Allahabad High Court
Janardan Judbe And Others vs State Of U P on 16 January, 2019
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Umesh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 06.12.2018 Delivered on 16.1.2019 CRIMINAL APPEAL No.1665 of 1986 Janardan Dube and others ----- Appellants Vs State of Uttar Pradesh ----- Respondent. _______________________________________________________ For Appellants : Sri Dilip Kumar Sri Rajrshi Gupta Sri Vijay Singh Sengar, Advocates For Respondent/State : Sri J K Upadhyay, AGA _______________________________________________________ Hon'ble Pritinker Diwaker, J.
Hon'ble Umesh Kumar, J.
Per: Pritinker Diwaker, J.
1. This appeal arises out of the impugned judgment and order dated 11.06.1986 passed by the Sessions Judge, Etawah in Sessions Trial No.172 of 1985 (State Vs. Janardan Dube & Ors.), convicting the appellants under Section 302/34 of IPC and sentencing them to undergo life imprisonment.
2. In the present case, name of the deceased is Smt. Madalsa, wife of accused no.2, Rakesh Kumar. Their marriage was solemnized on 08.12.1980 and she died on 12.11.1983 in the hospital after sustaining 100% burn injury. It is said that on 11.11.1983 at about 8:00 am, all the three accused persons poured kerosene oil on the deceased and set her ablaze. Injured Smt. Madalsa was immediately taken to hospital where, on 12.11.1983, she succumbed to her injuries. The incident is said to have been witnessed by a child witness-Nisha (PW-2), who at the relevant time was aged about 8 1/2 years.
3. On the basis of a written report (Taharir)-Ex. Ka.3, lodged by (PW-1) Satya Narain Misra, FIR-Ex.Ka.4 was registered on 13.11.1983 against three accused persons under Section 302 of IPC. Inquest on the dead body of the deceased was conducted, vide Ex. Ka.9 on 12.11.1983 and the body was sent for postmortem which was conducted on 13.11.1983, vide Ex. Ka.13 by PW-5, Dr S K Srivastava. As per autopsy surgeon, following injuries were noticed on the body of the deceased:
"I, II, III degree burns present all over the body except both legs, feet & sores. Whole of the back involved in burn injury."
As per autopsy surgeon, the cause of death of the deceased was due to excessive burns and shock as a result of fluid loss.
4. While framing charge, the trial Judge has framed the charge against the accused persons under Section 302/34 of IPC. So as to hold the accused persons guilty, prosecution has examined six witnesses and two defence witnesses have also been examined. Statements of the accused persons were also recorded under Section 313 of Cr PC, where they pleaded their innocence and false implication.
5. By the impugned judgment, all the three accused persons have been convicted under Section 302/34 of IPC and sentenced to undergo life imprisonment.
6. During pendency of this appeal, accused no.2-Rakesh Kumar, husband of the deceased, has expired and this appeal confines only in respect of accused no.1-Janardan Dube and accused no.3-Smt. Premwati, i.e. father-in-law and mother-in-law of the deceased.
7. Counsel for the appellants submits:
(i) that the accused persons have been convicted solely on the basis of statement of a child witness (PW-2) Nisha; she appears to be a planted witness and her testimony is not reliable and her statement does not inspire the confidence of this Court;
(ii) that the presence of the child witness (PW-2)-Nisha appears to be a bit unnatural and likewise, her version that she saw the accused persons setting the deceased ablaze, appears to be doubtful. No specific role has been assigned to any individual accused and only general allegations have been made against them that all of them have set the deceased ablaze;
(iii) that the so called oral dying declaration made by the deceased before (PW-3) Praduman Kumar Misra is doubtful because as per (PW-2) Nisha, the said dying declaration was made by the deceased in her in-laws house where the incident occurred, whereas as per PW-3, it appears that the said dying declaration was made at Kanpur in the hospital;
(iv) that in the inquest which has been duly signed by (PW-3) Praduman Kumar Misra, it has come that PW-3 had merely shown suspicion on the accused persons, whereas as per prosecution case, the deceased made oral dying declaration before PW-3 that she was burnt by the accused persons. Had any dying declaration been made by the deceased before PW-3, in the inquest itself PW-3 ought to have disclosed this fact that it is the accused persons who have burnt the deceased;
(v) that whatever has been recorded in the inquest has been done by the Investigating Officer and none of the witnesses of inquest had disclosed anything and this fact has been admitted by (PW-3) Praduman Kumar Misra;
(vi) that present is a case where accused-appellant no.1-Janardan Dube and informant (PW-1) Satya Narain Misra, father of the deceased, had some business transactions in which, accused-appellant no.1-Janardan Dube had suffered some financial loss and, therefore, relation between them appears to be strange and that is why a false report has been lodged;
(vii) that while referring to the statement of (PW-1) Satya Narain Misra, it has been argued that just before her death, the deceased wrote a letter to her mother, requesting her and other family members, to visit her house even if they do not want to do so;
(viii) that the financial status of the appellants is far superior than that of the parents of the deceased and, therefore, question of raising any demand by them in particular, articles like, Scooter, Refrigerator and TV does not arise;
(ix) that on the date of occurrence, the accused persons were not present in their house and had gone to other village namely, Pindar, to attend the cremation of one of their relatives;
(x) that while recording the statements of the accused persons under Section 313 of Cr P C, incriminating circumstances appearing against them have not been put forth and the relevant questions have not been asked. The main piece of evidence against the accused persons is the statement of (PW-2) Nisha who, according to prosecution, was incidentally present in the house of the accused persons, but no such question has been put forth to the accused persons in their statements under Section 313 of Cr PC.
(xi) that in the postmortem report, smell of kerosene oil has not been noticed by the autopsy surgeon and this creates a doubt as to whether, in fact, the deceased was burnt after pouring kerosene oil or not;
(xii) that in the postmortem report, no other injury has been noticed by the autopsy surgeon except burn injuries.
(xiii) that as per prosecution case, as soon as the relatives of the deceased reached to the house of the accused persons, all the accused persons fled away from the spot and they did not participate in the cremation of the deceased, but this fact is totally incorrect because (DW-1) R K Gupta, who is a Photographer, took photographs of the cremation proceedings of the deceased, has duly supported the defence case and it has been admitted also by (PW-1) Satya Narain Misra that those photographs are of the cremation of the deceased, and that the last rites were performed by accused no.2-Rakesh Kumar and this shows that false allegations have been levelled by the prosecution.
8. Counsel for the appellants placed reliance upon the judgments of the Supreme Court in (1) Asfar Ali v State of Assam1, (2) Shaikh Maqsood v State of Maharashtra2 and (3) Ranvir Yadav v State of Bihar.3
9. On the other hand, State counsel supporting the impugned judgment and order submits:
(i) that (PW-1) Satya Narain Misra, (PW-2) Nisha and (PW-3) Praduman Kumar Misra have duly supported the prosecution case and there is no reason for this Court to disbelieve their statements;
(ii) that even if the prosecution have not made it clear about the participation of the accused persons individually, it has been specifically proved by the prosecution that all the three accused persons together burnt the deceased, resulting her death;
(iii) that child witness (PW-2) Nisha appears to be a natural witness and she has dully supported the prosecution case;
(iv) that (PW-2) Nisha has not been properly confronted by the defence and thus, her testimony cannot be discarded just because she is a child witness;
(v) that if the statement of child witness inspires the confidence of this Court, the said statement is good enough to uphold the conviction of the accused persons;
(vi) that the oral dying declaration was made by the deceased in the house of the accused persons where the incident had taken place and this oral dying declaration remained unchallenged, which clearly proves the involvement of the accused persons in commission of offence.
(vii) that the plea of alibi has not been proved by the defence as required under the law;
(viii) that there is absolutely no evidence as to why the deceased would commit suicide and once, it has come in the statement of the eye-witness (PW-2) Nisha that the deceased was burnt by the accused persons, minor contradictions in her statement are required to be ignored.
10. We have heard counsel for the parties and perused the record.
11. (PW-1) Satya Narain Misra is the informant and father of the deceased. He has stated that at the relevant time, he was posted at Mawana, District Meerut and he received a letter from (PW-3) Praduman Kumar Misra, who was residing at Auraiya. He states that after obtaining permission from his Department, he proceeded to Auraiya from where he had gone to Hospital at Kanpur, where he came to know that the deceased has expired. He states that he was informed about the entire incident by his daughter (PW-2) Nisha and his son (PW-3) Praduman Kumar Misra and based on which, he lodged the report. He states that the marriage of the deceased was solemnized with accused no.2- Rakesh Kumar on 08.12.1980 and the present appellants were annoyed with her and used to demand TV, Scooter and Refrigerator. He states that despite his efforts, the accused persons did not improve in their behaviour. When this witness was shown the photographs of the cremation ceremony of the deceased, he has denied that the funeral pyre shown in the photographs was of his daughter, but he admits that his photograph is also there along with other persons. He also admits that this photograph was of cremation ground and that his son-in-law i.e. accused no.2-Rakesh Kumar is also there bareheaded. He also identifies some of his relatives in those photographs. He states that immediately after the incident, the police came to record his statement and the statement of his son, but he requested them to record their statements on the next day and he refused to give the same on the first day. He further states that though (PW-2) Nisha was present but her statement was not recorded. He however, has denied the fact that he could not give his statement on the first day, as he was cooking a story. He has denied the fact that he was having any business transaction with accused no.1-Janardan Dube, i.e. his Samadhi. He has stated that shops were constructed by him only and it is he who invested the money. He has admitted the fact that accused no.1 has more than one Truck and likewise, has more than one property and also has agricultural land. He has further admitted the fact that his son (PW-3) Praduman Kumar Misra used to visit the house of accused persons and her daughter (deceased), prior to her death, wrote a letter to him, making a complaint as to why her parents do not visit her house and made a request to them to come to her house even if they do not want. He states that despite the said letter, he never visited the deceased.
12. (PW-2), Nisha was examined in the Court on 01.05.1986 and at that time, her age has been recorded 11 years, meaning thereby, at the time of incident, she was about 8 1/2 years. She has stated that about 3 years back, her sister was killed and at that time, she was in her house. She has stated that the accused persons were asking her that her father had not given TV, Scooter and Refrigerator and, therefore, they will make an arrangement for her. Initially, she was beaten by fist and then her hands were tied up and after pouring kerosene oil on her, she was burnt. She came running to her house and informed the incident to her mother and brother and then his brother (PW-3) Praduman Kumar Misra @ Munna, one Devendra and Brij Kishore (not examined) rushed to her house. The accused persons were about to take the deceased in a Truck to throw her body. However, after seeing them, they left her on the road itself. When (PW-3) Praduman Kumar Misra enquired from the deceased as to what had happened, she informed him that she was first tied up by the accused persons and after pouring kerosene oil on her, she was burnt. Her sister was first taken to Civil Hospital, Auraiya from where she was taken to Kanpur and at about 2:00 in the afternoon, she expired.
In the cross examination, (PW-2) Nisha has stated that initially the deceased was beaten in a room which is on the first floor, she was taken out in the Varandah and then she was burnt. She further states that in the morning when she reached to the house of accused persons, they were beating her and but for the accused persons, no one else was there. She has stated that she had gone to the house of the deceased a day prior, i.e. on 10.11.1983, as she used to visit her quite frequently. She has further stated that she slept along with the deceased in the night and at about 6:00 am, she came down from her room and then at about 8:00 am, the accused persons entered the room of the deceased. She has stated that she accompanied the deceased in a Truck to Kanpur and this fact was disclosed by her to the police. However, if the same is not recorded, she could not tell the reason. She has stated that the Truck in which, the deceased was taken was of accused no.1-Janardan Dube and when she again reached to the house of the accused persons, though about 40 persons were present, the accused persons were not there as they fled away from the spot. She has stated that in the Truck all her other family members were there and till they reached Kanpur, they never discussed about lodging the report to the police and she is not aware whether any police was present in the Kanpur Hospital. She has stated that there was a TV in the house of the accused persons.
13. (PW-3) Praduman Kumar Misra, is a brother of the deceased, aged 25 years. He states that he is also being called as Munna. He has stated that on 11.11.1983, at about 8:00 or 8:15 am, when he was in his house along with his friends, namely, Brij Kishore Tiwari and Devendra Kumar Tiwari and other family members, his younger sister, Nisha (PW-2) came there and informed that the accused persons, after pouring kerosene oil on the deceased, have burnt her. He immediately reached to the house of the accused persons and there he saw them taking out the deceased from their house and then all the accused persons fled away from the spot. The deceased was in her cot, which was on the road and one Truck was standing there. Injured was immediately taken to Auraiya Hospital from where she was referred to Kanpur Hospital and after taking custody of his sister, when he enquired from her as to what had happened, she informed him that she has been burnt by the accused persons after pouring kerosene oil on her. He has stated that he sent a written letter/information (Ex.Ka.1) to his father through a personal messenger and when his father reached Kanpur, a written report (Ex.Ka.3 ) was lodged in the Police Station. He has stated that when he reached to the house of the accused persons, the deceased was lying on a cot covered with cloth and when he enquired from her, she disclosed about the incident and then he believed that whatever has been informed to him by (PW-2) Nisha is correct. He has stated that injured Smt. Madalsa was taken in a Truck which was arranged by his maternal uncle, Kailash. In the inquest, his signatures were obtained by the Police Inspector and likewise, the signatures of other iapksa (Panchas) were also obtained and whatever was directed by the Police Inspector, it was written by him. He has further stated that at the time of recording inquest, there was no question and the Police Inspector further informed him that whatever he is dictating, the same be mentioned in the inquest. He states that likewise Devendra Kumar Tiwari has also signed the said inquest and he and other witnesses have not informed the police about the manner in which, the incident had taken place. When he was confronted from the inquest, he has stated that he did not disclose the police that he had suspicion in his mind that the deceased might have been killed by the accused persons. He has further reiterated that whatever he has written personally in the inquest has been written by him, as directed by the Police Inspector and he was aware that though things are incorrect, he has never informed his father that the Police Inspector has compelled him to write incorrect things in the inquest. He has further stated that as he was in grief, he wrote all the things in the inquest. He further admits that on 13.11.1983, when the police had asked to disclose the correct fact, he did not disclose the same on the said date and informed the police that he would record his statement on the next day. When he was confronted from his diary statement, where he had stated that after seeing him accused no.3-Premwati shouted that the brother of the deceased is coming and thereafter the accused persons fled away from the spot, however, he does not remember the said fact.
14. (PW-4)- Shiv Shanker Shukla is the Head Moharrir, who has registered the FIR, vide Ex.Ka.4.
15. (PW-5)- Dr S K Srivastava is the Autopsy Surgeon, who has conducted the postmortem on the body of the deceased and noticed the following injuries on the body of the deceased:
"I, II, III degree burns present all over the body except both legs, feet & sores. Whole of the back involved in burn injury."
16. (PW-6)- Sarnam Singh is the Investigating Officer, who has duly supported the prosecution.
17. Close scrutiny of the evidence makes it clear that there is general allegation against all the three accused persons to the effect that they burnt the deceased after pouring kerosene oil on her. No specific role has been assigned to each accused person. True it is, that it is not necessary for the prosecution to assigned specific role to each accused, but normally, if the eye witness account is there, we expect from him/her to depose as to in what manner the deceased was burnt. At least some description of the incident is expected from the eye witness.
18. Before we deal with the testimony of a child witness (PW-2) Nisha, it would be appropriate to consider certain judgments governing the field. In Suryanarayana v State of Karnataka4, the Apex Court held as under:
"The evidence of the child witness cannot be rejected per se, but the court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of the child witness. The evidence of P.W. 2 cannot be discarded only on the ground of her being of tender age. The fact of P.W. 2 being a child witness would require the court to scrutinise her evidence with care and caution. If she is shown to have stood the test of cross-examination and there is no infirmity in her evidence, the prosecution can rightly claim a conviction based upon her testimony alone. Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. Discrepancies in the deposition, if not in material particulars, would lend credence to the testimony of a child witness who, under the normal circumstances, would like to mix up what the witness saw with what he or she is likely to imagine to have seen. While appreciating the evidence of the child witness, the courts are required to rule out the possibility of the child being tutored. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the courts have no option but to rely upon the confidence inspiring testimony of such witness for the purposes of holding the accused guilty or not."
Further, in Panchhi v State of Uttar Pradesh5, the Supreme Court observed thus:
"It is not the law that if a witness is a child, his evidence shall be rejected even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus, a child witness is an easy prey to tutoring."
In Dattu Ramrao Sakhare v State of Maharashtra6, the Supreme Court held as under:
"The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored."
In Ratan Singh Dalsukhbhai Nayak v State of Gujarat7, it has been held by the Apex Court as under:
"6. Pivotal submission of the appellant is regarding acceptability of PW-11's evidence. The age of the witness during examination was taken to be about 10 years. The Indian Evidence Act, 1872 (in short the 'The Evidence Act) does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease-whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. This position was concisely stated by Brewer J in Wheeler v. United States. The evidence of a child witness is not required to be rejected per se, but the Court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. (See Surya Narayana v. State of Karnataka (2001) 9 SCC 129.
7. In Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341, it was held as follows:
"A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the Court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored".
The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher Court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make beliefs. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness."
19. Bearing in mind the above legal position, we now proceed to scan the testimony of (PW-2) Nisha with care and caution and also to see whether she can be relied upon or not.
20. At the relevant time, (PW-2) Nisha was just 8 1/2 years. The incident occurred on 11.11.1983, whereas the child witness was examined on 01.05.1986, i.e. after 2 1/2 years. Further, the eye witness is a rustic villager and considering all these aspects of the case, we are required to evaluate the evidence of (PW-2) Nisha minutely. Her version of demand of certain articles is identical to that of FIR lodged by (PW-1) Satya Narain Misra, wherein also it has been stated as to in what manner the demand was raised. Further, the presence of this witness in the house of the deceased creates a doubt as to whether, in fact, she was present in the house of the deceased or not. She has stated that she reached to the house of the deceased a day prior to the incident and in the morning she saw the accused persons beating the deceased, her hands were tied and then, she was burnt by the accused persons. She has further stated that immediately after seeing this incident, she rushed to her parents and narrated the entire incident to them. In the medical report, no such injury was found showing that the hands of the deceased were tied with rope.
In a case of beating and burning by tying the hands with rope, there may be a chance of sustaining injury by the deceased, as immediately after being burnt she would have struggled. According to child witness, she first saw the accused persons beating the deceased and at that time, only accused persons were present in the house. But this witness did not raise any alarm or even had asked the accused persons not to beat her sister. She further states that she accompanied the deceased in a Truck to Kanpur, however, this fact has not been recorded by the police in her diary statement. According to her, the Truck was of accused no.1-Janardan Dube, whereas as per other evidence, the Truck was of one Kailash. Further, if this witness accompanied the deceased in the Truck along with other relatives, there might be some discussion between the family members regarding the incident particularly when the deceased was burnt by the accused persons in presence of (PW-2) Nisha, but according to this witness, no discussion whatsoever took place in the Truck and they never discussed about lodging of FIR.
21. Considering the statement of the child witness (PW-2) Nisha, we are not fully satisfied with her statement and find it difficult to uphold the conviction of the appellants mainly on the basis of this witness.
22. So far as the oral dying declaration of the deceased made before (PW-3) Praduman Kumar Misra is concerned, as per (PW-2) Nisha the said dying declaration was made by the deceased in her matrimonial house where the incident occurred, whereas as per (PW-3) Praduman Kumar Misra, it appears to have been made at Kanpur in the Hospital. Furthermore, had there been any oral dying declaration before (PW-3) Praduman Kumar Misra, while recording the inquest, he would have certainly disclosed the police about the same, but instead he had merely shown suspicion on the accused persons. The statement of (PW-3) Praduman Kumar Misra that it is the Investigating Officer, who recorded everything in the inquest on his own, is also doubtful and likewise, his further statement that none of the witnesses of the inquest disclosed anything to the police, also creates a doubt.
23. There is no evidence or even suggestion that the Officer recording inquest had shown any favour to the accused persons or was biased against them.
24. Yet another important aspect of the case is the statement of (PW-1) Satya Narain Misra, who has admitted that just before her death the deceased wrote a letter to her mother, requesting her and other family members to visit her house, even if they do not want to do so. This letter also creates a suspicion as to what prompted the deceased to write such a letter. As per defence, accused no.l-Janardan Dube and informant, Satya Narain Misra (PW-1) had some business dealings in which, Janardan Dube had suffered financial loss and the relations between them were bitter and thus, possibility of false implication of the accused persons cannot be ruled out. Furthermore, it is admitted position that the financial condition of the accused persons was superior than that of the complainant's family and thus, question of raising demand of Scooter, T.V. and Refrigerator can also be questioned.
25. We further find some substance in the arguments of the defence that while recording the statement of the accused persons under Section 313 of Cr PC, certain incriminating circumstances appearing against the accused persons have not been put forth and the relevant questions have not been asked. According to prosecution, (PW-2) Nisha, main eye witness, was present in the house of the accused persons, but no such question has been put to the accused persons. Law in this respect is also well settled:
26. In State of M.P. v Ramesh8, the Apex Court observed as under:
"The statement of the accused made under Section 313 CrPC can be taken into consideration to appreciate the truthfulness or otherwise of the prosecution case. However, as such a statement is not recorded after administration of oath and the accused cannot be cross-examined, his statement so recorded under Section 313 CrPC cannot be treated to be evidence within the meaning of Section 3 of the Evidence Act, 1872. Section 315 CrPC enables an accused to give evidence on his own behalf to disprove the charges made against him. However, for such a course, the accused has to offer in writing to give his evidence in defence. Thus, the accused becomes ready to enter into the witness box, to take oath and to be cross-examined on behalf of the prosecution and/or of the accomplice, if it is so required."
27. In Rafiq Ahmed @ Rafi v State of UP9, the Supreme Court observed thus:
"It is true that the statement under Section 313 CrPC cannot be the sole basis for conviction of the accused, but certainly it can be a relevant consideration for the courts to examine, particularly when the prosecution has otherwise been able to establish the chain of events...."
28. In Dharnidhar v State of UP & Ors.10, the Supreme Court held as follows:
"The proper methodology to be adopted by the Court while recording the statement of the accused under Section 313 CrPC is to invite the attention of the accused to the circumstances and substantial evidence in relation to the offence, for which he has been charged and invite his explanation. In other words, it provides an opportunity to an accused to state before the court as to what is the truth and what is his defence, in accordance with law. It was for the accused to avail that opportunity and if he fails to do so then it is for the court to examine the case of the prosecution on its evidence with reference to the statement made by the accused under Section 313 CrPC."
29. In Ramnaresh & Ors. V State of Chhattisgarh11, the Apex Court held as under:
"It is a settled principle of law that the obligation to put material evidence to the accused under Section 313 CrPC is upon the court. One of the main objects of recording of a statement under this provision of CrPC is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires. But once he does not avail this opportunity, then consequences in law must follow. Where the accused takes benefit of this opportunity, then his statement made under Section 313 CrPC, insofar as it supports the case of the prosecution, can be used against him for rendering conviction. Even under the latter, he faces the consequences in law."
30. In Raj Kumar Singh @ Raju @ Batya v State of Rajasthan12, the Apex Court observed as under:
"In a criminal trial, the purpose of examining the accused person under Section 313 CrPC, is to meet the requirement of the principles of natural justice i.e. audi alterum partem. This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated with him, and the court must take note of such explanation. In a case of circumstantial evidence, the same is essential to decide whether or not the chain of circumstances is complete. No matter how weak the evidence of the prosecution may be, it is the duty of the court to examine the accused, and to seek his explanation as regards the incriminating material that has surfaced against him. The circumstances which are not put to the accused in his examination under Section 313 CrPC, cannot be used against him and have to be excluded from consideration."
31. Present is a case where the deceased was burnt after pouring kerosene oil on her, but no smell of kerosene oil has been noticed by the Autopsy Surgeon, nor there is any seizure of such articles proving that kerosene oil was poured on the deceased and then she was burnt. This apart, according to prosecution and its witnesses, after seeing the family members of (PW-1) Satya Narain Misra, all the accused persons fled away from the spot and they never participated in the last rites of the deceased, whereas as per (DW-1) R K Gupta, a Photographer, presence of the husband of the deceased has been duly proved. In the photographs, presence of the husband of the deceased has also been admitted by (PW-1) Satya Narain Misra. Here also the conduct of the witnesses becomes questionable and creates a doubt as to whether they are narrating the truth in the Court or not.
32. Taking the cumulative effect of the evidence, we are of the view that the story put forth by the prosecution is doubtful and on the basis of the material available on record, it would not be safe for this Court to uphold the conviction of the accused-appellants. They are entitled to get benefit of doubt.
33. The appeal succeeds and is allowed. The judgment and order dated 11.06.1986 passed by the Sessions Judge, Etawah in Sessions Trial No.172 of 1985 (State Vs. Janardan Dube & Ors.) is set aside. As the appellants are already on bail, no further order is required.
Dated:16 January, 2019 RKK/RK (Pritinker Diwaker, J) (Umesh Kumar, J)