Madhya Pradesh High Court
Imran Khan vs State Of Madhya Pradesh on 24 March, 1994
Equivalent citations: 1995CRILJ17
Bench: Chief Justice, P.P. Naolekar
JUDGMENT U.L. Bhat, C.J.
1. Appellant has been convicted under Sections 302 and 498A, I.P.C. and sentenced to undergo imprison-, ment for life and rigorous imprisonment for three years respectively. The sentences have been directed to run concurrently.
2. The substance of charge against the appellant is that he committed the murder of his wife, Razda Begum. They were married a few months before the occurrence. The appellant was always finding fault with his wife for not bringing enough dowry and uttering abuses at her and even assaulting her. On 10-6-1986 (10-7-86), the appellant took his wife from his house telling her that he would take her to Begum Gunj where her parents were residing and thereafter take her to Bhopal for a change. They had to reach Begum Gunj by walking through forest area. At about 9 p.m., when they were inside the forest, he started abusing his wife and when she protested, he assaulted her with a farsa, a sharp edged weapon, and ran away. She fell down unconscious. Regaining consciousness the next morning, she slowly walked to Begum Gunj and reached her uncle's place at about 4 p.m. She informed her father P.W. 1, brother P.W. 2, sister P.W. 3 and others about the incident. She was taken to Begum Gunj police station where she got Ex. P20, F.I. statement prepared by a police constable. Charge witness No. 15, S.I. Police, Begum Gunj received Ex. P.20, but did not prepare F.I.R. since the scene of occurrence was outside the jurisdiction of the police station. He prepared Ex. P19, report and sent Exhibits P19 and P20 to Rahatgarh police station where P.W. 11, S.I. Police received the same and registered a case against the appellant on the basis of Exs. P19 and P20. Meanwhile the injured was taken to Begum Gunj hospital where she was treated by P.W. 9 and thereafter taken to Raisen hospital. She died on 23-7-1986.
3. P.W. 10 conducted autopsy on the dead body. P.W. 12, S.I. Rahatgarh police station held inquest over the dead body. He and P.W. 11 conducted investigation. Appellant was arrested on 12-7-1986. After completing investigation, charge-sheet was filed on 21-7-1986.
4. On the appellant pleading not guilty, prosecution examined 13 witnesses and marked the relevant documents. Defence examined one witness.
5. Appellant, when questioned, stated that P.W. 4 and Akhtar were not happy with his marriage with Razda Begum and they had threatened him. It was suggested, in cross-examination of some of the witnesses that P.W. 4 and the deceased were visiting each other and on the day in question, the deceased left the house without his knowledge.
6. The trial court accepted the prosecution evidence and held the appellant guilty of the charge.
7. Evidence of P.W. 9 shows that the deceased had 2 incised injuries, one on the left occipital region and the other on the right arm. They were found to be simple injuries by clinical examination.
8. After sustaining the injuries, the injured lived for 13 days. P.W. 10 who held autopsy on the dead body, found only one injury, viz. incised gaping wound over the anterior mastoid process on the base midline, measuring 10 cm. x 3 cm. Infection caused tetanus and death was as a result of asphyxia caused by tetanus due to infection of the wound.
9. We may refer to the following passages in Mayne's on Criminal Law of India, 4th Edition, at pages 447, 469 and 476.
It is indisputable that death should be connected with act of violence not by chain of causes and effects, but by such direct influence as is calculated to produce the effect without the intervention of any considerable change of circumstances.
Any act is said to cause death within the meaning of Section 299 when death results either from the act itself, or from some consequences necessarily or naturally flowing from that act reasonably contemplated as its results.
The real question was whether in the end, the wound was cause of death.
10. We may also advert to the following passages in Taylor's Medical Jurisprudence, Vol. I, 1 lth Edition, pages 232 and 238:
A wound may cause death either directly or indirectly. A wound operates as a direct cause of death when the wounded person dies either immediately or very soon after its infliction and there is no other cause for death. In wounds which cause death indirectly, the deceased survives for a certain period and the wound is complicated by inflammation, embolism, pneumonia, tetanus, or some other mortal disease which is a consequence of the injury. Cases which prove fatal by reason of surgical operations rendered imperatively necessary for the treatment of injuries, presuming that these operations have been performed with ordinary skill and care, also fall into this category. It would be no answer to a charge of death from violence to say that there was disease in the body of the victim unless the disease was the sole cause of death.
Certain kinds of injuries are riot immediately followed by serious consequences, but an injured person may die after a long or a shorter period and his death may be as much a consequence of the injury as if it had taken place on the spot. An aggressor is as responsible as if the deceased had been directly killed by his violence provided the fatal result can be traced to probable consequences of the injury.
11. An act is said to cause death when death results from the act itself or from some consequences necessarily or naturally flowing from the act, and reasonably contemplated as its result. Where without the intervention of any considerable change of circumstances death is connected with the act of violence by a chain of causes and effects, death must be regarded as the proximate and not too remote a consequence of the act. The cause must not only be the cause a sine qua non, but it must also be a cause reasonably proximate; but the doctrine of criminal causation has reasonable limits. An injury may lead to death. Death may be instantaneous or may be delayed. The injury may lead to shock, excessive bleeding coma, syncope etc. and cause death; in such a case, injury and death have a clearly pet ceptible and direct nexus and there will be no difficulty in finding that death is the direct result of injury. The decision may not be so easy in a case where death is caused not directly by the injury itself, but due to a complication or development or in a case where death is not instantaneous, but is delayed. Where death is delayed or due to a later complication or development, court has to consider the nature of the injury, complication or development and attendant circumstances. If the complication or development is the natural or probable or necessary consequence of the injury and if it is reasonably contemplated as its result, the injury can be said to have caused death. If, on the other hand, the chain of consequences is broken or if there is unexpected complication causing new mischief, the relation of cause and effect is not established or the causal connection is too remote and the injury cannot be said to have cause death. If the original injury itself is of a fatal nature, it makes no difference that death is actually caused by a complication naturally flowing from the injury and not the injury itself since causal connection is proximate.
12. Learned Sessions Judge assumed without application of mind that the injuries allegedly inflicted by the appellant on his wife caused her death. The injuries noticed by PW 9, viz. incised wounds on the left occipital region and right arm were simple injuries. The evidence of PW 10 who conducted the autopsy does not indicate fracture of any bone. The injury on the right arm obviously healed before death, as that injury was not seen during autopsy. Autopsy revealed only infected wound over the anterior mastoid process on the skull. PW 10 did not depose to the cut in the mastoid process which is mentioned in the autopsy report. Learned Sessions Judge also did not take the trouble of perusing the autopsy report while PW 10 was giving evidence and did not question him about the cut on the mastoid process. Infection led to tetanus. According to PW 10, cause of death was asphyxia due to tetanus. Death took palce 13 days after the occurrence.
13. The occurrence took place in the night of 10-7-1986 and from the afternoon of 11-7-1986, the injured was under medical treatment. Evidence does not indicate that infection or tetanus developed quickly. There is no evidence that her condition was deteriorating from the time she was admitted in the hospital. The medical records would have provided clues as to her condition and the treatment given and onset of infection. The injury on the skull, by itself, was only a simple injury oridinarily not sufficient to cause death. Death has not been shown by a chain of causes and effect to be the proximate consequence of the act attributed to the appellant. If death had taken place shortly after infliction of the injuries, Court could have drawn an inference that the injury was the proximate cause of death. The Court is kept in the dark about her condition during the period of 13 days. Unexpected complications causing new mischief cannot reasonably be ruled out. The original injury itself was not of a fatal nature. It is clear that causal connection is too remote and the injury on the skull has not been shown to have caused death.
14. In this connection, we cannot but comment on the causal way in which the medical certificate and the post-mortem certificate were prepared and the chief examination of PW 10, Medical Officer, was conducted and the manner in which evidence was recorded by the learned Sessions Judge. It is necessary that medical officers who handle medico-legal cases should be more careful in preparing medical reports and in giving evidence. It is their duty to see that all relevant materials are included in the reports so that the reports are really useful to the court and the parties. When Medical Officers are in the witness-box, it is the bounden duty of the prosecutor to elicit from them necessary material which will help the Court to arrive at proper conclusions. Particular care must be taken to show the weapon, if it is available or describe the weapon to the Expert witness and elicit from him whether it could cause injury. The nature, gravity and consequence of injury should also be elicited. If the prosecutor fails to elicit relevant materials, the Court also has the right and duty to put relevant questions to the Expert witnesses. It is ultimately the responsibility of the Court to arrive at conclusions regarding matters in issue. Where the prosecutor fails to discharge his duty by putting necessary questions to the Expert witnesses, the Court should put such questions. This of course must be done without partisanship and in fair manner. The Supreme Court has observed in Ramchander v. The State of Haryana AIR 1981 SC 1036 : 1981 Cri LJ 609 (at pp. 609, 610) as follows:
The adversary system of trial being what it is there is an unfortunate tendency for a judge presiding over a trial to assume the role of a referee or an umpire and to allow the trial to develop into a contest between the prosecution and the defence with the inevitable distortions flowing from combative and competitive elements entering the trial procedure. If a Criminal Court is to be an effective instrument in dispensing justice, the presiding judge must cease to be spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth. But this he must do without unduly trespassing upon the functions of the public prosecutor and the defence counsel, without any hint of partisanship and without appearing to frighten or bully witnesses. Any questions put by the judge must be so as not to frighten, coerce, confuse or intimidate the witnesses.
15. There were no eye-witnesses for the occurrence which took place inside a forest at dead of night. Prosecution relied on:
(a) oral dying declaration spoken to by PWs 1 to 3;
(b) dying declaration in the form of F.I. statement Ex. P-20; and
(c) Ex. P-18, dying declaration recorded by PW 13, Executive Magistrate.
16. Accused and deceased were married a few months prior to the occurrence. There is no direct evidence as to any disagreement or quarrel between them. PWs 1 to 3, father, brother and sister respectively of the deceased, deposed that they had come to know from the deceased that the appellant was finding fault with her for not bringing dowry in the shape of radio, cycle etc. and used to assault her. The witnesses did not depose as to when they were told so by the deceased. According to learned counsel for the appellant, this evidence would be inadmissible under Section 32(1) of the Evidence Act for two reasons; (i) these matters have nothing to do with the alleged assault on the night of 10-7-1986; and (ii) the alleged assault by the appellant is not shown to have caused death of his wife.
17. Section 32 of the Indian Evidence Act renders relevant, inter alia,,verbal or written statement of relevant facts made by a person before death in cases set out in paragraphs 1 to 8 thereof. Para 1 deals with statement made by a person as to cause of his death or any of the circumstances of the transaction which resulted in his death, in cases in which cause of death comes into question. Section 32 renders relevant not only statements as to cause of death, but also statements as to any of the circumstances of the transaction which resulted in death. As pointed out by the Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622 : 1984 Cri LJ 1738, the law in India in this regard is wider in scope than the law in England. Whether a particular circumstance is -a circumstance of transaction which resulted in death depends on the proximity of the circumstance to death. Fazal Ali, J., in the above decision, stated as follows (at p. 1739 of Cri LJ):
The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a strait-jacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months, the statement may be admissible under Section 32.
18. Sabyasachi Mukharji, J., as he then was, referring to the above view of Fazal Ali, J., observed (at p. 1789 of Cri LJ):
I would, however, like to state here that the approach should be taken with a great deal with caution and care and though I respectfully agree Fazal Ali, J. that the test of proximity cannot and should not be too literally construed and be reduced practically to a cut-and-dried formula of universal application, it must be emphasised that Whenever it is extended beyond the immediate, it should be the exception and must be done with very great caution and care. As a general proposition, it cannot be laid down for all purposes that for instance where a death takes place within a short time of marriage and the distance of time is not spread over three or four months, the statement would be admissible under Section 32 of the Evidence Act. This is always not so and cannot be so. In very exceptional circumstances like the circumstances in the present case, such statements may be admissible and that too not for proving the positive fact, but as an indication of a negative fact, namely raising some doubt about the guilt of the accused as in this case.
19. The statement attributed to the deceased is that the appellant was unhappy with his wife for not bringing enough dowry and that he was ill-treating her and assaulting her. This would explain the motive for any fatal assault, he may have launched on her. Such conduct of the appellant which is not too remote in the distance of time, could be treated as a circumstance relating to death within the meaning of Section 32(1) of the Evidence Act. Therefore, the first objection raised by the appellant fails.
20. It is fundamental to the provision in para 1 of Section 32 of the Evidence Act that there must be death. The statement must relate to cause of death or to any of the circumstances of the transaction which resulted in death when the cause of death comes into question. If the decesed is not proved to have died as a result of the injuries received in the incident propounded by the prosecution, her statement cannot be said to be statement as to cause of her death or to any of the circumstances which resulted in her death.
21. In Motisingh v. State of U.P. AIR 1964 SC 900 : 1964 (1) Cri LJ 727, the Supreme Court observed (at p. 730 of Cri LJ) as follows:
The effect of this finding is that the alleged dying declaration of Gaya Charan, Ex. Kha 75, cannot be admissible in evidence. Clause (1) of Section 32 of the Evidence Act makes a statement of a person who has died relevant only when that statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. When Gaya Charan is not proved to have died as a result of the injuries received in the incident, his statement cannot be said to be the statement as to the cause of his death or as any of the circumstances of the transaction which resulted in his death.
22. We have already indicated that the injury alleged to have been caused by the appellant to his wife on the night of 10-7-1986 is not shown to have proximal connection with her death. Therefore, the statement of the deceased made to PWs 1 to 3 cannot be said to be a statement as to cause of death or as to any of the circumstances which resulted in her death. The evidence given in this behalf by Pws 1 to 3 is hearsay and is not relevant under Section 32(1) of the Evidence Act.
23. According to the prosecution case, appellant's wife regained consciousness on 11-7-1986 and somehow managed to walk to Begum Gunj and met her family members. She narrated the occurrence to them. PWs 1 to 3 deposed that she stated that she was assaulted by her husband in the forest. This evidence also would be hearsay and not relevant under Section 32(1) of the Evidence Act for the reasons mentioned already. Learned Sessions Judge also relied on Ex. P20. It is said to be the written report or statement which was got written by a police constable at Begum Gunj police station and signed by the deceased and handed over by her to the S.I., Begum Gunj. The S.I. Police did not prepare the F.I.R. or register the case against the appellant since the occurrence took place outside his jurisdiction. Instead, he prepared Ex. P19, report and forwarded it along with Ex. P20 to Rahatgarh police station where it was received by PW11, S.I. Police who prepared Ex. P12, F.l.R. and registered the case. According to the prosecution, Ex. P20 has been proved by PW 2, as he took the deceased to the police station and got a report written by a police constable. PW 2 did not depose that the deceased gave instructions for preparing Ex. P20 or that it was read over to her or that she affixed her signature to it. At another stage, in his evidence, he deposed that this was done when he had gone out to purchase medicines. Ex. P20 was not even shown to PW 2. The police constable who wrote Ex. P20, was not even cited as a charge witness. The S.I. Police who received Ex. P20 alleged from the deceased, was cited as a witness. Every attempt was made from 3-2-1992 till the closure of the evidence in August, 1993 to summon the S.I. Police, but no summons was served on him. Bailable warrants were issued, but nobody took the trouble of producing him in Court. The net result is that S.I. Police who received Ex. P20, allegedly from the deceased, was not examined. In other words, there is no proof that the deceased had subscribed to Ex. P20 or that it contains her version. For want of proof, as also want of evidence connecting death with the injury, we have to hold that Ex. P20 cannot be treated as legal evidence.
24. The criminal justice system depends to a considerable degree for its success on the efficiency and efficacy of the police administration. An expeditious, effective and honest investigation, leading to charge-sheet and efficacious service of process to witnesses who have to depose for the prosecution in the criminal Courts are necessary pre-requisites for an efficient criminal justice system. It is necessary that charge officer or his successor or some responsible officer at the police station be present in Sessions Court during trial to assist the prosecution and the Court in a variety of ways. It is distressing to note the heavy pendency of criminal cases, particularly sessions cases. It is more distressing to note the pendency of large number of part-heard criminal cases, particularly sessions cases.
25. According to the Code of Criminal Procedure, Prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. This provision of the Code has fallen into total disuse. On recording the plea of the accused, the Judge shall fix a date or dates for examination of witnesses and may, on the application of the prosecution, issue process for compelling the attendance of witnesses for production of documents. Invariably the dates must be consecutive. It is for the prosecution to produce evidence on the date or dates so fixed. Such evidence as may be produced, shall be taken. Prosecution is certainly entitled to the assistance of the Court by issue of process, but it is the duty of the police administration to ensure that processes are served so that witnesses may be present in Court. The scheme of the provisions would suggest that in sessions cases, prosecution evidence must be recorded from day-to-day till it is over and so also defence. The spirit and letter of the provision are observed more in the breach in Sessions Court. The co-operation of police administration, the prosecutor and the accused is absolutely essential for the speedy conduct of trial.
26. One serious bottleneck that is noticed is the non-service of processes on witnesses. This is particularly so in regard to official witnesses such as Medical Officers or Police Officers. We are told that phenomenon of frequent transfers of Officers is responsible for delay In service and non-service of summons. The Director General of Police and Director, Health Services must take effective steps to ensure that processes to Officers are invariably to be served without delay. It would be helpful if the District Authorities are informed about transfers of Officers and District Administration keeps a continuing chart of Officers transferred so that as and when transfers are effected, either the concerned police stations or the concerned Sessions Courts are duly informed. There should be no difficulty in this regard in the age of computers.
27. Ex. P18 is said to be a copy of the dying declaration recorded by PW 13. The original has not been made available to the Sessions Court. No evidence has been placed before the Court to indicate that the original is not available. PW 13, when questioned, merely stated that he had sent it to the Court concerned; he did not produce any record to show that he had forwarded the dying declaration to any particular Court. When confronted with this situation, it was certainly the duty of the learned Sessions Judge to have made an attempt to get the original. Learned Sessions Judge failed to discharge his duty. The dying declaration is not available and necessary conditions for reception of secondary evidence have not been established. The copy does not bear the copy of signature of the declarant. It may be that the original contains the signature; we do not know.
28. We have already indicated that prosecution has failed to prove causal connection between the injury and death. Hence the alleged dying declaration recorded by PW 13 is not relevant under Section 32 of the Evidence Act. The oral dying declaration spoken by PWs 1 to 3 also fail for the same ' reason.
29. It is contended by learned counsel for the appellant that the exact words of the deceased in the oral dying delaration have not been spoken to by PWs 1 to 3. Learned counsel invited our attention to the decision in Ramnath Madhoprasad v. State of M.P. AIR 1953 SC 420 : 1953 Cri LJ 1772, Para 14 of the judgment refers to oral dying declaration made by the deceased to three of the prosecution witnesses. All of them referred to the statement in indirect form and in a contradictory manner. It was in this connection that the Supreme Court observed (at p. 1775 of Cri LJ):--
In our opinion, unless one is certain about the exact words uttered by the deceased, no reliance can be placed on the verbal statements of witnesses and such oral declaration made by the deceased.
Reference is also made to Bakhshish Singh v. The State of Punjab AIR 1957 SC 904 : 1957 Cri LJ 1459. Paras 4 and 5 of the judgment deal with written dying declaration. The dying declaration was given in Punjab, but it was recorded in Urdu. The Supreme Court held that there was no irregularity in the dying declaration. Every attempt must be made to elicit the exact words spoken by the deceased. This of course depends upon the memory of the witness and passage of time. The fact that the words are repeated in the indirect form and shall not always take away the efficacy of the dying declaration. Whether the evidence can be relied upon depends upon the facts and circumstances of each case.
30. It is contended for the appellant that Ex. P18 shows that the original dying declaration was not recorded by PW 13 in the form of questions and answers. In Rabi Chandra Padhan v. State of Orissa AIR 1980 SC 1738 : 1980 Cri LJ 1257, dealing with a dying declaration recorded by an Executive Magistrate, the Court observed (at p. 1259 of Cri LJ):
Now when a Magistrate records a dying declaration, preferably it should be in question and answer form.
The above observation does not suggest that if the declaration is not in question and answer form, it has no value. The law in this behalf has been clarified by the Supreme Court in Ganpat Mahadeo Mane v. State of Maharashtra (1993) Supp (2) SCC 242 : 1993 Cri LJ 298 in the following words (at p. 300 of Cri LJ):
Learned counsel for the appellant submitted that since the Executive Magistrate did not record the statement by way of questions and answers, the recording is defective and, therefore, it should not be acted upon. We see no force in this submission. The form, by itself, is not important. The statement is clear. Because of the mere fact that the entire thing is not recorded by way of separate questions and answers, the value of the dying declaration is not detracted.
The contention that oral dying declaration is vitiated in the absence of exact words in direct form and since the dying declaration recorded by the Magistrate was not in the form of questions and answers cannot be accepted. However, for the reasons mentioned already, we hold that the alleged dying declarations cannot be acted upon.
31. The Investigating Agency has not been effective in investigating the case. According to the prosecution, the appellant took his wife from their house and assaulted her while in the forest. No attempt appears to be made to trace witnesses who would have seen the appellant and his wife going from their house on the evening towards Begum Gunj. If the Investigating Agency had taken the trouble or discovering such evidence, possibly the prosecution could have relied on the circumstance that the deceased was last seen alive in the company of the appellant.
32. We hold that prosecution has failed to establish any case against the appellant. The appeal is accordingly allowed. Conviction and sentences entered against the appellant ;re set aside and he is acquitted of the charges against him. He will be set at liberty if his continued incarceration is not required in connection with any other case.
33. Copies of this judgment will be transmitted to Secretaries to the State Govt. in the Home and Law Departments, Director General of Police and Director of Health Services for appropriate action on the basis of the observations affecting investigation, preparation of medical reports, evidence of Medical Officers and service of process and the like. Registry will also place a copy of the judgment before the Chief Justice and seek orders whether copies of the judgment should be circulated to all Sessions Judges.