Madhya Pradesh High Court
Suresh vs The State Of M.P. on 12 September, 2019
Author: S.C.Sharma
Bench: Vivek Rusia, S.C.Sharma
Criminal Appeal No.604/2006 1
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
Criminal Appeal No.604/2006
Suresh S/o Ramesh Gwar v/s The State of Madhya Pradesh
Indore, dated 29.06.2019
Ms. Surbhi Bahel, learned counsel for the appellant.
Shri S.K. Purohit, learned Government Advocate for the
respondent / State.
Arguments heard.
Reserved for judgment.
(S.C. SHARMA) (VIVEK RUSIA)
JUDGE JUDGE
Indore, dated 12.09.2019
Judgment passed separately. Signed and dated.
(S.C. SHARMA) (VIVEK RUSIA)
JUDGE JUDGE
Ravi
Criminal Appeal No.604/2006 2
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
DIVISION BENCH: HON'BLE MR. JUSTICE S. C. SHARMA &
HON'BLE MR. JUSTICE VIVEK RUSIA
Criminal Appeal No.604/2006
Suresh S/o Ramesh Gwar
v/s
The State of Madhya Pradesh
* * * * *
JUDGMENT
Reserved on 29.06.2019 (S. C. SHARMA) JUDGE For consideration of Hon'ble Mr. Justice Vivek Rusia (VIVEK RUSIA) JUDGE ___/09/2019 Post for 12/09/2019 (S. C. SHARMA) JUDGE ___/09/2019 Criminal Appeal No.604/2006 3 HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE DIVISION BENCH : HON'BLE SHRI JUSTICE S.C. SHARMA & HON'BLE SHRI JUSTICE VIVEK RUSIA Criminal Appeal No.604/2006 Suresh S/o Ramesh Gwar v/s The State of Madhya Pradesh Ms. Surbhi Bahel, learned counsel for the appellant. Shri S.K. Purohit, learned Government Advocate for the respondent / State. ___________________________________________________________________ JUDGMENT ( Passed on this 12th day of September, 2019 ) Per : S.C. Sharma, Justice:
1. This appeal is preferred against judgment and order dated 24/05/2006 delivered in Sessions Trial No.20/05 by 1st Additional Sessions Judge, Neemuch, whereby the learned trial Court has convicted the appellant under Section 302 IPC for causing death of his wife Hemlata and under Section 304 Part-II of IPC for causing death of his 4 months old son Sumit and has awarded life imprisonment and 10 years RI with fine of Rs.1000/- for each offence and for each default, further to undergo one month RI.
2. Prosecution case in brief is that the deceased Hemlata got married to appellant Suresh in the year 2000. They were blessed with a son Sumit. On 21/11/2004 at about 9 in the night, Hemlata Criminal Appeal No.604/2006 4 along with her son Sumit died in her matrimonial house due to burn injuries. The incident was reported to the police on the same day by her husband Suresh, which was registered as Merg No.0/12/4 (Ex.P/15). The police investigated the case. The investigation revealed that the appellant was demanding Rs.50,000/- from the deceased to purchase a piece of land. He used to harass and thrash her after consuming liquor. On the date of incident also, he thrashed her and ultimately put her on fire. Both the injured were taken to the hospital, where Hemlata was declared dead. Sumit also died on 13/12/2004.
3. The police was informed by the Hospital Authorities. The police registered a FIR No.189/04 under Section 304-B of IPC, inspected the spot, prepared a spot map (Ex-P/10), prepared a memo of corpse (Ex-P/6), sent requisition for postmortem (Ex-
P/14A) and obtained report (Ex-P/14), seized articles like kerosene cane and match stick, match box etc. from the room where the incident took place (Exs.P/2 & P/3) and arrested the accused (Ex.P/20) and after other usual investigation, filed a charge-sheet.
4. The appellant was charged under Section 304-B, in alternate 302 IPC for causing death of Hemlata, under Section 304 IPC for causing death of Sumit and also under Section 3/4 of Dowry Prohibition Act, 1961. The accused denied the charges and prayed Criminal Appeal No.604/2006 5 for the trial. After the trial, he has been acquitted of the charge under Section 304-B of IPC and 3/4 of Dowry Prohibition Act, however, has been convicted / sentenced as stated above.
5. The appellant has preferred this present appeal on the grounds that the judgment and order of the learned trial Court is contrary to the law and facts on record. It is based only on surmises and conjectures. The Court below has ignored that chain of circumstances is not complete and without completing the chain, the conviction cannot be held. The trial Court itself has not found proved the charge of demand of dowry, which disproves the allegations of the prosecution that death was caused due to non- compliance of the demand of dowry and leaves no motive in the case. Without attributing any motive, the appellant cannot be punished. The trial Court has convicted the appellant in spite of the opinion of Dr. A.P. Singh (P.W.11) that no definite opinion can be given with regard to the nature of death of Hemlata as to whether it was homicidal, suicidal or accidental, therefore, conviction of the appellant is not proper. The trial Court has committed grave error in not considering the fact that in his attempt to save the deceased, the appellant himself and one Gendamal (P.W.16) sustained burn injuries. They both also tried to break open the window of the room to rescue the deceased as the door of the room where the incident Criminal Appeal No.604/2006 6 took place was locked from inside. The trial Court ignored the fact that no independent eyewitness from the adjacent locality was examined by the prosecution. The trial Court has committed error in appreciating the omissions and contradictions appeared in the statements of the witnesses particularly, in the statements of P.W.8 and P.W.9, who both have not made any allegation in their first police statement dated 22/11/2004 (Ex.D/1), but the trial Court has relied upon their subsequent statements 26/12/2004 (Ex.D/2) and 27/12/2004 (Ex.D/3) without assigning any reason. The trial Court did not consider the fact that the police omitted to mention important facts stated by the appellant while intimating the incident to the police on the same day of the incident. Medical evidence also is not properly appreciated by the trial Court, therefore, the appellant is entitled for acquittal.
6. Learned Public Prosecutor has opposed the prayer.
7. The appellant has not disputed the incident i.e. incident dated 21/11/2004, deceased Hemlata sustained burn injuries and died on the same day within 7 years of marriage; while son Sumit also sustained burn injuries in the same incident and died on 13/12/2004 in his house. Otherwise also the trial Court has discussed the evidence to arrive at conclusion that on the date, time and place of the incident, Hemlata died in the house of the appellant and Sumit Criminal Appeal No.604/2006 7 sustained severe burn injuries, resulting in his death on 13/12/2004, therefore, there is no necessity to reiterate the evidence produced by the prosecution to arrive at the same conclusion.
8. The evidence on record reveal that there is no direct evidence in the case. There is no eyewitness. Therefore, entire case of the prosecution depends only on the circumstantial evidence.
9. It is an undisputed fact that there is no evidence to ascertain nature of the death of both the deceased. Dr. A.P. Singh (P.W.11) has stated that no definite opinion can be given as to whether the death was homicidal, suicidal or accidental.
10. It is established from the record that no person of the vicinity even any of the resident of the adjacent houses has been made a witness by the prosecution.
11. There is no evidence of "Motive". The prosecution has tried to introduce 'motive' in the form of cruelty towards the deceased on account of her failure to fulfill the demand of dowry of Rs. 50,000/- of the accused, but the trial Court was not able to hold the same and acquitted the appellant from the charge u/S.304B of IPC. This Court has also examined the evidence and is of the considered opinion that the evidence available on record does not show that there was any rift or strife between both the deceased and the accused. Their marriage was solemnized in harmonious atmosphere Criminal Appeal No.604/2006 8 without any talks about the dowry and there was also no demand of dowry at any later time. In their Court statements, the parents and relatives of the deceased have stated that the deceased was demanding Rs.50,000/- to purchase a land and had subjected her to cruelty due to non fulfillment of this demand, but this allegation was not made by them in their first police statements dated 22/11/2004 on the contrary it has been admitted by them in their Court statements that both the appellant and the deceased were living happily. There was no feud between them. At the time of her first delivery, as per tradition prevailing in their community, the deceased had come to her maternal home, delivered a baby boy and was sent (vida) to her husband's house happily in harmonious atmosphere. Even prior to the incident, before the Diwali festival, they both visited the parental house of the deceased happily. They were offered usual welcome, greetings, gifts including nominal cash as a token of respect and they left the house happily. No complaint regarding any dispute between both of them was ever made by the deceased herself or by any of her family member during her lifetime. Therefore, the case of the prosecution lacks 'Motive'.
12. The trial Court has convicted the appellant on the basis that
(i) at the time of the incident, the accused was with the deceased in Criminal Appeal No.604/2006 9 the same room, therefore, onus lies on him to prove the specially known fact on him as to how the death took place and he failed to discharge this burden, (ii) that the 'Scene of Crime Report' discloses that there was some used and unused match-sticks along with a match box and spilled kerosene was found in the room, a plastic Jerrycan containing little quantity of kerosene and its cap were also found lying at two different places in the room and window of the room, which could easily be used by anyone to enter into or to exit from the room, was found open, and (iii) that the burn injuries of the appellant were superficial, therefore, that his defence that at the time of the incident, he tried to save the deceased, was not believed.
13. The trial Court has considered that at the time of the incident, the accused was in the room with the deceased, therefore, as per provision of Section 106 of Indian Evidence Act, 1872, which lays down that "when any fact in especially within the knowledge of any person, the burden of proving that fact is upon him", and he failed to discharge this burden, he was held guilty.
14. The trial Court has assumed that at the time of the incident, the appellant was in the room with the deceased however, it is not clear from the record. None of the witnesses examined by the prosecution say that at the time of the incident, the accused was in Criminal Appeal No.604/2006 10 the room with the deceased.
15. It appears that the trial Court has disbelieved the defence that at the time of the incident, the accused was not with the deceased in the room considering that no such fact is mentioned in ''Merg Suchna'' given by the accused himself, but since beginning of the trial, the statement of the accused was that ''Merg Suchna'' was not deduced as per his narration (I.O. Shri Y.K. Pawar -P.W.14, para-10 & 11). All facts narrated by him were not taken on record rather certain facts were omitted by the scriber of this ''Merg Suchna''. No explanation is given by the Investigating Officer, Sub-Inspector V.K. Shinde (P.W.12) that even after noticing that the accused was having burn injuries, why it was not mentioned in the ''Merg Suchna'' Ex.P/15 & 15-A. The trial Court has considered ''Merg Suchna'' (Ex.P/15) but assumed that at the time of the incident, the accused was with the deceased, therefore, it would be necessary to go through this ''Merg Suchna'' (Ex.P/15), which reads thus:-
e-iz- 'kklu ¼iqfyl foHkkx½ Fkkuk jrux<+ exZ dz& 12@04 ftyk&uhep /kkjk&174 lhvkj-ih-lh lwpuk drkZ%& lqjs'k firk jes'k pan xokj catkjh 28 o"kZ irk%& jrux<+ uke e`frdk%& gseyrk ifr lqjs'k catkjk 20 o"kZ jrux<+ ?kVuk LFky%& cM+s eafnj ds ikl okyk edku ?kVuk fnukad le;%& 21@11@2004 21%00 lwpuk fnukad le;%& 21@11@2004 21%30 Criminal Appeal No.604/2006 11 ¼lwpuk fooj.k½ eSa dlck jrux<+ esa jgrk gwWaA 'kke jkr dfjcu 9%00 cts dh ckr gksxh] ykbVsa can Fkh] fpeuh tyk j[kh Fkh] vpkud fpeuh uhaps xhj tkus ls esjh vkSjr gseyrk ds diM+ksa esa vkx yx xbZ tks iwjh rjg ty xbZ] cPpk lqehr dks eSaus cpk fy;k vkSjr ftlesa ls ej xbZ gS tks esjs ?kj iM+h gS lwpuk fooj.k fjiksVZ }kjk lquh lgh gksus ls gLrk{kj fd;sA
16. The defence of the accused is that after coming to know about the incident, he rushed towards the room and as the main door was bolted from inside, he used the window to enter into the room along with his friend Gendlal and in his attempt to douse the flames, they both sustained burn injuries.
17. The aforesaid 'Merg Suchna' prima facie reflects the presence of the accused with the deceased but the scriber of this 'Merg Suchna' Sub-Inspector B.K. Shinde (P.W.12) has stated that this 'Merg Suchna' was not deduced in the register kept at the police station to record such 'Merg Suchna' and this is the only one 'Merg Suchna', which is not recorded in the register and is recorded in a separate sheet, which is later affixed in the ''Merg Suchna Register' of the police station. S.I. Shinde admits in cross-examination that 'Merg Suchna' Ex-P/15 was recorded at the police station itself but he states that he can not say as to why this 'Merg Suchna' was not recorded in the register kept for this particular purpose, but recorded in a separate sheet and later affixed in the register. Even Criminal Appeal No.604/2006 12 this 'Merg Suchna' was not entered in the roznamcha, which is the usual practice of the police. According to the prosecution this 'Merg Suchna' was sent to the SDM, but no proof is produced as to when or by which dispatch number it was sent to the SDM. In the facts that this was the only 'Merg Suchna', which was not recorded in the register kept for the purpose at the Police Station makes the defence plausible and creates doubt regarding veracity of the facts mentioned in this 'Merg Suchna'.
18. The 'Scene of Crime Report' is an important piece of evidence as it is the main document, which has been relied upon heavily by the learned trial Court to convict the accused, therefore, it would be necessary to go through the aforesaid document in its original form. This document is proved as Ex-P/30 and the same reads as under:-
dk;kZy; lhu vkWQ dzkbe eksckbZy ;wfuV%& eanlkSj e-iz- No./FSL/MU/S0/MSR/16-11/04, DATE :- 22-11-04 Ikzfr] iqfyl v/kh{kd uhep fo"k;%& exZ dz 12@04] /kkjk 174 lhvkj-ih-lh- ds ?kVukLFky fujh{k.k fjiksVZA &&&000&&& 1- Fkkuk&jrux<+ 2- exZ dz- & 12@2004 3- /kkjk& 174 lhvkj-ih-lh-Criminal Appeal No.604/2006 13
4- ?kVuk fnukad o le; fnukad 21@11@2004 le; 21%00 yxHkx 5- ?kVuk Lfky & lqjs'k firk jes'k catkjk dk edku y{ehukFk eafnj ds ikl jrux<A 6- ?kVukLFky dh fLFkfr &lqjf{krA 7- vuqla/kku vf/kdkjh & Jh ok;-ds- iWaokj ,l-Mh-vks- ¼iqfyl½ 8- ;wfuV dks lwpuk izkfIr fnukad o le;& fnukad 21@11@2004 le; 23%00 ctsA 9- ;wfuV }kjk ?kVuk Lfky fujh{k.k fnukad o le;& fnukad 22@11@2004] le; 11%30 ctsA 10- ?kVuk dk laf{kIr fooj.k%& lwpukdrkZ lqjs'k firk jes'k catkjk }kjk Fkkus ij vkdj lwpuk nh dh esjh ifRu gseyrk mez 21 o"kZ ty dj ej x;h gS fjiksVZ ij exZ dk;e dj izdj.k vuqla/kku esa fy;k x;kA 11- ?kVukLFky fujh{k.k fooj.k%& ?kVukLFky lhYM ik;k x;kA ?kVukLFky ls e`frdk dh yk'k] iksLV ekMe gsrq fHktok nh x;hA ?kVukLFky iDdk edku] izFke ry ij fLFkr dejk lkbZt 11 QhV x 10 QhV ik;hA ?kVuk ds le; dejk vanj ls can gksuk crk;kA dejk vanj ls can djus ij /kDdk nsus ij ugha [kqyrkA Q'kZ ij v/ktys diMs+] 'kky tyh gqbZ] 4 tyh frfy;kWa 4 lkcwr frfy;kWa] ,d ,-vkbZ-,e Nki ekfpl VwVh gqbZ ftlesa 8 lkcwr frfy;kWa ikbZ] ,d IykfLVd dh dsu {kerk 5 yhVj ftlesa 100 ,e-,y dsjksflu 'ks"k gS ,d lkbZM ls >wylh ik;h] <Ddu ijsaMh ij j[kk ik;kA Q'kZ ij dkQh ek=k esa dsjksflu Qsyk ik;k ftls :bZ ds Qks,W }kjk lajaf{kr djok;kA dejs dh nf{k.k fnoky ij tys diMs+ peM+h yxs gq, fpids ik,WA dejs ds if'pe Hkkx esa nks f[kM+fd;kWa yxh ik;h ftlesa ls ,d f[kM+dh vanj ls can ik;h o nwljh f[kM+dh [kqyh ik;h ftlls dksbZ Hkh O;fDr vklkuh ls ckgj ls vanj ;k vanj ls ckgj vk tk ldrk gSA ?kVukLFky ij dksbZ lqlkbZM uksV ugha ik;kA dejs dh Nr ij dkcZu irZ tek ik;h o bysDVªhd rkj >qyls ik,WaA 12- vuqla/kku vf/kdkjh dks funsZ'k%& ?kVukLFky ij ik,W tys diM+s vo'ks"k] ekfpl] tyh frfy;kWa] dsjksflu dsu vyx&vyx ikWfyFkhu dh FkSfy;ksa esa lajaf{kr dj jklk;fud tkWap gsrq fHktok,WaA
19. The incident took place at 21:00 hours on 21/11/2004. Scientific Officer of Cell of Crime Mobile Unit R.S. Bariwal (P.W.15) visited the spot on the next day at 11:30 AM (as Criminal Appeal No.604/2006 14 mentioned in the "Scene of Crime Report") but pertinent to note here that prior to visit of Mr. Bariwal (P.W.15), the police had visited the spot and prepared panchnama lash Ex.P/1, spot map Ex.P/16 and seizure memo Ex.P/2 (seizure of articles found in the room: a white jerry can of 5 liters, a glass bottle being used as chimney, matchbox and some matchsticks and a shawl).
20. This Court has carefully examined all these four documents. In panchnama lash (memo of corpse) Ex.P/1; along with physical condition of the dead body, status of spot or the facts noticed by the panch witnesses and by the scriber were mentioned in the panchnama. It is mentioned in this memo of corpse that a lamp (chimney) was lying on the floor, a 5 liters kerosene can containing little kerosene was also lying on the floor but it is not mentioned that there was some kerosene spilled on the floor or there were some used or unused (burnt or unburnt) matchsticks or any matchbox was lying on the floor. In the spot map Ex.P/16, it is mentioned that lamp (chimney) was placed on a rack meant to keep water pot. Five liters kerosene can was lying on the floor. Some half burnt clothes and burnt matchsticks were also lying on the floor but here also it is not mentioned that there was some kerosene spilled on the floor or some matchbox or some unburnt or unused matchsticks were lying on the floor and also it is not mentioned that Criminal Appeal No.604/2006 15 the kerosene lamp (chimney) was lying on the floor. Vide seizure memo Ex.P/2, a white 5 liters jerry can containing little kerosene, a bottle of glass being used as chimney, a matchbox with some unused matchsticks and four burnt matchsticks were seized. Here also no unused or unburnt matchstick was seized from the floor and no explanation is given by the prosecution as when any matchbox or burnt or unburnt matchsticks were not noticed at the time of preparation of panchnama lash or naksha mauka (spot map), how later they were found on the spot.
21. Scientific Officer of Crime Cell Mobile Unit-Mr. Bariwal (P.W.15) has stated that he saw the kerosene spilled on the floor and directed to collect it by a cotton swab and to send it for chemical examination to the FSL. The same fact is mentioned in Scene of Crime Report Ex.P/30, but letter sent to FSL Ex.P/18 does not reflect that any such cotton swab doused in the kerosene collected from the floor on the spot or was sent to the FSL.
22. It is mentioned in the 'Scene of Crime Report' Ex.P/30 that the matchbox was containing 8 unused matchsticks but this fact is not mentioned in the seizure memo as to how many sticks were there in the matchbox.
23. It is mentioned in the 'Scene of Crime Report' Ex.P/30 that cap of 5 liters can of kerosene found on the spot was found on Criminal Appeal No.604/2006 16 'paredi' but this fact is not mentioned in panchnama lash Ex.P/1, seizure memo Ex.P/2 or Naksha mauka (spot map) Ex.P/16.
24. It is mentioned in panchnama lash Ex.P/1 that there were sign of struggle on the south east wall of the room but no sign of struggle were noticed by the Scientific Officer of Crime Scene Mobile Unit or mentioned in the report Ex.P/30 prepared under his supervision. Besides, at the time of postmortem, Dr. A.P. Singh (P.W.11) found one blue colour bangle in the left wrist and 2 blue colour bangles in the right wrist of the deceased. This fact is also mentioned in his postmortem report Ex.P/14. No broken pieces of bangles were found on the spot. This fact refutes strongly the 'theory of struggle' of the prosecution and absence of any sign of struggle, makes the entire prosecution story that after pouring kerosene; the deceased was burnt alive by the accused.
25. Roshan (P.W.2) has stated that he assisted the doctor in postmortem and noticed that there was a smell of kerosene from the body of the deceased but it is not the case of the prosecution that Roshan ever assisted the doctor at the time of postmortem. Dr. A.P. Singh (P.W.11) has also stated that there was some smell of kerosene from the body of the deceased but at none of the earlier occasion, this fact was noticed either by the investigating officer or by the panch witnesses at the time when they first saw the dead Criminal Appeal No.604/2006 17 body and completed the preliminary proceedings including the inspection of the body before preparing panchnama lash.
26. The trial Court has mentioned in the judgment that in his attempt to save his wife, the accused sustained only 3 simple burn injuries and discarded his defence that he tried to rescue his wife but Dr. Gopal Singh (P.W.7) has stated that on medical examination, he found 7 burn injuries over chest, right and left arm, right armpit, right and left hand and right thenar eminence; area between thumb and index finger. Size of these injuries is from 7 X 6 cm to 17 X 19 cms. In cross-examination, Dr. Gopal Singh has admitted that all these injuries may be caused during the attempt to save a burning person. The learned trial Court has failed to observe all these facts. Size of the injuries and the place where these have been sustained and the statement of Dr. Gopal Singh, in the considered opinion of this Court, fortifies and makes the defence of the appellant plausible or are sufficient to show that the defence taken by the accused is reasonably possible or at least it cannot be brushed aside simply observing that the accused sustained simple injuries.
27. The place of incident is a densely populated area, several inhabited houses are situated adjacent to the room where the incident took place. Even on the ground floor of the same room, Criminal Appeal No.604/2006 18 aunt of the accused resides, but there is no evidence that anybody heard any clamour or panic noise of struggle or shrieks of the deceased or had come out from his house. It is not the case of the prosecution that nobody came out to disclose the facts or was not ready to co-operate with the investigation even when contacted by the Investigating Officer. It is really surprising that such horrific incident was not noticed by any of the neighbour it cannot be believed that a person was burnt alive and there was no struggle, no shrieks or nothing was noticed by the neighbours in a densely populated locality.
28. Thus, in our considered opinion, the learned trial Court has not considered the evidence produced by the prosecution in its right perspective. Considering the totality of the facts and the evidence, in the considered opinion of this Court, the circumstances relied upon by the prosecution cannot be considered as established by convincing evidence or they are sufficient to hold the accused/appellant guilty of the offence charged against him beyond reasonable doubt. The evidence adduced by the prosecution falls short of reliability and is unsafe to record conviction. There are reasons to doubt the prosecution evidence and certainly benefit of doubt has to be given to the appellant. The appellant has already undergone 14 years of imprisonment, as informed by learned Criminal Appeal No.604/2006 19 counsel for the parties.
29. Consequently, the appeal filed by the appellant is allowed. The impugned judgment and order of sentence is hereby set aside. The appellant is acquitted from the charge under section 302 & 304 Part-II IPC. He be set at liberty forthwith, if not required in any other offence.
30. The order of the trial Court with regard to the disposal of case property is hereby confirmed.
Certified copy, as per rules.
(S.C. SHARMA) (VIVEK RUSIA)
JUDGE JUDGE
Ravi
Digitally signed by Ravi Prakash
Date: 2019.09.16 17:49:13 +05'30'