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1995 DIGILAW 858 (RAJ)

Laxman @ Tolu v. State of Rajasthan

1995-09-14

N.C.KOCHHAR, RAJENDRA SAXENA

body1995
Honble KOCHHAR, J. – The appellant was prosecuted in case FIR No. 243/94 of Police Station Kotwali, Alwar in the court of the learned Sessions Judge, Alwar, who, vide the impugned Judgment dated 23.9.1994, has convicted him under Section 302 IPC and, vide the impugned order of the same date, has sentenced him to undergo imprisonment for life. The prosecution story, in short, was as under :– (2). Smt. Poonam @ Bitto ( the deceased) has been living as a tenant in a Kothri in the back yard of the house of Smt. Kamla (PW-8) along with her son Rahul (PW-17) and the appellant for about a month prior to the date of the occurrence. On 28.3.1994, ASI- Purshottam Dass (PW-9) was on telephone duty in the Police Station,Kotwali, Alwar between 8.00 a.m. to 8.00 p.m. At about 12.40 p.m. one Om Prakash from the office of the Rajasthan Times telephonically informed him that the deceased had been admitted with burn injuries in the hospital. He passed on this information to Gyan Chand Sharma (PW-15), who was the SHO and Incharge of the Police Station and, after making note in the daily diary, went to the hospital where he found the deceased lying admitted in the ladies ward and unco- nscious. He informed the Additional District Magistrate City on telephone with a view to get the statement of the deceased recorded and was instructed to ascertain whether the deceased was in a position to make the statement and, thereupon, vide application (Ex.P.3), he asked the doctor to give his opinion in this respect and the doctor made an endorsement declaring the deceased to be not fit to make the statement. He, thereupon ,informed the ADM City accordingly and came back to the Police Station after requesting the doctor to inform the Police Station as and when the deceased became fit to make the statement. He, thereupon ,informed the ADM City accordingly and came back to the Police Station after requesting the doctor to inform the Police Station as and when the deceased became fit to make the statement. At about 5.00 p.m. the same evening, PW-16 Mahendra Sharma, the son of the land lady, came to the Police Station and presented the report (Ex.P.11) to the SHO Gyan Chand Sharma (the IO) to the effect that at about 11.00 a.m. that day the deceased has received burn injuries on her person and some persons of the mohalla had sent her to the hospital in a rikshow for treatment and on learning about it he had gone to the hospital where he had found some persons standing and had heard the deceased saying that the appellant had burnt her and further that he was giving this informa- tion to the Police in the capacity of the land lord. The IO made his endorsement at the foot of Ex.P.11 and got registered the formal FIR No. 243/94 under section 307 IPC. With the copy of the FIR he reached the spot where he recorded the supplimentary statement (Ex.D-7) of Mahendra Sharma and after inspecting the site prepared its site plan (Ex.P.10). At the spot he found an empty plastic can giving smell of kerosene and took it into possession vide memo (Ex.P.9). The deceased died in the hospital at about 2.50 a.m., on the morning of 29.3.1994, and, on receipt of information (Ex.P.7) from the medical jurist, the case was converted to the one under section 302 IPC. Thereafter, the IO reached the hospital, where he took into possession the dead body of the deceased vide memo (Ex.P.13) in presence of Gullu Nath (PW-2), a cousin brother of the deceased and Sanjay Kumar, the real brother of the deceased (since deceased) and prepared inquest report (Ex.P.1) in respect of the deceased. The post mortem examination on the dead body of the deceased was conducted by a Board of Doctors including Dr. Prem Mittal (PW-10). The doctors found that the deceased was of average built body and her eyes and mouth were closed and there were burns on her body which has been burnt to the extent of 70 to 75%. They found the following injuries on the person of the deceased:– "Anti mortem superficial to deep burns all over body except both legs below knee. They found the following injuries on the person of the deceased:– "Anti mortem superficial to deep burns all over body except both legs below knee. Lower half of interior abdominal wall, private parts and both glotial region ( about 70-75% burn). Surging of hairs of both eye- brow and head. Blisters present at places. Reddened area due to inflammation present. Line of redness present . P.M. staining on glutal region. Rigor mortis present all over the body." (3). The doctors opined that the cause of death was burn injuries which were anti-mortem in nature and prepared post mortem report (Ex.P.5). The doctors also removed the half burnt clothes of th deceased and prepared memo (Ex.P.6) in regard thereto. After the post mortem examination, the dead body of the deceased was handed over to the relations of the deceased vide memo (Ex.P.2). On 29.3.1994 the IO recorded the statement (Ex.D-8) of Rahul (PW-17), the son of the deceased and, on 30.3.1994 he recorded the statements of Prem Nath (PW-1), Gullu Nath (PW-2), Asha (PW-3) and Sarla Rani (PW-4). The IO arrested the appellant at about 6.15 p.m. on 31.3.1994 and prepared his arrest memo (Ex.P.14).At the time of his arrest the right hand of the appellant was in bandage and, on 2.4.94, the IO produced the appellant before Dr. Mahendra Kumar Gupta (PW-11) who examined the appellant at about 10.00 p.m. and found the following injuries on his person :– "Superficial burns over right hand including f our fingers (no burn over right thumb) and right forearm lower 2/3rd, all over the forearm wrist and hand. There is pus in the wounds. Covered with crusts. Superficial sloughs present." (4). The doctor opined that the injury had been caused within a period of 4 to 6 days of the date of the examination and prepared his report (Ex.P.8). On 6.4.1994, the IO recorded the statements of Hari Singh (PW-5) and Babu Singh (PW-6). On 11.4.1994, Kanhaiyalal Meena (PW-14) took over as the SHO of the Police Station, Kotwali, Alwar and investigation of the case was handed over to him. He recorded statement (Ex.D-6) of Ghanshyam Dass (PW-7) on 15.4.1994. After completion of the investigation, the challan was filed in the court of the learned Judicial Magistrate, who committed the case to the court of Sessions where the appellant was tried, convicted and sentenced as noted above. He recorded statement (Ex.D-6) of Ghanshyam Dass (PW-7) on 15.4.1994. After completion of the investigation, the challan was filed in the court of the learned Judicial Magistrate, who committed the case to the court of Sessions where the appellant was tried, convicted and sentenced as noted above. Feeling aggrieved, the appellant has approached this court by filing this appeal under section 374 Cr.P.C. (5). We have heard the learned counsel for the parties and have also perused the record of the case. (6). At the time of filing of the challan, the prosecution case rested only on the circumstantial evidence consisting of the motive for the crime i.e. the appellant having been visiting and residing with the deceased, who was a married lady and was staying as a tenant in the house of PW-8 Kamla, the dying declaration stated to have been made by the deceased in presence of Hari Singh , Babu Singh , Ghanshyam Dass ,Mahendra Sharma and Rahul (PWS. 5,6,7,16 and 17 respectively) and about Rahul (PW 17) having informed Gullu Nath (PW 2) and Sarla Rani (PW 4) about the appellant having set on fire to the body of the deceased besides the circumstantial evidence of the appellant having been found to have burn injuries at the time of his arrest. (7). At the trial, however, Rahul (PW 17) claimed to be an eye witness of the occurrence. He was examined on 6.9.1994 when he gave his age 7 years and, after asking certain questions from him, the learned trial court observed that he did not understand the difference between the truth and falsehood and no oath was administered to him while examining him as a witness. (8). In his examination-in-chief, Rahul stated that the appellant has thrown the kerosene Oil from the bottle on the body of the deceased and, thereafter, set her on fire with the help of match-stick and, after receiving burn injuries, the deceased has cried and has stated that the appellant has burnt her and afterwards she had been taken by some persons to the hospital. In cross examination, he sta- ted that he was playing out side the house and had entered it only on hearing cries of the deceased, but had not gone to the hospital and afterwards the Police had come and had asked him as to how his mother had received burn injuries. In cross examination, he sta- ted that he was playing out side the house and had entered it only on hearing cries of the deceased, but had not gone to the hospital and afterwards the Police had come and had asked him as to how his mother had received burn injuries. When he was pointed out that in his statement under section 161 Cr.P.C. (Ex.D-8) it was not recorded that the appellant has thrown kerosene Oil on the body of the decea- sed and had set it on fired with the help of match-stick, his answer was that he had told the Police so. It was further pointed out to him that in his statement (Ex.D-8) it was not recorded that the deceased was saying that the appellant had set the body of the deceased on fire, whereupon, he replied that on his asking, the deceased has told him so, but again said that she did say so on her own. He was further asked in cross examination that it was wrong that the kerosene Oil was thrown on the body of the deceased by the appellant in his presence and his answer thereto was that he was present when the kerosene oil was thrown. When asked whether he had been tutored by someone before he came to the court for making the statement, his first answer by signal was in the affirmative, but, leteron, replied in the negative. The learned trial court has observed during the course of the statement that the questions had to be asked from him for about three times before the witness could understand and answer them. It may also be noticed that while appearing as PW-8, Kamla, the land lady of the house, whose presence is natural at the spot, has deposed that when she came to the spot after seeing the deceased in fire, she did not find Rahul or the appellant present there. While discussing the evidence of Rahul, the learned trial court has not believed that Rahul had seen the appellant setting on fire the body of the deceased. (9). While discussing the evidence of Rahul, the learned trial court has not believed that Rahul had seen the appellant setting on fire the body of the deceased. (9). Before discussing the evidence of Hari Singh, Babu Singh, Ghanshyam Dass, Mahendra Sharma and Rahul in regard to the dying declaration made by the deceased, the evidence of Gullu Nath and Sarla Rani about their having learnt from Rahul that the appellant had set fire on the body of the deceased, may be discussed. (10). While appearing as PW-2, in his examination in chief, Gullu Nath has deposed that Rahul has come to his house and had told him that the appellant had set on fire the body of the deceased and while he was running towards his (the witnesss) house with a view to inform him, the appellant had given fist blow on the eye of Rahul. In his cross examination, he deposed that on receipt of the information he has gone to the hospital where he had found the Police present but Police had not made any enquiry from him and he did not tell anything to the Police, but the same evening the police had made enquiry from him and had recorded his statement and during his statement he had told the Police the abovesaid facts. He was confronted with the statement (Ex.D.1), but could not explain as to how it was not recorded therein that Rahul had told him that the appellant had given him the fist blow while he was running towards the house of the witness. While appearing as PW-4, Sarla Rani has deposed that Rahul has come to her house and had told her that the appellant had set fire on the body of the deceased and, thereupon, she, accompanied by her `deorani had gone to the Police stating and had learnt about the occurrence and by that time the deceased had been admitted in the hospital and that when they reached the hospital the deceased was lying unconscious and she died in the hospital the same night. In cross examination she deposed that on reaching the hospital she had found 2-3 Police personnel and that she has told the police about what was told to her by Rahul, the same day. In cross examination she deposed that on reaching the hospital she had found 2-3 Police personnel and that she has told the police about what was told to her by Rahul, the same day. In further cross examination she deposed that she did not remember whether the police had come to her house on the day that the deceased died, but stated that she did not tell the police at the police station as to what had been told to her by Rahul about the occurrence. (11). It may be noticed that according to both these witnesses, they had leanrnt from Rahul about the occurrence and had told this fact to the Police in the Hospital on the date of the occurrence itself. According to both these witnesses, their statements were recorded by the police on the date of the occurrence itself, but their statements Ex.D-1 and Ex.D-3 show that they were recorded on 30.3.1994 and not on the date of occurrence. It may also be noticed that in her cross examination Sarla Rani had deposed that when Rahul had come and had given her the abovesaid information only she and Sanjay Kumar (since deceased) were pre- sent in the house. This part of the statement falsifies the statement of Gullu Nath about Rahul having come and given him the abovesaid information. Rahul, while appearing as a witness, has not stated that after the occurrence he had gone to the house of the witnesses concerned and had informed them about the appellant having set on fire the body of the deceased. This part of the statement falsifies the statement of Gullu Nath about Rahul having come and given him the abovesaid information. Rahul, while appearing as a witness, has not stated that after the occurrence he had gone to the house of the witnesses concerned and had informed them about the appellant having set on fire the body of the deceased. Moreover, although according to Sarla Rani, on learning this fact, she had gone to the hospital along with her deorani, she, while appearing as Pw-3, has not deposed a word about the abovesaid information having been received from Rahul either by her or she being told about it by Sarla Rani.If, in fact, Rahul had given the abovesaid information to Sarla Rani soon after the occurrence, there was no reason for her not to have passed it on to the police when she went to the police station where she learned that the deceased had been admitted in the hospital or for not giving it to the police personnels present in the hospital and there was further no reason why this information would not have been passed on to Asha (PW 3), who is stated to have accompanied Sarla Rani to the hospital where they found the deceased lying admitted in unconscious condition. As noted above, the statements of these two witnesses were recorded on 30.3.1994 i.e. after two days of the date of the occurrence and, if any relevant information was available with the witnesses and they had passed it on to the IO, there was no reason why the case should not have been registered till the report (Ex.P.11) was presented at the Police Station at 5.00 p.m. and there was no reason for not recording the statements of the abovesaid witnesses on the date of the occurrence and even the statement of Rahul would have been recorded on that date instead of it being recorded on 29.3.1994, after the death of the deceased. For all these reasons, we are of the view that the statements of the abovesaid two witnesses in this respect cannot be relied upon. (12). The witnesses before whom the deceased is stated to have made the dying declaration are Hari Singh,Babu Singh,Ghanshyam Dass,Mahendra Sharma and Rahul (PWS.5, 6,7,16 and 17 respectively. For all these reasons, we are of the view that the statements of the abovesaid two witnesses in this respect cannot be relied upon. (12). The witnesses before whom the deceased is stated to have made the dying declaration are Hari Singh,Babu Singh,Ghanshyam Dass,Mahendra Sharma and Rahul (PWS.5, 6,7,16 and 17 respectively. Before discussing their evidence, it may be advantageous to deal with the statement of PW-8-Smt. Kamla, who was the land lady of the house in question. (13). According to Smt. Kamla (PW-8), she was sleeping in her room on the upper floor of the house at about 11-11.30 a.m. when she heard the noise and looked from the window towards the court yard and found the deceased burning and laying on the ground and turning her body from one side to another and, there- upon, she had gone down to the place of the occurrence and had heard the deceased crying for help by saying bachao....bachao and she had not talked to the deceased nor did she hear anyone talking to her and had also not seen either Rahul or the appellant at the spot although many residents of the Mohalla were present there and some one had removed the deceased to the hospital. In cross-examina-tion, she deposed that at that time her son Mahendra Sharma (PW 16) was not present at the house and that the deceased kept on lying in the court yard for 10 to 15 minutes before she was removed to the hospital. (14). Rahul, while appearing as PW-17, in his cross examination , has stated that he had come inside the house on hearing the cries of her mother and that she had been removed to the hospital where he had not gone and afterwards the police had come to the house and had made enquiry from him and he had given the details to the police. If, in fact, Rahul had come to the spot before the deceased had been removed to the hospital and had seen his mother in burning or serious condition before she had been removed to the hospital,he would have been found weeping and crying at the spot. He was admittedly known to Smt. Kamla in whose house he had been staying along with her mother,the deceased,and there is no reason for Kamla not to have noticed his presence at the spot in such circumstances. He was admittedly known to Smt. Kamla in whose house he had been staying along with her mother,the deceased,and there is no reason for Kamla not to have noticed his presence at the spot in such circumstances. Rahul was about 7 years of age when his statement was recorded on 6.9.1994 and, as noted above, the learned trial court has observed that he was replying to the ques- tions after they were asked from him about three times and, initially, when it was asked from him whether he had been tutored before he came to make the statement before the court, his answer was in the affirmative, given by the movement by his head, but, later on, his answer was in the negative. (15). As noted above, on receipt of information at the police station about the admission of the deceased in the General Hospital, PW-9-A.S.I Purushottam Dass had reached the hospital where he had moved application (Ex.P.3) for having the opinion of the doctor whether the deceased was in a fit condition to make her statement and this application shows that it was moved at 1.00 p.m. on 28.3.1994 and it further shows that the name of the deceased with alias (Smt.Poonam alias Bitto) along with her residential address has been mentioned therein. It is not believable that on knowing the name and address of the deceased, who was lying admitted in the hospital and was unable to make her statement, PW-9, ASI Purshottam Dass, would not have gone to her house to make enquiry to find out as to how the deceased got burnt and would not have met Smt. Kamla (PW-8) and Rahul and it is difficult to believe that after getting the opinion of the doctor the ASI came to the police station and did nothing in the matter and the police came into action only after report (Ex.P.11) was presented at about 5.00 p.m. before PW-15, SI-Gyan Chand Sharma. It is, therefore, not possible to hold that any dying declaration was made by the deceased before Rahul. (16). It is, therefore, not possible to hold that any dying declaration was made by the deceased before Rahul. (16). Hari Singh, Babu Singh and Ghanshyam Dass (PW 5,6,and 7 respectively) have deposed that they were attracted to the seen of occurrence on seeing great rush at the house of the deceased and on going inside the house they had heard the deceased crying for help and saying that the appellant had set her body on fire and, thereafter, they had taken the deceased in the hospital where PW- 16 Mahen dra Sharma had also accompanied them and after the deceased had been admitted in the ladies ward,they left the hospital without giving their names to the doctor. According to these witnesses, from the hospital they came back to their respective houses and had not given any information to the police although, according to Hari Singh, ASI was present in the hospital. According to Hari Singh and Babu Singh, the police had called them to the police station and had recorded their statements on the date following the date of the occurrence, but their statements Ex.D- 4, and Ex.D-5 show that they were recorded only on 6.4.1994. According to Ghanshyam Dass (PW7), the Police had contacted him after some days and had recorded his statement. His statement (Ex.D.6) shows that it was recorded on 15.4.1994. Neither in the report (Ex.P.11) on the basis of which the FIR was recorded in the police sta- tion nor in his statement under section 161 Cr.P.C. (Ex.D.7), Mahendra Sharma had given the name of either of the abovesaid three witnesses and it remains a mystery as to how the police came to know the names of Hari Singh, Babu Singh and Ghanshyam Dass as the persons before whom the dying declaration was made by the deceased. It may also be noticed that Hari Singh is a police constable and was posted in Police Lines, Alwar during those days and Ghanshyam Dass is a Lecturer and claims to be a social worker. If, in fact, they had gone to the spot and dying declaration was made by the deceased in their presence, there was no reason for them not to have given the information to the police and no satisfactory explanation is coming forward as to why the statement of the three witnesses were not recorded earlier than the dates mentioned above. If, in fact, they had gone to the spot and dying declaration was made by the deceased in their presence, there was no reason for them not to have given the information to the police and no satisfactory explanation is coming forward as to why the statement of the three witnesses were not recorded earlier than the dates mentioned above. It may also be noticed that Ghanshyam Dass was confronted with his statement Ex.D.6 where not only the names of the other two persons have not been mentioned but even he is not shown to have gone to the hospital with the deceased but is shown to have returned to his house after the deceased was removed to the hospital. (17). It is, therefore, not possible to believe that any dying declaration was made by the deceased in presence of either of the three witnesses. (18). The only other witness before whom the deceased is stated to have made dying declaration is Mahendra Sharma (PW 16). According to the statement made by this witness in court, he was in the market when he learnt about the deceased getting burnt and, thereupon, he came to his house where he learnt from his mother that the deceased had already been removed to the hospital, and when he reached the hospital, he had found the deceased moving in the ward and saying that the appellant had set her body on fire and although the Police was present these, he did not give this information to the police as he was busy contacting the doctor. Taking into consideration the extent of burns on the body of the deceased, it is not possible to believe that this witness could have seen the deceased moving about in the ward. As noted above ,the deceased was admitted in the hospital at 12.40 p.m. and Purshottam Dass ASI had reached the hospital soon thereafter and had found the deceased lying unconscious and had obtained the certificate in this respect at 1.00 p.m. from the doctor concerned. It was thus not possible for Mahendra Sharma to have seen the deceased moving or the deceased having made any dying declaration in his presence. It was thus not possible for Mahendra Sharma to have seen the deceased moving or the deceased having made any dying declaration in his presence. Moreover, if, in fact, the dying declaration had been made by the deceased in presence of Mahendra Sharma in the hospital, there was no reason for him not to have told this fact to ASI whom he found in the hospital or not to have gone to police station immediately to lodge the report and to have gone there only in the evening to give this information vide report (Ex.P.11) that too in the capacity of the land lord of the house. (10). We are, therefore, of the view that the statement of this witness in this respect also is not believable. (11). No admission ticket of the deceased in regard to her admission in the hospital had been produced on record to show the time of her admission and the condition in which she was admitted. Letter (Ex.P.7), giving information about the death of the deceased to the Incharge of the Police Station, Kotwali, Alwar shows that the deceased was admitted in the hospital at 12.40 p.m. The non-production of the record to show the condition of the deceased at the time of her admission leads us to draw inference adverse to the case of the prosecution, and we feel that the record has not been produced by the prosecution for the reason that, if produ- ced, it would not have supported the case of the prosecution about the deceased having made any dying declaration after her admission in the hospital. (20). The only other circumstantial evidence is the burn injuries stated to have been found on the person of the appellant at the time of his arrest. Those injuries were found on his right four fingers and right forearm, but not on his thumb. If the prosecution story is believed that the deceased threw kerosene oil on the body of the deceased and set it on fire, the injuries on the person of the appellant at the time of his arrest do not get explained. Those injuries were found on his right four fingers and right forearm, but not on his thumb. If the prosecution story is believed that the deceased threw kerosene oil on the body of the deceased and set it on fire, the injuries on the person of the appellant at the time of his arrest do not get explained. Mere presence of the injuries noted by the doctor and found on the person of the appellant at the time of his arrest, cannot be said to be the evidence to connect the appellant with the offence specially when no evidence has also been produced to prove on record that the appellant was present at or hear the scene of occurrence either before the occurrence or soon thereafter. (21). In view of our above discussion, we feel that the prosecution has failed to prove its case against the appellant and the learned trial court erred in holding him guilty and sentencing him. (22). Consequently, this appeal is accepted, the conviction and sentence awarded to the appellant vide the impugned judgment dated 23.9.1994 passed by the learned Session Judge, Alwar are set aside and he is acquitted. He is in jail and should be released forthwith if, not wanted in any other case.