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       REPORTABLE    

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2048 OF 2012 (Arising out of S.L.P. (Crl.) No. 2689 of 2012)

Ram Viswas                                 .... Appellant(s)

Versus

The State of Madhya Pradesh               ....  Respondent(s)

J U D G M E N T

P.Sathasivam,J.

1) Leave granted.

2) This appeal is directed against the judgment and order  

dated 07.05.2009 passed by the High Court of Judicature at  

Jabalpur, Madhya Pradesh in Criminal Appeal No. 884 of 2000  

whereby the Division Bench of the High Court dismissed the  

appeal filed by the appellant herein.    

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3) Brief facts:

(a) This case relates to one Maladeep, resident of village  

Semaria, District Rewa, Madhya Pradesh, who was burnt to  

death by her husband-Ram Viswas, the appellant herein by  

pouring kerosene oil.

(b) Maladeep (the deceased) and Ram Viswas were married  

to each other but were not in good terms.  The appellant  

herein was not happy with his married life and often used to  

quarrel with Maladeep.  He was actually forcing his wife to  

leave her matrimonial home which was not agreeable to her.  

(c) In  order  to  get  rid  of  her,  on  03.02.1998,  in  the  

midnight,  the  appellant  herein  poured  kerosene  oil  on  

Maladeep  and  set  her  on  fire.   On  hearing  her  cries,  a  

number  of  persons  gathered  on  the  spot  and  tried  to  

extinguish the fire.  The appellant herein also tried to douse  

the fire and got his hands burnt.  

(d) Maladeep was taken to the G.M. Hospital, Rewa and a  

First Information Report (FIR) being No. 10/98 was registered  

against the appellant herein with the Police Station Semaria.  

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On 04.02.1998, the CMO, G.M. Hospital  Rewa, opined that  

she had sustained 100% burn injuries and at  about 03:05  

p.m., the statement of Maladeep was recorded wherein while  

narrating  the  whole  story,  she  named  her  husband-the  

appellant  herein  for  the  overt  act.   On  07.02.1998,  she  

succumbed to her injuries.

(e) After filing of the charge sheet, the case was committed  

to the Court of Sessions Judge, Rewa, (M.P.) and numbered  

as Session Case No. 80/98.  The trial Court, by order dated  

22.04.1999, convicted the appellant under Section 302 of the  

Indian Penal Code, 1860 (in short ‘the IPC’) and sentenced  

him to  suffer  RI  for  life  along with  a  fine  of  Rs.  100/-,  in  

default, to further undergo RI for 1 month.  

(f) Being  aggrieved,  the  appellant  herein  preferred  

Criminal Appeal No. 884 of 2000 before the High Court.  By  

judgment  and  order  dated  07.05.2009,  the  High  Court  

dismissed  the  appeal  filed  by  the  appellant  herein.  

Questioning the same, the appellant has filed this appeal by  

way of special leave before this Court.    

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4) Heard Mr. S.C. Patel, learned counsel for the appellant-

accused and Ms. Vibha Dutta  Makhija,  learned counsel  for  

the respondent-State.

5) Learned  counsel  for  the  appellant,  after  taking  us  

through  the  entire  material  relied  on  by  the  prosecution,  

reasoning of the trial  Court  and the High Court  submitted  

that there are material omissions in the dying declaration –  

Exh.  P-11 which also  differ  from the  contents  of  the  First  

Information Report (Exh. P-4), hence, the courts below ought  

not  to  have  accepted  the  prosecution  case.   He  further  

submitted that in the absence of smell of kerosene from the  

bed sheet, quilt and the pillow, the entire statement in the  

form  of  dying  declaration  is  to  be  rejected.   He  finally  

submitted  that  even  if  the  case  of  the  prosecution  is  

acceptable,  in  view of the fact  that  the appellant  tried to  

extinguish  the  fire  and  by  such  conduct  at  the  most,  he  

would be punishable only under Section 304 Part II IPC and  

not under Section 302.  On the other hand, Ms. Vibha Dutta  

Makhija,  learned counsel  for  the  State  submitted  that  the  

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very same contentions were raised by the accused before  

the trial  Court  and the High Court  and taking note of the  

statement of the deceased in the form of dying declaration,  

all  other  relevant  materials  and  compliance  of  all  the  

formalities, the said objections were rejected, hence, there is  

no  valid  and  acceptable  ground  for  interference  with  the  

concurrent  findings  of  the  courts  below  by  exercising  

jurisdiction under Article 136 of the Constitution of India.   

6) We have carefully considered the rival submissions and  

perused all the relevant materials.  

7) As rightly pointed out by the counsel for the State, it is  

seen from the FIR (Exh.P-4) that the accused was not happy  

with  his  married  life  and  they  had  frequent  quarrels.   A  

perusal of the FIR further shows that on 03.02.1998, in the  

midnight, when the accused and the deceased alone were in  

the house, the accused poured kerosene oil on the deceased  

and set her on fire.  It is further seen that on hearing the cry  

of the deceased, a number of persons entered into the room  

when the accused himself opened the door from inside and a  

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report was made to the police.  No doubt, a perusal of the FIR  

shows that her husband, the present appellant also tried to  

extinguish the fire.  

8) In the light of the contents of the FIR (Ex.P-4), now we  

have  to  consider  the  dying  declaration  which  is  Exh.P-11  

made by the  deceased recorded by Rajendra  Tiwari,  Naib  

Tahsildar, (PW-11) wherein it  was stated that her husband  

abused her and compelled her to go away from his house.  

She further stated that on the fateful night, when they were  

sleeping together, he poured kerosene oil on her and set fire.  

She  further  narrated  that  when  she  shouted  for  help,  

neighbours  came  in  and  she  was  taken  to  G.M.Hospital,  

Rewa.  The above statement was recorded at 3.25 p.m. on  

04.02.1998.   

9) Before  recording  the  above  statement,  the  doctor  

concerned certified that she was fit for giving a statement.  

The doctor also certified that the patient was conscious while  

giving the dying declaration.  Inasmuch as the Tahsildar (PW-

11) recorded her statement after fulfilling all the formalities  

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and  her  condition  was  also  specified  as  seen  from  the  

certificate  of  the  doctor,  there  is  no  reason  to  reject  the  

same,  on the  other  hand,  as  rightly  accepted by the  trial  

Court and the High Court, we are also of the view that the  

prosecution  is  fully  justified  in  relying  on  the  same.   No  

doubt, in her statement as stated in the FIR (Exh. P-4) that  

her husband tried to save her was not stated in the dying  

declaration.  Inasmuch as the dying declaration satisfied all  

the prescribed conditions and procedure, we are not inclined  

to  accept  the  stand  taken  by  learned  counsel  for  the  

appellant.  

10) As  rightly  observed  by  the  trial  Court  and  the  High  

Court, merely because there was no sign of smell of kerosene  

oil  from the  bed  sheet,  quilt  and  pillow,  the  case  of  the  

prosecution  cannot  be  thrown  out.   Since  the  dying  

declaration (Exh.P-11) is proved beyond doubt, as discussed  

above,  we  reject  the  argument  of  the  counsel  for  the  

appellant.  For the same reasons, the appellant cannot be  

convicted only under Section 304 Part II IPC.  

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11) It is clear from the prosecution case that the accused  

was  the  only  person  inside  the  room at  the  time  of  the  

incident along with his wife.  Even if it is accepted that in the  

course of the said incident he sustained some burn injuries, it  

is not a ground for exonerating his guilt.  We have already  

observed that Dr. Manish Kaushal (PW-8) has stated that on  

04.02.1998 he examined the injured – Maladeep and found  

her conscious and fit to make a statement.  The said report  

has also been marked as Exh.P-11 and the statement of the  

deceased was recorded by the Executive Magistrate in his  

presence.  

12) In  the  light  of  the  above  discussion  and  on  going  

through the entire material relied on by the prosecution and  

the defence, we are unable to agree with the argument of  

the counsel for the appellant, on the other hand, we concur  

with  the  conclusion  arrived  at  by  the  courts  below.  

Consequently, the appeal fails and the same is dismissed.  

13) Learned counsel for the appellant by pointing out the  

fact  that  the appellant  had served more than 14 years in  

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prison,  prayed for appropriate direction for his release as per  

Jail Manual.  Without expressing any opinion on the merits of  

his claim, inasmuch as we dispose of his appeal, the State is  

free  to  consider  the  same  in  accordance  with  the  

Rules/Instructions/Jail  Manual  applicable  to  the  appellant.  

With the above observation, the appeal is dismissed.   

………….…………………………J.                   (P. SATHASIVAM)                                  

       ………….…………………………J.                   (RANJAN GOGOI)                                   

NEW DELHI; DECEMBER 14, 2012.

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