Madhya Pradesh High Court
Mahesh Kumar Bherulal Chawada vs State Of M.P. on 30 March, 1994
Equivalent citations: 1995CRILJ2021
Author: J.G. Chitre
Bench: J.G. Chitre
JUDGMENT J.G. Chitre, J.
1. This appeal has been directed towards the conviction and sentence recorded by First Additional Sessions Judge, Ujjain, against the appellant in S. T. No. 107/87 by which the learned trial Judge convicted him for offence punishable under Sections 366 and 376, I.P.C., and sentenced him to undergo R. I. for the term of 5 and 7 years.
2. The prosecution case, in brief, is that in the night intervening 12-1 -1986 and 13-1 -1986 at about 2.30 a.m. or so, Sunita D/o Badrilal Zhorawat was missing from the house. Prosecution alleged that the present appellant induced her, took her away from her house and thereafter committed rape on her. It is the case of the prosecution that at that time Sunita was below 16 years of age.
3. Prosecution story shows further that when Sunita was missing from the house, her brother named Datar Singh, her father Badrilal, her mother Kesharbai were searching her and when they were searching Sunita, her another brother named Kusum Kant, arrived at village Khachrod from Ratlam after travelling by train. When Kusumkant reached his house, his mother Kesharbai infomed him that Sunita was missing and, therefore, he also went out of the house for searching Sunita. Kesharbai while searching, met the present appellant who was seen near his house, and at that time the appellant asked her as to where she had gone, replying to this question she told that she was coming from the house of wife of her brother, but the appellant told her that she was searching Sunita and pointed out Sunita to her, who was standing at the distance of 15 to 20 paces from them. After that, Keshrbai brought Sunila to her house and thereafter Sunita went up in a room at upper storey to their house and all other family members sat at down stair chatting with each other. While they were so chatting, they noticed some noise which was created by Sunita, who was groaning. All of them went to her room and Kusumkant peeped through the door and saw that Sunita was inside and was in pains and restless. It was noticed that she had consumed tablets known as 'Sulphaus'.
4. Sunita was thereafter taken to hospital where she was admitted and medically treated by Dr. C. P. Chhabda and Dr. Rekha Kamthan. Sunita, unfortunately, succumbed to death at about 3, 4 a.m. In response to message which was sent by the hospital, police officer, Abdul Haffiz Sheikh (P. W. 20) arrived in the morning of 13-1-1987. He performed inquest, seized clothes from the body of Sunita in the presence of Panch-witnesses and after sealing them along with viscera, sent to the office of Chemical Alalyser for chemical examination.
5. Prosecution case shows that in the night intervening 12-1-87 and 13-1-87, when was being taken to hospital, Sunita made a dying declaration and told her brother Kusumkant that she was taken away by inducement by the present appellant to his house and she was raped thereafter. Prosecution case also shows that when Sunita was taken to the hospital, her sister Chitra found a chit which was written by Sunita in which she wrote that as she was a blot to the family, she was committing suicide and the episode bringing blot to her was not known to others.
6. After necessary investigation, the appellant faced the trial before the learned First Additional Sessions Judge, Ujjain, who after appreciating the evidence on record collected by the prosecution held that the prosecution had proved that the appellant had committed offences punishable under Sections 366 and 376, I.P.C. He passed the order of conviction and sentence which is the subject matter of challenge in this appeal.
7. Learned Advocate Shri R. S. Garg, appearing for the appellant, submitted by making a reference to the evidence on record and canvassed that the evidence in respect of dying declaration is nothing but a concoction made deliberately by the prosecution. He argued that the prosecution evidence was not establishing guilt of the accused beyond reasonable doubt for the offences for which the appellant was tried. He criticised the findings of the learned First Additional Sessions Judge, Ujjain, appreciating the evidence and drawing the conclusions against the appellant. He prayed that the appellant be acquitted.
8. Shri G. Desai, learned Deputy Government Advocate justified the order of conviction and sentence inflicted on the appellant by making reference to the evidence on record. He submitted that the learned First A.S.J. Ujjain rightly found dying declaration (sic) and above the board. He argued that besides the evidence of dying declaration there is medical-evidence also which against the appellant which assure guarantee for the conviction. He submitted that the appeal be dismissed.
9. This is the sum and substance of submissions made by the parties.
10. The learned trial Judge concluded that the prosecution proved the guilt of the accused beyond reasonable doubt and for coming to this conclusion he based reliance on the evidence of Kusum Kant (P.W. 5), Kesharbai (P.W. 7), Dr. C, P. Chhabda (P.W. 6), Dr. Rekha Kamthan (P.W. 2), Chitra(P.W. 8) and Abdul Haffiz Sheikh (P.W. 20). He also placed reliance on Ex. P/3 and evidence of Kusumkant (P.W. 5) in respect of dying declaration given by the deceased Sunita. Relying on this evidence, the trial Judge concluded that the accused had committed offence punishable under Sections 366 and 376, I.P.C., and that is severely criticised by the It red advocate for the appellant. As per the prosecution case, at about 20' clock P.W. Kusumkant arrived from Ratlam to Khachrod and from the railway station he went to his house and at that time he knew that Sunila was missing from the house and his parents, other brother and sister were searching her out of the house. He also started searching Sunita by riding on a bicycle and when he returned to his house ater some time, he learnt that Sunita was traced. It has come in the evidence of Keshwarbai (P.W. 7), mother of Sunita, that when she was near the house of the accused the accused was seen standing there and the accused asked Kesharbai as to wherefrom she was coming, Kesharbai told him that she was coming from the house of wife of her brother but the appellant told her that she was not coming from said house but she was searching Sunita and at the same time pointed out towards Sunita who was standing at the distance of 15 to 20 paces away from them. After Sunita was brought to her house by her mother Kesharbai, Sunita was kept in a room at upper storey and the family members decided not to either scold her or disturb her. When Sunita was in the room at upper storey and other family members were chatting at down storey, they heard groaning of Sunita and therefore all of them went to the upper storey, more particularly, her brother Kusumkant and Kesharbai. The door was found closed and when those family members attempted to open it the door was not opened by Sunita, hence, Kusumkant peeped through the door and saw that Sunita was on the bed, restless. Therefore, it was opened and the family members of Sunita noticed that a bottle of 'Sulphas' was lying near her and Sunita was restless. Thereafter, Sunita was taken to hospital which was at the distance of 500 paces by making her to walk.
11. When Sunita was admitted in the hospital Dr. C. P. Chhabda gave medical treatment to her and thereafter Dr. Rekha Kamthan came there and helped Dr. Chhabda in medical treatment of Sunita. After Sunita was admitted in the hospital, information was given to the concerned police station and Abdul Haffiz Sheikh (P.W. 20) arrived at the said hospital in the morning. Before arrival of S.H.O. Abdul Haffiz Sheikh to the hospital, in spite of medical treatment given to Sunita, she succumbed to death. It is the case of the prosecution and it has come in the evidence of P.W. Kusumkant that when Kusumkant was taking Sunita to the hospital, she told that she was taken away by the present appellant and the appellant had committed bad thing with her(GALAT KAM KIYA HAD. After the death of Sunita in the Hospital, her sister Chitra found a chit which was alleged to have been written by Sunita and that chit is Ex. P/3. In that chit Sunita wrote that she felt that she would become a blot to the family and, therefore, she was committing suicide. She also mentioned in that chit that no one was knowing about the said blot.
12. The frock of Sunita and her inner garment known as 'Shamiz' was seized by the investigating officer and those articles were bundled along with the viscera, collected by the medical officer from the body of deceased Sunita. When the said bundle was attempted to be sent to Chemical Examiner, it was stolen, when it was being carried by the concerned police constable through railway, to the office of the Chemical Examiner. It is the prosecution case that thereafter the said bundle was found and it was sent to the Chemical Examiner and it was examined by him. A report was sent mentioning that frock which was on the body of the deceased Sunita was having stains of semen.
13. So far as Ex. P/3 is concerned, it plainly indicates that the writer of the said chit felt that he or she was a blot on the family and he or she wanted to remove it. It is contended by the prosecution that Ex. P/3 was written by the deceased Sunita and the prosecution had attempted to prove this point by the evidence of Kesharbai, Kusumkant and Chitra. After reading evidence of these witnesses it cannot be safely concluded that the said chit was written by Sunita.
14. The plain reading of Ex. P/3 shows as suggested by prosecution that Sunita wanted to inform (Bai Aur Daji' that they should not worry because Sunita did not want to be a blot for the family and, therefore, she was praying to be pardoned. It is the case of the prosecution that before committing suicide, Sunita wrote this chit and it has concerned with the allegations levelled against the appellant that he kidnapped Sunita and raped her. But by plain reading of this Chit, by itself, it cannot be concluded that way because there is no mention of the appellant in the said chit nor it has been mentioned that he kidnapped Sunita or raped her.
15. In respect of the statement made by Sunita connecting the appellant with the allegations of kidnapping and rape on her are concerned, the prosecution brought the evidence of P.W. Kusumkant. It is stated in his evidence that when Kusumkant was bringing Sunita to the hospital, she told him that the appellant had kidnapped her and the appellant had committed 'Galat Kam' with her. A severe criticism has been levelled from the side of the appellant in this context in respect of prosecution evidence on this point. It has been submitted that this is nothing but concoction brought forth by the prosecution to bring some evidence against the appellant.
16. The Deputy Govt. Advocate submitted that there is nothing unnatural in this evidence, on the contrary, it is proving beyond reasonable doubt that Sunita gave such a dying declaration and blamed the appellant for those acts.
17. If the entire evidence on record is assessed for the purpose of finding out the truth for coming to the conclusion whether, the prosecution has proved guilt of the appellant or not; reference will have to be made to sequence in which all the things took place as per the prosecution case and the evidence given by the prosecution witnesses narrating those incidents. It has to be kept in mind that in the present case the prosecution is solely relying on circumstantial evidence for the purpose of proving the guilt of the appellant. In the matter of Sharad Birdhichand Sara v. State of Maharashtra, judgment reported in AIR 1984 SC 1622 : (1984 Cri LJ 1738); Supreme Court observed that when the prosecution is attempting to establish the guilt of the accused on circumstantial evidence, following conditions must be fulfilled before a case against an accused based on circumstuntial evidence can he said to be fully established; they are :
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established.
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explained on any other hypothesis except that the accused is guilty.
(3) The circumstances should be of a conclusive nature and tendency.
(4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
18. In the matter of Sharad Birdhichand Sarda v. State of Maharashtra, (1984 Cri I.J 1738) (supraj, Supreme Court further observed that it is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. Where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or plea which is not accepted by a Court.
19. In the same matter (supra) Supreme Court observed that it is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. Further, Supreme Court observed in the same matter that where the important witnesses are closed relatives of the victim and they are having tendency to exaggerate or add facts - Court should examine their evidence with great care and caution.
20. In the matter of Khushal Rao v. State of Bombay, a judgment reported in AIR 1958 SC 22, the Supreme Court observed that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated, each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other piece of evidence. A dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence. A dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of question and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which, may suffer from all the infirmities of human memory and human character and in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, whether the capacity of the man to remember the facts stated, had not been impaired at the time; he was making the statement, by circumstances, beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement has been made at the earlier opportunity and was not the result of tutoring by interested parties.
21. In the matter of Khushal Rao v. State of Bombay, (1958 Cri LJ 106) (supra), the Supreme Court observed that in order to pass the test of reliability, a dying declaration has to be subjected to very close scrutiny, keeping in view the fact that it has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination.
22. In the present case, it is argued on behalf of the appellant that the prosecution has introduced the evidence in the nature of the so called dying declaration made by the deceased Sunita to her brother Kusumkant in a peculiar way. It has been argued that by keeping in view the timing of the things taking place in the present episode, the prosecution did not have any other opportunity except to introduce the evidence of this dying declaration, only, during transportation of Sunita from her house to hospital. For the purpose of creating a case against the accused when it was without proper evidence, the prosecution introduced deliberately as a statement made by Sunita to her brother Kusumkant when Sunita was being taken by him to hospital by making her to walk. It is argued on behalf of the appellant that Sunita had opportunity to make this statement earlier also but for the reasons best known to the prosecution, there is no evidence on record that she made any such statement to her mother Kesharbai, who brought her house. I find substance in this argument, because Kesharbai being her mother, she would have made such disclosure to her earlier.
23. When Kesharbai brought Sunita to her house, as Kesharbai happened to be her mother, in all 'probabilities keeping in view the natural human conduct, Kesharbai must have asked Sunita as to why she had gone out of the house in such odd time of the night. Had this question been asked Sunita would have definitely stated that she was taken by the appellant from her house or she was induced by the appellant to leave her house. At that time Sunita would have told her mother that the appellant did commit sexual intercourse with her. It is to be noted that relations between Sunita and Kesharbai was that of a girl of considerable age knowing the 'things', and a mother. Therefore, in all probabilities when Sunita was in the mood of telling the so called truth to her parents and family members, Sunita would have told unequivocally that accused committed sexual intercouse. with her, to her mother at earlier opportunity. It could have been a talk between daughter and mother and there was no difficulty for Sunita to tell straightway to her mother that the appellant had committed sexual intercourse with her. But very strangely, evidence coming from the prosecution is that, that when Sunita was brought to house she did not tell any thing that the appellant induced her to leave the house and committed sexual intercouse with her.
24. Leaving that aside also, when Sunita was brought to house, naturally, the mother would have at least asked Sunita in the house as to what was the reason of her leaving house in the night and at that time also as conversation between mother and daughter, she would have been told, in all probabilities, that accused has allured her out of the house and committed sexual intercouse with her, had there been the truth in the prosecution case. But there is no evidence coming from the prosecution this way. Thereafter also, all the family members would have atleast asked Sunita as to why she left the house at the odd hours of night, keeping in view normal behaviour of members of Indian Society, more particularly, not coming from grown up cities. But so far as present matter is concerned, neither parents of Sunita nor brother nor her sister asked any question to her for knowing as to what was reason making Sunita to leave her house in such odd hours of the night. Very strangely, the prosecution had led evidence that all of them put Sunita in a room at upper storey and all of them were discussing amongst themselves at the' down stair. Only after hearing the groaning voice of Sunita, they went to upper storey and after peeping from cracks of the door, Kusumkant knew that Sunita was restlers and thereafter said door was opened and bottle of medicine known 'Sulphas' was seen.
25. The learned Deputy Govt. Advocate argued that keeping in view the delicate age of the girl, family members might have opted not to disturb her and, therefore, she was kept there. It appears to be very unnatural, when a girl in the teens left the house at odd hours of the night and when all the family members were searching her. When she was brought to the house, at least, one cannot understand as to why she could not have been asked or querries would not have been made to know as to what was the reason of her leaving house in the odd hours of the night. In view of normal, natural habit of our members of the society, such querries would have been definitey made to Sunita. But prosecution did not give any explanation for such strange behaviour of the family members of Sunita. This is the time when Sunita could have told all happenings qua charge levelled against the appellant as per prosecution case or atleast she would have told to them the things which she told to her brother Kusumkant, as per prosecution case.
26. It is important to note that it is the prosecution case that Ex. P/3 was written by Sunita, that means that Sunita was in the mood of brushing aside the possible blot on the family and she was in repenting mood. As per prosecution case she wanted to assure her parents that the prestige of the family would not have been put to peril. In that mood, Sunita would have told to her mother, father, brothers and sister that, it was the accused who was responsible for her leaving the house in the odd hours of the night and he committed sexual intercourse with her. But the prosecution is silent so far as this aspect of the matter is concerned.
27. In view of this argument, I find substance in the argument made by the counsel for the appellant that the prosecution did not get any opportunity of introducing the evidence of such statement hence the prosecution deliberately attempted to introduce such evidence by making development that when Sunita was being carried by her brother Kusumkant to hospital making her walk, Sunita told her brother Kusumkant that the appellant-accused had committed 'Galat Kam' with her.
28. Another aspect which is to be noted in the present matter is that when Sunita was admitted in the hospital, it has come in the evidence of Dr. Chhabda, that condition of Sunita was very bad. She was not in a proper frame of mind, her condition was deteriorating: When that was so, whether it can be believed that when she was being brought from the house by making her to walk to hospital. She could have told Kusumkant the thing what is being brought on the record of the prosecution. It seems to be quite unnatural, in view of the fact that though Kusumkant and his brother were having bicycle with them, they did not put Sunita on the bicycle and made her to walk for a long distance of 500 paces.
29. When Sunita was admitted and medically treated by Dr. Chhabda, in all probabilities, he would have asked as to what was the reason of her taking the medicine 'Sulphas' and at that time,, normally and naturally, Sunita would have told Dr. Chhabda about the reason of Sunita taking said medicine but the prosecution evidence is silent on that point also. It is pertinent to note that thereafter Dr. Rekha Kamathan also came there during the treatment of Sunita. Being a female Sunita would not have found any difficulty in telling Dr. Rekha about the reason for taking the said medicine 'Sulphas' but her evidence is also silent. Sunita did not tell either of the said doctors about the reason which was behind taking medicine 'Sulphas' by her.
30. It is to be noted that P.W. Kusumkant did not tell about the said statement of Sunita either to Dr. Chhabda or Dr. Rekha Kamthan but to police Sub-Inspector Abdul Haffiz Sheikh though the opportunity was available to him. It is pertinent to not that P.Ws. Kusumkant, Kesharbai and her husband Badrilal, Chitra and Datar Singh, did note tell any thing to those doctors but started telling about that only when their statements were recorded by the police on 14-1-1986. This long silence kept by these witnesses is unnatural and the prosecution has not explained it satisfactorily.
31. Further more, it is important to note that Ex. P/3 and the said alleged statement of Sunita made to Kusumkant does not indicate that the accused had committed sexual intercouse with her when the prosecution has to prove a charge for commission of offence punishable under Section 376, I.P.C. Prosecution is bound to prove all ingredients of the said crime and the section. It cannot be done by using words 'Galat Kam' 'Bura Kam. It is to be noted that insulting a person by words, gestures or indecent behaviour is also 'Galat Kam or Bura kam' such terms did not make the prosececution to prove offence which is punishable under Section 376, I.P.C.
32. The prosecution has attempted for bringing evidence on record through Kesharbai that when Kesharbai searching Sunita, appellant was seen near his house and he asked Kesharbai as to wherefrom she was coming and when Kesharbai told him that she was coming from the house of wife of her brother, the appellant told her that she was not coming from the house of wife her brother she was searching Sunita. Further more, it has been brought by the prosecution that the appellant pointed out towards Sunita, who was standing at 15-20 paces away from them. Firstly, without any satisfactory evidence on record, by presence of Sunita and the accused there only, no conclusion can be drawn that Sunita was out of her house only because of the appellant. It is the duty of the prosecution to bring satisfactory evidence for establishing nexus between the presence of Sunita and the appellant. Secondly, the prosecution has to bring satisfactory evidence which can be believed when it is the case of the prosecution that the appellant induced and took her away from her house or allured her to leave her house and when parents, brothers and other relatives of Sunita were searching her. It is very difficult to believe that the accused would have asked a question to Kesharbai as to where from, she was coming. Further more, it is difficult to believe that he would have told her that she was not coming from the house of wife of her brother but was searching Sunita, unnecessarily. Further more the accused would not have in such circumstances, pointed out towards Sunita so as to create evidence against himself. In such a circumstance, the accused would preferred to keep mum and would have tried to conceal his presence there. Atleast, he would would not have attempted to create evidence of Kesharbai against him when Sunita was already away from him. He would not have invited trouble. Again, it is important to note that when such conversation took place between Kesharbai and the appellant as per prosecution case, it is difficult to understand as to why there was not spontaneous bickerring between Kesharbai and the accused on account of missing of Sunita. Thus, evidence led by the prosecution by itself sounds very much unnatural on this point. Therefore, that prosecution evidence will have to be discarded.
33. By Ex. P/3 and evidence of Kusumkant prosecution has not established that the appellant has committed sexual intercourse with Sunita, as this Court has pointed out in the discussion made above. Evidence in respect of dying declaration is not fit to be believed keeping in view the observations of the Supreme Court in the matter of Khushal Rao v. State of Bombay, (1958 Cri LJ 106) (supra), because such evidence is not subjected to test of cross-examination, for finding out truth, by the accused.
34. The prosecution attempted to lend corroboration to the evidence of P.Ws. Kusumkant and Kesharbai, in context with the charge levelled against appellant by medical evidence as well as by the evidence of the close relatives of Sunita.
35. It is the case of the prosecution that the bundle which was sent to the office of Chemical Examiner was lost in the transit and thereafter it was found after some days. It is the case of the prosecution that after taking necessary permission from Magistrate it was again sent to the Chemical Examiner. Surprisingly, there is no evidence on record to show that such permission was ever obtained from the Magistrate. There is no explanation coming from the prosecution as to why prosecution was unable to lead any evidence in this context. It is the duty of the prosecution to establish nexus between incriminating articles and appellant. The prosecution has to establish that all necessary precautions were taken to ensure that there was no interference or tampering with the articles which are sent for chemiea analysis to chemical examiner. In the present matter the proper care in carrying the bundle to the office of the Chemical Examiner has not been taken. Carrier has not been examined. There is no evidence that necessary safeguards for avoiding possibility of tamper or interference with these articles were taken. Further more, it is important to note that it has come in this case that those articles were lost in the transit. There is no guarantee that there was no tampering with these articles and same articles were examined by Chemical Examiner. Therefore, in view of these infirmities in the prosecution evidence, the finding that semen stains on the frock of Sunita cannot be treated as incriminating circumstances against the appellant.
36. The learned trial Judge did not appreciate the evidence keeping in view all this important aspects of the matter and, therefore, he committed error in concluding that the prosecution had proved the charge against the appellant for the offence punishable under Sections 366 and 376, I.P.C. As the trial Court had committed an error in convicting the appellant. It committed further error in sentencing him. This Court has no hesitation after examining evidence on record carefully to hold that the order of conviction and sentence is incorrect, improper and bad in law.
37. Thus, the appeal is allowed. The order recording conviction and sentence as mentioned above is hereby set aside. The appellant is acquitted. His bail bond stands discharged. No interference in order in respect of disposal of the property.