Madhya Pradesh High Court
Medabai W/O Komal Singh And Anr. vs State Of Madhya Pradesh on 13 December, 1991
Equivalent citations: 1992(0)MPLJ262
Author: Faizanuddin
Bench: Faizanuddin
JUDGMENT P.N.S. Chouhan, J.
1. On 27-2-1984 Kali Bai, aged 16 years, was extensively burnt at about 7.00 A. M. in her husband's house at village Bijora Khamaria, Police Station, Nohta, District Damoh. She was removed to district hospital, Damoh where she succumbed to her injuries at 1.00 AM on 28-2-1984. On the allegation that appellant No. 1, Smt. Medabai, the mother-in-law of the deceased, in the presence of her son appellant No. 2 Kalyan Singh, poured kerosene oil on Kalibai and set her ablaze the appellants were tried on charge of murder. The trial Judge convicted appellant No. 1 under Section 302, Indian Penal Code and appellant No. 2 under Section 302 read with Section 34, Indian Penal Code and sentenced both of them to imprisonment for life vide judgment dated 1-8-1985 passed in Sessions Trial No. 97/84 of the Court of 3rd Additional Judge to the Court of Sessions Judge, Damoh, which is under challenge in this appeal.
2. Kalibai was married with Charan Singh, the elder son of appellant No. 1, about two years before the incident. The deceased had returned to her husband's place only a few days before the incident. On the date of incident, her husband had gone to the fields. Her mother-in-law (appellant No. 1) asked her as to who had called her there and telling her to go back poured kerosene oil on her body and set her ablaze with the aid of a burning match stick in the presence of appellant No. 2. The deceased cried for help but in vain. After some time when the villagers collected she is said to have stated in presence of Deshraj (PW-5), Man Singh (PW-6) and Hokolabai (DW-2) that she had caught fire accidentaly while cooking. This oral dying declaration was corroborated by her when Tahsildar, Shri K. N. Mishra (DW-1), who was camping in that village, recorded her dying declaration (Ex.D-6). The intimation of her getting burnt accidentaly along with a letter of Sarpanch, Deshraj Singh, was given by Sardar Singh at police station, Nohta. Kalibai was then removed to district hospital, Damoh where at the request of police, Tahsildar, Shri K. R. Jain (PW-9), recorded her dying declaration (Ex. P-15) at 7.45 PM in the presence of the doctor who certified her fitness to give dying declaration. In this dying declaration Kalibai implicated the appellants as aforesaid. Her death was intimated by Dr. Malhotra to the police whereupon the offence which was earlier registered under Sections 307/34, Indian Penal Code was converted into one under Section 302, Indian Penal Code and the trial followed resulting in appellants' conviction and sentence as aforesaid.
3. Relying on K. Ramachandra Reddy and Anr v. The Public Prosecutor, AIR 1976 SC 1994, appellants' learned counsel argued that in view of the admitted inconsistency between the dying declarations made by the deceased in the village and Ex.P-15 recorded in Damoh district hospital, the trial Judge was in error in accepting the latter as trustworthy particularly because the evidence unmistakably shows that Kamlabai (PW-2), mother of the deceased, Mulabai (PW-1), grandmother of the deceased, Kodu Singh (PW-10), grandfather of the deceased and Heerabai (PW-3), a distant grandmother of the deceased, had already reached the hospital and had influenced Kalibai. As such, it should have been inferred that the dying declaration given by the deceased in the hospital was tainted being the outcome of tutoring and was not liable to be accepted as trustworthy to form the basis of appellants' conviction.
4. The two sets of evidence one exculpatory consisting of the statements of Deshraj Singh (PW-5), Man Singh (PW-6), Hakolabai (DW-2), Tahsildar, K. N. Mishra (DW-1) and the dying declaration recorded by him Ex.D-6 and the other incriminating consisting of the statements of Kamlabai (PW-2), Heerabai (PW-3), Kodu Singh (PW-10), Tahsildar, K. R. Jain (PW-9) and the dying declaration recorded by him Ex. P-15 are there. Faced by this situation, the learned trial Judge in para 19 of the impugned judgment concluded that the dying declarations given in the village were unreliable because they related to a time soon after the incident when Kalibai must have been in a state of mental confusion and severe bodily pain. As against this, the statement given by her in the hospital i.e. Ex.P-15 was recorded in the presence of the doctor who has certified that she was in a fit state to give her statement and, therefore, the same was fully reliable. It appears that another very important circumstance which goes to corroborate this conclusion escaped the attention of the learned trial Judge. From the set of exculpatory evidence, we gather that Kalibai disclosed that she caught fire accidentaly while cooking. If this was true, there was no possibility of her body emitting strong odour of kerosene oil whereas from the evidence of Dr. K. P. Tripathi (PW-8), it is clear that from the body of Kalibai, which had 88% burn, smell of kerosene oil was coming. This is borne out by the observation of the said doctor in his post mortem report (Ex. P-13) also. The adage is that when men can lie circumstances do not. This incriminating circumstance thus goes a long way in lending credibility to the dying declaration recorded in the hospital. We are not convinced by the attempt to explain out this circumstance on the hypothesis that Kalibai might have overturned the kerosene oil container in her panic soon after she caught fire and thus, her body might have come in contact with the liquid thus, spilled. There appears to be absolutely no justification for resorting to any such hypothetical conjecture because in that case the inmates of the house where the incident took place must have brought this tell-tale circumstance to the notice of the Investigating Officer and he would have given it due prominence. It may be repeated that from the evidence of Dr. Tripathi and the post mortem report Ex.P-13 it is clear that smell of kerosene oil was there in the whole of the dead body. This could not have been possible by an accidental contact of the body with kerosene oil. Therefore, from this circumstance, the inference seems irresistible that kerosene oil was poured over the body of Kalibai before she caught fire. This is an incident which took place in a village. In the first few years in her husband's place a rural Indian bride's relationship with her-in-laws if they happen to be hostile is one of utter helplessness. Her suppressed condition can be inferred from the increassing number of bride burning cases which moved the conscience of the nation culminating in legislative measures like insertion of Section 498A in the Indian Penal Code and Section 113A in the Indian Evidence Act by Criminal Law (Ammendment) Act, 1983 (Act 46 of 1983). No wonder therefore that Kalibai in the presence of her mother-in-law could not dare to speak out the truth when she gave her statement in the village. She did not then know that her end was certain. She did survive for 18 hours thereafter. In this context, she is not to be blamed for her inability to speak out the truth in the immediate presence of her persecutor as she must have thought that if she told the truth and survived the consequence would be disastrous. The result of the lamb's telling the truth to the leopard in the familiar fable is too well known. The argument that in the hospital presence of her relations from mother's side influenced her version is double edged as it equally destroys the worth of the dying declarations given in the village due to the immediate presence of her persecutor. Though, of course for reasons that, follow this argument is to be discarded. The criticism that her dying declaration recorded in the hospital was the result of tutoring by her mother and other near relatives does not appear to be well founded. In the hospital on account of her critical condition she must have been attended upon continuously by the hospital staff which excluded the possibility of her being tutored. Then it has to be borne in mind that Kalibai's mother and grandmother are relatives of the appellants. It is not to be presumed that they or for that matter Kalibai will have animus to falsely implicate the appellants in this heinous crime without any rhyme or reason. There is no evidence that the relationship between these two families was in any way strained before the incident. It is therefore not possible to infer that Kalibai's mother and other relations tutored her before the recording of Ex.P-15. Another important circumstance indicating the trustworthiness of Ex.P-15 is the fact that the deceased did not attribute any overt act to appellant Kalyan Singh. Had she been telling lies at threshold of her exit from this mortal world to falsely implicate the appellants she could easily have stated that both the appellants burnt her conjointly.
5. Cases of bride burning are distinct from feud murders. Therefore, the test of consistency in a number of dying declarations laid down in K. Ramachandra Reddy's case (supra), which was a case of feud murder, will have no application to the facts of the present case. The absence of consistency in the two sets of dying declarations in this case cannot therefore be viewed as infirmity. The said inconsistency only indicates the degree of terror appellant No. 1 exerted on the deceased. The entire village seems to be rallied round the appellants with outstretched protective arms. The statement of appellant No. 1 and the evidence seem to suggest that the deceased was being treated with utmost love and care in her husband's home. If that was so why would have she thought of falsely implicating the appellants in Ex. P-15 in her last moments of agony. The law-as an instrument of social engineering-is aware of the barbarity and growing incidence of bride burning but it does not know of any fashion amongst burning brides to implicate their affectionate and protective blood relations in heinous crimes.
6. From the above discussion, we conclude that the trial Judge committed no error in rejecting the, exculpatory dying declarations of Kalibai and holding incriminating one that is Ex.P-15 as fully reliable. However, it is not possible to agree with his conclusion that the mere presence of appellant Kalyan Singh at the time when appellant No. 1 put Kalibai ablaze will render him liable for her murder. There being no overt act on his part and there being nothing whatsoever to associate him with the criminal design of his mother he is entitled to acquittal.
7. In result, the appeal partly succeeds. Conviction of appellant Kalyan Singh under Section 302 read with Section 34, Indian Penal Code and imprisonment for life is hereby set aside and he is acquitted of the charge. He is directed to be set at liberty if not required in any other case. Appeal of Smt. Medabai fails and is hereby dismissed.