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2018 DIGILAW 1070 (RAJ)

DHAKU v. STATE OF RAJASTHAN

2018-04-24

GOVERDHAN BARDHAR, MOHAMMAD RAFIQ

body2018
JUDGMENT : Mohammad Rafiq, J. This appeal has been filed by the accused-appellant Smt. Dakhu challenging judgment and order dated 1.5.1989/2.5.1989 passed by the Court of Additional District and Sessions Judge, Beawar (for short 'the Trial Court') whereby she has been convicted for offence under Section 302 and sentenced to life imprisonment with fine of Rs. 500/-, in default of payment of fine to further undergo one year's rigorous imprisonment. 2. Facts of the case are that one Ali son of Shera submitted a written report (Exhibit P-18) to S.H.O., Police Station Sadar, Beawar at 8.15 A.M. on 20.3.1988 alleging therein that while he was asleep in his house in the night of 19.3.1988, his neighbour Nanda son of Anna Rawat, who was staying with his family in the house of his agricultural field, came to him at 10.00 P.M. He told that his wife has bolted the room from inside and there was fire inside the room. He along with Nanak Raidas went rushing to the house of Nanda. He saw that Madan son of Nanda was sitting there and crying. His wife was sitting by his side. They told that Dhaku wife of Nanda had bolted the room from inside and son and daughter of Madan were also in the room, but no voice was coming from inside the room. Informant then stated that he opened the room and also at the same time stated that Dhaku opened the room at his askance. At that time, Sultan son of Birda had also come there and so many other persons assembled there. Dhaku from inside told that she was not wearing any clothes because her clothes were burnt. Sultan gave his 'chaddar to her to cover the body. Dhaku came out of the room by covering herself from the said 'chaddar'. There was smell of burning of clothes inside the room. When they entered the room, they saw that daughter and son of Nanda were lying dead on the ground. When they enquired from Dhaku as to why they have died, she told that when she was offering prayers and worshiping the deity, she was controlled by a superpower and in that state she has put them to death by strangulation. They stated that children namely Aamna and Depal were put to death by her. When they enquired from Dhaku as to why they have died, she told that when she was offering prayers and worshiping the deity, she was controlled by a superpower and in that state she has put them to death by strangulation. They stated that children namely Aamna and Depal were put to death by her. It was also stated that since it was past mid night, written report could not be submitted and it was being submitted on the following morning, 3. On the basis of aforesaid written report, F.I.R. No.37/1988 (Exhibit P-19) was registered for offence under Section 302 I.P.C. and investigation commenced. After conclusion of investigation, challan was filed against the accused-appellant for offence under Section 302. The Trial Court framed charge against the accused-appellant for offence under Section 302 I.P.C., which she denied and claimed to be tried. The prosecution, to secure conviction of the accused-appellant, produced 10 witnesses and got exhibited 22 documents. Thereafter, the accused-appellant was examined under Section 313 Cr.P.C., 1973 wherein she pleaded innocence. The defence produced one witness, but did not exhibit any document. The Trial Court, upon conclusion of trial, vide judgment and order dated 1.5.1989/2.5.1989 convicted and sentenced the accused appellant in the manner indicated above. Hence, this appeal. 4. Learned Counsel for the accused-appellant has argued that the learned Trial Court in the present case has recorded moral conviction rather than legal I conviction based upon evidence on record. The so-called extra judicial [ confession of the accused-appellant was actually no confession at all, inasmuch [ as not only Ali (PW-7), informant, who referred to extra-judicial confession, has not supported case of the prosecution and turned hostile, all other witnesses, whom the prosecution produced for proving that fact, have turned hostile. Learned Counsel in this connection referred to statements of Nanda, husband of accused-appellant (PW-2); Madan, son of the appellant and father of two children, who died (PW-3); Sayari (PW-4), mother of two children who died; Natha (PW-5); Nanak (PW-6), Ali (PW-7), informant, who opened the room, Sultan (PW-8). Learned Counsel also referred to statement of Investigating Officer Ratan Singh (PW-9) and Dr. K.K. Mishra (PW-10), who conducted autopsy of both the deceased. Learned Counsel has also referred to statement of Dr. Kailash Chand Mathur (DW-1). We shall make reference to the statements of prosecution witnesses at appropriate place. 5. Learned Counsel also referred to statement of Investigating Officer Ratan Singh (PW-9) and Dr. K.K. Mishra (PW-10), who conducted autopsy of both the deceased. Learned Counsel has also referred to statement of Dr. Kailash Chand Mathur (DW-1). We shall make reference to the statements of prosecution witnesses at appropriate place. 5. Learned Public Prosecutor opposed the appeal and argued that there was ample evidence on record to prove that the accused, when the children entered the room, bolted the room from inside and two children namely Depal aged 2 years and Aamna aged 4 years could hardly struggled with her to come out of the room. She put her clothes and other clothes on fire and in that process, she strangulated the children and put them to death. Learned Public Prosecutor in this connection referred to statement of Dr. K.K. Mishra (PW-10). Learned Public Prosecutor, therefore, submitted that conviction recorded by the learned Trial Court need not be interfered with and appeal be dismissed. 6. On hearing learned Counsel for the accused-appellant, learned Public Prosecutor and perusing the material on record, we find that in this case, not only informant, but other star witnesses of the prosecution have not supported the case of the prosecution. 7. Ali (PW-7), informant has stated that accused, her husband, her son, daughter-in-law and two grand children were staying in their house of the agricultural field. On the fateful day, Nanda came to him and told that his wife had locked the room from inside and that the room has caught fire and smoke was coming out of the room. Two children of Madan were inside the room. He along with Nanak went rushing to the house of Nanda. He found that the room was bolted from inside. He forcibly opened the room and found that Dhaku was lying unconscious. Two children were also lying there. At that time, there was complete dark. Dhaku was not wearing any clothes and there was smell of burning of clothes and also of the gas. Sultan (PW-8) had also come there. Sultan gave a shawl ('chaddar') to Dhaku to cover her body. Sultan then after giving her 'chaddar' took her out of the room. He himself then entered the room along with Nathu and Nanak and found that both the children had died. Since, Dhaku was unconscious, no question was put to her. Sultan (PW-8) had also come there. Sultan gave a shawl ('chaddar') to Dhaku to cover her body. Sultan then after giving her 'chaddar' took her out of the room. He himself then entered the room along with Nathu and Nanak and found that both the children had died. Since, Dhaku was unconscious, no question was put to her. This witness in cross-examination was confronted with written report (Exhibit P-18) and his statement (Exhibit P-17), recorded by the police under Section 161 Cr.P.C., 1973 wherein he stated that accused strangulated the children to death, he denied having given such statement. Therefore, this witness was declared hostile. 8. Nanda (PW-2), husband of the accused-appellant has stated that when he came back home after giving fodder to his buffaloes, at that time, he found that his wife was offering prayers and she was having a lamp lit of fire. Two children were also with her. When, he returned back, he found that room was locked from inside and smoke was coming out of the room. When he tried to open the room, it could not be opened. He called Dhaku, but she did not respond. Then, he went to the house of Ali. Ali came with him and opened the door. Even this witness has turned hostile. Madan (PW-3), son of the appellant and father of two children who died, stated that his mother was inside the room and children were playing outside. After sometime, children went inside the room. At that time, his mother was offering the prayer and in that process, she was using a lamp lit with fire. After sometime, his wife told him that his mother had bolted the room from inside. At that time, two children were also inside the room. When the fire was noticed, his wife (mother of the children) also cried for help. His father also came there. Then, his father called Ali, who by force opened the room. There was huge amount of smoke inside the room and nothing was visible. He saw that his two children were lying there on the ground and his mother was also lying in serious condition. His mother was not wearing clothes. Sultan gave cloth ('chaddar') to her to cover her body. Even this witness has turned hostile by not supporting the alleged confession by the accused. He saw that his two children were lying there on the ground and his mother was also lying in serious condition. His mother was not wearing clothes. Sultan gave cloth ('chaddar') to her to cover her body. Even this witness has turned hostile by not supporting the alleged confession by the accused. Sayari (PW-4), mother of two children who died and wife of Madan has given similar statement to that of her husband, Madan (PW-3) and she too has also been declared hostile. 9. Natha (PW-5), neighbour of the house of accused-appellant has stated that when Nanda was crying for help, he went to his house and found that room was bolted from inside and smoke was emitting out of the room. Nanda called Ali, then, Ali and Sultan forcefully opened the room. They found that Dhaku was not wearing any clothes and all her clothes were burnt. Sultan gave her a shawl to cover her body. Then, Dhaku came out of the room. Sultan entered the room and found that two children had died. Even this witness has been declared hostile. Nanak (PW-5) has also given similar statement to that of Natha (PW-4) and turned hostile. 10. Sultan (PW-8) has stated that Nanda told him that his wife Dhaku has become mad and bolted the room from inside. Then, he along with Madan and Nanak by force opened the room. Their children were already dead and Dhaku was lying on the ground in unconscious condition. She was completely naked, therefore, he gave her a shawl (chaddar) to cover her body and then brought her out of the room. Clothes of Dhaku had also been burnt. 11. Evidence of all these witnesses clearly indicates that two contradictory versions have been given by them. While one set of witnesses deposed that Sultan gave his shawl to Dhaku to cover her body and she herself came out of the room whereas other set of witnesses have stated that Dhaku was lying unconscious on the ground and her clothes were burnt in the fire. Her body was covered by shawl of Sultan and then she was lifted and brought out of the room. But none of the witnesses has supported alleged extra judicial confession of the accused, which was mentioned in the written report by Ali (PW-7), informant. 12. Coming now to statement of Dr. Her body was covered by shawl of Sultan and then she was lifted and brought out of the room. But none of the witnesses has supported alleged extra judicial confession of the accused, which was mentioned in the written report by Ali (PW-7), informant. 12. Coming now to statement of Dr. K.K. Mishra (PW-10), which has been heavily relied by the learned Trial Court to convict the accused-appellant, he has conducted post mortem over the body of Depal aged 2 years and opined that death was caused by asphyxia due to suffocation and the enormous amount of smoke that was generated by fire inside the room could be one of the reasons of suffocation. But his opinion about Aamna aged 4 years is that her death was caused by asphyxia due to strangulation. In cross-examination, he has stated that if there would be smoke inside the room, there would also be carbon monooxide and death due to asphyxia could be caused in such circumstances. 13. Defence has also produced Dr. Kailash Chand Mathur (DW-1), who has disputed the opinion given by Dr. K.K. Mishra (PW-10) by saying that in the case of strangulation, eyes of the subject would come out and would be open, but there is no such reference in the post mortem report of Aamna whether her eyes came out of capsule. He also stated that in a case of strangulation, tongue would be swollen and had dark colour, no such symptom was indicated in the post mortem report of Aamna. Then he stated that in a case of strangulation, palms of the subject would be closed and muscles of neck would be lacerated. Neither of the symptoms was indicated in the post mortem report of Aamna. Moreover, in the case of strangulation there would be fracture of hyoid bone, no such symptom was indicated in the post mortem report of Aamna. Besides in the strangulation, force could be applied either by use of hands, knee or the leg or any other object and the mark thereof would be visible on the neck, none of such symptoms was there in the post mortem report of Aamna. Congestion that was indicated in trachea and larynx could be of strangulation and also could be suffocation. Dr. Congestion that was indicated in trachea and larynx could be of strangulation and also could be suffocation. Dr. Kailash also stated that if a room in the size of 10 feet x 6 feet was full of smoke and death is caused due to strangulation in that room, kind of symptoms that are indicated in post mortem report of Aamna (Exhibit P-22) would be there. 14. In view of conflicting medical opinion, learned Trial Court, in our view, was not justified in relying only on one medical opinion and not evaluating correctness of the opinion that was given in contradiction to the opinion given by another doctor. In any case, there is definite, opinion with regard to death of Depal which was that he died by asphyxia due to suffocation and there is also strong possibility in the case of medical opinion of Aamna having also died by asphyxia due to suffocation. And it is also possible that the accused-appellant while she was offering prayer with a lamp lit with fire, in the process of changing her clothes, her clothes caught fire inside the room. Case of the prosecution entirely hinges on circumstantial evidence which in the present case has got several missing links inasmuch as possibility of the accused being innocent cannot be ruled out. In other words, the chain of circumstances is not such which rules out evey hypothesis that may be compatible with innocence of the accused. Charge of murder under Section 302 I.P.C. cannot be held to be proved against the accused-appellant beyond reasonable doubt. 15. In view of above discussion, the appeal is allowed. Impugned judgment and order dated 1.5.1989/2.5.1989 passed by the Trial Court is set aside. Accused-appellant is acquitted of the charge for offence under Section 302 I.P.C. She is on bail and need not surrender. Her bail bonds stand cancelled.