Madhya Pradesh High Court
Bhupendra Singh Tiwari vs The State Of Madhya Pradesh on 4 March, 2011
Author: Rakesh Saksena
Bench: T.K. Kaushal, Rakesh Saksena
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AFR
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
DIVISION BENCH
Criminal Appeal No.774/2001
Bhupendra Singh Tiwari, son of
Avadesh Pratap Singh Tiwari, aged
35 years, Veterinary Surgeon,
Resident of Tiwarin Tola,
Govindgarh, district Rewa (M.P.)
versus
State of Madhya Pradesh
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For the appellant: Shri S.C. Datt, Sr. Advocate
with Shri Siddharth Datt, Advocate.
For the Resp./State: Shri Vijay Panday, Dy. Advocate General.
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PRESENT: HONOURABLE SHRI JUSTICE RAKESH SAKSENA
HONOURABLE SHRI JUSTICE T.K. KAUSHAL
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Date of hearing: 17/02/2011
Date of Judgment: 04/03/2011
JUDGMENT
Per: Rakesh Saksena, J
1. Appellant has filed this appeal against the judgment dated 25.4.2001, passed by II Additional Sessions Judge, Sidhi, in Sessions Trial No.38/2000, convicting him under Section 302 of the Indian Penal Code for committing murder of his wife Anita and sentencing him to imprisonment for life with fine of Rs.5000/-. In default of payment of fine, further rigorous imprisonment for three years.
2. It is undisputed that deceased Anita was the wife of appellant. She was married to him on 2.7.1993. On 17.11.1999, Anita died of burn injuries. She had a son Naman @ Umang, who was about 5 years of age at the time of occurrence, which took place on 17.11.1999.
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3. Prosecution case, in short, is that appellant was a veterinary doctor. He was a drinker. He used to maltreat Anita. In the night intervening between 17 th and 18th of November 1999, at about 11.00 p.m., appellant came to his house after taking dinner at his friend's house. He was drunk. When Anita asked him for dinner, on his saying that he already had dinner in his friend's house, there ensued an altercation and quarrel, during which, appellant assaulted Anita. Due to noise, their son Naman woke up. It is said that after beating Anita by fists and a stick, appellant sprinkled kerosene on her and set her to fire. Naman went out of the house and informed neighbour Smt. Parwati Mishra (PW-4) that his father ignited his mother. Parwati Mishra informed her husband Shiv Shanker Mishra on telephone, who, at that time, was at the house of Rampal Tiwari, Advocate. Thereafter, Shiv Shanker Mishra (PW-3), Sunder Singh (PW-5) and some other persons rushed to the house of appellant. It is said that there was smoke in the house of accused. Light of the house was off and appellant was hurling abuses. Sunder Singh Baghel and other persons went inside the house, switched on the light and removed a quilt and a blanket lying over the body of Anita, who was already dead. Sunder Singh (PW-5) went to Police Station, Sidhi, and gave information to police about the occurrence. On his report, Murg intimation (Ex.P/4) was recorded.
4. On 18.11.1999, N.R. Singh, Sub Inspector (PW-9), went at the spot and conducted inquest proceedings. He prepared inquest memo (Ex.P/1). He seized broken bangles, match box, quilt, a stick, a plastic can of kerosene etc. from the spot and sent the dead body of deceased for postmortem. Seized articles were sent for examination to Forensic Science Laboratory.
5. Dr. S.B. Khare (PW-7), performed the postmortem examination of the body in District Hospital, Sidhi, and found 97% superficial and deep burns on the body. In his opinion, the death of deceased was homicidal in nature. 3
6. After completing the investigation, charge sheet was filed and the case was committed for trial. During trial, court framed charges under Section 302 and 498A of the Indian Penal Code against the appellant. Appellant denied the charges and pleaded false implication. According to his defence, as revealed from his statement under Section 313 of the Code of Criminal Procedure, he never subjected the deceased to cruelty. According to him, since he came late after taking dinner at the house of his friend, deceased got annoyed and quarreled with him. She herself poured kerosene on her and ignited herself. He tried to save her by putting quilt on her. He also suffered burn injuries in his attempt to save her. Since father of deceased was angry with him, he got him falsely implicated.
7. To bring home the charge against the appellant, prosecution examined 9 witnesses and exhibited 15 documents.
8. Learned Additional Sessions Judge, after trial and upon appreciation of evidence adduced in the case, held the appellant guilty and convicted and sentenced him under Section 302 of the Indian Penal Code, however, finding evidence insufficient for proving the charge under Section 498A of the Indian Penal Code acquitted him of that charge. Aggrieved by his conviction, appellant has filed this appeal.
9. We have heard the learned counsel for the parties and perused the impugned judgment and evidence on record.
10. It was no longer disputed that deceased Anita died of burn injuries. It is also reflected from the evidence of Dr. S.B. Khare (PW-7) that on 18.11.1999 body of Anita was brought to District Hospital, Sidhi for postmortem examination. Smell of kerosene was emanating from her body. A piece of 'Niwar' was tied on her left arm. Hair, forehead and left and right parts of head were burnt, but back side of the skull was not burnt. Blood was oozing 4 out from her both nostrils. There was reddishness and laceration, tongue was protruding out between the jaws, there were 97% superficial and deep burns. Some parts of the back, waist and hips were not burnt. There were deep burns on the front side of body, skin was peeling, palms and soles were also burnt and carbon particles were present in the membrane of trachea. There were haemotomas on the forearm and thighs, which could not have been caused by the external injuries. In his opinion, the death was homicidal in nature. He conducted the postmortem examination of the body alongwith Dr. Uday Singh. Postmortem report (Ex.P/6) was written and signed by him. Apart from it, Naman (PW-1), son of deceased, Smt. Parwati Mishra (PW-4), Shiv Shanker Mishra (PW-3) and Sunder Singh (PW-5), who lodged the Murg report (Ex.P/4), also stated that deceased died of burn injuries. Sub Inspector N.R. Singh (PW-9) conducted inquest of the dead body and found that deceased had died due to burn injuries. It was thus clearly evident that the deceased Anita died of burn injuries.
11. Learned counsel for the appellant, however, submitted that the trial court gravely erred in placing implicit reliance on the evidence of child witness Naman @ Umang (PW-1), who was only about 5 years of age at the time of occurrence. According to him, trial court failed to consider that Naman (PW-1) was a tutored witness. Learned counsel further submitted that the evidence of Dr. S.B. Khare (PW-7) that the death of deceased was homicidal was not reliable. From the circumstances, it was apparent that the deceased had committed suicide. Learned counsel for the State, on the other hand, justified and supported the conviction of the appellant.
12. We have gone through the entire evidence on record.
13. Trial court has convicted the appellant mainly on the basis of evidence of child witness Naman (PW-1), who was admittedly about 5 years of age at 5 the time of occurrence. From his evidence it is apparent that he, for a long time, before he was examined in the court, remained with his maternal grand father (Nana). In these circumstances, his evidence deserves to be analyzed carefully. From the questions put by the trial court to child Naman (PW-1) and the answers given by him, it is abundantly clear that he was a very sharp and intelligent child. He stated that in the night when his mother asked his father to have dinner, there occurred a quarrel and his father assaulted his mother by fists, and after pouring kerosene set fire to her. On questioning that how he saw the quarrel while he was sleeping, he replied that when his father gave fist blows to his mother, he awoke. He stated that when he got up, his mother told him that both of them should die, but he refused. His mother then asked him to go away, but his father asked him to sit near the door and his father set fire to his mother by a match stick. He shouted and went to the house of Mishra aunty and informed her that his mother got burnt. He stated that his father took water from the house of Mishra aunty and poured on his mother. In para-43 of his statement when he was questioned that when his mother asked him to die with her, kerosene was already smelling from her body, he answered in affirmative. In para-42, this witness stated that when he was standing in verandah and his father was standing near the door, he did not know how his mother started burning by herself. Though she had kerosene on her body, but he did not see burning of match stick. He again stated that matchstick was burning, but he did not see as to how it got burnt; he thought that his mother was burning herself, he was confused that without burning of matchstick how could she get burnt. On further questioning, witness answered that his father was standing near his mother. He admitted that his father extinguished the fire of his mother by putting a quilt on her. Both the hands and face of his father were also burnt. His father brought water for 6 extinguishing the fire and also called Shrivastava uncle from the neighbourhood.
14. Child Naman (PW-1) though stated that appellant pressed the throat of the deceased with a Danda, but no such injury was found by Dr. S.B. Khare (PW-7) in postmortem examination. In para-18 when this witness was asked that how he came to know that his mother asked his father to take dinner and he told that he had already taken his dinner, while he was sleeping, he answered that he did not see half, but he saw remaining full. In paragraphs 38 and 39 of his statement, this witness admitted that his 'Nana' (maternal grand father) asked his uncle that he should transfer the land of Govindgarh in the name of Naman (PW-1) and he should also deposit Rs.10 lakhs in his name. He also admitted that his 'Nanaji' told that if this was done, Naman would not speak against his father. This was further clarified by the trial Court by putting questions to witness. In para-44 PW-1 admitted that his 'Nana' coached him that he should speak in court that his father killed his mother by igniting her and that it was the truth. He also admitted that 'Nanaji' asked him to speak the said truth, otherwise he was to be turned out of the house.
15. Child (PW-1) was confronted with his police statement (Ex. D/2) when he denied that he mentioned therein that in the night his father admonished his mother why did she not prepare food in the night. However, the facts stated by him in court that his father told that he had taken dinner in the house of neighbour; that his father gave fist blows to his mother and he heard it; that his father asked him to keep standing near the door and he remained standing there; that his father was under intoxication; that his father used to beat his mother frequently; that his father used to consume liquor daily with his friend; that his father pressed the throat of his mother by a Danda and that his mother fell down by the push of fist blows, were found missing in his police 7 statement (Ex.D/2). N.R. Singh, Sub Inspector (PW-9), who recorded police statement of child (PW-1), categorically stated that these facts were not disclosed by him in his police statement. In para-49, child (PW-1) categorically stated that his Nana coached him, but he did not make him scare. He coached him that he should speak before the court that his father killed his mother. When he was suggested that he did not see the incident himself, he repeatedly stated that half he saw and half he spoke because of coaching.
16. Child Naman (PW-1) was only 5-6 years of age. He could have given true version of occurrence because of his innocence, but there appears danger in accepting his evidence because he gave clear indication that he was under
the influence of his Nana and he had been tutored by him to give out a particular version. These circumstances compel us to hold that it will not be quite safe to rely on his evidence. In Caetano Piedade Fernandes v. Union Territory of Goa, Daman & Diu - AIR 1977 SC 135 the Apex Court observed that merely on account of contradictions the evidence of a child witness should not be rejected, but when there are serious infirmities affecting his evidence, it is difficult to accept his testimony. The fact that Naman (PW-1) stated that when his mother told him that they should die, smell of kerosene was emanating from her body; that he did not know as to how by herself his mother started burning; that he did not see any matchstick burning; that his father extinguished the fire of his mother by putting a quilt and throwing water on her causes considerable doubt about veracity of the prosecution case that appellant poured kerosene and set fire to deceased.
17. Though Smt. Parwati Mishra (PW-4) deposed that Naman (PW-1) came to her house weeping and said that his mother caught fire and his father ignited her, but on perusal of the evidence of Naman (PW-1) it appears that he told to Smt.Parwati Mishra only that his mother got burnt. The part of the 8 evidence of Smt. Parwati Mishra (PW-4) that Naman told her that his father set fire to his mother (deceased) was clearly hearsay in the absence of such statement by child Naman (PW-1). Similarly the evidence of Shiv Shanker Mishra (PW-3), husband of Smt. Parwati Mishra (PW-4), that his wife informed him on telephone that Naman (PW-1) told her that his father set fire to his mother cannot be accepted in view of the categorical statement of Smt. Parwati Mishra (PW-4) that she informed to her husband only that the house of Dr. Tiwari caught fire. She was not even able to say that whether she talked to her husband or somebody else on telephone. The evidence of Shiv Shanker Mishra (PW-3) and Smt. Parwati Mishra (PW-4) that in the night child Naman (PW-1) told same thing to everybody, is also not established, as, according to Smt.Parwati Mishra herself, in the night once, when Naman (PW-1) went to sleep with her children, he did not come out. Naman (PW-1) did not say that he narrated the incident to other persons also. In Shivaji Genu Mohite vs. State of Maharashtra-AIR 1973 SC 55, the Apex Court observed that the evidence of child witness should be scrutinized with care and caution not only because he is a teenager but also because he is only witness claimed to be an eyewitness.
18. Keeping in view the aforesaid infirmities in the evidence of child witness Naman (PW-1), we find it unsafe to rely on his sole testimony. It was quite probable that after a hot altercation between deceased and the appellant in the night, deceased might have committed suicide by pouring kerosene and setting fire herself. The conduct of appellant after the occurrence also tends to render the defence put by him probable. Sub Inspector K.P. Dwivedi (PW-8) and Investigating Officer N.R.Singh (PW-9) found hands of the appellant burnt immediately after the occurrence. It seems probable that appellant tried to extinguish the fire of deceased by putting a quilt over her. Burn injuries of the 9 appellant were examined by Dr. R.N. Arya, who gave his medical examination report (Ex. D/8-A), according to which, appellant's hands, palm and face were burnt. Smell, like kerosene was coming from his body.
19. It is true that Dr. S.B. Khare (PW-7) opined that burn injuries of deceased were homicidal in nature, but we are not inclined to accept his opinion. When Dr. Khare was questioned about the possibility of suicidal death of deceased, he answered that since he detected lacerations in nostrils, haemotoma on forearms and thighs and a piece of 'Niwar' tied around her left arm, keeping in view the pattern of burns, he opined that the nature of death was homicidal. Deceased was beaten before she got burnt. He also clarified that similar types of symptoms might have been found, had deceased committed suicide after a beating. He, however, stated that in suicide it was not possible that there would be no injury on the back portion of the deceased. In our opinion, it cannot be held that if no burn injuries were found on the back portion of the body of deceased, the possibility of suicide was altogether ruled out.
20. After bestowing our anxious consideration to the submissions of the learned counsel for the parties and after closely scanning and scrutinizing the evidence on record, we are of the considered opinion that it was not safe to rely on the evidence of sole child eyewitness Naman @ Umang (PW-1). In the fact situation of the case the possibility that after maltreatment and the cruelty meted out to deceased by the appellant, she committed suicide by setting herself on fire, could not be ruled out. It is unfortunate that despite the fact that there was enough evidence on record to indicate that appellant subjected deceased to cruelty and assaulted her, learned Additional Sessions Judge acquitted him of the charge under Section 498A of the Indian Penal Code holding that the charge was not established beyond doubt. 10
21. In the light of the above discussion, we are of the view that it was not established beyond a reasonable doubt that appellant committed murder of his wife. As such conviction and sentence of the appellant recorded by the court below under Section 302 of the Indian Penal Code deserves to be and is hereby set aside. Appellant is acquitted. Appellant is said to be in jail since 21.11.1999. He be released forthwith, if not required in any other case.
22. Appeal allowed.
(RAKESH SAKSENA) (T.K. KAUSHAL)
JUDGE JUDGE
Shukla
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HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
DIVISION BENCH
Criminal Appeal No.774/2001
Bhupendra Singh Tiwari
versus
State of Madhya Pradesh
JUDGMENT
For consideration
(Rakesh Saksena)
JUDGE
__/03/2011
Hon'ble Shri Justice T.K. Kaushal
JUDGE
__/03/2011
POST FOR /03/2011
(Rakesh Saksena)
Judge
__/03/2011