Madhya Pradesh High Court
Jamna Lal Pande vs The State Of M.P on 22 September, 2009
SLP preferred against the judgment has been dismissed by the Apex
Court on 29.01.2010 vide SLP(Cri) No.301/2010
HIGH COURT OF MADHYA PRADESH : JABALPUR
Criminal Appeal No.159/1995
Jamnalal Pande, aged about 32 years
Son of Shiv Narayan Pande,
Resident of 102, Transit Hostel,
Distt. Bhopal ...... Appellant
v.
State of Madhya Pradesh
Through SHO, Police Station T.T. Nagar,
Distt. Bhopal ...... Respondent
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Shri Surendra Singh, Senior Counsel with Shri Umesh
Shrivastava, Advocate for the appellant.
Shri R.P. Tiwari, Govt. Advocate for respondent/State.
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Date of Hearing : 23.07.2009
Date of Judgment : 22.09.2009
JUDGMENT
The appellant stands convicted and sentenced as under with the direction that both the custodial sentences shall run concurrently-
Convicted under Sentenced to
Section
306 of the IPC undergo R.I. for 7 years and to pay
fine of Rs.1000/- and in default, to
suffer R.I. for 6 months.
498A of the IPC undergo R.I. for 3 years and to pay
fine of Rs.1000/- and in default, to
suffer R.I. for 6 months.
.
The corresponding judgment delivered on 13.01.1995 by Eighth Additional Sessions Judge, Bhopal in S.T. No.283/1990 is the subject matter of challenge in this appeal. By that judgment only, co- accused Vijay Kumar Pande, the younger brother of the appellant, was acquitted of the charges. Admittedly, no appeal has been preferred by the State against the order of acquittal.
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2. The prosecution story, in short, may be narrated thus -
(i) Manju (since deceased) was the daughter of Vishnucharan Joshi (PW2) & Kamla Devi (PW3) and sister of Ghanshyam Joshi (PW5), who is the husband of Nirmala Joshi (PW17). Marriage of Manju was solemnized with the appellant on 20.06.1983. In the wedlock, they were blessed with a son and a daughter named as Akshay Kumar and Gulla. At the relevant point of time, Manju was employed as Lower Division Clerk in the Police Headquarters at Bhopal whereas the appellant was working as Sub-Engineer in the PHE Department at Bhopal only. They were residing together in Quarter No.102 of the Transit Hostel situated near Mata Mandir, T.T. Nagar, Bhopal. However, their matrimonial life was not happy and smooth in view of the fact that Manju had been persistently subjected to cruelty and harassment due to non-satisfaction of demand for a motorcycle and also for various other reasons.
(ii) Ultimately, on 25.05.1990 at about 6:30 p.m., Manju was taken in a severely burnt condition by the appellant to the Hamidia Hospital, Bhopal. After a preliminary examination, Dr. M.K. Upadhayay (PW11), the CMO, admitted Manju to the Hospital; referred the case to RSO and also informed the police accordingly through the telephone attendant S.H. Kamar. Dr. B.L. Boriwal (PW12), the RSO, while noticing that almost the entire body of Manju was burnt, opined that the burn injuries were dangerous to life.
(iii) The information about the incident (Ex.P-7), as communicated by S.H. Kamar, was recorded by Head Constable Chandrabhan Singh (PW9) at Serial No.2485 in Rojnamcha of P.S. T.T. Nagar. Accordingly, Sub-
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Inspector Bhagwan Dayal Mishra (PW10) requested the Executive Magistrate to record Manju's dying declaration and proceeded to the quarter that was found to be locked. The dying declaration (Ex.D-10) as recorded by Nisar Ahmed Rizvi (DW1) suggested that Manju had sustained the burn injuries while preparing tea in the kitchen on a kerosene stove as LPG gas cylinder was found to be empty. However, on the following day only, after getting the spot inspected by Forensic Science Laboratory team headed by Dr. Azad Shrivastava (PW13), the Technical Officer, Bhagwan Dayal was able to ascertain falsehood of the dying declaration due to absence of the supportive circumstances at the spot. He, accordingly, registered a case by scribing FIR (Ex.P-9) under Section 498A of the IPC at P.S. T.T. Nagar, Bhopal. During investigation, he inspected the spot and seized the following articles therefrom -
(a) LPG gas cylinder and hot plate
(b) Kerosene stove
(c) Can containing Kerosene Oil
(d) Burnt matchsticks
(e) Burnt clothes of Manju
(f) pieces of burnt clothes and brunt skin sticking to and lying in washbasin
(g) Mangalsutra
(iv) For further examination and treatment, Manju was shifted to T. Choitram Hospital, Indore where she breathed her last on 26.06.1990. Accordingly, a marg (death case) was registered by ASI G.D. Verma (PW14) at Police Station, Rajendra Nagar, Indore. After inquest proceedings, dead body of Manju was sent to M.Y. Hospital, Indore for postmortem. It was conducted by panel of doctors comprising Assistant Surgeons Dr. :: 4 :Criminal Appeal No.159/1995
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Surendra Bapat and Dr. R.K. Singh. According to them, cause of Manju's death was cardio-respiratory failure as a result of extensive burns and their complications. The case was then converted into one under Section 306 of IPC.
(v) After due investigation, charge sheet was submitted in the Court of CJM, Bhopal who committed the case to the Court of Session for trial.
3. The appellant denied the charges and pleaded false implication at the instance of his brother-in-law Ghanshyam Joshi (PW5). Although, it was suggested in the cross-examination of Ghanshyam that he used to interfere in the domestic affairs of the appellant yet, no corresponding assertion was made in the examination under Section 313 of the Code of Criminal Procedure (for short 'the Code'). To bring home the charges, the prosecution examined as many as 19 witnesses including the parents, brother & Bhabhi (sister-in-law) of the deceased, the next-door neighbour and domestic servant. The defence tendered in evidence two dying declarations - the first recorded by Executive Magistrate Nisar Ahmad Rizvi (DW1) on 25.05.1990 and the second one (photocopy of which was placed on record as Exhibit D-11) said to have been recorded by Executive Magistrate G.R. Raghuwanshi (DW3) on 27.05.1990 in T. Choitram Hospital, Indore. The appellant also called Dr. H.N. Sahu (DW2) to prove existence of a superficial burn on his left hand in order to substantiate the suggestion that he had tried to save Manju.
4. Upon a critical appraisal of the entire evidence, learned trial Judge, for the reasons recorded in the impugned judgment, that runs into 31 typed pages, proceeded to discard both the dying declarations as unconvincing. Following the principles laid down by :: 5 :
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the Apex Court in State of Punjab v. Iqbal Singh AIR 1991 SC 1532 and Gurbachan Singh v. Satpal Singh AIR 1990 SC 209, he further concluded that guilt of the appellant for the offences charged with was proved beyond a reasonable doubt.
5. Legality and propriety of the impugned convictions have been challenged on the following grounds -
(i) The prosecution had surreptitiously suppressed the exculpatory dying declarations made by Manju wherein she had not stated any incriminating fact against the appellant.
(ii) The evidence of relatives of the deceased were contradictory to each other on material points such as, demand of motorcycle/cash amount and instances of cruelty.
(iii) Akshay Kumar, son of the appellant, who had allegedly witnessed the incident in question, was not produced in evidence.
(iv) The evidence regarding past instances of cruelty did not assume any significance in view of the subsequent exculpatory dying declarations.
(v) The statutory presumption under Section 113A of the Evidence Act was not applicable to the facts of the case in view of the admission made by Vishnucharan Joshi (PW2) that marriage of the appellant was solemnized with Manju on 20.05.1983.
In response, learned Govt. Advocate, while making reference to the incriminating pieces of evidence, has contended that the convictions are well merited.
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6. Before entering into merits of the rival contentions in a proper perspective, it would be necessary to first advert to the expert evidence on record.
7. Dr. M. K. Upadhyay (PW11), the then CMO, testified that at the time of Manju's admission to Hamidia Hospital on 25.05.1990, he had noticed 100% burns on her body. Corroborating this fact, Dr. B.L. Borival (PW12), the then RSO, clearly stated that Manju's general condition was poor, her pulse was not palpable and blood pressure was not recordable. He described Manju's burn injuries in the following words -
Blackening and charring of cuticle of following parts -
(i) Face & neck with singing of hair
(ii) Trunk, anterior part
(iii) Both upper limbs
(iv) Both lower limbs
(v) Perineum
In the opinion of the RSO, all the injuries were fresh and were caused by flames. He further characterized the injuries as grievous in nature and dangerous to life. No dispute was raised about the physical condition, nature and situs of the injuries as depicted by Dr. B.L. Boriwal in his report (Ex.P-9A).
8. Findings of the post mortem examination conducted by a panel of doctors including Dr. Surendra Bapat (PW9) were also not subjected to challenge in the cross-examination. According to the autopsy surgeon, cause of Manju's death was cardio-respiratory failure as a result of extensive burns and their complications.
9. Dr. H.N. Sahu (DW2) supported the fact that on 27.05.1990 at 1 p.m., the following injuries as described in the report (Ex.D-12) were found on the person of the appellant -
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(a) Superficial burn over the left palm on medial aspect.
Blisters present, size 2 x 3 cms. Hairs of left little finger burnt.
(b) Blisters on dorsum of left foot.
However, in his cross-examination, the medical expert clearly admitted that the injuries (a) could be self-inflicted and (b) were not more than 24 hours old as no infection was found therein. No explanation whatsoever was furnished as to why these injuries were not subjected to treatment despite the fact that it was the appellant only who had brought Manju to the Hospital. The injuries had come into existence only after the transaction in the course of which Manju sustained burn injuries.
10. Coming to the forensic evidence on record, it may be observed that in his report (Ex.P-10A) as well as the corresponding diagram (Ex.P-10), Dr. Ajad Shrivastava (PW13) had vividly reflected the scene of occurrence and the attending circumstances. Contents of his report completely ruled out the possibility that the burn injuries were sustained by Manju in an accident while preparing tea on a kerosene stove in the wake of non-availability of the LPG in the cylinder. The relevant findings as recorded by him may be reproduced as under -
(i) The gas cylinder was found filled to the extent of 80%.
(ii) The material for preparation of tea or any utensil being used for the purpose was not found in the kitchen.
(iii) No burnt article or trace of kerosene was found in the kitchen.
(iv) The kerosene stove was found on the floor of the kitchen.
(v) The matchsticks were found near the door of toilet and at a distance of 2 ft. therefrom, a tin can containing 2.5 litres of kerosene was found lying whereas partly burnt :: 8 :
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clothes were found in the toilet having tiled walls tainted with smoke upto the level of 4 ft from the floor.
(vi) Burnt pieces of skin found stuck to the washbasin situated in the toilet.
(vii) A mangalsutra was found near the living room wherein partly burnt sari, blouse and petticoat were found.
In the light of these findings, he categorically opined that the incident had taken place in the toilet and not in the kitchen of the residential quarter.
11. To substantiate the fact that the spot was inspected by Dr. Azad Shrivastava in the same condition in which it was locked by the appellant, Bhagwan Dayal (PW10) asserted that he had put another lock on the main gate of the quarter on the date of the incident only. The following contents of Panchnamas (Ex.P-3 to P-5) prepared by him were duly corroborated by Panch witness Vinod (PW7) -
(a) On 26.05.1990, both the locks were opened and the corresponding Panchnama (Ex.P-3) was prepared in his presence.
(b) Gas Cylinder, Hot plate, Stove and other articles enumerated in the Panchnama (Ex.P-4) were seized before him and
(c) A Mangalsutra described in Panchnama (Ex.P-5) was also seized in his presence.
Nothing could be brought in his cross-examination so as to taint their testimony.
12. Hukum Singh (PW18), the SHO, confirmed that the seized cylinder was subjected to examination by Santosh Kumar, an employee of M/s Blue Flame Gas Agency. Although, Santosh Kumar (PW8) supported the fact that the cylinder was filled with LPG :: 9 :
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yet, he was declared hostile and was cross-examined by the prosecution in the wake of his statement that the corresponding certificate (Ex.P-6) was not issued by him. However, from his evidence, it was duly established that the seized cylinder was not empty.
13. The Forensic Expert was cross-examined at length but nothing lending support to the version recorded in the dying declaration (Ex.D-10) by Executive Magistrate Nisar Ahmad Rizvi (DW1) could be elicited. Moreover, the doctor, who had appended certificate as to fitness of the declarant's state of mind, was not examined. Further, thumb impression on the dying declaration having clear ridges and curves was apparently doubtful in view of the undisputed medical opinion given by Dr. B.L. Borival (PW12) that total surface area of both the upper limbs was charred and blacked. In the light of these infirmities of serious nature, the first dying declaration (Ex.D-10) was rightly rejected by learned trial Judge as not a genuine document.
14. As pointed out already, only a photocopy of the second dying declaration (Ex.D-11) was admitted in evidence at the behest of the defence. Although, its contents were duly corroborated by Executive Magistrate G.R. Raghuvanshi (DW3) yet, they had no relevance to the charge of abetment of suicide. Moreover, while admitting that she was not set ablaze by somebody else, Manju had expressed intention to disclose the additional facts only after getting completely cured. In this view of the matter, the second dying declaration also did not assume any significance.
15. There was yet another dying declaration, in the form of statement of Manju (carbon-copy of which was admitted in evidence as Ex.P-14) recorded by Neena Upadhyay (PW15), the then SHO of Mahila Police Station, on 29.03.1990 i.e. nearly two months prior to :: 10 :
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the occurrence in question. In this statement, that was also signed by Manju, it was clearly revealed that her husband used to beat her whenever she was found talking to any other person. It is relevant to note that this statement was scribed during an inquiry into complaint (copy of which is marked as Ex.P-13) made by Ghanshyam regarding ill-treatment meted out to Manju at the hands of the appellant.
16. Law is well-settled on the point that even in a case of suicide, the earlier statement directly connected with or related to her death in question would clearly fall within the four corners of Section 32 of the Evidence Act and even distance of time alone would not make the statement irrelevant (Kans Raj v. State of Punjab AIR 2000 SC 2324 followed).
17. However, a dying declaration, irrespective of whether it is incriminatory or exculpatory, has to be judged in the light of surrounding circumstances. Accordingly, the question that arises for consideration is as to whether there was any circumstance which raised serious doubt as to credibility of the incriminating facts as disclosed in the statement (Ex.P-14).
18. Parents of Manju viz. Vishnucharan (PW2), an ex-MLA and Kamla Devi (PW3) gave details of the instances of cruelty meted out to her at the hands of the appellant. According to them, during the first two years of her wedded life, Manju had not made any complaint about conduct or behaviour of the appellant but, thereafter, she had been persistently subjected to harassment, humiliation and torture not only due to non-satisfaction of demand for motorcycle or money in lieu thereof but also for numerous other reasons. Their son Ghanshyam Joshi (PW5) and daughter-in-law Nirmala (PW17) who, at the relevant point of time, were residing at a short distance from the place of occurrence, described as to how :: 11 :
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even after receiving an amount of Rs.5000/- for purchasing a two- wheeler, the appellant continued to ill-treat Manju. As per statement of Ghanshyam -
(i) On 29.01.1988, the appellant had not only belaboured Manju at the time when she was carrying pregnancy but also confined her by locking the residence and in such a situation, it was he who, after breaking open the lock, had taken Manju to their father's house at Kotra Sultanabad but the appellant did not allow Manju to stay there and forcibly brought her back to the quarter and the matter was also reported to police.
(ii) On 28.03.1990, in the wake of complaints made by Manju regarding a persistent cruel behaviour of the appellant, he had informed the police by submitting a written report (copy of which is marked as Ex.P-13) at the Mahila Police Station.
[
19. The defence was able to elicit the following contradictions with reference to respective police statements of relatives of the deceased -
(i) The fact stated by Vishnucharan that feeling disgusted due to repeated demands, he had stopped giving money to Manju did not find place in his case-diary statement (Ex.D-1).
(ii) The assertion made by Kamal Devi to the effect that her daughter was beaten by the appellant in presence of the neighbours was not available in her police statement (Ex.D-2).
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(iii) The statement, though in the form of hearsay, that his wife was informed about involvement of the appellant and his brother Vijay Kumar in setting Manju to fire was not there in the case-diary statement of Ghanshyam (Ex.D-4).
(iv) A part of the police statement (Ex.D-9), marked as 'A to A1', to the effect that Akshay Kumar, after coming to her house, had informed that he and Gulla were turned out of the house where his parents were quarrelling was not recorded at the instance of Nirmala.
20. However, none of these discrepancies had any bearing on the substratum of the prosecution case. It is relevant to note that on 26.05.1990 only, Ghanshyam had submitted an application (Ex.P-2) before the SHO of Police Station T.T. Nagar, raising suspicion that his sister Manju was either set ablaze or was compelled to commit suicide by the appellant and his brother Vijay Kumar.
21. Moreover, Rajaram (PW16) who, admittedly, had served as domestic help for a considerable period of 3½ months also corroborated the allegation that the appellant had been subjecting Manju to physical beatings in the course of domestic quarrels. Nothing could be elicited in his cross-examination so as to suggest that he was, in any way, interested in getting the appellant convicted on a false ground.
22. The next-door neighbour namely Sikandar Sultan (PW4) also came forward to support the prosecution version as to cruelty. While admitting that he had not seen the appellant assaulting Manju, he clearly deposed that in the year 1990 only, on one occasion, he had found Manju, having a fresh injury on her nose, weeping outside the quarter at about 10 in the night. According to him, only 15 days prior :: 13 :
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to the aforesaid incident, Manju, while weeping around midnight had also apprised him of her husband's nagging behaviour.
23. Dr. Ajeet Saluja (PW6), who was also residing on the upper floor of the same building, also proved another incriminating circumstance against the appellant as his subsequent conduct. According to him, during his visit to the surgical ward of Hamidia Hospital, whereto Manju was admitted, the appellant, while apprehending implication made a query as to how presence of a person at the spot in a burn case is ascertained and in the light of his answer that hair form an important means in establishing the identity of such a person, the appellant had got his hair trimmed on the following day. Even if this circumstance is ignored as not of much relevance, the other facts and circumstances of the case would still be sufficient to attract the statutory presumption under Section 113A of the Indian Evidence Act. Incidentally, this presumption was not sought to be rebutted by the appellant who, being the husband, was the best person to disclose the relevant facts solely within his knowledge as to the circumstances resulting into burn injuries ultimately found fatal to Manju (Yashoda v. State of M.P. (2004) 3 SCC 98 referred to). Since defence could also summon Akshay, whose presence at the spot was not disputed, his non-production by the prosecution was of no consequence.
24. It is true that in the chief-examination of her father namely Vishnucharan Joshi (PW2), date of marriage of Manju with the appellant was recorded as 20.05.1983 but her elder brother Ghanshyam (PW5), who was expected to have a better memory, was emphatic in stating that the marriage was solemnized on 20.06.1983 and correctness of this assertion was not challenged in the cross-examination. This apart, the appellant, who is well- educated person, also did not lead any cogent evidence to prove the exact date of his marriage with Manju so as to bring the case out of :: 14 :
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the clutches of the statutory presumption under Section 113-A of the Evidence Act.
25. A bare perusal of the answers given by the appellant, in his examination under Section 313 of the Code, would reveal that he had denied all the incriminating circumstances that were brought to his notice by way of questions framed by learned trial Judge. As explained by Apex Court in Joseph v. State of Kerala AIR 2000 SC 1608, such denial provided a missing link for completing the chain of incriminating circumstances. Further, the explanation that it was a case of accident was found to be palpably false. Even if it is assumed that a period of more than 7 years after marriage of Manju had already elapsed, there would not be any legal hurdle to record conviction for the offence under Section 306 of the IPC because it is not the law of the country that the prosecution has to eliminate all possible evidences and circumstances, which may exonerate him. If those facts are within the knowledge of the accused then he has to prove them.
26. Learned Senior Counsel, placing reliance on the decision of Supreme Court in Bhagwandas v. Kartar Singh AIR 2007 SC 2045, has strenuously contended that harassment of wife by the husband due to certain differences would not per se attract S.306 read with S.107 of the IPC if the wife commits suicide. Moreover, while making reference to the decision of Bombay High Court in Smt. Sarla Prabhakar Waghmare v. State of Maharashtra 1990 CrLJ 407, he has further urged that each type of cruelty would not attract S.498A. However, none of these decisions is of any avail to the appellant as from the evidence on record, it was established that Manju had been persistently subjected to cruelty and harassment not only due to non-satisfaction of demand for a motorcycle but also in view of suspicion of her infidelity. Moreover, the appellant, though present at the spot, had made no attempt to save his wife.
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27. The definition of abetment as given in Section 107 IPC not only includes instigation but also intentional aiding by an illegal omis-
sion. Accordingly, the appellant, being the person responsible for creating circumstances provoking or forcing Manju to take the ex- treme step to avoid a more miserable life and not making any at- tempt to save her life, was liable to be convicted for the offence of abetment of suicide.
28. The charges under Sections 306 and 498A of the IPC are independent of each other. Under Section 498A of the IPC, the cruelty is committed by the husband and his relations dragging the woman to commit suicide, while under Section 306 of the IPC, suicide is abetted and intended (Giridhar Shankar Tawade vs. State of Maharashtra (2002) 5 SCC 177 referred to). However, in the statutory provision under Section 498A of the IPC, two specific instances have been taken note of in order to ascribe a meaning to the word "cruelty", where explanation (a) involves three specific situations viz. (1) to drive a woman to commit suicide or (2) to cause grave injury or (3) to cause danger to life, limb or health, both mental and physical. In explanation (b) there is an absence of physical injury that includes coercive harassment which obviously is equally heinous to match the physical injury, where one is patent, the other one is latent, but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of cruelty in terms of Section 498-A of the IPC.
29. While placing reliance on the principle of law laid down in Bater vs. Bater (1950) 2 ALL ER 458, the Apex Court, in Orilal Jaiswal's case (1994) 1 SCC 73, explained the true meaning and scope of the rule of benefit of doubt. It was observed that an exaggerated devotion to the rule of benefit of doubt must not nurture :: 16 :
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fanciful doubts or lingering suspicions and thereby destroy social defence.
30. To sum up, even though, the so-called dying declarations recorded by the Executive Magistrates suggested a case of accident and non-complicity of the appellant in causing the burn injuries yet, the circumstances proved by the evidence on record not only ruled out the theory of accident but, in the face of the legal position as explained in the cases of Iqbal Singh and Satpal Singh (supra), also conclusively proved guilt of the appellant. As such, none of the contentions raised by the appellant against legality and propriety of the convictions deserves acceptance.
31. Although, a considerable period of 19 years has already elapsed after the incident in question yet, taking into consideration the nature of offences, their magnitudes and corresponding social impact, the delay in trial or disposal of the appeal cannot be considered as mitigating circumstance to interfere with the substantive term of custodial sentence. However, imposition of a separate sentence for the offence under Section 498A of the IPC would be unnecessary (See. Shanti v. State of Haryana AIR 1991 SC 1226).
32. Thus, for academic purpose, the appeal is allowed in part. In the result -
(i) The conviction of the appellant under Section 306 of the IPC and the consequent sentences are hereby affirmed.
(ii) His conviction under Section 498A of the IPC is also maintained but the corresponding sentences are hereby set aside. Fine amount, if deposited, be refunded.
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33. Appellant is on bail. He is directed to surrender to his bail bonds before trial Court on or before 17.11.2009 for being committed to custody for undergoing remaining part of the sentence.
Appeal partly allowed.
(R.C. Mishra) JUDGE 22.09.2009