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Madhya Pradesh High Court · body

2009 DIGILAW 985 (MP)

NARESH s/o GABBAR SINGH v. STATE OF M. P.

2009-08-17

A.K.SHRIVASTAVA, S.S.DWIVEDI

body2009
JUDGMENT : A. K. SHRIVASTAVA, J. 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 18-9-2001 passed by learned Additional Sessions Judge, Gohad, District Bhind in Sessions Trial No. 333/2000 convicting the appellants under section 302 of Indian Penal Code and thereby sentencing them to suffer life imprisonment and fine of Rs. 1,000/- in default thereof to suffer further simple imprisonment of three months, the appellants have knocked the door of this Court by preferring this appeal under section 374(2) of the Code of Criminal Procedure, 1973. 2. In brief the case of prosecution is that on 4-3-2000 at 5:45 hours on the basis of the information received by Assistant Sub Inspector, namely, D. S. Sikarvar given to him by village chowkidar-Kaptan Singh that Kiranbai (hereinafter referred to as the deceased) has received burn injuries, he proceeded to the village where he found that deceased was lying inside of her house. The deceased lodged dehatinalishi to Assistant Sub Inspector. According to dehatinalishi, her parents are the resident of village Bilaspur, police station Hastinapur and she got married to acquitted co-accused Ramkaran 8-9 years prior to the date of incident. It has been further stated in the dehatinalishi that deceased is residing along with the appellant, who is her jeth (husband's elder brother). The husband of the deceased is employed in some private job at Ahmedabad. According to dehatinalishi, deceased went to cut the crop along with her jeth and jethani (appellants) and when she was coming back alone from the field, on the way she met one Chukhru who enquired from her that where is her maalik. On this, deceased replied that they are in the field. It has also been stated in the dehatinalishi that since appellants saw the deceased having conversation with Chukhru, on this point today in the morning they scolded on her that why she was interacting with a village boy yesterday. Thereafter, appellants gave blows of kicks and fists to her. The deceased thereafter went inside the pator and lay down. At that juncture, appellant Naresh by hurling the abuse of mother directed appellant No. 2 Sheela to kill the deceased, as a result of which appellant No. 2 Sheela after pouring kerosene on her lit the match stick and thereafter both of them fled from the place of occurrence. The deceased thereafter went inside the pator and lay down. At that juncture, appellant Naresh by hurling the abuse of mother directed appellant No. 2 Sheela to kill the deceased, as a result of which appellant No. 2 Sheela after pouring kerosene on her lit the match stick and thereafter both of them fled from the place of occurrence. The clothes of the deceased caught the fire flame and although she tried her best to extinguish the fire, but failed, as a result of which she rushed outside of her house and screamed. Thereafter, the inhabitants of the village arrived and extinguished the fire. Her entire body has been burnt. The villagers brought her inside the house and sent the village chowkidar to lodge the report. 3. After noting down the dehatinalishi, thumb impression of the deceased was obtained. 4. After registering the case against appellants and other acquitted co-accused persons, the deceased was sent to Primary Health Center, Maoh, District Bhind from where the Compounder referred her to J. A. Hospital at Gwalior. However, she could not survive and succumbed to the burn injuries on the way to Gwalior. 5. After the death of the deceased, her dead body was sent for post-mortem examination where the Autopsy Surgeon opined that on account of burn injuries the deceased had died. 6. After the investigation was over, a charge-sheet was submitted in the committal Court, which on its turn committed the case to the Sessions Court and from where it was received by the trial Court for the trial. 7. Apart from appellants, two persons, namely, Ramkaran and Munnibai, who are the husband and jethani of the deceased were also tried. The learned Trial Judge framed charges punishable under sections 498-A, 302 and 120-B of Indian Penal Code against the appellants and also framed charges punishable under sections 498-A and 120-B of Indian Penal Code against acquitted co-accused Munnibai and Ramkaran. 8. Needless to emphasise that both the accused persons abjured their guilt and pleaded false implication. 9. In order to bring home the charges, prosecution examined as many as 17 witnesses and place Ex.P/1 to P/20, the documents on record. 10. Defence of appellant is of false implication. In support of their defence they examined five witnesses, namely, Munniram (DW-1), Kalyan (DW-2), Dr. A. K. Jaiswal (DW-3), Vidyabai (DW-4) and Pillu (DW-5). 9. In order to bring home the charges, prosecution examined as many as 17 witnesses and place Ex.P/1 to P/20, the documents on record. 10. Defence of appellant is of false implication. In support of their defence they examined five witnesses, namely, Munniram (DW-1), Kalyan (DW-2), Dr. A. K. Jaiswal (DW-3), Vidyabai (DW-4) and Pillu (DW-5). Munniram was examined by the defence in order to prove that the parents of the deceased were making demand of money from the accused side, but when they refused to give any amount, a case has been lodged. Dr. A. K. Jaiswal (DW-3), who has also been examined by the prosecution as PW-16 has been examined by the defence in order to prove that deceased was referred to J. A. Hospital, Gwalior. 11. The learned Trial Judge on the basis of evidence placed on record came to hold that prosecution has failed to prove charges against Ramkaran and Munnibai and eventually, they have been acquitted. The learned Trial Judge further came to hold that charges under sections 498-A and 120-B of Indian Penal Code against present appellants are not proved, as a result of which they have been acquitted from these charges. However, learned Trial Judge on the basis of the evidence placed on record came to hold that charge under section 302 of Indian Penal Code has been found to be proved against the present appellants. Hence, they have been convicted and sentenced as mentioned hereinabove. 12. In this manner, this appeal has been filed by the appellants assailing their judgment of conviction and order of sentence passed by learned trial Court. 13. The contention of Shri Shailendra Singh, learned counsel for the appellants, is that in the present case except dehatinalishi Ex.P/14 of the deceased, which after her death became her dying declaration, there is no other clinching evidence against the appellants in order to hold that they have committed the offence under section 302 of Indian Penal Code. 13. The contention of Shri Shailendra Singh, learned counsel for the appellants, is that in the present case except dehatinalishi Ex.P/14 of the deceased, which after her death became her dying declaration, there is no other clinching evidence against the appellants in order to hold that they have committed the offence under section 302 of Indian Penal Code. Further, it has been contended by the learned counsel that if the alleged dying declaration in the form of dehatinalishi is taken into consideration in proper perspective one can infer that it is highly suspicious and doubtful for the simple reason that although the thumb impression on dehatinalishi of the deceased has been obtained by the Investigating Officer, but he (Investigating Officer) has admitted that both the thumbs of the deceased from both the sides were burnt and this has also been so stated by the Autopsy Surgeon Dr. A. K. Jaiswal (DW-3/PW-16) and, therefore, in these state of affairs dehatinalishi/dying declaration of the deceased becomes highly suspicious and, therefore, the learned trial Court erred in convicting the appellants on the basis of such a suspicious document. Hence, it has been prayed that by allowing this appeal, the impugned judgment passed by learned trial Court convicting the appellants be set aside and they be acquitted from the charge under section 302 of Indian Penal Code. 14. An alternative submission has also been put forth by the learned counsel for the appellants that if this Court comes to the conclusion that on account of the act of the appellants the deceased had died on account of receiving the burn injuries, since the incident has occurred all of a sudden in a heat of passion as appellants saw the deceased interacting with one village boy and in absence of any evidence of the prosecution that there was any premeditation or enmity of the appellants with the deceased, therefore, the case would not rest beyond the ambit and sweep of section 304 Part-I of Indian Penal Code. In this context he has placed heavy reliance on Muthu Kutty and another vs. State by Inspector of Police, T. N. (2005) 9 SCC 113 and has submitted that in this case also the deceased died on account of burn injuries and the conviction under section 304 Part-I of Indian Penal Code was accorded. In this context he has placed heavy reliance on Muthu Kutty and another vs. State by Inspector of Police, T. N. (2005) 9 SCC 113 and has submitted that in this case also the deceased died on account of burn injuries and the conviction under section 304 Part-I of Indian Penal Code was accorded. The contention of learned counsel is that both the appellants have already undergone jail sentence of 8 years and 4 months and this would be an appropriate punishment for the offence which they have committed. 15. Combating the submissions of learned counsel for the appellants it has been vehemently contended by Shri M.P.S. Bhadoriya, learned Public Prosecutor for the respondent/State, that there is specific evidence of Investigating Officer who has written the dehatinalishi/dying declaration of the deceased saying that he obtained the thumb impression of the deceased and it was bounden duty of the accused to get it clarified during the cross examination of the Investigating Officer that when the thumbs of the deceased were burnt from both the sides, how he obtained thumb impression of the deceased. According to learned counsel, since this has not been asked to the Investigating Officer during his cross-examination, the learned trial Court has rightly placed reliance on the dehatinalishi/dying declaration of the deceased, which has been proved by the Investigating Officer and, therefore, there is no substance in this appeal and the same be dismissed. 16. Having heard learned counsel for the parties, we are of the view that this appeal deserves to be allowed. 17. In the present case except dehatinalishi (Ex.P/14), which after the death of the deceased became her dying declaration, there is no other supporting evidence of the prosecution. The village chowkidar-Kaptan Singh (PW-7) for whom it is said that deceased gave her oral dying declaration implicating the appellants has also not supported the case of prosecution and simply he has stated that on receiving the information given to him by the inhabitants of village about receiving of the burn injuries by the deceased, he went to lodge the report in the police station, as a result of which the police personnel arrived in the village. At this juncture, it would be condign to mention here that Investigating Officer also admitted that village chowkidar gave information that deceased has sustained burn injuries, which was reduced in writing in the Roznamcha, however, unfortunately for the best reasons known to the prosecution, the said Roznamcha has not been proved and exhibited. According to us, it was the bounden duty of the prosecution to get that Roznamcha produced and proved in order to take out the grain from the chaff that what was reported by the village chowkidar-Kaptan Singh in the Police Station. 18. On going through the entire evidence of the prosecution, except dehatinalishi dying declaration of the deceased there is no other evidence of the prosecution in order to prove the charge under section 302 of Indian Penal Code, hence, we shall now examine the hallmark and authenticity of the dehatinalishi/dying declaration (Ex.P/14) of the deceased, which has been proved by its scribe Investigating Officer D. S. Sikarvar (PW-14). According to this witness, when he reached at the house of the deceased, he found that the deceased was lying inside of her house having burn injuries. On being asked that how the incident has occurred, she categorically stated that a day earlier to the incident the appellants saw her having interaction with one boy of her village and on the next day (on the date of incident) appellants scolded on her that why she was interacting with the village boy and thereafter, appellant Naresh told that she be set to fire, as a result of which appellant No. 2 Sheela poured kerosene and set her on fire. According to this witness, deceased further told that despite she tried her best to extinguish the fire, but failed, as a result of which she came out from her house and started screaming. Thereafter, the inhabitants of the village arrived and they extinguished the fire. The villagers also brought back the deceased inside her house. In very specific words this witness has stated that since the hands of the deceased were burnt, thumb impression of her hand was obtained on dehatinalishi. We think it apposite to quote that portion of the statement of the Investigating Officer, which reads thus :- "(She put her thumb impression on dehatinalishi. In very specific words this witness has stated that since the hands of the deceased were burnt, thumb impression of her hand was obtained on dehatinalishi. We think it apposite to quote that portion of the statement of the Investigating Officer, which reads thus :- "(She put her thumb impression on dehatinalishi. Both the hands were burnt, hence, she was unable to write and, therefore, the thumb impression was obtained on dehatinalishi (Ex.P/14) on which my signature is 'A' to 'A' and at 'B' to 'B' Kiran put her thumb impression)." However, when the Investigating Officer was cross-examined, specifically in para-9 he has admitted that deceased was educated upto 4th-5th standard. In very specific words this witness has admitted that the skin of both the hands of the deceased was burnt. The skin of her thumb and fingers was also burnt. He has further specifically admitted that the skin of both the sides of fingers and thumb was burnt. It would be relevant to quote that portion of the statement of the Investigating Officer, which reads thus :- "(The skin of both the sides of her hands was burnt. The skin of her fingers and thumb was burnt. The skin of fingers and thumb of both the sides was burnt)." 19. At this juncture, we would also like to scan the testimony of the Autopsy Surgeon Dr. A. K. Jaiswal (PW-16), who in para 6 of his cross-examination has admitted that the hands of deceased were burnt and by further clarifying the meaning of hands he has stated that burning of hands also includes fingers and thumb including the phalanx of the fingers and thumb. Thus, not only the Autopsy Surgeon Dr. A. K. Jaiswal, but the Investigating Officer is also admitting that the skin of the fingers and thumb of the deceased was burnt from both the sides and, therefore, according to us, it raises heavy doubt about the hallmark and authenticity of the dehatinalishi/dying declaration of the deceased because on this document thumb impression of the deceased is appearing, therefore, how she could put her thumb impression when the skin of her thumb was already burnt. The Supreme Court in State of Punjab vs. Gian Kaur and another, 1988 SCC (Cri.) 942 held that thumb mark appearing on the dying declaration having clear ridges and curves of the deceased and the evidence of the doctor who conducted post-mortem found both the thumbs of the deceased burnt. In that situation, High Court rightly held that the dying declaration is suspicious. The Apex Court by upholding the judgment of acquittal passed by Punjab High Court dismissed the appeal filed by State of Punjab. In the present case also looking to the evidence of the Autopsy Surgeon as well as the Investigating Officer that the skin of the thumbs of the deceased was also burnt, it becomes highly suspicious that how she could put her thumb impression on the dying declaration. On going through the thumb impression appearing on the dehatinalishi/dying declaration of the deceased, we find that curves and ridges of the thumb impression are clearly appearing and, therefore, according to us, dehatinalishi/dying declaration of the deceased becomes highly suspicious. 20. We do not find any merit in the contention of learned counsel for the State that it was the bounden duty of the defence to clarify that despite the skin of the deceased was burnt, how she was able to put her thumb impression on the dehatinalishi/dying declaration. According to us, it was not the duty of the defence counsel, but was the duty of the prosecution to get the Investigating Officer as well as the Autopsy Surgeon re-examined on this point in order to demonstrate that deceased was in a position to put her thumb impression and the skin of her thumb was intact and was not burnt. Looking to the specific evidence of the Investigating Officer as well as that of the Autopsy Surgeon proving the factum of burn of the skin of the thumb of the deceased, in the realm of the dehatinalishi/dying declaration it becomes highly suspicious and doubtful particularly when the deceased was 90% burnt and, therefore, it raises a heavy doubt that she was in a position to give the dying declaration. 21. It is well settled in law that the suspicion, however, strong and grave it may be, it cannot take place of a truth. 21. It is well settled in law that the suspicion, however, strong and grave it may be, it cannot take place of a truth. Since there is no other evidence of the prosecution and we have already held hereinabove that dehatinalishi/dying declaration is highly doubtful, by extending our benefit of doubt to the appellants we hereby held that the charge under section 302 of Indian Penal Code against these appellants is not proved. 22. Resultantly, the judgment of conviction and order of sentence passed by learned trial Court convicting the appellants under section 302 of Indian Penal Code is hereby set aside. On the ground of ailment of appellant No. 2 Sheelabai, as breast cancer has been detected to her, appellants have been temporarily bailed out, hence they are not required to surrender. Their bail bonds are discharged and they are hereby acquitted from the charge under section 302 of Indian Penal Code. The amount of fine, if deposited by the appellants, be refunded to them forthwith. 23. The appeal is accordingly allowed.