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Madhya Pradesh High Court · body

2010 DIGILAW 1119 (MP)

Aneeta Bai v. State of M. P.

2010-11-09

N.K.GUPTA

body2010
JUDGMENT N.K. Gupta, J. 1. The Appellant has preferred this appeal against the judgment dated 21/8/1996 passed by the 10th Additional Sessions Judge, Jabalpur in ST No. 837/1993 by which the Appellant was convicted for commission of offence punishable under Section 304 (Part-II) of IPC and sentenced to rigorous imprisonment for three years. 2. It is admitted that the deceased was the husband of the Appellant-accused. 3. Prosecution story, in short, is that on 7/1/1993 at about 8:30 PM in the night deceased Kishanlal was at his house situated at Bilheri in Jabalpur township. His wife (present Appellant) was staying at the house of her father with her kids. But at the time of the alleged incident, she had come to the house of her husband and shouted on the deceased that he was not earning anything and he was drinking habitually, thereupon she tied the legs of the deceased with the help of a rope of coconut. Thereafter she poured kerosene oil on his head from backside and set him on fire. Immediately thereafter the Appellant-accused rushed outside the house and bolted the door of the house from outside. The deceased removed the tiles from the roof and came out. He had stated the entire story to one Govardhan Chamar and aunt Sona Bai. Some persons of the locality took him to the house of his father-in-law, but his father-in-law Gopal Prasad Babariya abused him and asked him to leave. Ultimately with the help of one Mehmood deceased went to the Police Station, Cantt, Jabalpur where he lodged an FIR Ex.D-1. He was sent to the Victoria Hospital, Jabalpur for his medical examination and treatment. Dr. C.L. Nema (PW-10) after examination had given a report Ex.P-11. He found that there were 15% burns on his body. These burns were found on face, neck and shoulder. There was a smell of kerosene on burned portion of the body as well as on his clothes. The deceased was admitted in the hospital. On 22/1/1993 the deceased left the hospital against the medical advice. Again on 6/2/1993 the deceased was brought to the Medical College, Jabalpur after his death and Dr. Pramod Shrivastava (PW-6) performed the postmortem on his body and found that due to various complications of burning and anemic conditions, the deceased had died within 24 hours of the postmortem. 4. On 22/1/1993 the deceased left the hospital against the medical advice. Again on 6/2/1993 the deceased was brought to the Medical College, Jabalpur after his death and Dr. Pramod Shrivastava (PW-6) performed the postmortem on his body and found that due to various complications of burning and anemic conditions, the deceased had died within 24 hours of the postmortem. 4. Sub Inspector Vinod Kumar (PW-12) had registered the crime initially for the offence punishable under Sections 307, 294 read with Section 34 of IPC. He visited the place of incident and prepared the spot map. He seized some burnt clothes, burnt Pata, one match box & stick, one plastic can closed by its cap containing 4 litres of kerosene oil, kerosene oil mixed sand and simple sand from the spot. He examined various witnesses and ultimately arrested the Appellant-accused as well as her father. Ultimately, a charge sheet for the offence punishable under Sections 302 and 294 of IPC was submitted before the concerned committal Court. 5. The Appellant-accused abjured her guilt and took the defence that at the time of incident she was residing at her father's house and she had no knowledge about the burning of her husband, however no defence evidence was adduced. 6. The learned 10th Additional Sessions Judge, Jabalpur after due consideration of prosecution evidence, acquitted the accused Gopal for commission of offence under Section 294 of IPC. The Appellant-accused was also acquitted for commission of offence under Section 302 of IPC, but she was convicted for commission of offence under Section 304 (Part-II) of IPC and inflicted the aforesaid sentence. 7. In the present case, there was no eye-witness except the deceased, and therefore the entire prosecution case is based on circumstantial evidence. As per the prosecution story, the deceased informed about the incident to one Govardhan Chamar and aunt Sona Bai, whereas Sona Bai (PW-2) turned hostile. She did not support the story that the deceased had narrated the entire story to her. On the contrary, she has stated that the deceased was in a habit to drink in excess and used to quarrel with his wife. Witness Govardhan Chamar neither examined in the trial Court nor his name was given in the list of witnesses annexed with the charge sheet. 8. Similarly, Mehmood, who took the deceased to the Police Station was actually Mehboob Khan (PW-9), who also turned hostile. Witness Govardhan Chamar neither examined in the trial Court nor his name was given in the list of witnesses annexed with the charge sheet. 8. Similarly, Mehmood, who took the deceased to the Police Station was actually Mehboob Khan (PW-9), who also turned hostile. This witness has stated that he dropped the deceased to Gora Bazar, but in the meantime deceased did not talk to him. Similarly Anil Narekar (PW-1) and Sadab Khan (PW-4), who have claimed to have given lift on bicycle to the deceased, also turned hostile. Both of them have stated that the deceased was telling the story of stove busting. Sharda Prasad (PW-5), brother-in-law of the deceased who visited the Victoria Hospital, Jabalpur to see the deceased, has stated that due to swelling on his face, the deceased was unable to speak anything. He has also stated that the deceased was in a habit to take excess liquor and he was not ready to go to the hospital. He has stated that when he was lighting a kerosene stove, his face got burnt. 9. Looking to the entire evidence adduced by the prosecution, it is clear that except the FIR Ex.D-1, there is no evidence against the Appellant-accused in the case. The learned 10th Additional Sessions Judge has relied on the FIR, because it became a dying declaration and there was no possibility for the deceased to implicate his wife in the incident without any reason, and therefore on the basis of the FIR the Appellant-accused was convicted. It is true that the FIR Ex.D-1 indicates about the injuries sustained by the deceased, and therefore after the death of the deceased, it may be considered to be a dying declaration. However, it is yet to be examined categorically as to whether the dying declaration given by the deceased can be believed. There are so many lacunas and infirmities in the said dying declaration. Firstly that the deceased informed the police that he stated the entire story to one Govardhan Chamar, but the police could not find that Govardhan Chamar, who was neighbour of the deceased. Secondly, his own aunt Sona Bai does not corroborate the version mentioned in the FIR Ex.D-1. The deceased had narrated in the FIR that he went to the house of his father-in-law, but father-in-law abused and kicked him out. Secondly, his own aunt Sona Bai does not corroborate the version mentioned in the FIR Ex.D-1. The deceased had narrated in the FIR that he went to the house of his father-in-law, but father-in-law abused and kicked him out. The conduct of the deceased as shown in the FIR that he visited the house of his father-in-law, seems to be unnatural. In the natural course a burnt person would visit the hospital and then to the Police Station. There was no need to visit the house of his father-in-law. He implicated his father-in-law unnecessarily, and therefore since his wife had left him, so he could lodge an FIR against his wife only to harass her, because at that time he was not aware that he might die after this incident. Dr. Subhasha Saraf (PW-7) has stated in para 2 of her statement that on 20/1/1993 the deceased prayed her to call the police to record his second statement, but after sending the requisition the second statement of the deceased could not be recorded. The conduct of the deceased as depicted by Dr. Subhasha Saraf clearly shows that the deceased was trying to repent his guilt of lodging an FIR against his wife. Thirdly, if the Appellant-accused tied the legs of the deceased with the help of a rope, then how the deceased removed that rope. Fourthly, if the Appellant-accused poured kerosene oil on the head of the deceased from backside, then there must be some burnt injuries on the scalp, hair and the back of the deceased. But Dr. C.L. Nema (PW-10) did not find any such injury on his scalp or back. 10. Looking to the MLC report Ex.P-11, the story stated in the FIR seems to be incorrect. Similarly, if the Appellant-accused was pouring kerosene oil on the body of the deceased to set him on fire, then what was the problem to the Appellant-accused not to pour the entire kerosene of the can and if she was in a hurry, then how she could tighten the cap of the can in the proper position. Looking to the seizure memo Ex.P-13, it is clear that one plastic can found in the house, which was filled with four litres of kerosene and its cap was properly tied. This circumstance also proves that the story mentioned in the FIR seems to be incorrect. 11. Looking to the seizure memo Ex.P-13, it is clear that one plastic can found in the house, which was filled with four litres of kerosene and its cap was properly tied. This circumstance also proves that the story mentioned in the FIR seems to be incorrect. 11. The Appellant-accused has proved the report Ex.P-13 by which it is clear that she left the house of the deceased with kids and started residing with her father, therefore if she came specially to burn her husband, then how it was possible that in the incident the deceased sustained only 15% burning injuries and some superficial burns on the face. Looking to the burning injuries on the face, neck and shoulder, there was a possibility that while burning the stove, the deceased could sustain such injury from the front side. 12. Sharda Prasad (PW-5), brother-in-law of the deceased has stated that signature appended on the FIR Ex.D-1 is not of the deceased, but his version seems to be incorrect, because Sub Inspector Vinod Kumar (PW-12) was not aware with the family conditions of the deceased, and therefore he could not cook the story in such a manner. If the deceased has not stated anything before him, therefore it cannot be said that Ex.D-1 is not a version of the deceased. However, if the entire story as mentioned in the FIR is considered, then the deceased removed the rope which was tied on his legs, then he removed the tiles of the roof and then came out from the house in such a injured condition, then he requested so many persons to give him lift, then went to the house of his father-in-law and after exchange of some words, he took lift from one Mehboob Khan and went to the Police Station. Looking to the entire story, at least three hours were required to the deceased to reach the Police Station after the incident, but according to the FIR Ex.D-1, the incident took place at about 8:30 PM in the night and the deceased lodged the FIR at about 10:30 PM in the night. It appears that the FIR is recorded ante-timed, and therefore it is possible that the deceased had enough time to cook the story and to lodge a concocted FIR in ante-time manner. The delay in lodging the FIR also creates a doubt. 13. It appears that the FIR is recorded ante-timed, and therefore it is possible that the deceased had enough time to cook the story and to lodge a concocted FIR in ante-time manner. The delay in lodging the FIR also creates a doubt. 13. On the basis of the aforesaid discussion, it is clear that the FIR (dying declaration) is a doubtful document. It is a full of infirmities, though there is no need to any corroboration to act upon the dying declaration. But if such dying declaration is full of infirmities, then it cannot be believed. On this point, the decision of the Hon'ble Apex Court in the case of Ram Manorath v. State of UP 1981 SCC 581, is applicable, in which it is observed that the dying declaration which suffers from infirmities cannot be a basis of conviction. In the present case, the situation is similar. The dying declaration (Ex.D-1) is full of infirmities, and therefore it cannot be considered as basis for conviction. Though various prosecution witnesses have stated that the deceased got burnt due to stove bust, but they were not the eye-witnesses. They stated the story as informed by the deceased himself, therefore it is possible that it may not be a true story, but at present there is no evidence by which it can be said that how the deceased was burned. However, it is clear that the deceased was burned superficially with 15% places of his body specifically on the face, neck and shoulder. There is no need to search out for the actual story. It is also possible that the deceased had tried to pour kerosene on his wife and since he was in drunken condition, he could not pour kerosene oil on his wife and on the contrary his wife had poured kerosene on his face and due to own ignition of match stick, the deceased could burn his face and the Appellant-accused is keeping silence on this point to avoid the admission of her presence in the house at the time of incident. But such story cannot be imagined. It is not for the Court to search for various stories. It is for the Court to assess the evidence adduced by the prosecution. In the present case, all the witnesses have been turned hostile, whereas the FIR Ex.D-1 is a doubtful document. But such story cannot be imagined. It is not for the Court to search for various stories. It is for the Court to assess the evidence adduced by the prosecution. In the present case, all the witnesses have been turned hostile, whereas the FIR Ex.D-1 is a doubtful document. It is full of infirmities, and therefore it cannot be believed. Under these circumstances, there is no evidence against the Appellant-accused that she poured some kerosene oil on her husband and set him on fire, therefore she is entitled for benefit of doubt. She cannot be convicted for the offence punishable under Section 304 (Part-II) of IPC or of any inferior offence of the same nature like Section 307 or 324 of IPC. 14. In the result, the appeal succeeds and is allowed. Consequently, the conviction as well as sentence imposed on the Appellant-accused for the offence punishable under Section 304 (Part-II) of IPC is hereby set aside. The Appellant-accused is acquitted of the charge of Section (Part-II) of IPC. 15. At present, the Appellant-accused is on bail, and therefore her bail bonds shall stand discharged.