a ‘Chimni’. There was no reason or cause preventing
the injured to state true facts to Doctor who was the first medical help
available to the injured. This Doctor when was subjected to cross-
examination categorically stated that injured had informed him that he
had sustained burn injuries on account of fall of a ‘Chimni’. This
statement of PW-5 Dr. Vinod Kumar Dahayat, is corroborated by the
wife of deceased namely Smt. Urmila Uike (PW-2) who has been
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Signing time: 24-06-2025
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examined by the prosecution before the trial Court. She has categorically
stated that she had accompanied Dharamraj to the Community Health
Center and Dharam Raj stated before the Doctor that he had sustained
burn injuries on account of fall of ‘Chimni’.
24. Thus, it is evident that first dying declaration in the chain of
events is the one which was given by Dharam Raj to PW-5 Dr. Vinod
Kumar Dahayat. Since this statement has remined unrebutted and
uncontroverted and there is no explanation by the prosecution for delay
in recording of Dehati Nalishi or of statements in the hands of the
Executive Magistrate coupled with the fact that there was sufficient time
available to the interested party to brain wash or prejudice the injured to
give a different version then the one which was given by him to PW-5
Dr. Vinod Kumar Dahayat, when tested on the touchstone of the law laid
down by Hon’ble Supreme Court in the case of Veerpal & another
(supra), then it is true that the Magistrate is a disinterested witness, but it
is also true that the time lag being that of more than 14 hours and that too
remaining unexplained and the fact that PW-16 has admitted that to
suppress the feeling of pain a patient suffering burn injuries is subjected
to heavy drugs which causes drowsiness and leads to a stage of
unconsciousness coupled with the fact that when Dehati Nalishi was
recorded, there was no attempt made to take opinion or permission of the
Doctor, when taken into consideration then first oral dying declaration
having remain unrebutted and rather duly corroborated by wife of the
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RANJAN
Signing time: 24-06-2025
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deceased, we are of the opinion that conviction based on subsequent
dying declaration which are not that credible and which have not been
fully corroborated, conviction of the appellant under Section 302 read
with Section 506 Part-II IPC cannot be sustained.
25. Accordingly, this criminal appeal is allowed. The impugned
judgment is set aside. The appellant is in jail, he be released
immediately, if not required in any other case.
26. Case property be disposed of as per the orders of the learned
trial Court.
27. Record of the trial Court be sent back immediately.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
AR
Signature Not Verified
Signed by: AMITABH
RANJAN
Signing time: 24-06-2025
13:16:06