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2013 DIGILAW 113 (CHH)

STATE OF M. P. v. BHARAT

2013-03-21

PRITINKER DIWAKER, YATINDRA SINGH

body2013
JUDGMENT 1. This appeal has been preferred against the judgment and order dated 17.04.1999 passed by Additional Sessions Judge, Bilaspur in Sessions Trial No. 205/1997 acquitting the respondents/accused of the charge under Sections 498A, 302, 304B and 306 IPC. 2. In the case in hand, name of the deceased is Santoshi Bai wife of respondent/accused Bharat. Deceased was the second wife of respondent/ accused Bharat and her marriage with him was solemnized about one year prior to the date of incident i.e. 23.04.1997. As per the case of prosecution, on 23.04.1997 at about 6 a.m. Santoshi Bai suffered burn injuries and was immediately taken to PHC, Masturi where at 8 a.m. Rojnamcha entry was made at the instance of respondent No.1 but considering her serious condition, she was referred to Government hospital, Bilaspur. On that day itself at about 8.45 a.m. Santoshi Bai was medically examined by Dr. M.K. Rai (PW-8) vide Ex.P-4 and according to him he noticed 80% burns on her body. Written report Ex.P-2 was made by Ramsanehi Sahu (PW-4)-uncle of the deceased on that day itself alleging that she was subjected to cruelty by the respondents/accused. Based on this written report, Dehati Nalishi EX.P-3 was recorded under section 498-A IPC against both the respondents and further based on that FIR Ex.P-14 was recorded under section 498-A IPC. On that day itself at 10.55 p.m. dying declaration of the deceased EX.P-11 was recorded by Naib Tehsildar N.K. Tiwari (PW-13) and in the said dying declaration Dr. Arvind Shukla (PW-12) made an endorsement that she was in a fit state of mind to give statement. On 28.04.1997, Santoshi Bai succumbed to the burns and information Ex.P-13 was given to the police from the hospital based on which Merg intimation was recorded. Postmortem examination was conducted on the body of the deceased by Dr. P.C. Gupta (PW-9) and according to him cause of death was coma and shock as a result of burn wounds. After completion of investigation, charge-sheet was filed on 30.04.1997 under Sections 498-A, 302, 304-B IPC and 3/4 of Dowry Prohibition Act. 3. In support of its case the prosecution has examined 17 witnesses. Statements of the respondents/accused were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. 3. In support of its case the prosecution has examined 17 witnesses. Statements of the respondents/accused were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. This apart, Kalidin (DW-1) has also been examined by the defence in support of its case. 4. By the judgment impugned the Court below has acquitted the respondents/accused of the charges leveled against them. Hence this appeal. 5. Heard counsel for the parties and perused the material available on record. 6. Counsel for the appellant/State submits that the Court below has erred in law in disbelieving the dying declaration of the deceased EX.P-11. He submits that there is no reason to disbelieve the dying declaration as the same has been duly proved by its recorder N.K. Tiwari (PW-13) and before and after recording the same medical certificate was issued by the doctor stating that the deceased was in a fit state of mind to give statement. He submits that neither N.K. Tiwari (PW-13) nor Dr. Arvind Shukla (PW-12) are the relatives of the deceased having any personal interest in the matter and therefore their statements should have been relied upon by the Court below. He submits that the Court below has erred in law in holding that immediately after the incident deceased was examined at PHC Masturi and the doctor has stated that she was semiconscious which does not mean that in the night when her dying declaration was recorded she was not conscious. Presumption drawn by the Court below that once in the morning she was semiconscious, she could not have made the statement at 10.45 p.m. is without any basis and cannot be accepted in law. He submits that the Court below has completely erred in law in ignoring the dying declaration of the deceased recorded before Jaipal Sahu (PW-3), Ramsanehi Sahu (PW-4), Sishupal Sahu (PW-5) and Ganeshram Sahu (PW-6). According to the State counsel almost all the witnesses have stated that deceased was subjected to cruelty by respondent No.1. 7. He submits that the Court below has completely erred in law in ignoring the dying declaration of the deceased recorded before Jaipal Sahu (PW-3), Ramsanehi Sahu (PW-4), Sishupal Sahu (PW-5) and Ganeshram Sahu (PW-6). According to the State counsel almost all the witnesses have stated that deceased was subjected to cruelty by respondent No.1. 7. On the other hand, supporting the judgment impugned it has been argued by the counsel for the respondents/accused that by a well reasoned order, the Court below has acquitted the respondents/accused and it is a settled legal position that if after perusal of evidence on record two views are possible, the view favouring the accused should prevail and doing exactly in the same manner the Court below has recorded its finding of acquittal. He submits that when the deceased was shifted to PHC Masturi, her condition was critical and she was not in a position to speak and in such a situation question of recording her dying declaration does not arise. He submits that immediately after the incident all the relatives of the deceased had reached there and remained with her throughout and thus the possibility of her being a tutor witness cannot be ruled out. He submits that evidence is there to show that it is the deceased who used to beat respondent No. 1 and therefore it cannot be said that she was subjected to cruelty in any manner by the respondents. He submits that had there been a dying declaration of the deceased, same would have been definitely apprised by Ramsanehi (PW-4) while lodging the written report Ex.P-2 and once no such statement was made by him it falsifies the dying declaration of the deceased Ex.P-11. He submits that in the court the relatives of the deceased have categorically stated that they did not inform the Police that the deceased had disclosed them that she was subjected to cruelty by the respondents/accused and considering the Court statements of these witnesses it can be said that they have improved their version while deposing in the Court. Lastly he submits that at least there is no evidence of cruelty against respondent No.2 and thus even if entire case of the prosecution is taken as it is, she cannot be convicted for any offence. 8. Lastly he submits that at least there is no evidence of cruelty against respondent No.2 and thus even if entire case of the prosecution is taken as it is, she cannot be convicted for any offence. 8. Premdas Manikpuri (PW-1) is the witness to seizure made under Ex.P-1 by which certain articles like kerosene container, match box and pieces of sari were seized from the place of incident. Achheram Sahu (PW-2) neighbour of respondents/accused has stated that respondent No.1 used to complain about the conduct of the deceased and it was also informed to him that she used to abuse and even slap him. Jaipal Sahu (PW-3) - brother of the deceased has stated that about one year prior to the date of incident marriage of the deceased was solemnized with respondent No. 1 and sufficient articles were given in the marriage. He has stated that about two days prior to the date of incident respondent No.1 had come to his house and made a demand for motorcycle. According to him, whenever deceased visited his house she used to inform that she was subjected to cruelty by the respondents. He has stated that on receiving the information about the deceased sustaining burn injuries he reached the hospital at Bilaspur and at that time she was alive and was admitted in burn unit. She had informed him that while she was working in her house respondent No.1 poured kerosene on her body and set her on fire. Though in paragraph-5 this witness has stated that he did not inform the police about demand of motorcycle by respondent No.1, in his case diary statement Ex.D-1 this fact is very much mentioned. Ramsanehi Sahu (PW-4) - the uncle of the deceased and lodger of written report has supported the case of the prosecution and stated that deceased used to inform that she was subjected to cruelty by the respondents/accused and that two days prior to the incident respondent No.1 had come to him and demanded motorcycle. On receiving information of the incident he reached the hospital where the deceased informed him that it is the respondent no. 1 who burnt her by pouring kerosene on her body. On receiving information of the incident he reached the hospital where the deceased informed him that it is the respondent no. 1 who burnt her by pouring kerosene on her body. Though in cross examination this witness has stated that he did not inform the police about the demand of motorcycle by the respondent No.1, from his case diary statement it is clear that such statement was made by him to the police. Shishupal Sahu (PW-5) - another brother of the deceased has stated that one day prior to the date of incident, respondent No.1 had come to his house and demanded motorcycle. He also threatened him that if any untoward incident took place, he should not be held responsible. After coming to know about the incident, he reached the hospital where the deceased informed him that when she was working in her house, respondent No.1 burnt her by pouring kerosene on her body. Ganeshram Sahu (PW-6) - cousin of the deceased has made similar statement like Ramsanehi Sahu (PW-4) and Shishupal Sahu (PW-5). Harish Chand (PW-7) is the Patwari who prepared spot map Ex.P-6. Dr. M.K. Rai (PW-8) is the witness who conducted medical examination of the deceased vide Ex.P-4 when she was brought to PHC Masturi and found 80% burns on her body. In paragraph No.3 this witness has initially stated that the deceased was unconscious but subsequently he has stated that she was semi conscious and therefore he did not make an inquiry from her and then looking to her serious condition she was shifted to Government hospital, Bilaspur. Dr. P.C. Gupta (PW-9) is the witness who conducted autopsy on the body of the deceased on 28.4.1997 vide Ex.P-5 and according to him deceased had suffered 75-80% burns and cause of death was coma and shock due to burn wounds. B.C. Singh (PW-10) is the witness who sent a requisition for dying declaration vide memo Ex. P-6. Radheshyam (PW-11) is the witness who recorded merg intimation Ex.P-7. Dr. Arvind Shukla (PW-12) is the witness who had certified the dying declaration and stated that deceased was in fit state of mind to give statement. He has stated that before and after dying declaration he recorded his satisfaction. N.K. Tiwari (PW-13) - Naib Tehsildar is the witness who had recorded dying declaration Ex.P-11 has stated that deceased had informed him that she was burnt by respondent No.1. He has stated that before and after dying declaration he recorded his satisfaction. N.K. Tiwari (PW-13) - Naib Tehsildar is the witness who had recorded dying declaration Ex.P-11 has stated that deceased had informed him that she was burnt by respondent No.1. Before recording dying declaration this witness obtained medical certificate of the deceased. He has denied that while making dying declaration the deceased was not in a position to answer the question properly and has stated that she answered all the questions properly. Visheshwar (PW-14) - neighbour of the respondents/accused has stated that once he was informed by respondent No.1 that deceased used to slap him. Firan Singh (PW-15) is the witness who made entry in the Rojnamcha Sanha at the instance of respondent No.1 vide Ex.P-12. V.K. Mishra (PW-16) is the Investigating Officer who has duly supported the case of prosecution. Dr. R.R. Tiwari (PW-17) is the witness who treated the deceased at Bilaspur. Kalidin (DW-1) has stated that it is the deceased who used to misbehave with the respondents and she even used to beat respondent No.1. 9. True it is that in an appeal against acquittal normally the appellate Court should not interfere with the findings of acquittal recorded by the Court below but it is equally true that if the Court below has based the acquittal on perverse reasoning, the appellate Court can always interfere the same if there is strong evidence to do so. In the case of Mookkiah and another Vs. State, represented by Inspector of Police (2013) 2 SCC 89 it has been held by the Supreme Court as under: "10. This Court in a series of decisions has repeatedly laid down that: "3... ...as the first appellate Court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be reappreciate the entire evidence, though while choosing to interfere only the court should fine an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal." 11. In State of M.P. v. Ramesh this Court, while considering the scope and interference in appeal against acquittal held: "15. We are fully alive of the fact that we are dealing with an appeal against acquittal and in the absence of perversity in the said judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. It is settled proposition of law that the appellate court being the final court of fact is fully competent to reappreciate, reconsider and review the evidence and take its own decision. Law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court and there can be no quarrel to the said legal proposition that if two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal." 12. In Mrinal Das v. State of Tripura, while reiterating the very same position, the Supreme Court held: "14. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are 'compelling and substantial reasons' for doing so. If the order is 'clearly unreasonable', it is a compelling reason for interference. An order of acquittal is to be interfered with only when there are 'compelling and substantial reasons' for doing so. If the order is 'clearly unreasonable', it is a compelling reason for interference. When the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts, etc. the appellate court is competent to reverse the decision of the trial court depending on the material placed." 13. In Rohtash v. State of Haryana this Court held: "27. The High Court interfered with the order of acquittal recorded by the trial court. The law of interfering with the judgment of acquittal is well settled. It is to the effect that only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of the acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. 14. In a recent decision in Murugesan v. State, the Supreme Court elaborately considered the broad principles of law governing the power of the High Court under Section 378 of the Code of Criminal Procedure while hearing the appeal against an order of acquittal passed by the trial Judge. After adverting to the principles of law laid down in Sheo Swarup v. King Emperor and a series of subsequent pronouncements, in para 21 summarised various principles as found in para 42 of Chandrappa v. State of Karnataka as under: "27. A concise statement of the law on the issue that had emerged after over half a century of evolution since Sheo Swarup is to be found in para 42 of the Report in Chandrappa v. State of Karnataka. The same may, therefore, be usefully noticed below: '42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. The same may, therefore, be usefully noticed below: '42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and law. (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", ':distorted conclusions", "glaring mistakes", etc are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.'" 10. Minute examination of the evidence of the witnesses goes to show that on 23.04.1997 deceased was burnt by respondent No.1 after pouring kerosene on her body and immediately thereafter her dying declaration was recorded which has been duly proved by N.K. Tiwari (PW-13) and Dr. Arvind Shukla (PW-12). There is no reason for this Court to disbelieve the dying declaration of the deceased recorded strictly in accordance with law. The Court below has erred in law in disbelieving the dying declaration on the ground that immediately after the incident deceased was hospitalized at Masturi, the treating doctor has recorded his opinion that she was semi conscious. There is no reason for this Court to disbelieve the dying declaration of the deceased recorded strictly in accordance with law. The Court below has erred in law in disbelieving the dying declaration on the ground that immediately after the incident deceased was hospitalized at Masturi, the treating doctor has recorded his opinion that she was semi conscious. Merely the fact that the treating doctor has stated that in the morning when the deceased was brought to him, she was semi conscious, does not mean that she remained unconscious or semi conscious till 28.04.1997. It is not the case of either party that N.K. Tiwari (PW-13) or Arvind Shukla (PW-12) are the relatives of the deceased and as such interested with the case in any manner. These are the independent witnesses who have duly supported the case of prosecution. The Court below has further erred in completely ignoring the statements of Jaipal Sahu (PW-3), Sishupal Sahu (PW-5) and Ganeshram Sahu (PW-6) before whom oral dying declaration was made by the deceased who have stated that she was attended by them in the hospital. In the case in hand, dying declaration of the deceased speaks a lot that it is respondent No.1 who burnt her by pouring kerosene on her body. Even the witnesses have stated that when the deceased met them she used to inform about the cruelty meted out to her at the hand of respondent No.1. In other words, there is ample evidence to indicate that it is the respondent no.1 who ended the life of the deceased and that being so the approach taken by the Court below in acquitting him appears to be based on wrong premise. The judgment impugned so far as it relates to acquittal of respondent No.1 suffers from innumerable flaws and therefore it is liable to be set aside. As regards acquittal of respondent No.2, since there is no specific allegation against her, the judgment impugned deserves to be maintained. 11. In the result, acquittal of respondent No.1 Bharat is hereby set aside and that of respondent No.2 Dhana Bai is upheld. Respondent No.1 is convicted under section 302 IPC and sentenced to undergo imprisonment for life. He be sent to jail forthwith to serve out the sentence so imposed. 12. Appeal thus allowed in part. Appeal Partly Allowed.