Madhya Pradesh High Court
Shekhar vs The State Of M.P. on 25 November, 2019
Author: Shailendra Shukla
Bench: Shailendra Shukla
1 CRA. No.868/2001
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
DIVISION BENCH: HON'BLE MR. JUSTICE S.C. SHARMA
HON'BLE MR. JUSTICE SHAILENDRA SHUKLA
CRIMINAL APPEAL NO.868 OF 2001
SHEKHAR
Versus
THE STATE OF MADHYA PRADESH
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Shri Avinash Sirpurkar, learned Senior Counsel assisted
by Ms. Seema Sharma and Shri Arjun Agarwal amicus curiae
appointed by this Court.
Shri L.S. Chandiramani, learned counsel for the
respondent/ State of Madhya Pradesh.
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JUDGMENT
(Delivered on 25th day of November 2019) Per Shailendra Shukla, J.
1. This appeal under Section 374 of Code of Criminal Procedure, 1973 (for short 'Cr.PC') has been preferred by the appellant against the order of conviction pronounced by Third Additional Sessions Judge, Ratlam in ST No.128/2000 vide judgment dated 31.07.2001, whereby the appellant has been convicted under Section 302 of Indian Penal Code, 1860 (for short 'IPC') and has been sentenced to undergo Life Imprisonment along with fine of Rs.500/-and in default, to suffer three months of Simple Imprisonment.
2. The admitted facts are that deceased-Radhabai got married with appellant-Shekhar in a community marriage ceremony on 20.04.1999. It is also admitted that Radhabai died on 03.05.2000 due to burning.
2 CRA. No.868/20013. The prosecution story in short is that after the marriage of deceased-Radhabai she was being harrassed by her husand and in-laws for dowry. She was left at her parental house and later on, deceased was brought back by her in- laws on their own responsibility on 03.05.2000, the appellant has poured kerosene over her and burnt her. She was admitted in hospital where her dying declarations were recorded, however, she succumbed to her injuries on the same day. Inquest was performed, statement of witnesses were recorded, post-mortem was performed and thereafter FIR was got registered. After investigation, spot-map was prepared and seizure etc. Recording of statement of deceased under-Section 161 of Cr.PC was done and chargesheet was filed under-Section 302 and 498-A of IPC against the appellant and his parents namely; Savitribai and Gordhanlal.
4. Charges were framed against all the three accused persons under Section 302 IPC in the alternative under Section 304-B IPC, as well as Section 498-A IPC. The accused abjured their guilt and were put to trial.
5. The prosecution examined eighteen witnesses which includes near relatives of the deceased, attending Doctors, Patwari prepared spot-maps and police witnesses. No defence witness was examined by appellants. The trial Court in his judgment delivered on 31.07.2001 acquitted Savitribai and Gordhanlal and convicted the appellant-Shekhar unde Section 302 IPC and sentenced, as described earlier.
6. The appellant, in his appeal, has submitted that the lower Court's judgment is contrary to law and facts on record 3 CRA. No.868/2001 and the same is neither legal nor proper and that the lower Court was wrong in believing the prosecution witnesses and discarded the defence version and unwarranted inferences were drawn wrongly, material omissions and contradictions in the prosecution evidence were over-looked.
7. Learned senior counsel for the appellant has submitted that there are two contradicting dying declarations of the deceased, the first one exonerating the appellant and the second one implicating him. The trial Court without assigning any reason discarded the first dying declaration and totally relied upon the second dying declaration, whereas the benefit of doubt ought to have been given to the appellant.
8. The main question before us is whether in view of the grounds contained in the appeal memo, judgment of conviction of appellant deserves to be set-aside and the appellant be acquitted ?
9. The prosecution has examined 18 witnesses in all which include mother of the deceased Bhagwantabai (PW-
9), brothers of the deceased Gangaram (PW-8) and Mohanlal (PW-6) and sister-in-law of the deceased Shardabai (PW-10), Other relatives are Ramlal (PW-1) and Dilip (PW-2), neighbours of the parental house of the deceased Yunus (PW-7) and Gulab Khan (PW-11), medical experts are Dr. Mamta Sharma (PW-3), Dr. O. P. Gupta (PW-
4), Dr. S. S. Bhushan (PW-12) and Dr. Sunil Rathore (PW-
18), Investigating Officer is Vinod Kumar Singh (PW-17) and other witnesses are seizure and police witnesses.
10. The allegation against the appellant was that he used to harass his wife Radhabai for dowry. However, the Trial 4 CRA. No.868/2001 Court in its judgement did not find dowry as the reason for harassment and therefore acquitted the appellant from the alternative charges framed under Sections 304-B and 498-A of IPC and only charge under Section 302 of IPC has been proved against the appellant i.e. committing murder of deceased Radhabai.
11. The prosecution story is based on dying declarations and other circumstantial evidence. It would be first appropriate to consider the impact of dying declarations which are Exhibit-P/10 and Exhibit-P/11 respectively. The dying declaration Exhibit-P/11 is the first one, it was recorded on the date of incident i.e. on 03.05.2000 at 7.30 PM and this dying declaration was exculpatory in nature i.e. no allegations were made against the appellant in this dying declaration by the deceased whereas, the second dying declaration which is Exhibit-P/10 dated 06.05.2000 recorded at 06.05 PM and this is inculpatory dying declaration i.e. specific averment has been made in this dying declaration that appellant had set the deceased on fire.
12. At first both the dying declarations shall be considered. The first dying declaration i.e. Exhibit-P/11 has been recorded by the SDO Gopalchand (PW-13).
13. Dr. O. P. Gupta (PW-4) was the Medical Officer in District Hospital, Ratlam. He states that deceased was brought to the hospital on 03.05.2000 in burnt state. The burns were 100% superficial burns and she smelled of kerosene, was unconscious with no recording of pulse and blood pressure and the report is Exhibit-P/5. Perusal of Exhibit-P/5 shows that she was brought at 3.20 PM. MLC 5 CRA. No.868/2001 report shows that portion above waist was mostly affected with burns.
14. Babulal Chouhan (PW-14) is the Tehsildar, who had recorded the dying declaration of the deceased on 03.05.2000 at 7.30 PM. In the dying declaration, it has been stated by the deceased that she was cleaning the utensils and had swept the house and went to latrine and poured kerosene oil over herself and set herself on fire and on crying, her husband (appellant) came and poured water over her. She was asked whether she was set on fire by any person from the house, she answered in negative. She further states that she was married for 11 to 12 years but was not having any issues and that no quarrel had taken place. Thus, it has been projected that suicide was committed by the deceased.
15. The gist of Exhibit-P/11 shows that she was married for 11 to 12 years and unable to have child and therefore, deceased set herself ablaze. However, such submissions appear to be exaggerated. The deceased herself was 20 years of age at the time of the incident and that she was married for 11-12 years was unbelievable in view of admitted position, that marriage had taken place only a year back on 20.04.1999 and the incident occurred on 03.05.2000. In Exhibit-P/11, there is no remark of any physician to the effect that patient was in conscious state of mind and was in a position to give her statement.
16. As already stated, patient was brought in completely unconscious state with no pulse and blood pressure recordable at 3.20 PM and she was shown to be giving her 6 CRA. No.868/2001 detailed dying declaration at 7.00 PM creates suspicion regarding submissions of Babulal Chouhan (PW-14) specifically when there is no prior remark of any physician showing that deceased was in a fit state of mind. As the statement favours the appellant, the witness has not been cross-examined. It should have been the duty of the Presiding Officer to seek recourse to Section 165 of the Evidence Act and asked the pointed questions as to the fitness of the deceased to give statements.
17. Hence, the first dying declaration is unreliable and is unacceptable.
18. The second dying declaration has been recorded by the Sub Divisional Officer (Revenue) - Gopalchand (PW-13) who states that he recorded dying declaration of Radhabai admitted in Burn Female Ward No.5 after getting to know about the condition of Radhabai from the concerned in- charge doctor as to whether Radhabai was in position to make statements or not ? The remark regarding Radhabai to be in fit condition to give statements has been made on Ex.P/10 by Dr. S.S.Bhushan (PW-12). This witness states that on 06.05.2000 while he was posted as Medical Officer in Ratlam District Hospital, Sub Divisional Officer (Revenue) came to record statements of Radhabai who was found to be in conscious estate and was in fit condition to give statements. He identified his signatures on Ex.P/10 from "A to A" and "B to B" portion.
19. Gopalchand (PW-13) states that he had recorded the statements of Radhabai in question - answer form. A perusal of Ex.P/10 shows that when asked as to how she was burnt, 7 CRA. No.868/2001 Radhabai states that she was burnt by her husband. Then she was asked that where she was burnt, she answered that she was burnt in latrine. She then was asked as to why she was burnt, to this Radhabai states that it was because of some quarrel that she was burnt. Then she says that he was burnt by her mother-in-law, father-in-law and immediately thereafter she states that her mother-in-law had gone somewhere and father-in-law was made to go to some other village. This dying declaration was recorded 3 days after the incident. As already seen, inconsistent statements have been made by the deceased who first names mother-in-law and father-in-law and immediately thereafter exculpates them stating that they were not at home and she implicates the appellant.
20. It is to be seen whether the second dying declaration, apart from the inconsistencies referred to above, was a tutored statement as well ?
21. Yunus (PW-7), neighbour of accused Shekhar, states in fact in favour of Shekhar but has not been declared hostile. As per this witness he had over heard that Mohan, the brother of Radhabai, had been telling Radhabai that she should give such statements to police that she was set on fire by Shekhar only. Incidentally, his such statements find support from the relatives of Radhabai that Shardabai (PW-
10), who in para 3 states that she came to know that Radhabai has given statement under duress exculpating appellant Shekhar. This witness states that she, her husband and her brother-in-law were of opinion that the earlier statement by Radhabai were wrong and her dying 8 CRA. No.868/2001 declaration would have to be recorded again. She further admits that thereafter she and other witnesses, such as Mohan, mother-in-law etc. met Shekhar in jail and Mohan told Radhabai that a report has been lodged and that her statements would be recorded again. This witness clearly points out that before recording second dying declaration at Ex.P/10, Radhabai was influenced by her relatives in making such statements. Thus, the second dying declaration (Ex.P/10) runs the threat of being tutored statements. It is clear that Mohan had recorded Ex.P/7 report after the first dying declarations of Radhabai were recorded and the second dying declaration on 06.05.2000 were recorded subsequently. It has already been found that there is an admission on the part of prosecution witness Shardabai (PW-10) that Radhabai was constantly contacted by her parental relatives before she gave her second dying declaration (Ex.P/10). Thus, the dying declaration of Radhabai (Ex.P/10) appears to be influenced by her immediate relatives.
22. The Supreme Court in the case Umakant and Another vs. State of Chhattisgarh reported in (2014) 7 Supreme Court Cases 405, considering the impact of tutoring of a dying person has observed as under:
21. "In spite of all the importance attached and the sanctity given to the piece of dying declaration, the Courts have to be very careful while analysing the truthfulness, genuineness of the dying declaration and should come to a proper conclusion that the dying declaration is not a product of prompting or tutoring."9 CRA. No.868/2001
23. Thus, the second dying declaration, not only has inconsistencies but is also effected by tutoring.
24. In the case of Umakant and Another vs. State of Chhatisgarh (2014) 7 SCC 405, it has been held that dying declaration is accorded lot of credence and importance deviating from rule of evidence since such declaration is made by victim on verge of death. However, if the dying declaration does not inspire confidence, then conviction cannot be based solely on such declaration.
25. The Apex Court in the case of Samadhan Dhudaka Koli vs. State of Maharashtra, AIR 2009 SC 1053 has laid down that when contradictory and inconsistent stand is taken by the deceased in different dying declarations, they should not be accepted on their face value. In any event, as a rule of prudence, corroboration must be sought from other evidence brought on record. Further, in the case of Kishanlal vs. State of Rajasthan, AIR 1999 SC 3062, the Apex Court has laid down that inconsistent declarations cannot be accepted in absence of any corroboration.
26. In the matter in hand, not only the two dying declarations are absolutely conflicting, first being exculpatory and second inculpatory but the second in itself contains inconsistencies and is tutored statement. If the inculpating dying declaration would not have suffered from the above deficiencies, then the same, corroborated with other circumstantial evidence could have clinched the issue in favour of prosecution.
27. Thus, it is apparent that the second dying declaration is also unacceptable.
10 CRA. No.868/200128. Apart from the above two contradictory dying declarations, evidence of some witnesses are also in the nature of dying declarations as they have stated that deceased had narrated to them the cause of her burning. These statements would now be considered.
29. These witnesses are Mohanlal (PW-6), Gangaram (PW-8), Mamtabai (PW-9) and Shardabai (PW-10) who have stated that the deceased had told them that it was the appellant who had set her on fire. Mohanlal (PW-6), Gangaram (PW-8), Mamtabai (PW-9) and Shardabai (PW-
10) have stated that deceased in the hospital had told that it was the appellant who dowsed her in kerosene oil when she had gone to the latrine and threw burning match-stick upon her setting her ablaze. When she tried to come out of the latrine, its door was locked by the appellant. It has to be seen whether such statements can be relied upon or not.
30. Mohanlal (PW-6) states that after getting to know about the incident, he went to the hospital at Ratlam and found the deceased unconscious but then also states that deceased told him that she went to the latrine and had barely stated that then the appellant came from behind and poured kerosene oil over her and threw a burning match-stick upon her and closed the door and when she cried, no one opened the door. When asked about such omissions in his police statement Exhibit-D/2 and FIR at Exhibit-P/7, the witness in para-14 submits that he has no knowledge regarding the same.
31. Another brother of deceased, Gangaram (PW-8) states that when he reached Ratlam at 7.00 PM, the deceased was 11 CRA. No.868/2001 lying in completely burnt state and on gaining consciousness, deceased told that when she had gone to the latrine, appellant came from behind, he had brought kerosene oil filled in a vessel and poured the same over her and set her on fire and when the deceased tried to come out, she was locked by the appellant and she fell down inside the latrine, then the appellant locked the door by applying latch. However, in his police statement Exhibit-D/3, there are no averments that deceased sought to rush out but was kicked and then door was fastened with latch by the appellant.
32. Bhagwantabai (PW-9) also states identically however, in the police statement which is Exhibit-D/4, there are no such statements. The same is the case of Shardabai (PW-
10), whose police statement Exhibit-D/5 did not contain averments that the deceased was drowsed in kerosene oil and was set on fire, that she was kicked and door was fastened with latch, such statements are found in the examination-in-chief.
33. Thus, there are major omissions in the depositions and police statements of all the four close relatives of the deceased.
34. These witnesses apart, a neighbour and family friend of brothers of the deceased Gulab Khan (PW-11) has also stated identically that when he asked the deceased as to how the incident occurred, the deceased narrated in the same manner as that other witnesses have stated but again in police statement Exhibit-D/6, no such statements are there.
12 CRA. No.868/200135. The evidence of the above close relatives and the neighbour also becomes shrouded in suspicion because of major omissions in their depositions vis-a-vis their police statements. Consequently, no reliance can be placed on the depositions of close relatives and neighbour regarding their versions pertaining to oral dying declaration to them by deceased.
36. Thus, it is clear that the dying declarations allegedly made by deceased to other witnesses are also not reliable.
37. In the case of Umakant (supra), it has been laid down that if two views are possible, one pointing to the guilt and other towards innocence then the view which is favourable to the accused should be adopted. The following excerpt of the citation is noteworthy:
"The burden of proof in criminal law is beyond all reasonable doubt. The prosecution has to prove the guilt of the accused beyond all reasonable doubt and it is also rule of justice in criminal law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other towards his innocence, the view which is favourable to the accused should be adopted. After considering the evidence and the judgments of the Courts below, we are of the considered opinion that the evidence available on record and the dying declaration does not inspire confidence in the mind of this Court to make it the basis for the conviction of the appellants. Apart from this, the High Court basing on the same dying declaration, ought not to have convicted the appellants under Section 302 IPC, when they were acquitted under Section 304- B and 498-B IPC and Sections 3 and 4 of the Dowry Prohibition Act by the High Court."
38. In the case in hand, the first two dying declarations oscillate between suicide and murder. The view favouring the accused has to be accepted. It has been brought out in the 13 CRA. No.868/2001 evidence that deceased was that Radhabai was not inclined to go back to her matrimonial house. This is evident from the statements of Mohanlal (PW-6), Gangaram (PW-8) and Shardabai (PW-10). The incident occurred immediately after she was brought to her matimonial home by appellant. The possibility cannot be denied that she may have committed suicide out of frustration arising from being brought back to her matrimonial home.
39. Considering all the evidence on record, benefit of doubt needs to be accorded to the appellant, who already has been acquitted under Section 498-A, 304-B of IPC by trial Court, but convicted under Section 302 of IPC.
40. Consequently, the appellant is acquitted under Section 302 IPC as well.
41. The appeal stands allowed. If already in jail, the appellant be released forthwith.
Copy of judgment along with record of trial Court be sent to the trial Court for compliance.
(S.C. SHARMA) (SHAILENDRA SHUKLA)
JUDGE JUDGE
Arun/-
Digitally signed by ARUN
NAIR
Date: 2019.11.26 15:41:01
+05'30'
14 CRA. No.868/2001