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Madhya Pradesh High Court · body

2009 DIGILAW 316 (MP)

STATE OF M P v. MUNSHILAL

2009-03-09

A.K.SHRIVASTAVA, B.M.GUPTA

body2009
Judgment ( 1. ) THE judgment of absolvitur passed by learned Trial Court acquitting respondents from charge punishable under Section 302 of 1pc, the State of madhya Pradesh after obtaining leave to file appeal has filed this appeal. ( 2. ) IN brief the case of the prosecution is that Urmila Bai (hereinafter referred to as the deceased) along with her husband hariram was residing at Tyonda Road at basoda. The respondents were also residing with their son Hariram and the deceased. As per the case of the prosecution, the respondents were maltreating the deceased. On 24. 6. 1994 the deceased was in her house, at that juncture, respondents after pouring kerosene, set her on fire. It is said that the deceased was brought in the hospital in injured condition at 4 p. m. by her husband Hariram, Ramkamal Singh and Amrit Singh where she was examined by Dr. Pradeep Jain who also informed to police. The investigating agency managed to get the dying declaration of the deceased recorded by Tehsildar R. D. Shrivastava. A dehati Nalishi was also recorded in which she narrated that her mother-in-law kapoori Bai and father-in-law Munshilal as well as Nanad were maltreating her. In dehati Nalishi she has stated that her mother-in-law Kapoori Bai and father-in-law Munshilal as well as Nanad after pouring the kerosene, set her on fire. ( 3. ) ON account of receiving burn injuries the deceased could not survive and ultimately succumbed to those injuries. ( 4. ) THE investigating agency investigated the matter and after the investigation was over, a charge-sheet was submitted in the committal Court which on its turn committed the case to the Court of Session and from where it was received by the Trial Court for trial. ( 5. ) THE learned Trial Judge on the basis of the allegations made against the respondents framed charges punishable under section 302 of IPC which they denied and requested for the trial. ( 6. ) IN order to prove the charge, the prosecution examined as many as 16 witnesses and placed Ex. P-1 to Ex. P-17 the documents on record. ( 7. ) THE defence of the respondents is of false implication and in support of their defence they examined two witnesses namely Gangaram (DW-1) and Hariram (DW-2 ). ( 8. ( 6. ) IN order to prove the charge, the prosecution examined as many as 16 witnesses and placed Ex. P-1 to Ex. P-17 the documents on record. ( 7. ) THE defence of the respondents is of false implication and in support of their defence they examined two witnesses namely Gangaram (DW-1) and Hariram (DW-2 ). ( 8. ) THE learned Trial Court after appreciating the evidence placed on record came to hold that the charge under Section 302 of ipc against respondents is not proved and eventually acquitted them. ( 9. ) IN this manner, the present appeal has been filed by the State of Madhya Pradesh after obtaining leave to appeal. ( 10. ) THE contention of learned Public prosecutor for the appellant/state is that there is overwhelming evidence on record accusing the respondents and, therefore, the learned Trial Court erred in acquitting the respondents. ( 11. ) ON the other hand, Shri Shubham Raj sharma, learned counsel appearing for respondents argued in support of impugned judgment. ( 12. ) HAVING heard learned counsel for the parties, we are of the considered view that this appeal deserves to be dismissed. ( 13. ) IN the present case, the prosecution has examined two important witnesses, they are, namely, Deewan Singh (PW-8) and kamod Singh (PW-9 ). These witnesses are neighbours of the deceased. According to deewan Singh (PW-8) on the fateful day in the afternoon Hariram who is the husband of the deceased came out from his house and was screaming by saying that the fire has been set up. Thereafter, this witness as well as Kamod Singh (PW-9) entered inside the house of Hariram and found that the fire was set up in one room which was bolted from inside. According to this witness, hariram and Ranveer broke the door. After breaking the door when they entered inside the room, they found the deceased in burning condition. Thereafter, they brought the deceased to the hospital. In cross-examination, this witness has specifically stated that in his presence, Hariram and Ranveer broke the door. ( 14. ) THE next witness is Kamod Singh (PW-9) who has also given the same statement. This witness in his examination-in-chief has stated that the room in which the fire was set up was closed from inside and the door of the said room was broken by a sabbal (long thick iron rod ). ( 14. ) THE next witness is Kamod Singh (PW-9) who has also given the same statement. This witness in his examination-in-chief has stated that the room in which the fire was set up was closed from inside and the door of the said room was broken by a sabbal (long thick iron rod ). According to this witness also the deceased was lying in injured condition having burn injuries. Thus from the statement of these two witnesses, it is gathered that the room in which the fire was set up was bolted from inside and the deceased was lying having burn injuries. It has also come from their testimony that the door of the room was broken with the aid of Sabbal (long thick iron rod ). These two witnesses were not declared hostile by the prosecution and if that is the position, according to us, in view of the decision of supreme Court Raja Ram v. State of rajasthan the prosecution is bound by their statement. In this context, we may profitably place reliance on para 9 of the said decision which reads thus: "9. But the testimony of PW 8 Dr. Sukhdev Singh, who is another neighbour, cannot easily be surmounted by the prosecution. He has testified in very clear terms that he saw PW5 making the deceased believe that unless she puts the blame on the appellant and his parents she would have to face the consequences like prosecution proceedings. It did not occur to the Public Prosecutor in the trial court to seek permission of the court to hear (sic declare) PW8 as a hostile witness for reasons only known to him. Now, as it is, the evidence of PW8 is binding on the prosecution. Absolutely no reason, much less any good reason, has been stated by the Division Bench of the High Court as to how PW 8s testimony can be sidelined. " on the same point, there is another decision of Supreme Court Mukhtiar Ahmed ansari v. State (NCT of Delhi ). ( 15. ) APART from this the statement of deewan Singh (PW-8) and Kamod Singh (PW-9) has been further corroborated by the defence witness Hariram (DW-2) who is also the husband of the deceased. ( 16. " on the same point, there is another decision of Supreme Court Mukhtiar Ahmed ansari v. State (NCT of Delhi ). ( 15. ) APART from this the statement of deewan Singh (PW-8) and Kamod Singh (PW-9) has been further corroborated by the defence witness Hariram (DW-2) who is also the husband of the deceased. ( 16. ) THE learned Trial Court has assigned cogent reasons in para 9 of the impugned judgment while considering the testimony of Tehsildar R. D. Shrivastava (PW-13) who has stated that the deceased was not understanding the questions put to her and was giving the answer after putting the questions repeatedly. Further he has stated that the deceased was not speaking fluently but was giving the answers after pausing for a longer duration. The learned Trial court in para 8 and 9 after marshaling and analyzing the evidence of prosecution witnesses came to hold that there are material contradictions in two dying declarations recorded by Tehsildar and in the Dehati nalishi, hence learned Trial Court acquitted the respondents by holding the dying declaration to be not reliable. We do not find any infirmity with the judgment of acquittal passed by learned Trial Court. ( 17. ) ONE important fact which cannot be marginalized and blinked away is that as per prosecutions own case, the room in which the fire took place and in which the deceased was lying in burning condition was found to be bolted from inside and the same was broken with the aid of Sabbal (long iron rod) and therefore the possibility cannot be ruled out that deceased committed suicide otherwise if she would have been subjected to fire by the respondents, how the door of the room was found to be bolted from inside. The Supreme Court in P. Mani v. State of T. N. in the similar facts and circumstances when the deceased was found in the room which was bolted from inside died due to burn injuries and the room was opened after breaking the doors, held that the case is of suicide. In the present case also since the deceased was lying in burning condition inside the room, which was bolted from inside therefore, this possibility cannot be ruled out that the deceased had committed suicide. ( 18. In the present case also since the deceased was lying in burning condition inside the room, which was bolted from inside therefore, this possibility cannot be ruled out that the deceased had committed suicide. ( 18. ) WE have gone through the reasonings assigned by learned Trial Court acquitting the respondents and we find those reasonings to be cogent. The learned Public prosecutor could not point out that how and in what manner the reasonings assigned by learned Trial Court are not cogent and the view taken by the Trial Court is not possible or plausible. It is well settled in law that the view which has been taken by the learned Trial Court acquitting the accused if is not found to be perverse and is possible or plausible, such finding should not be brushed aside in the appeal. ( 19. ) FOR the reasons stated herein above, we do not find any merit in this appeal and the same is hereby dismissed. Appeal dismissed.