Madhya Pradesh High Court
Smt. Rajantabai S. Parihar vs State Of Madhya Pradesh on 23 February, 2007
Equivalent citations: 2007CRILJ2495, II(2007)DMC479
JUDGMENT
1. The appellant has challenged the impugned judgment of conviction under Section 302 of the Indian Penal Code and sentence of imprisonment for life passed by the learned Sessions Judge, Dewas in Sessions Trial No. 217/97 by judgment dated 31-3-1998.
2. In short, the prosecution case as narrated before the trial Court is that the de-ceased-Ashabai was married to P.W. 1 Bharat, step son of appellant in the year 1993. For one year after the marriage the appellant behaved properly with the deceased and thereafter used to quarrel and abuse her filthily and also to beat her. Whenever deceased-Ashabai was visiting the house of her parents, she was disclosing all these facts to her mother. Before her death, the deceased lived for 17 days with her mother and returned back to her husband's house on persuation by P.W. 3 mother Shakuntala on the eve of MATA POOJAN festival. The appellant is the step mother-in-law of the deceased. On the date of incident (10-10-1997) in the morning at about 7.30 a.m., a dispute arose amongst the appellant and the deceased-Ashabai which attracted the husband of the deceased, P.W. 1 Bharat who asked as to why they were quarrelling, upon which the appellant started quarrelling with him also. P.W. 1 Bharat went out of the house and after some time over heard the cry coming from the house. He returned to the house and saw that his wife Asha was running in burnt condition. He extinguished the fire and took her immediately to the District Hospital, Dewas. From the hospital, a writen intimation was sent in this regard to the Police Station Kotwali Dewas. Head Constable Poonamchand conveyed the message on telephone to the police of Police Station Industrial Area. Dewas where the message was recorded at Daily Diary No. 517 dated 10-10-1997 at 8.40 p.m. Asha was got medically examined by the police through medical requisition Ex. P/5-A. The police also requested in writing for recording of the dying declaration of the deceased. Carbon copy Ex. P/4 was filed with the charge-sheet. (In para 4 of the impugned judgment, at internal page No. 3 this fact has been incorrectly written by the learned trial Court. Ex. P/4 is not the carbon copy, but it is photo stat copy). During investigation, police prepared the spot map Ex. P/7 and effected seizure of kerosene container through seizure memo Ex. P/8. Police Industrial Area, Dewas registered Crime No. 457/97 under Section 307 of the I.P.C. (Again, in para 4, the learned trial Court has incorrectly mentioned that after MURG enquiry, crime was registered under Section 307, I.P.C. MURG/Inquest Enquiry means the person concerned had died. In the instant case, at the time of registration of crime, Ashabai did not die and, therefore, offence was registered only under Section 307, I.P.C). The deceased was shifted for treatment to Indore. The deceased also disclosed about setting her to fire after pouring kerosene oil by the appellant, to her mother. The deceased died in the M.Y. Hospital, Indore on 16-10-1997. Alter her death, inquest proceedings were conducted by the police and sent the seized articles for examination to the Forensic Science Laboratory. After necessary investigation, the appellant was charge-sheeted for having committed the offence of murder punishable under Section 302 of the Indian Penal Code. She denied the charges and contended before the trial Court that she was falsely implicated because of ill-will.
3. We have heard learned Counsel for the parties and perused the entire record carefully.
4. The conviction of the appellant is mainly based on the written dying declaration Ex. P/4 recorded by P.W. 4 Dr. K. N. Tripathi in the District Hospital, Dewas on 10 10-1997 and oral dying declaration made by the deceased before her mother P.W. 3 Shakuntalabai. The learned trial Court has also placed reliance on the statement of P.W. 1 Bharat. husband of the deceased regarding ill-relation and dispute between his wife, the deceased and the appellant.
5. The crucial question that crops up before this Court is whether the document Ex. P/4 dying declaration said to have been recorded by P.W. 4 Dr. Tripathi, a photostat copy can be relied upon or not. P.W. 4 Dr. Tripathi has testified that on 10-10-1997, in the night at 8.15 p.m. the deceased -Ashabai was brought in the hospital by her husband Bharat (P.W. 1). He recorded her dying declaration Ex. P/4 wherein the deceased disclosed that the appellant, mother-in-law was levelling false allegations against her, regarding illicit relation with her father-in-law. On the date of incident, after verbal altercation the appellant poured kerosene oil on her person through shoulder and lit fire. None else helped the appellant and her husband was in her favour. The prosecution got proved the document Ex. P/4 which we have perused and found that Ex. P/4 is the photostat copy and not the original dying declaration written by this witness. The prosecution has not put any question to this witness regarding Ex. P/4 photostat copy and original dying declaration written by him in his own handwriting. On the contrary, in examination-in-chief para 2, Ex. P/4 appears to be got proved as original document written and signed by this witness, but the signatures of this witness were not specifically exhibited by indicating portion mark A to A or in any other words. The doctor has also stated that at the time of recording of statement, witness Bhanusingh was present who also signed on the document Ex. P/4. The signatures of Bhanusingh were also not specified by marking B to B or any other words. The prosecutor also did not put any question with regard to availability of the original dying declaration written by this doctor. The doctor also has not stated anything. The learned presiding District and Sessions Judge also failed to discharge his duly to put question about original dying declaration which he ought to have done in exercise of the provisions under Section 166 of the Evidence Act, which reads as under:
165. Judge's power to put questions or order production :- The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness of the parties, about any fact relevant or irrelevant, and may order the production of any document or thing, and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question.
Provided that the judgment must be based upon fact declared by this Act to be relevant, and duly proved.
Provided also that the section shall not authorise any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under Sections 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party, nor shall the Judge ask any question which it would be improper for any other person to ask under Section 148 or 149, nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.
6. Long back in the year 1994, in the case of Imran Khan v. State of M.P. 1994 MPLJ 862 : 1995 Cri LJ 17, the Division Bench of the principal seat of this High Court has considered this aspect of the matter in para 14 in the light of decision of the Supreme Court rendered in the case of Ramchander v. State of Haryana and observed as under (At pp.20 and 21, para 14 of Cri LJ):
In this connection, we cannot but comment on the casual way in which the medical certificate and the post-mortem certificate were prepared and the chief examination of P.W. 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 report 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 whether it could cause injury. The nature, gravity and consequence of the 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 witness. 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. State of Haryana as follows:
The adversary system of trial being what 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 Criminal Court is to be an effective instrument in dispensing justice, the presiding Judge must cease to be a 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 for functions of the public prosecutor and the defence counsel, without any hint or 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.
7. The power enshrined under Sections 91 and 311 of the Cr. P.C. as well as under Section 165 of the Evidence Act, regarding issuing direction to produce document, recall and reexamination of witnesses and (Hitting questions, have been discussed in catena of judgments passed by the Apex Court, this Court as also by the other High Courts of the country.
8. Photostat copy of the dying declaration Ex. P/4 can be used as a secondary evidence as per provisions under Sections 63 and 65 of the Evidence Act, which reads as follows:
63. Secondary evidence.- Secondary evidence means and includes-
(1) Certified copies given under the provisions hereinafter contained.
(2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy and copies compared with such copies.
(3) Copies made from or compared with the original.
(4) Counterparts of documents as against the parties who did not execute them.
(5) Oral accounts of the contents of a document given by some person who has himself seen it.
illustrations
(a) A photograph of an original is secondary evidence of the contents, though the two have not been compared if it is proved that the thing photographed was the original.
(b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.
(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence, but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.
(d) Neither an oral account of a copy compared with them original, nor an oral account of a photograph or machine copy of the original, is secondary evidence of the original.
65. Cases in which secondary evidence relating to documents be given.- Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:
(a) When the original is shown or appears to be in possession or power of a person against whom the document is sought to be proved, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it.
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest.
(c) when the original has been destroyed or, lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time.
(d) when the original is of such a nature as not to be easily movable.
(e) when the original is a public document within the meaning of Section 74.
(f) when the original is a document 6f which a certified copy is permitted by this Act or by any other law in force in (India) to be given in evidence.
(g) when the original consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.
In case (b) the written admission is admissible.
In case (e) or (f), a certified copy of the document, but no other kind of secondary, is admissible.
In case (g), evidence may be given as to the general result of the documents by any person, who has examined them, and who is skilled in examination of such documents.
9. The prosecution has not issued any notice as per; provisions under Section 66 for production of the original document/dying declaration Ex.P/4 which was in possession of the District Hospital, Dewas and P.W. 4 Dr. Tripathi. In the case of Imran Khan (1995 Cri LJ 17) (supra), similar situation arose. The copy of the dying declaration was filed and the original was not made available to the trial Court and no evidence was tendered before it to establish that the original was not available. Under these circumstances, the Division Bench observed in para 27 as under:
Ex. P. 18 is said to be a copy of the dying declaration recorded by P.W. 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. P.W. 13 when questioned, merely stated that he had sent 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 the 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 for 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.
10. In the instant case, neither the original dying declaration was filed before the Court nor evidence was placed for taking the secondary evidence. No question was put to the doctor about the original document. It appears from the statement of Dr. Tripathi that Ex. P/4 was proved and exhibited as original dying declaration. Whereas it is the photostat copy. In this case, it would be apposite to discuss the statement of P.W. 5 F. M. Qureshi SI, who has deposed that he asked the doctor by submitting the requisition Ex. P/5-A for medical examination of the deceased who was alive at that time and was referred to M. Y. Hospital, Indore. The further say of this witness is that during the course of talk, the doctor informed him that he recorded the statement of the deceased and also referred the deceased to M.Y. Hospital, Indore upon which, this witness F.M. Qureshi demanded a copy of the dying declaration on which the doctor replied that on the next day, he would send its photostat copy and he received the photostat copy Ex. P/4. In para 3, this witness has further stated that he issued the requisition Ex. P/ 6 to the medical officer of the Hospital at Dewas for sending of the original copy of the dying declaration Ex. P/4, but this witness has not stated any thing as to what reply was sent in pursuance of letter Ex. P/6. Overleaf the document Ex. P/6, this is mentioned by Dr. Tripathi on 11 -10-1997 at. 4.15 p.m. that he is sending the photostat copy of the document through Constable Satish Kumar No. 116 of P.S. industrial Area, but these mentioning on overleaf of the document Ex.P/6 were not proved and exhibited in the Court. In this view of the matter, we are of the considered view that Ex. P.4 photostat copy of the dying declaration cannot be used as substantive piece of evidence against the appellant.
11. So far as the evidence of oral dying declaration is concerned, given by P.W. 3 Shakuntalabai, we do not find the same worthy for placing reliance, because the deceased was shifted in M.Y. Hospital, Indore and no evidence has been led by the prosecution whether in the Indore Hospital after sustaining 90% burn injury and lapse of two days, the deceased was in a fit state of mind to speak or talk relevantly.
12. There is evidence on record of P.W. 1 Bharat, husband of the deceased and P.W. 3 Shakuntala, mother of the deceased that the deceased was residing separate from her step mother-in-law with her husband. P.W. 3 Shakuntalabai, mother of deceased has no where stated that the deceased told her that her step mother-in-law, the appellant, levelled false allegation of having illicit relation with her father-in-law. Shakuntala (P.W. 3) has stated that the dispute occurring between the appellant and the deceased were on account of trivial issue like children were throwing water and regarding performance of household work.
13. The homicidal death of the deceased by burn injuries has not been disputed before us by the learned Counsel for the appellant and the same has also been proved by the evidence of Dr. P.C. Jain (P.W. 7), autopsy surgeon who proved the postmortem report (Ex. P. 12). Deceased died on 16-10-1997. in the opinion of this doctor, the deceased died due to heart and respiratory failure and complications arose because of burn injuries.
14. The appellant has examined D.W. 1 Omprakash, step son of appellant and real brother-in-law (Devar) of the deceased, D.W. 2 Ku. Chetna Parihar, daughter of the appellant, D.W. 3 Smt. Mamta, step daughter-in-law of the appellant. All these three witnesses have stated that the deceased-Ashabai was having a quarrelsome nature. Appellant did not misbehave with her and both were residing separately.
15. In view of the aforesaid legal and factual screening of the evidence, we are of the opinion that the prosecution has miserably failed to prove its case beyond reasonable doubt against the appellant. Thus, this appeal is allowed. Conviction and sentence of the appellant are hereby set aside. The appellant is on bail. Her bail and surety bonds stand discharge.