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2012 DIGILAW 105 (MP)

Chhogalal v. State of M. P.

2012-01-20

PRAKASH SHRIVASTAVA, S.K.SETH

body2012
JUDGMENT : Asper S.K. Seth, J . : - Thisis an appeal by one Chhogalal , who has been convictedby the learned Sessions Judge, Dewas under Sections302 and 498-A of the IPC; for the murder of his wife Sorumbai and cruel treatment meted out to her in connection with demand of dowry. He hasbeen sentenced to life imprisonment and to pay a fine of Rs .1000/- for the offence under Section 302, IPC. The sentence imposed underSection 498-A is rigorous imprisonment for two years and a fine of Rs . 500/-. Both sentences have default stipulation but thesubstantive sentences, however, have been directed to run concurrently. 2.Prosecution case against the appellant at the trial was that in the night of 27-7-2001 Sorumbai (since deceased) was admitted in the District Hospital , Dewas with burn injuries. In the hospital, on 6-8-2001 she gave information to the Investigating Officer B.P. Morya (P.W. 11) who recorded the dehati nalishi ( Exh . P-11) and based on it a FIR and criminal casewas registered against appellant under Section 307/498-A/34, IPC at PoliceStation Tonk-Khurd , District Dewas .This set the investigation rolling. Same day Executive Magistrate Pushpa Kusham (P.W. 6) visitedHospital and recorded statement of Sorumbai ( Exh . P-5). Appellant was arrestedon 8-8-2001 and a canisterof Kerosene was recovered at his instance vide Exh . P-3 from his house. Sorumbai succumbed to burn injuries on 30-8-2001 in M. Y. Hospital Indore , where she was shifted forbetter treatment. Because of her death, the case, which was earlier registeredagainst the appellant under Section 498-A read with Section 307, IPC wasconverted by the police under Section 498-A read with Section 302, IPC. Afterholding inquest enquiry, the dead body was sent for post-mortem. Dr. G.L. Sodi (P.W. 10) performed the autopsy and found thatdeceased died of cardio respiratory failure as a result of burns and itscomplications. The report is Exh . P-10. After completing the investigation, challan was putup and appellant was committed to face trial. He denied the charges andexamined five defence witnesses. 3.Relying on prosecution evidence, learned Trial Judge found the appellant guiltyof the offences and sentenced him to undergo jail sentences as stated above. 4.In this appeal, learned Counsel for appellant challenged the findings of theTrial Court and submitted that the conviction of appellant is unsustainable.According to him, findings are perverse and resulted in injustice. 3.Relying on prosecution evidence, learned Trial Judge found the appellant guiltyof the offences and sentenced him to undergo jail sentences as stated above. 4.In this appeal, learned Counsel for appellant challenged the findings of theTrial Court and submitted that the conviction of appellant is unsustainable.According to him, findings are perverse and resulted in injustice. It issubmitted that Court below failed to see that there is no cogent and reliableevidence to hold that the appellant committed and act by which death wascaused. The appeal therefore, deserves to be allowed. On the other hand,learned Counsel appearing for State justified the conviction and the sentence. 5.Perusal of record shows that death of Sorumbai due toburn injuries is not disputed. The evidence of Dr. Sodi (P.W. 10) and the post-mortem report ( Exh . P-10) isnot questioned before us. We, therefore, find difficulty in confirming thefinding of the Trial Court on this count. 6. Chenalal (P.W. 1) and Kamlabai (P.W. 2) are the parents of the deceased. They were examined to prove the crueltreatment meted out to deceased during the past fourteen years of married lifeand demand for dowry. They stated that on 27-7-2001 at the dinner time an altercation took placebetween appellant and deceased and the appellant had poured kerosene oil on herbody and set her ablaze. They further stated that after about 5 days of theincident, hearing a rumour , they visited the Hospitaland found that victim was none else than their daughter Sorumbai .Even after talking to her, they made no attempt to inform the police (Sea Para9 of P.W. 1). This is quite unusual and unnatural conduct makes their versionvery suspicious. As regards the previous ill treatment, father admitted thatdifferences were sorted out and things were patched up. They speak about illtreatment of Sorumbai , but their conduct makes theirstory very doubtful and in absence of any cogent and corroborative evidence, itwould be unsafe to place implicit reliance on their evidence. There is noevidence to establish the willful conduct of the appellant to come within thepurview of Section 498-A of the Penal Code. 7.The Indian Evidence Act, 1872 (in short "the Evidence Act") does notprescribe any particular age as a determinative factor to treat a witness to bea competent one. A child offender age can be allowed to testify if he hasintellectual capacity to understand question and give rational answers thereto.This legal position is now well settled. 7.The Indian Evidence Act, 1872 (in short "the Evidence Act") does notprescribe any particular age as a determinative factor to treat a witness to bea competent one. A child offender age can be allowed to testify if he hasintellectual capacity to understand question and give rational answers thereto.This legal position is now well settled. The evidence of a child witness is notrequired to be rejected per se, but the Court as a rule of prudence considerssuch evidence with close scrutiny. This precaution is necessary because childwitnesses are amenable to tutoring and often live in a world of make-believe.Though it is an established principle that child witnesses are dangerouswitnesses as they are pliable and liable to be influenced easily, shaken and moulded , but it is also an accepted norm that if after carefulscrutiny of their evidence the Court comes to the Conclusion that there is animpress of truth in it, there is no obstacle in the way of accepting theevidence of a child witness. In the case in hand, prosecution examined son ofthe deceased Suresh (P.W. 3). He is a child witness. In the trial, he wasprojected as an eye witness but one line in his statement ...Hindi… IMmakes his entire evidence vulnerable. It seems that the Trial Court did notattach importance to this piece of prosecution evidence and rightly so. 8.Now the only evidence remains to be considered is the oralstatements of the deceased Exh . P-11 and Exh . P-6 recorded by I.O.and the Executive Magistrate. The only provision under which such statementscan be considered is sub-section (1) of Section 32 of the Evidence Act. Thesaid sub-section provides that a statement made by a person as to the cause ofhis death, or as to any of the circumstances of the transaction which resultedin his death, is relevant. The expression "circumstances of thetransaction which resulted in his death" means only such facts or seriesof facts which have a direct or organic relation to death. The circumstancesadmissible under this sub-section must have some proximate relation to theactual occurrence. 9.In Mrs. Rego Vs. The expression "circumstances of thetransaction which resulted in his death" means only such facts or seriesof facts which have a direct or organic relation to death. The circumstancesadmissible under this sub-section must have some proximate relation to theactual occurrence. 9.In Mrs. Rego Vs. Emperor, AIR 1933 Nag 136 = (1933)34 Cri.LJ 505, it was held that the transactionresulting in death contemplated by Section 32 (1) of the Evidence Act cannotpossibly mean any fact or series of facts which have no direct and organicrelation to death; and statements made by the deceased long before the actualincident of murder are inadmissible under the said sub-section. 10.In Narayan Swami Vs. Emperor, AIR 1939 PC 47 = (1939)40 Cri.LJ 364, Their Lordships, while considering thescope of sub-section (1) of Section 32, Evidence Act held that the expression"circumstances of the transaction" in the said sub-section is not asbroad as "circumstantial evidence" which includes evidence of allrelevant facts. The circumstances must have some proximate relation to theactual occurrence and they can only include the acts done when and where thedeath was caused. In other words, the circumstances must be circumstances ofthe transaction which resulted in death (vide observations at p. 50).Circumstantial evidence of the transaction is to be distinguished fromthe4circumstances of the transaction itself. In the instant case evidence hasbeen led about statements made by the deceased long before this incident whichmay suggest motive for the crime. Such statements, in our opinion, areinadmissible in evidence under sub-section (1) of Section 32 of the EvidenceAct, and must be excluded from consideration. 11.Even otherwise, if statements are considered relevant and admissible underSection 32 of the Evidence Act, then also we do not consider it safe to rely onthem. Absence of MLC report; confabulation and unexplained delay in making ofFIR; non-examination of any Doctor who treated Smt . Sarumbai before or after her statement was recorded by theExecutive Magistrate or I.O.; these are some of the important but unexplainedfeatures of the prosecution case which lend support to the defence version that incident was a mishap or accident as narrated by Ganesh ; Ramchander ; and Sumersingh (D.W. 1 and D.W. 3). In this background, we findevidence on record is quite shaky leaning more towards acquittal rather thanfor his conviction and sentence. 12.In the result, we allow this appeal and set aside the judgment of convictionand sentence passed by the Trial Court. Appellant is on bail. His bail bondsstand discharged. In this background, we findevidence on record is quite shaky leaning more towards acquittal rather thanfor his conviction and sentence. 12.In the result, we allow this appeal and set aside the judgment of convictionand sentence passed by the Trial Court. Appellant is on bail. His bail bondsstand discharged. Fine amount, if paid, be refunded to appellant. Order accordingly.