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2005 DIGILAW 170 (MP)

Gopal Singh v. State of M. P.

2005-02-04

A.K.AWASTHY, DEEPAK VERMA

body2005
JUDGMENT Awasthy, J. -- 1. Appellant Gopal Singh has filed the appeal under section 374 of the CrPC against the judgment and order dated 30.8.1995 in S.T. No. 75/93 passed by learned IInd Additional Sessions Judge, Ratlam of his conviction and sentence under section 302 read with section 34 for the life imprisonment and fine of Rs. 5,000/- and in default of payment of fine further rigorous imprisonment for the period of 2 years. 2. The admitted facts of the case are that appellant accused Gopalsingh and Kamlabai were the parents of accused Shailendra Singh. That the marriage of accused Shailendra Singh was performed on 30.1.1992 with deceased Sumanbai. That it is also not in dispute that on 9.12.1992 at about 6 p.m. deceased Sumanbai has received bum injuries in her matrimonial house and she was taken to the Primary health Centre Sailana and thereafter on the same date she died on account of the bum injuries. That the post mortem of the deceased was performed on the next day and it was opined that she had died on account of the 100% bums. 3. That accused Shailendra Singh was convicted and sentenced for the offence punishable under section 302 of IPC and appellant Gopal Singh and Kamlabai were sentenced under section 3Q2/34 of the IPC and after filing of the appeal accused Shailendra Singh and accused Kamlabai have expired. 4. The prosecution case is that on 9.12.1992 at about 6 p.m. in village Sarvan the cries of Sumanbai for help were heard from her house and on hearing the noise, persons from the neighborhood reached at the house and the eye witness Satyanarayan (PW 3) and Arjunsingh (PW 13) along with others saw from the window that accused persons were beating the deceased and after pouring the kerosene oil on her, accused Shailendra Singh lit the fire. After some time accused Shailendra Singh went to the Police Station and the report was lodged by him about the bum injuries to his wife and Sumanbai was taken to the hospital where Dr. Kushal Lal Yadav (PW 8) examined her. That Naib Tehsildar Ramlal Malviya (DW 1) reached the hospital and recorded the dying declaration Ex. D-4 wherein she has stated that she was burnt on account of the fire at the time of cooking the meals. 5. Kushal Lal Yadav (PW 8) examined her. That Naib Tehsildar Ramlal Malviya (DW 1) reached the hospital and recorded the dying declaration Ex. D-4 wherein she has stated that she was burnt on account of the fire at the time of cooking the meals. 5. ASI Bahadur Singh Chandel (PW 11) reached on the spot and the spot map Ex. P-9 was prepared by him and a container of the kerosene oil was seized vide seizure memo Ex. P-11. The Investigating Officer has recorded the statement of eye witnesses and the father of the deceased Raghurajsingh (PW 1). That Raghurajsingh (PW 1) has disclosed that his daughter was ill-treated by the accused persons to fulfill the greed of dowry. The charge sheet against the accused persons for the offence punishable under section 302/34 and under section 304-B of the IPC was field before the Judicial Magistrate First Class. 6. The prosecution has examined 14 witnesses and the defence has examined Naib Tehsildar Ramlal Malviya (DW 1). The appellant accused has denied the statement of the prosecution witnesses under section 313 of the CrPC and pleaded false implication. The learned trial Court has held that the offence under section 302 of the IPC is established against accused Shailendra Singh and the offence under section 302/34 of the IPC was proved against appellant accused Gopal Singh and accused Kamlabai and they were sentenced for life imprisonment and also the fine of Rs. 5,000-5000 was imposed on them. Appellant Shailendra Singh and Kamlabai have died after filing the appeal. 7. The appellant has assailed his conviction on the ground that the learned trial Court has erred in believing the statement of hostile eye witness Arjunsingh (PW 13) and overlooked the dying declaration Ex. D-4 and as such, the appeal should be allowed and the appellant accused should be acquitted. 8. Eye witness Satyanarayan (PW 3) has stated that at about 6.30 p.m. he saw the fire in the house of the accused person and when he went there, he learnt that the wife of accused Shailendra Singh has received the burn injuries. Satyanarayan (PW 3) has not stated that he has heard the noise of the wife of accused Shailendra Singh to save her. He has also not stated that the accused were beating her and she was burnt by the accused persons. Satyanarayan (PW 3) was declared hostile by the prosecution. Satyanarayan (PW 3) has not stated that he has heard the noise of the wife of accused Shailendra Singh to save her. He has also not stated that the accused were beating her and she was burnt by the accused persons. Satyanarayan (PW 3) was declared hostile by the prosecution. Satyanarayan (PW 3) has denied his entire police statement Ex. P-8. There is nothing in the evidence of Satyanarayan (PW 3) to show that the accused persons were responsible for causing the burn injury to the deceased Sumanbai. 9. Arjunsingh (PW 13) has stated that at about 6 p.m. when he was sitting in the shop of the Barber, he heard the voice of a lady that Papaji don't beat me. Arjunsingh (PW 13) has not stated that he has seen the accused persons beating Sumanbai and the fire was lit before him to the deceased by the accused person. Arjunsingh (PW 13) is also declared hostile. Arjunsingh (PW 13) has denied his entire police statement. Ex. P-24 He has also denied his statement under section 164 of the CrPC which is to that fact that he has seen the accused persons beating the deceased and putting her on fire. Arjunsingh (PW 13) has not stated in his statements to the Police or to the Magistrate respectively Ex. P-24 and P-25 that he had heard the voice of a lady that Papaji don't beat me. In view of the fact that Arjunsingh (PW 13) has not supported the prosecution at all, he was declared hostile. The learried trial Court has held that the eye witness Arjunsingh (PW 13) has heard the voice of Papaji save me and as such, from his evidence and the circumstances that the deceased has died in the matrimonial house it is established, that the deceased was murdered in furtherance of the common intention of the appellant accused. 10. No doubt it is a settled law that merely because a witness has been declare-d hostile his entire evidence cannot be wiped out. This view is reiterated by the apex Court in case of Anil Rai v. State of Bihar 2001 SCC (Cri) page 1009. 10. No doubt it is a settled law that merely because a witness has been declare-d hostile his entire evidence cannot be wiped out. This view is reiterated by the apex Court in case of Anil Rai v. State of Bihar 2001 SCC (Cri) page 1009. However, dealing with the credibility of the hostile witness in case of State of Rajasthan v. Bhawani [ (2003) 7 SCC 291 = 2003 SCC (Cri) 1628] it is observed that the Court should be slow to act upon the testimony of such hostile witness and normally it should look for the corroboration of such witness. There is no evidence to corroborate the statement of Arjunsingh (PW 13). However, from the following circumstances it is clear, that the statement of Arjunsingh (PW 13) is not supported by this dying declaration Ex. D-4 and other circumstantial evidence. 11. Defence witness Ramlal Malviya (DW 1), who is Executive Magistrate, had stated that on 9.12.1992 at about 9 p.m. he has recorded the dying declaration of Sumanbai in presence of Dr. Kushal Lal Yadav (PW 8). Dr. Kushallal Yadav (PW 8) has also stated that Sumanbai was in fit condition to give her dying declaration and the Executive Magistrate has recorded the dying declaration Ex. D-4 in which he gave his certificate about the fit state of mind of Sumanbai. From Ex. D-4 it is clear that the bum injury was not caused to the deceased Sumanbai by accused persons but the bum injury was accidental in nature. No reason exists to doubt dying declaration Ex. D-4 which was recorded promptly by Magistrate in presence of doctor. This fact is noteworthy that Dr. Mohan Bhatia (PW 12) while performing the autopsy of dead body of Sumanbai, has not found the smell of the kerosene on her body. The absence of the smell of the kerosene on the dead body of Sumanbai indicates the bum injury due to the accident and it militates the prosecution story' that she was burnt after pouring the kerosene oil on her. Consequently, the learned trial Court has erred in basing the conviction on the evidence of solitary hostile eye witness. 12. The prosecution has failed to prove the case beyond reasonable doubt. The appellant accused deserves the benefit of doubt. He is, hereby, acquitted. The bail bond be cancelled and he be set at liberty. .................