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2012 DIGILAW 312 (CHH)

PRITRAM v. STATE OF M. P.

2012-11-30

PRITINKER DIWAKER

body2012
JUDGMENT 1. The present appeal arises out of judgment & order dated 29.10.94 passed by Second Additional Sessions Judge, Raipur in ST. No. 74/1992 convicting the accused/appellants for the offence punishable under Sections 304B and 498-A IPC and sentencing them to undergo rigorous imprisonment for seven years and to undergo rigorous imprisonment for two years and pay fine of Rs. 500 each, in default of payment of fine to further undergo rigorous imprisonment for two months. 2. In the case in hand, deceased Kiran Lata is wife of appellant No. 2 whereas appellant No.1 is father-in-law of the deceased. Marriage of Kiran Lata (since deceased) was solemnized with the accused/appellant on 15.5.89 and she died on 7.6.91 after sustaining 90% burn injuries on 3.6.91 in her matrimonial house. She was immediately hospitalized at D.K. Hospital, Raipur where she died on 7.6.91. Merg intimation Ex.P-12 was recorded and inquest Ex.P-6 was prepared. After merg enquiry, on 10.6.91, FIR (Ex.P-15) was registered against the accused/appellants under Section 304-B/34 IPC. Post mortem on the body of deceased was performed by Dr. D.C. Jain (PW-8) vide Ex.P-11 and according to him cause of death was syncope due to bum. After investigation, charge sheet was filed on 3.10.91 under Sections 304-B, 34 and 498-A IPC against the accused/ appellants and acquitted accused Murho Bai and Ganpat. 3. In support of its case, prosecution has examined 15 witnesses Statement of the accused /appellants were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charges leveled against them and pleaded their innocence and false implication in the case. 4. After hearing the parties, the Court below has acquitted accused Murho Bai and Ganpat of all the offences but has convicted and sentenced the present accused/appellants as mentioned in paragraph No. 1 of this judgment. Hence this appeal. 5. Pursuant to the bail-able warrant issued by this Court, information dated 20.12.2011 has been sent by the Station House officer Rajim, District Raipur that appellant No.1 Pritam S/o. Budhram has expired. Counsel appearing for the appellants also confirmed the said fact. In view of this, present appeal confines only in respect of appellant No. 2 Banshilal. 6. Contention of Shri Tripathi, counsel for the appellant is that even if the entire prosecution case is taken as it is, accused/appellant Banshilal cannot be convicted under Section 304-B IPC. Counsel appearing for the appellants also confirmed the said fact. In view of this, present appeal confines only in respect of appellant No. 2 Banshilal. 6. Contention of Shri Tripathi, counsel for the appellant is that even if the entire prosecution case is taken as it is, accused/appellant Banshilal cannot be convicted under Section 304-B IPC. He submits that while making statement in the Court, Shyam Lal Sahu (PW-5) and Laxmi Bai (PW-6) father and mother of the deceased have improved their version and falsely implicated the appellant. He further submits that dying declaration of the deceased was recorded on 5.6.91 but the same has not been exhibited and the related witness Naib Tahsildar has not been examined for the best reasons known to the prosecution. 7. On the other hand supporting the impugned judgment, it has been argued by Shri D.K. Gwalre, State Counsel that the conviction of the accused/appellant is strictly in accordance with law and there is no infirmity in the same. He submits that the dying declaration of the deceased has not been exhibited in the Court and why the Tahsildar who recorded the said statement has not been examined before the trial Court is not clear from the record. 8. Heard counsel for the parties and perused the material available on record. Bhuneshwar (PW-1) neighbour of the appellant who reached the place of incident afterwards, has not stated anything against the accused/appellant except his presence and at the latter part of his evidence he was declared hostile. G. Ratnachalam (PW-2) had also attended the deceased after the incident has not stated anything against the accused/ appellant. Pawan Kumar Sahu (PW3) Patwari has prepared spot map Ex.P-2. Sewa Ram (PW-4) seizure witness of certain documents vide Ex.P-3 has not stated anything against the accused/appellant. Shyam Lal (PW-5) father of deceased has stated that marriage of the deceased with accused/appellant was solemnized on 15.5.89 and on the date of incident, he received intimation about the burn injuries being suffered by the deceased. He has stated that when he reached the hospital deceased was conscious and talking slowly. He has further stated that in presence of his brother Mukundlal Sahu, brother in law and Banshilal husband of the deceased, his daughter informed him that she was burnt by the accused/appellant, her father-in-law, brother-in-law and husband of her sister-in-law by pouring petrol on her. He has stated that when he reached the hospital deceased was conscious and talking slowly. He has further stated that in presence of his brother Mukundlal Sahu, brother in law and Banshilal husband of the deceased, his daughter informed him that she was burnt by the accused/appellant, her father-in-law, brother-in-law and husband of her sister-in-law by pouring petrol on her. He has further stated that according to the deceased but for her mother in law all other family members were there and after tying her up even water was not offered to her and then she was set on fire. He has stated that as many as four letters including one unknown letter was seized by the police vide Ex.P-3, inquest of the body was prepared in his presence vide Ex.P-4 which was duly signed by him. He has further stated that at the eve of Teeja festival when the deceased came to his house she complained that she was not being provided with daily needs and was subjected to cruelty by the accused/appellants. She has also stated that the accused/appellants asked the deceased to arrange for 2 acres of land like her younger sister-in-law. He has further stated that accused/appellant did not keep the deceased with him at Mahasamund where he was residing and she hardly lived for about 10-15 days along with him at Mahasamund and thereafter she was living in her matrimonial house. He has further stated that her daughter also informed him that the accused/appellant was having relation with some other lady. In cross-examination when he was confronted from his case diary statement (Ex.D-1) he has stated that at the time of recording diary statement he had disclosed to the police that deceased informed him that she was set on fire by the accused /appellants and likewise the other allegations which he has made in the examination-in-chief but if these facts were not recorded by the police he could not tell the reason. He has further stated that even at the time of inquest Ex.P-4, he had disclosed all the facts to police but he could not tell the reason as to why the same could not be recorded in the said inquest. He has further stated that he did make an application to the Sahu community but no meeting was called by it. He has further stated that he did make an application to the Sahu community but no meeting was called by it. He has however admitted the fact that he did not report the matter to the police on earlier occasion and even after receiving the letter Ex.P-3 he did not inform the police about anything. He has admitted the fact that deceased was suffering from itching problem for which she was treated at Bhilai for 4-6 months. He has stated that at the time of marriage deceased was studying in Class 10th and thrice she appeared in the said examination but failed. According to him, deceased had strong desire to pursue her studies. He has further admitted the fact that anonymous letter (Ex.P-9) was received by him after performing the rituals of the deceased and in the said letter it was suggested to file a case for demand of dowry. He has admitted the fact that in the hospital when blood was needed for the deceased it was given by the acquitted accused Ganpat who happens to be brother-in-law (Dewar) of the deceased. According to him, when he met the deceased in the hospital he found the mark of injuries on her wrist and legs which could be due to tying with rope. He has admitted the fact that when he met accused/ appellant in the hospital he found that his hands and legs were burnt. Lakshnii Bai (PW-6) mother of the deceased has made almost similar allegations as has been made by Shyam Lal Sahu (PW5) and in cross examination she too has stated that all these allegations which have been made by her in the Court were made at the time of recording her case diary statement Ex.D-2 and she could not tell the reason as to why the same were not recorded. She has admitted the fact that the accused/appellant had also sustained bum injuries and that in the hospital the Magistrate recorded the statement of the deceased and at that time no one was present. She has further stated that she had asked the deceased to make statement as told by her and thereafter deceased had informed her that she has made the statement as desired by her. She has further admitted the fact that deceased had never informed her about the demand made by the accused/appellant and his family members in relation to land. She has further stated that she had asked the deceased to make statement as told by her and thereafter deceased had informed her that she has made the statement as desired by her. She has further admitted the fact that deceased had never informed her about the demand made by the accused/appellant and his family members in relation to land. Mukund Lal (PW-7) Uncle of the deceased has stated that after receiving the information when he reached the hospital he found the deceased fully burnt and when he made enquiry from her she was not able to speak anything. Thereafter this witness was declared hostile. In cross-examination, he has stated that at the time of marriage TV set was given to the deceased but antenna of the same could not be given for which demand was made by her father-in-law. Dr. D.C. Jain (PW-8) had performed the post mortem on the body of the deceased vide Ex.P-11 and according to him cause of death was syncope due to bum. Chhotelal (PW-9) villager has not stated anything against the accused/appellant. Dhani Ram (PW-10) neighbour of the accused/appellant who reached the place of incident immediately after the incident, has not stated anything against the accused/appellant. Shanti Bai (PW-11) neighbour at the relevant time was residing just opposite to the house of the accused/appellant has stated that when she reached the house of accused/appellants she saw the family members of the accused/ appellant offering medicine to the deceased and she also helped in the same. She has stated that while applying medicine when she asked the deceased as to how she suffered bum injuries the deceased informed her that while lighting the earthen lamp she sustained the said injury. She has stated that thereafter in a jeep deceased was shifted to Raipur. In para 5 she has categorically stated that there never used to be any quarrel between the family members of accused/appellant and the deceased and their behaviour was good. She has further stated that deceased used to visit her house and likewise she also used to visit her house but the deceased never made any complaint against her in-laws and that they lived happily. Bal Mukund Yadu (PW-12) ASI at the relevant time, received and recorded the merg intimation Ex.P-12 and P-13. She has further stated that deceased used to visit her house and likewise she also used to visit her house but the deceased never made any complaint against her in-laws and that they lived happily. Bal Mukund Yadu (PW-12) ASI at the relevant time, received and recorded the merg intimation Ex.P-12 and P-13. Jageshwar Ram Sahu (PW-13) is the witness who helped the accused/appellant and his family members in shifting the deceased to hospital. He has stated that when the deceased was taken to hospital, on the way, she asked for water and when the vehicle was stopped she informed him that as the light of the house was switched off and she was lighting the earthen lamp she suffered bum injuries. She also informed that while extinguishing the fire, accused/appellant also suffered bum injuries. G. Chalam (PW-14) - the nurse who attended the deceased immediately after the incident has stated that at the relevant time, there was interruption in power supply in the house of appellant and she found the deceased in burnt condition. She has stated that when she enquired from the deceased as to how she suffered burn injuries, she did not disclose anything to her and thereafter she was taken to DK Hospital. She has stated that no smell was coming from the clothes of the deceased. Thereafter, this witness has been declared hostile. B.L. Saharia (PW-15) Investigating Officer has duly supported the case of prosecution. 9. In the record of the trial Court there is dying declaration of the deceased and as per the said dying declaration which was recorded by Naib Tahsildar A.K. Vaishnav and duly certified by the doctor, has stated that the deceased was not liked by the accused/ appellant and when the family members used to inform him about her by exaggerating things, accused/appellant used to scold her and 2-3 days prior to the incident she had a quarrel with him and at that time he asked her to accompany him or else he will commit suicide and upon hearing the same she poured kerosene oil on her and set herself on fire. She has stated that the accused/appellant made an attempt to extinguish the fire and then she was shifted to hospital. She has stated that the accused/appellant made an attempt to extinguish the fire and then she was shifted to hospital. Though the dying declaration is there on record, for the best reasons known to the prosecution, the same has not been proved and exhibited by the prosecution or even by the defence. 10. Minute examination of the evidence available on record makes it clear that marriage of the deceased with the accused/appellant was solemnized on 15.5.89 and on 7.6.91, she died after suffering 90% burn injuries. After the incident, on 5.6.91 dying declaration of the deceased was recorded but for the reasons best known to the prosecution it was not proved and exhibited by the prosecution. In the dying declaration which was recorded at DK Hospital, Raipur it has been stated by the deceased that her name is Kiran lata, name of her husband is B.L. Sahu and that she was residing at Loharsi. She has further stated that though she used to work a lot in the house, her husband never liked her and her family members were persistently asking him to take her to task. She has stated that 2-3 days prior to the recording of statement she had a quarrel with the accused/appellant and when the accused/appellant asked her to accompany him or else he will commit suicide, and on hearing the same, she poured kerosene oil on her and set herself ablaze. She has further stated that her husband tried to extinguish the fire and then she was shifted to hospital. Though this dying declaration has not been filed and exhibited at the time of trial, defence is entitled to make use of any such document which is a part of record. As such, in view of the facts and circumstances of the case and the law applicable, this Court is of the considered view that the dying declaration though not exhibited or proved in the trial can be used by the defence if it is favourable to the accused/appellant. In a case of suppression of material document by the prosecution it is open to the Court to presume that statement withheld would become unfavorable to the prosecution if produced and non furnishing of the statement so recorded would occasion a great prejudice to the accused. In a case of suppression of material document by the prosecution it is open to the Court to presume that statement withheld would become unfavorable to the prosecution if produced and non furnishing of the statement so recorded would occasion a great prejudice to the accused. On account of non supply of statement or material document, the accused is denied of his valuable right to cross-examine the prosecution witness. In an almost similar case of Lallusingh S/o. Jagdishsingh Vs. state of M.P. 1996(0) MPLJ 452 , Division Bench of Madhya Pradesh High Court has held as under: "5. We were taken to the evidence on record. Dying declaration recorded by the Executive Maghistrate/Naib Tehsildar, Ujjain has been filed in the case along with the challan, but the same was not proved during the course of trial. However, it has been taken in paper book at the request of the counsel for the accused. Similarly the injury report of accused was also not proved but was taken in the paper book at the request of accused-appellant. 6. We deprecate method of prosecution of withholding the evidence collected during investigation. The prosecutor is a 'State' and, therefore, the prosecution should be fair enough to produce all the evidence collected during investigation and it should be left to eh Court to come to its own conclusion on the facts proved before him or the Court concerned. But, despite the absence of formal proof of document of dying declaration, the same can be made use of by the accused in his defence accused can take the advantage of the document even without proof of the same. Similarly, the medical certificate showing the injuries on the body of the accused can also be made use of by the accused despite absence of formal proof. 7. Though it is desirable that if the prosecution fails to produce the evidence for proving the document which it goes in favour of the accused; that accused should get the witnesses summoned through Court and prove the document. However, even if this formality has not been observed, since the document is a part of record and has been produced along with the police report, the same can always be considered by the Court to the advantage of the accused." 11. However, even if this formality has not been observed, since the document is a part of record and has been produced along with the police report, the same can always be considered by the Court to the advantage of the accused." 11. In the detailed dying declaration dated 5.6.91 deceased has categorically stated that 2-3 days prior it is she who poured kerosene oil on herself and set ablaze. The factum of recording the dying declaration by the deceased has also been admitted by Laxmi Bai (PW-6) who in categorical terms has stated that the dying declaration of the deceased was recorded in the hospital by the Magistrate. This witness has further stated that at the time of recording dying declaration of the deceased she was all alone. 12. Considering the statement of this witness and the available dying declaration in the record, the entire prosecution case becomes doubtful. Further from the statement of Shyam Lal Sahu (PW-5) and Laxmi Bai (PW-6), it is apparent that while deposing in the Court these witnesses have not only exaggerated their version but have given entirely new story. In their case diary statement, they have merely stated that the deceased was subjected to harassment and cruelty for demand of dowry as a result of which she committed suicide whereas in the Court they have stated that in the hospital the deceased informed them that after tying her up the accused/appellant and his family members set her on fire by pouring kerosene oil on her. Thus, their statement becomes doubtful. 13. Even if the letters of the deceased are taken into consideration, though the prosecution has failed to prove that these letters were written by the deceased, it is apparent that there is no mention of demand of dowry or cruelty by the accused/appellant or any of his family members. Rather letter dated 1.3.91 and 1.4.91 reflects that she was happily living in her matrimonial house. As per Shyam Lal Sahu (PW-5) father of deceased, he saw marks of injuries on the hands and legs of the deceased whereas in the post mortem report and inquest, no such marks of injuries were found. As per Shanti Bai (PW-11) and Jageshwar Ram (PW-13) oral dying declaration was made by the deceased before them wherein she has categorically stated that she suffered burn injuries while lighting earthen lamp. As per Shanti Bai (PW-11) and Jageshwar Ram (PW-13) oral dying declaration was made by the deceased before them wherein she has categorically stated that she suffered burn injuries while lighting earthen lamp. Here also the statements of Shyam Lal Sahu (PW-5) and Laxmi Bai (PW-6) becomes doubtful because according to them, the deceased was set on fire by the accused persons. From the evidence available on record it is clear that the accused/appellant was not residing at village Loharsi as he was working at Mahasamund and there is no evidence that he used to frequently visit Loharsi and harass the deceased. Further, there is no concrete; evidence on record to show that soon before her death the deceased was subjected to cruelty for demand of dowry. It is a settled legal position that no straight jacket formula can be fixed to describe the term "soon before death" and it being a relative term would depend upon the circumstances of each case. In the case in hand, no such evidence has been adduced by the prosecution that soon before the death of the deceased there was demand of dowry by the accused/appellant or that she was subjected to cruelty by him. 14. Thus, on the basis of mere general allegations against the accused/appellant it would not be safe for this Court to uphold his conviction recorded by the Court below in the judgment impugned. 15. Accordingly, the appeal is allowed Judgment impugned is set aside. Accused/ appellant is acquitted of the charges leveled against him. Appellant is on bail. His bail bonds stand discharged. Appeal Allowed.