Madhya Pradesh High Court
Guddi Bai @ Sahodra Bai vs State Of M.P. on 7 August, 2014
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Cr.A.No.199 of 2001
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH:
(HON. SHRI JUSTICE S.K.GANGELE &
HON. SHRI JUSTICE S.K. Palo)
CRIMINALAPPEAL No.199 OF 2001
....Appellant : Guddi Bai @ Sahodara Bai
Versus
...Respondent : State of Madhya Pradesh
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None for the appellant.
Shri Vivek Khedkar, Deputy Advocate General and Shri Praveen
Newaskar, Public Prosecutor for the respondent/State.
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JUDGMENT
(07/08/2014) Per Justice S.K. Palo, Aggrieved by the judgment dated 16.03.2001 passed by the Sessions Judge, Vidisha in Sessions Trial No.106/2000, whereby the learned Trial Court convicted the appellant under Sections 302 of IPC and sentenced her to undergo life imprisonment and also imposed fine of Rs.1,000/-, the appellant has filed this appeal under Section 374 (2) of Code of Criminal Procedure, 1973.
2. It is not disputed that deceased Saroj was married to accused Prahlad Singh, 4-5 years prior to the incident and the accused appellant Guddi Bai is mother-in-law of the deceased. The learned Trial Court acquitted Prahlad Singh the husband of the deceased.
3. Necessary relevant facts are stated hereunder to 2 Cr.A.No.199 of 2001 appreciate the case of the appellant and also to find out whether the appellant is entitled for the reliefs as prayed in this appeal.
4. On 27.05.2010, Smt. Saroj wife of accused Prahlad Singh aged about 25 years was brought to the District Hospital, Vidisha for treatment of burn. A dying declaration was recorded by the Tahsildar in which the injured Saroj stated that due to cerain quarrel her mother-in-law poured kerosene oil on her and set fire by matchstick. During her treatment, because of extensive burn, she died on 28.5.2000, therefore, a criminal case was registered under Section 302 of IPC.
5. During the investigation, the spot map was prepared, statements of the witnesses were recorded. The dead body was sent for post-mortem and charge-sheet has been filed under Section 302/34 of IPC against the accused mother-in- law (Guddi Bai) and husband (Prahlad Singh) of the deceased.
6. The learned Trial Court framed charge under Section 302 of IPC in alternative Section 302/34 of IPC against accused Guddi Bai and under Section 302/34 against co- accused Prahlad Singh. The accused persons abjured guilt and pleaded innocence. In the examination of accused under Section 313 of Cr.P.C., the appellant Guddi Bai has stated that in the month of phalgun, Devi Singh (brother of the deceased) had taken gold necklace and bengals from 3 Cr.A.No.199 of 2001 Saroj. On its demand he did not return it, therefore, she asked Devi Singh to give the ornaments but he did not do so. The appellant has also taken the plea that she was ill at the time of incident and was not residing at Village Bhadora where the incident took place. On the information sent to her by her husband Bhawani Singh, she went to the hospital. Similar plea was taken by accused Prahlad Singh. He went further to state that in the early morning, he was sleeping outside the house. The kerosene oil lamp was kept at the patia. The kerosene oil lamp fell on her and she caught fire. He brought injured Saroj from the village at District Hospital, Vidisha by tractor. He sent the message to his father as well as to his in-laws.
7. The learned Trial Court after examination of the witnesses and the defence witnesses, pronounced the impugned judgment on 16.03.2001. The learned Trial Court acquitted the accused Prahlad Singh but has convicted the appellant accused Guddi Bai under Section 302 of IPC. The appellant has been sentenced to imprisonment for life and also imposed a fine of Rs.1,000/-, failing which, the accused appellant has been directed to undergo additional imprisonment for one year.
8. None appeared on behalf of the appellant at the time of final arguments. It is the duty of the appellant and his lawyer to remain present on the appointed day, time and place when the appeal is posted for hearing. This is the 4 Cr.A.No.199 of 2001 requirement of the Code of Criminal Procedure on a plain reading of sections 385-386 of the Code of Criminal Procedure. The law does not enjoin that the Court shall adjourn the case, if both the appellant and his lawyer are absent. If the Court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. The law laid down in "Bani Singh and others v. State of U.P., AIR 1996 SC 2439", can be profitably referred in this circumstances in which it is held that "Appeal
- Both appellant and his lawyer absent on appointed day for hearing - Court not bound to adjourn case but should dispose of appeal on merits - Dismissal of appeal simpliciter for non-prosecution - Not contemplated".
9. In a recent judgment pronounced by the Hon'ble Apex Court in K.S. Panduranga v. State of Karnataka, 2013 CrLJ 1665, it has been very clearly and unambiguously observed that "it cannot be said that the Court cannot decide a criminal appeal in the absence of counsel for the accused even if the counsel does not appear deliberately or shows negligence in appearing. It depends upon the facts of each case".
10. In the present case, despite opportunities, none appeared for the appellant. The appeal is lingering on since 08.08.2001. The appellant is a lady and has been facing the trial since, 17.07.2000, therefore, in absence of the counsel for the appellant, we heard the matter.
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11. We have in many occasions earlier held that crime should not go unpunished at the same time, we also keep in mind the basic principle of jurisprudence that innocent person should not be allowed to suffer.
12. In the present case, the prosecution has been solely banked on the "dying declaration" made by the deceased Saroj.
13. It is no doubt that the deceased, died due to severe and extensive burn injuries. The doctors who performed the postmortem have ascertained that the deceased Saroj Bai had flame burn 100% superficial to deep burn. Blackening of face, chest and upper part of upper limb on both side burning of hair of scalp, eye brows and lashes. Oedematons eye lids and lips alongwith face. Other than burn, no external injury over body is seen. The doctors performing post mortem also opined that "mode of death is shock due to extensive burn. Death duration is within 4 hrs of post mortem".
14. It would be pertinent to mention here that in the post mortem which has been performed within four hours after the death, the doctors have not found any smell of "kerosene oil".
15. Dr. Azad Singhai, P.W.1 in his cross-examination in para 27 stated that had there been any smell of kerosene oil, they could have mentioned it in the report, but there was no such smell present. They have also stated that the burn 6 Cr.A.No.199 of 2001 is flame burn and on being asked in his cross-examination, he has answered that skin of her both hands were burnt. If the person with the burnt hands puts thumb impression, ridges would not be seen, where as the person who wrote the dying declaration is the Naib Tehsildar (P.W.2) has submitted that after the first dying declaration, Exhibit P-4, he has put the deponent's thumb impression.
16. Again after the second dying declaration, Exhibit P-5 also a thumb impression of the deponent was taken. All these makes the prosecution story clumsy and doubtful.
17. In the present case, the whole prosecution story hinges on the dying declarations of deceased Saroj.
18. The Hon'ble Apex Court has propounded the following in P.V. Radha v. State of Karnataka, (2003) 6 SCC 443 as follows:-
"Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has not power of cross examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence."
19. Before dealing with the merits of the case, we would like to reproduce the dying declaration recorded in the 7 Cr.A.No.199 of 2001 present case. The first dying declaration which was recorded at 11.14 am is Exhibit P-4, which read as follows:-
**iz'u% rqEgkjk D;k uke gS \ m%& ljkst iz'u% rqEgkjs ifr dk uke gS \ m%& izgykn flag iz'u% rqEgkjh mez D;k gS \ m%& 20 o"kZ iz'u% rqe dgkW dh jgus okyh gks \ m%& fryd HknkSjk iz'u% rqEgkjs ?kj esa dkSu dkSu gS \ m%& lkl] llqj] ifr] ,d cPph o vU; yksx iz'u% ?kVuk fdrus cts dh gS \ m%& lqcg 6 cts dh iz'u% rqEgkjs lkFk D;k gqvk \ m%& vkt lqcg 6 cts eSus pqYgk tykus ds fy;s dkWp dh f<cjh tykbZ FkhA Åij ifV;k ij f<cjh j[kh FkhA vpkud og uhps fxj xbZ vkSj fQj eq>s irk ugh pyk A iwjs diM+ks es vkx yx xbZA iz'u% arqEgs vkSj dqN dguk gS \ m%& ughA **
20. In this dying declaration Doctor on duty has certified about the consciousness and fitness of the patient.
21. Subsequently, after a letter (Exhibit P-9) given to the police by the father of the deceased, Kaluram P.W.6, police wrote a letter of request to the Naib Tahsildar to again record the second dying declaration. At 7.30 PM also, the doctor on duty has certified the consciousness and fitness of the patient. Second dying declaration is Exhibit P-5, which reads as follows:-
**iz'u% rqEgkjk uke D;k gS \ m%& ljkst iz'u% rqEgkjs ifr dk uke D;k gS \ m%& izgykn iztkifr iz'u% rqEgkjs firk dk uke D;k gS \ m%& dYyw iz'u% rqEgkjh mez D;k gS \ m%& 20 o"kZ iz'u% rqEgkjh 'kknh dc gqbZ \ m%& 4 o"kZ igys iz'u% rqEgkjk ek;dk dgkW gS \ m%& ihiy/kkj iz'u% rqe dgkW jgrh gks\ m%& HknkSjk iz'u% rqEgkjs ?kj esa dkSu & dkSu gS \ m%& nks nsoj] lkl] llqj] ifr] ,d cPph ] iz'u% rqe nqckjk c;ku D;ks nsuk pkgrh gks \ m%& EkS nqckjk c;ku nsuk pkgrh gwW A iz'u% igyh ckj c;ku D;k fdlds nokc esa fd;k Fkk \ m%& gkW nckc esa fn;k FkkA iz'u% ?kVuk fdrus cts dh gS \ m%& 7 cts lqcg dh A iz'u% ml le; ?kj es dkSu & dkSu Fkk \ m%& lHkh Fks vkSj lks jgs FksA iz'u% rqEgkjs lkFk D;k gqvk Fkk \ m%& ,d fnu igys esjk esjh lkl ls >xM+k gqvk Fkk fd rqe jksVh vPNh ugha cukrh A bl ckr ij esjh lkl us eq>s ekjk FkkA losjs mBdj eS pkSdk crZu dj jgh FkhA esjh lkl us fMCch esa tks feV~Vh dk rsy 8 Cr.A.No.199 of 2001 j[kk Fkk ] esjs lj ij mMsy fn;k vkSj ekfpl ls vkx yxk nhA esjh lkl us cpkus ds fy;s dqN ugh fd;k mYVk ;g dgus yxh fd blus [kqn vkx yxkbZ A tc esjs lkl us eq>s vkx yxkbZ] ml le; ogkW vkSj dksbZ ugha FkkA vkx yxkus ds ckn ?kj vkSj xkWo okys cpkus vk;s FksA lqcg eq>s esjh lkl us Mjk /kedk xyr c;ku fnyok fn;k FkkA esjh lkl eq>s vDlj ekjk djrh FkhA iz'u% rqEgs vkSj dqN dguk gS \ m%& ugha**
22. Keeping in mind that the application Exhibit P-9 was moved by the father of the deceased mentioning that at the time of the first dying declaration, they were not present, therefore, he requested for a second dying declaration. On the basis of this application, the police requested the Naib Tahsildar to record a dying declaration. In the second dying declaration, a leading question was asked as to under whose pressure the first dying declaration was given. Whereas the Executive Magistrate has exceeded his jurisdiction in asking leading question knowing fully well that a leading question is not called for.
23. Hira Bai P.W.4 is the mother of the deceased. As per her version her son Devi Singh and her mother (grand mother of the deceased) on receiving the information reached hospital at 10 AM. They were present with the injured Saroj at the hospital. The first dying declaration was recorded at 11 AM.
24. Chotay Ram P.W.5 is the maternal uncle of deceased Saroj Bai. He actually performed the marriage of Saroj Bai with accused Prahlad Singh because the Kalluram father of the deceased is not financial sound.
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25. Chotay Ram P.W.5 has been innocently admitted that Rajshree Bai is the wife of Rudra Pratap Singh. Rudra Pratap Singh is the local member of Legislature. Rajshree Bai is the Chairman of Zila Panchayat. Raj Shri Bai came to the hospital and told them to lodge a report. This fact has also been admitted by the mother of the deceased. Hira Bai P.W.4 in her cross-examination. In para 22, she has stated that ladies of Mahila Mandal, Vidisha came to the hospital in a jeep, they asked her to accompany them to the police station and report against the father-in-law and mother-in- law because her daughter is almost dying. This indicates that after the first dying declaration, on the saying of the Mahila Mandal and the Chairman of Zila Panchayat, the parents of the deceased changed and moved an application Exhibit P-9.
26. The story then twisted to make the case of demand of dowry. Incident took place after 4- 5 years of the marriage of the deceased whereas as Hira Bai P.W.4 has stated that the marriage took place 5 years before the incident. She has also admitted that in comparison to the accused persons, they are very poor. The accused Guddi Bai and husband Prahlad Singh have landed property which is more than four times to that of the parents of the deceased. She has also admitted that they don't have any source of income, therefore, the marriage was performed by the maternal uncle of the deceased. Their financial condition was not 10 Cr.A.No.199 of 2001 good. It was known to accused Guddi Bai. Despite that she agreed to get her son married to Hira Bai's daughter.
27. This indicates that the accused appellant was financially more sound and she knew that the parents of the deceased were not capable of giving dowry. The story of demand of dowry, therefore, seems to be not true.
28. As regarding the 'first dying declaration' having given under some pressure, it can be very well seen that the brother Devi Singh, grand mother and mother Hira Bai were present at the hospital from 10 am, whereas, the first dying declaration was recorded at 11.14 AM.
29. In the first dying declaration, the deceased has stated that she went to Kitchen for preparing tea. She kept the kerosene lamp on the patia (a sort of country made rack by placing a flat wooden or stone on the wall at a certain height) which fell down and she was set on fire due to which she was burnt. At the time of dying declaration she was conscious, cooperative and oriented regarding time, place and person. Thumb impression was also taken after recording the statement. The statement was read over and explained the contents of the documents to the injured. The medical officer made an endorsement that the injured was in a fit condition to make the statement.
30. The second dying declaration was recorded after meeting with her father and maternal uncle which creates suspicion.
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31. The first dying declaration is not suffering from any infirmity. At the other hand, the second dying declaration is suffering from infirmity and not corroborated by other evidence. Infirmity because it was not read over and explained to the deponent. There is no corroboration, because in the second dying declaration the deceased has stated that one day before the incident her mother-in-law had beaten her for not preparing roti properly. This could be the cause of pouring kerosene oil and set her on fire by the mother-in-law is not only improbable but also offends commonsense.
32. The Hon'ble Supreme Court in Khushal Rao v. State of Bombay, AIR 1958 SC 198, held that "it could not be laid down as an absolute rule of law or even as a rule of prudence which has ripened into a rule of law, that a dying declaration cannot form the sole basis of conviction unless it is corroborated." It has been held therein that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made.
33. In the present case, in order to test the reliability of a dying declaration, the Court has to keep in mind, the circumstances like the opportunity of the dying man for observation and that it has been made at the earliest opportunity and was not the result of tutoring by interested parties.
34. The earlier dying declaration was Exhibit P-4 recorded 12 Cr.A.No.199 of 2001 at 11.14 am and the second dying declaration was Exhibit P-5 recorded at 7.30 pm. The possibilities could not be ruled out that there could be ample chance of tutoring by interested parties.
35. In the case in hand, there are ample discrepancies in the second dying declaration, therefore, the same cannot be relied on for sustaining the conviction of the appellant.
36. On the anvil of the discussion made above, the second dying declaration of the victim that the appellant had set her ablaze cannot be held to be truthful, coherent and consistent. That being so, we cannot rely on the second dying declaration without any corroboration. Therefore, we are of the opinion that the learned Trial Court erred in relying on the second dying declaration Exhibit P-5 and based its judgment and conviction.
37. Accordingly, we allow this appeal, set-aside the impugned judgment of conviction and order of sentence passed by the learned Trial Court. The appellant is acquitted from the charge under Section 302 of IPC. The appellant is on bail, her bail bond and surety stands discharged.
(S.K.Gangele) (S.K. Palo)
Judge Judge
07/08/2014 07/08/2014
(ra)