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2008 DIGILAW 46 (MP)

Lakhanlal v. State of M. P.

2008-01-10

A.K.SHRIVASTAVA, S.C.SINHA

body2008
JUDGMENT Shrivastava, J. -- 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 6.8.1997 passed by learned I Additional Sessions Judge, Tikamgarh in ST No.63/94 convicting the appellant under sections 302, 201 and 498A of PC and sentencing him to suffer life imprisonment, 3 years RI respectively, the appellant has preferred this appeal under section 374(2) of the Code of Criminal Procedure, 1973. 2. In brief the prosecution's case is that Savitri Bai (hereinafter referred to as deceased) is the wife of appellant. Their marriage took place in the year 1987. The behaviour of appellant was cordial with the deceased upto 3-4 years of the marriage, but, thereafter appellant started ill-treating the deceased and was causing marpeet as well as taunting on her. It is also the case of the prosecution that appellant was making a demand of Rs.5,000/- watch, radio, cycle, etc. 3. In between the night of 28/29.3.1994 appellant caused marpeet to the deceased. It is the further case of prosecution that in between the night of 28/29.3.1994 at 4:00 a.m. appellant went to evacuate and deceased was preparing tea on the stove. Accidentally her sari caught fire from flame of the stove, as a result of which she shrieked and on hearing her scream Bhaggu Barar (PW2) who is the father of appellant came there and extinguished the fire by dousing the water. However, by the time that fire could be extinguished, the deceased received 95% burn injuries. According to the prosecution, after pouring the kerosene on deceased she was subjected to fire. An FIR (Exhibit P-6) was lodged by Bhaggu Barar (PW2) who is the father of appellant. 4. On lodging of the first information report, the criminal law was set in motion. The investigating agency came in the village; prepared the panchnama of dead body in presence of the witnesses; sent the dead body for post-mortem; recorded the statements of witnesses; seized the necessary articles from the place of occurrence and prepared the spot map. 5. After completion of the investigation, a charge-sheet was submitted in the committal Court which on its turn committed the case to the Court of Session from where it was received by trial Court for trial. 6. The learned trial Judge initially framed charge under section 304B as well as under section 498A of IPC on 31.10.1994. 5. After completion of the investigation, a charge-sheet was submitted in the committal Court which on its turn committed the case to the Court of Session from where it was received by trial Court for trial. 6. The learned trial Judge initially framed charge under section 304B as well as under section 498A of IPC on 31.10.1994. Thereafter, after examining some witnesses, again framed a charge under section 302 of IPC and in the alternative charge under section 304B of IPC as well as 201 and 498A of IPC were framed on 24.6.1996. Needless to emphasis the appellant abjured his guilt and pleaded complete innocence. 7. In order to bring home the charges, the prosectuion examined as many as 15 witnesses and placed Exhibit P-1 to Exhibit P-8, the documents on record. The defence of the appellant is that at the time of incident he was not in home and went to evacuate on the hill and when he came back after evacuation he found the mob assembled at his house and his neighbours informed him that his wife has died. 8. The learned trial Judge after appreciating and marshalling the evidence came to hold that appellant has committed the offence under sections 302, 201 and 498A of IPC and hence, convicted the appellant and passed the sentences which we have mentioned hereinabove. In this manner the present appeal has been filed by the appellant assailing the judgment of conviction and order of sentence. 9. It has been argued by Shri D.C. Jain, learned counsel for the appellant that as per prosecution's own case the appellant was not in the house at the time of incident as he went to evacuate. Learned counsel for the appellant further argued that since the case of prosecution is based on circumstantial evidence and there is no direct evidence available-against the appellant, the learned trial Court has wrongly convicted him and his conviction is contrary to the prosecution's own case as well as the evidence placed on record. 10. On the other hand Shri R.S. Patel, learned Additional Advocate General argued in support of the impugned judgment and has submitted that deceased was the wife of the appellant and because the incident has taken place inside of the house, therefore, appellant was obliged to explain how the incident had occurred. 10. On the other hand Shri R.S. Patel, learned Additional Advocate General argued in support of the impugned judgment and has submitted that deceased was the wife of the appellant and because the incident has taken place inside of the house, therefore, appellant was obliged to explain how the incident had occurred. It has also been put forth by him that smell of kerosene was coming out from the body of the deceased and the same was noticed by the doctor when the deceased was brought in the hospital and the same has also been found in the post-mortem report. Therefore, it can be inferred that after pouring kerosene on the deceased she was subjected to fire. 11. Having heard learned counsel for the parties, we are of the view that this appeal deserves to be allowed in part. 12. The FIR has been lodged by PW2 Bhaggu Barar who is the father of appellant. When Bhaggu appeared in the trial Court as PW2, he has proved his FIR and has stated that he lodged the same. On going through the FIR (Exhibit P-6) we find that the same was lodged on 29.3.1994 at 7:30 in the morning and the incident had occurred at 4:00 a.m. on the same day. According to FIR (Exhibit P-6) Bhaggu happens to reside in his quarter and was sleeping. At 4:00 a.m. he heard the scream of his daughter-in-law as a result of which he came to her house and found that her clothes were burning. Thereafter, the fire was extinguished and appellant who went to evacuate also came. This witness Bhaggu was declared hostile but specifically he has stated that the report (Exhibit P-6) was lodged by him. In his evidence nowhere Bhaggu (PW2) has stated anything against the appellant. Thus, the presence of appellant at the time of occurrence becomes doubtful because as per the case of prosecution, the deceased was alone in the house as appellant went to evacuate and he came only after the incident had taken place. Thus, the implication of the appellant becomes doubtful. 13. In the present case, there is no direct evidence available against the appellant and the prosecution has based its case solely on the basis of circumstantial evidence. Thus, the implication of the appellant becomes doubtful. 13. In the present case, there is no direct evidence available against the appellant and the prosecution has based its case solely on the basis of circumstantial evidence. It is well settled in law that if the case is based on circumstantial evidence, the prosecution is obliged to collect each and every piece of evidence in order to form a complete chain unerringly pointing the guilt towards the accused. In this context, we may profitably' rely on the decision of the Supreme Court Ashish Batham v. State of Madhya Pradesh [ 2002(2) JLJ 373 = (2002)7 SCC 317 p.6], wherein the apex Court has held as under: "(6) The principles, which should guide and weigh with the Courts administering criminal justice in dealing with a case based on circumstantial evidence, have been succinctly laid down as early as in 1952 and candidly reiterated time and again, but yet it has become necessary to advert to the same, once again in this case having regard to the turn of event and the manner of consideration undertaken, in this case by the Courts below. In Hanumant Govind Nargundkar and another v. State of Madhya Pradesh [ AIR 1952 SC 343 ], it has been held as follows: "In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to the jury in Reg. v. Hodge [(1838)2 Lewin 227], where he said:" The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting to take for granted some fact consistent with its previous theories and necessary to render them complete". It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." These principles were needed to be restated even as late as in the decision reported in Sudama Pandey and others v. State of Bihar [JT 2001(1) SC 278, (2002)1 SCC 679 ], and Subhash Chand v. State of Rajastan [JT 2001(8) SC 505, (2002)1 SCC 702 ]." 14. On testing the above said principle of law laid down by the apex Court, on present factual scenario we find that merely on the basis of presumption the appellant cannot be roped in the present case and in that situation, there is danger that suspicions may take place of proof which is not at all permissible under the law as held by the apex Court in para 6 of the above said decision of Ashisha Batham (supra). There is no other circumstantial evidence in order to rope the appellant in the present case. In this context, we may also profitably place reliance on the relevant decision of the Supreme Court in Sukhram v. State of Maharashtra [AIR "19. The sole reason given by the High Court for holding appellant A2 guilty of offence under section 201 of IPC is the circumstance flowing from the evidence of PWI2, wherein she had stated that: accused No.1 and the deceased Meerabai were sleeping in one room and we were sleeping in the other room. Undoubtedly, the mainstay of the prosecution case was the testimony of PW12. There is absolutely on other evidence or circumstance attributing to A2, the knowledge of the commission of offence in respect of his daughter-in-law, Meerabai. Undoubtedly, the mainstay of the prosecution case was the testimony of PW12. There is absolutely on other evidence or circumstance attributing to A2, the knowledge of the commission of offence in respect of his daughter-in-law, Meerabai. Merely because he happened to be father of appellant AI, it cannot be presumed as a matter of legal proof that he must be deemed to have the knowledge of the offence committed by his son. Even if the evidence of PW12 is taken at its face value, though the witness was declared hostile and had been cross-examined by the prosecution counsel, mere presence of the appellant, A2 in the house, in our opinion, is not sufficient to draw a presumption that he had the knowledge of commission of offence by his son, appellant A1. There is no other established circumstance to complete the chain to bring home the offence under section 201 IPC. We are of the view that the prosecution has failed to establish that the conduct of appellant A2, both at the time of the occurrence and immediately thereafter, is consistent with the hypothesis of his guilt. We have, therefore, no hesitation on holding that the learned Judges of the High Court were in error in convicting appellant A2 for having committed offences punishable under section 302 and 201 of IPC." 15. Since the prosecution has based its case on circumstantial evidence, we may examine the testimony of each and every witness. 16. PW1 Kishori, is the witness who is known to the appellant as well as to the deceased. According to him, the deceased was lame and had died. He has specifically stated that when in the morning at 6:00 he went to the house of deceased he found her dead and deceased was lying in burnt condition. This witness was declared hostile. The evidence of PW2, Bhaggu, who is the father of appellant, we have already discussed and he is the author of the FIR. PW3 Devjoo is a formal witness and is the witness of Panchanama of the dead body. PW4 Maluram is again a formal witness of spot map. 17. PW5 Dashrath Prasad is another witness of Panchnama of the dead body and is the formal witness. PW3 Devjoo is a formal witness and is the witness of Panchanama of the dead body. PW4 Maluram is again a formal witness of spot map. 17. PW5 Dashrath Prasad is another witness of Panchnama of the dead body and is the formal witness. PW6 Prafull Kumar Dwivedi is Inspector who has stated that on the basis of information given by Bhaggu that his daughter-in-law has burnt, he registered marg case and registered the case under sections 304B and 498A of IPC. PW7 Braj Bihari is the resident of village Kuagaon which is the village of father of the deceased but this witness is not helpful to the prosecution so far as the implication of appellant under section 302 of IPC is concerned. PW8 Ratiram is the witness who is not at all related to the incident of offence under section 302 of IPC. Similarly PW9 Bahoran is not at all relevant in the case because her evidence is hearsay. PW 10 Tijiya is the sister-in-law of the appellant but her evidence is not at all related to the offence under section 302 of IPC. PW 11 Munnalal is the village chowkidar but he is a hostile witness and not at all implicating the appellant for the offence under section 302 of IPC. PW 12 Pyarelal is the brother of deceased but his evidence is not helpful to the prosecution in regard to the implication of appellant under section 302 of IPC. 18. PW 13 Dr. Vinod Kumar Bajpai is an important witness as he is an Autopsy Surgon who opined that the deceased succumbed to the burn injuries and she was 95% burnt. He has further stated that smell of kerosene was coming out from the dead body of the deceased. PW 14 Pushpendra Kumar is the son of deceased and appellant, having age of 4 years only and is a child witness, but he was unable to answer the questions and, therefore, is not helpful to the prosecution. PW15 R.S. Kol is the SDOP who has conducted the investigation. 19. We have scanned the evidence of each and every witness but it is difficult to hold that it was the appellant who set the deceased on fire as a result of which she succumbed to the burn injuries. PW15 R.S. Kol is the SDOP who has conducted the investigation. 19. We have scanned the evidence of each and every witness but it is difficult to hold that it was the appellant who set the deceased on fire as a result of which she succumbed to the burn injuries. The Supreme Court in the case of P. Mani v. State of T.N. [ (2006)3 SCC 161 ], held that merely because deceased suffered burn injuries inside the room but her husband though present at home had not sustained any burn injury, it was decided that burden would not shift on the husband-accused having regard to the facts of the case. In the present case, on the contrary it has borne out from the FIR (Exhibit P-6) that appellant was not in the house at the time of commission of the offence as he went to evacuate. Thus, by placing reliance on the decision of Ashish Barham (supra), merely on the basis of conjectures and surmises, the appellant cannot be convicted under section 302 of IPC. Hence, the conviction of appellant under section 302 of IPC as well as 201 of IPC is hereby set aside. 20. So far as conviction under section 498A of IPC is concerned, there is positive evidence as the prosecution witness PW7 Braj Bihari, PW10 Tijiya and PW12 Pyarelal have given that appellant was ill-treating the deceased and was causing marpeet to her and therefore, learned trial Court has rightly convicted him under section 498A of IPC and rightly passed the sentence of 3 years RI. However, the said sentence, appellant has already suffered. 21. Resultantly, this appeal succeeds in part, the judgment of conviction and order of sentence passed by learned trial Court under section 302 and 201 of IPC is hereby set aside. However, the conviction of appellant and sentence of 3 years awarded to him under section 498A of IPC is hereby affirmed. This sentence appellant has already suffered. 22. Appellant is in jail. He be set as liberty forthwith, if not required in any other case.