CRA-678-2013
Page 1 of 18
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 678 of 2013
1. Keshavram Lodhi, S/o Ramadhar Lodhi, aged about 65 years,
2. Laxmi Bai, W/o Keshavram Lodhi, aged about 62 years,
[Both Cultivators and resident of Village Keshtara, Nandghat,
Civil District Durg and Revenue District Bemetara (Chhattisgarh)
---- Appellants
Versus
The State of Chhattisgarh, through Police Station Nandghat, Civil
District Durg and Revenue District Bemetara (Chhattisgarh)
---- Respondent
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For Appellants : Mr. Ajay Kumar Pandey, Advocate
For Respondent-State : Mr. Sudeep Verma, Dy. G.A. and
Mr. Anmol Sharma, Panel Lawyer
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Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Radhakishan Agrawal, JJ Judgment on Board (16.01.2023) Sanjay K. Agrawal, J (1) By way of this criminal appeal filed under Section 374(2) of Cr.P.C. the appellants-accused are calling in question the legality, validity and correctness of the impugned judgment of conviction and order of sentence dated 29.05.2013, passed by the Court of learned Addl. Sessions Judge, Bemetara in Sessions Trial No.38/2012, whereby the appellants-accused have been convicted for offence CRA-678-2013 Page 2 of 18 under Section 302 read with Section 34 of IPC and sentenced to undergo life imprisonment with fine of Rs.500/- (each) and, in default of payment of fine, additional rigorous imprisonment of one month. (2) The case of the prosecution, in short, is that on 19.03.2012, between 04:30 to 05:00 PM, at Village Keshtara within the ambit of Police Station Nandghat, District Bemetara the accused-appellants in furtherance of their common object, acquainted each other and with the intention to kill their daughter-in-law (bahu), namely, Smt. Sukhmani Bai, W/o Bhanu Rajpoot, aged about 35 years, poured kerosene oil and set her ablaze and, thereby, committed offence under Section 302/34 of IPC.
(3) It is further case of the prosecution that on 19.03.2012, between 04:30 to 05:00 PM, Sukhmani Bai (hereinafter referred to as "deceased") suffered burn injuries, pursuant to which her husband, namely, Bhanu (not examined) informed the said fact to the nephew of deceased, namely, Ramsharan Verma (PW-01), who in turn, informed the said fact to the brothers of the deceased, namely, Dauram Verma (PW-02) and Arun Kumar Verma (PW-03). Thereafter, deceased was escorted by Ramsharan Verma (PW-01), Dauram Verma (PW-02) and Arun Kumar Verma (PW-03) to the Community Health Center, Navagarh for treatment, where deceased was treated by Dr. T.N. Mahingleshwar (PW-10) and, thereafter, the Station House Officer vide Ex.P/16 requested the medical officer of the Community Health CRA-678-2013 Page 3 of 18 Center, Navagarh to examine the deceased whether she is in fit state of mind to give dying declaration or not, pursuant to which the Medical Officer of CHC, Navagarh certified the deceased to be in fit state of mind to give dying declaration in Ex.P/16 itself. Accordingly, the dying declaration of deceased was recorded by the Executive Magistrate, namely, S.S. Som (PW-14) vide Ex.P/17, wherein she named appellants herein who had quarreled with her, poured kerosene oil and set her ablaze. Thereafter, on 20.03.2013, at 09:30 AM deceased died, pursuant to which Dehati Nalsi (Ex.P/01) was recorded and, thereafter, marg intimation and FIR were registered vide Ex.P/15 and Ex.P/16 respectively. Inquest proceedings were conducted vide Ex.P/ 05 and Spot Map was prepared vide Ex.P/02. On the recommendation of 'panchas' the dead-body of deceased was sent for postmortem examination and in the postmortem examination report (Ex.P/13), conducted by Dr. B.N. Dewangan (PW-09), it was opined that the cause of death of deceased is shock due to excessive burn injuries. Appellants-accused were arrested vide Ex.P/22 & P/23 respectively. From the place of incident/occurrence, burn clothes of the deceased, match sticks and kerosene oil were seized vide Ex.P/08 and same were sent for FSL examination vide Ex.P/25, but no FSL report has been brought on record for the reasons best known to the prosecution. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet in the Court of CRA-678-2013 Page 4 of 18 Judicial Magistrate First Class, Bemetara and, thereafter, the case was committed to the Court of Sessions for trial in accordance with law, in which the appellants/accused abjured their guilt and entered into defence by stating that they are innocent and have been falsely implicated.
(4) The prosecution in order to prove its case examined as many as 17 witnesses and exhibited 27 documents, whereas the appellants- accused in support of their defence have not examined any witness, but exhibited 01 document i.e. Statement of Ramsharan (Ex.D/01). (5) The learned trial Court after appreciating the oral and documentary evidence available on record proceeded to convict the appellants for offence under Section 302 read with Section 34 of IPC and sentenced them as mentioned herein-above, against which this appeal has been preferred by the appellants-accused questioning the impugned judgment of conviction and order of sentence. (6) Mr. Ajay Kumar Pandey, learned counsel appearing for the appellants would submit that the learned trial Court is absolutely unjustified in convicting the appellants for the offence under Section 302/34 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that as per the statement of Mahettar Lodhi (PW-04), Bhanu (not examined), who is husband of the deceased, was present in the house where deceased CRA-678-2013 Page 5 of 18 is said to have suffered burn injuries and he has neither been arraigned as an accused nor cited as a witness by the prosecution in the present case, which makes the prosecution case doubtful and suspicious. Further, as per the statement of Mahettar Lodhi (PW-04) the two appellants herein reached to the spot after the fire was extinguished by him and, as such, immediately after the deceased suffered burn injuries or prior to it, the presence of both the accused- appellants have not been established. He also submits that it is an evidence on record that Bhanu was residing separately from the appellants after partition from his brother- Gorelal and their house was also partitioned by a wall, therefore, it was incumbent upon the prosecution to establish that it is the appellants who are the authors of the crime in question and they have quarreled with the deceased, poured kerosene oil and set her ablaze, which has not been established. Furthermore, as per the statements of Mahettar Lodhi (PW-04) and Investigating Officer (IO), namely, Anup Kuamr Bajpeyi (PW-17) it is categorically established that appellants reached to the house of Bhanu and his wife (deceased) after the fire was extinguished by Mahettar Lodhi (PW-04) and, even, in Para-10 of the statement, Anup Kuamr Bajpeyi (PW-17) has clearly stated that deceased died by accidental burn injuries. Further, the dying declaration (Ex.P/17) is also not free from doubt and cannot be relied upon, as S.S. Som (PW-14), the Executive Magistrate who has CRA-678-2013 Page 6 of 18 recorded the dying declaration of the deceased, has handed-over the same to the police on the next day and it was not kept in safe custody or in sealed cover. Even otherwise, the names of accused-appellants have not been correctly stated by the deceased in the said dying declaration. Hence, the appellants are entitled for benefit of doubt and impugned judgment deserves to be set aside.
(7) Per-contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. The learned trial Court has rightly convicted the appellants for the offences mentioned herein- above, as it is a case based on circumstantial evidence and the dying declaration (Ex.P/17) has been proved by S.S. Som (PW-14), the Executive Magistrate who has recorded the same and further, the deceased was duly certified to be in fit state of mind to give dying declaration vide Ex.P/16 by the medical officer of the Community Health Center, Navagarh, wherein she named the accused-appellants herein who have quarreled with her, poured kerosene oil and set her ablaze. Thus, the present appeal deserves to be dismissed. (8) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.
CRA-678-2013 Page 7 of 18 (9) Admittedly, deceased died on account of deep burn injuries to the extent of 90-95% and as per PM report (Ex.P/13) deceased died on account of shock due to burning. It is the case of the prosecution that it is the appellants who are authors of the crime in question, as they have poured kerosene oil and set deceased ablaze, whereas it is the case of the appellants that deceased died on account of accidental burning and they are not the authors of the crime. PM report (Ex.P/13) has been proved by Dr. B.N. Dewangan (PW-09), stating the mode of death of deceased to be syncope. (10) The instant case is based on circumstantial evidence brought out by the prosecution and mainly the conviction of the appellants herein is premised on the dying declaration (Ex.P/17), proved by S.S. Som (PW-14), which the learned trial Court has found proved and further relied upon the statements of Ramsharan Verma (PW-01), Dauram Verma (PW-02) and Arun Kumar Verma (PW-03). (11) Now the question wold be whether the learned trial Court is justified in convicting the appellants for offence under Section 302/34 of IPC ?
(12) Admittedly, deceased was second wife of Bhanu (not examined) as he solemnized marriage with her in 'chudi' form after he left her first wife, namely, Dhan. Bhanu solemnized marriage with deceased during the life time of his first wife and was living separately with his second CRA-678-2013 Page 8 of 18 wife (deceased) and out of said wedlock they were blessed with one child, who at the relevant time of incident was aged about 02 years. As per the prosecution case, Mahettar Lodhi (PW-04), who is neighbour of the deceased and the appellants, in his statement before the Court has stated that at the relevant date and time of the incident he was sitting with his grand-daughter and when he heard noise of Bhanu stating- "'dauro dauro' his wife got herself burnt by fire", he immediately reached to the house of the deceased where he noticed that smoke was coming out from the house and when the door was got opened, it was opened by deceased and she was burning. Immediately thereafter, he extinguished the fire by pouring water kept out side of the door. Mahettar Lodhi (PW-04) in his statement before the Court has clearly stated that he reached on the spot first in time, thereafter, he noticed that door was closed from inside the house, which was got opened by deceased and she was burning and when he extinguished the fire, the appellants came on the spot. Thereafter, Bhanu, husband of the deceased, immediately informed about the incident to Ramsharan Verma (PW-01), nephew of deceased, who in turn, informed about the incident to Dauram Verma (PW-02) and Arun Kumar Verma (PW-03), brothers of the deceased and, thereafter, they all escorted the deceased to hospital for treatment. Mahettar Lodhi (PW-04) has also stated before the Court that between Bhanu, his brother- Gorelal and his father-Keshavram Lodhi (appellant No.01) CRA-678-2013 Page 9 of 18 partition has already taken place.
(13) Dauram Verma (PW-02) [brother of the deceased] has been informed by Ramsharan Verma (PW-01) that his sister has suffered burn injuries at Village Kestara, upon which Dauram Verma (PW-02) alongwith Santosh and Seemat reached to Village Kestara by motor- cycle. He has also admitted the fact that in the house of the appellants and the deceased's husband Bhanu, the courtyard has been divided by a partition wall. Arun Kumar Verma (PW-03), who is also brother of the deceased, has admitted the fact that deceased's husband- Bhanu is suffering from mental ailment and his father (appellant No.01 herein) used to take her for treatment. He also admitted the fact that Bhanu, his wife (deceased) and their child used to live separately from Gorelal (brother of Bhanu) and appellants herein (father and mother of Bhanu) and between them partition has already been done by dividing their house through a wall. He also stated that her sister (deceased) was not having cordial relationship with her father-in-law (appellant No.01 herein).
(14) Indra Kumar Verma (PW-06) has also stated that he heard that deceased caused burn injuries and died on account of dispute with her husband. Anup Kuamr Bajpeyi (PW-17), who is the investigating officer, in Para-05 of his cross-examination has clearly stated that Maheetar Lodhi (PW-04) informed him during the course of investigation that when he reached to the house of the deceased, CRA-678-2013 Page 10 of 18 deceased's husband- Bhanu was only present there and when he extinguished the fire of deceased, thereafter appellants herein (i.e. father and mother of Bhanu) reached there. Anup Kuamr Bajpeyi (PW-
17) has also admitted that he has not recorded the statement of Bhanu and further admitted that Bhanu informed him that deceased has set herself into fire and suffered burn injuries. He has also stated that deceased alongwith her husband and child used to live separately at the time of incident. Para-10 of his statement before the Court he has further stated that in the police statement of Ramsharan (PW-01) it has been written that deceased's husband- Bhanu has informed that deceased herself burnt by fire.
(15) From the aforesaid statements of witnesses, it is quite established: (i) that deceased was second wife of Bhanu, married in 'chudi' form, after leaving his first wife and there is no evidence of divorce between Bhanu and his first wife in accordance with law; (ii) on the date of incident, partition has already been taken place between appellant No.01 and his two sons, namely, Bhanu and Gorelal and their house and kitchen were partitioned by a partition wall constructed in the courtyard, which is also apparent from spot map (Ex.P/02) and duly established from the statements of Ramsharan Verma (PW-01), Dauram (PW-02), Arun Kumar (PW-03), Mahettar Lodhi (PW-04) and IO- Anup Kumar Bajpeyi (PW-17); (iii) immediately after the incident, as per the statement of Mahettar (PW-
CRA-678-2013 Page 11 of 18
04), he reached to the spot first upon hearing the noise of Bhanu that his wife has set herself into fire and, then on being knocking the door, deceased opened the door and she was burning, thereafter, Mahettar (PW-04) extinguished the fire and, thereafter, appellants herein came in the house of deceased and Bhanu. The aforesaid statement of Mahettar (PW-04) regarding he reaching on the spot first in time, where deceased' husband Bhanu was only present and after he extinguished the fire the appellants herein came on the spot was confirmed by the statement of investigating officer, namely, Anup Kumar Bajpeyi (PW-17). It is also clear from the statement of Anup Kumar Bajpeyi (PW-17) that Bhanu informed him that his wife (deceased) herself got burn by fire. Similarly, Ramsharan Verma (PW-
01) was informed by Bhanu that deceased got herself burn into fire, which statement is also recorded in the police statement of Ramsharan Verma (PW-01).
(16) In view of aforesaid fact, it is quite vivid that first deceased's husband Bhanu was present in the house. Thereafter, on hearing the noise of Bhanu stating- 'dauro dauro', her wife got herself burnt by fire, Mahettar (PW-04) reached on the spot and upon knocking the door by Bhanu, the door was opened by deceased herself and she was burning. Bhanu informed the said incident to Ramsharan Verma (PW-01), who in turn informed the incident to Dauram (PW-02) and Arun Kumar (PW-03), but surprisingly neither statement of Bhanu has CRA-678-2013 Page 12 of 18 been recorded by police nor he has been cited as a witness by the prosecution. Bhnau could have thrown light over the exact conspiracy erected before and after the incident and could be a material and independent witness, who could have unfold the genesis of the incident, but for the reason best known to the prosecution, he has neither been cited as a prosecution witness nor has been examined. The Supreme Court in the matter of Takhaji Hiraji vs. Thakore Kubersing Chamansingh and others 1 has held if a material witness, who could unfold the genesis of the incident or an essential part of the prosecution case, is not convincingly brought to the fore otherwise, or where there is a gap of infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it wold not have supported the prosecution case. (17) In the instant case, admittedly, as per the statement of Mahettar (PW-04), supported by the statement of Investigating Officer- Anup Kumar Bajpeyi (PW-17) Bhanu was the only person who was present in the house at the time of incident and upon his shout/noise, Mahettar (PW-04) reached on the spot. There is no explanation on the part of 1 (2001) 6 SCC 145 CRA-678-2013 Page 13 of 18 Investigating Officer for not examining Bhanu, who was the only person present on the spot at the time of incident and could be a material eye-witness. Even otherwise, Bhanu being the husband of deceased could be an important witness to make statement before the Court as to how his wife has suffered serious burn injuries and died, particularly when he has stated to Mahettar (PW-04) that his wife herself suffered burn injuries and he has also informed the same fact to the investigating officer, which is clear from Para-06 of the statement of investigating Officer- Anup Kumar Bajpeyi (PW-17). As such, adverse inference deserves to be drawn against the prosecution for not examining Bhanu, particularly when he was husband of the deceased.
(18) The next circumstance which the prosecution has failed to established is the presence of accused-appellants before or immediately after deceased suffered burn injuries. It is admitted position on record, as per statements of Ramsharan Verma (PW-01), Dauram (PW-02), Arun Kumar (PW-03), Mahettar Lodhi (PW-04) and IO- Anup Kumar Bajpeyi (PW-17), that there was partition between the appellant No.01 and his two sons, namely, Bhanu and Gorelal and their house was also divided by way of partition wall constructed in the courtyard of the house, which is also shown in the spot map (Ex.P/02). The appellants were living and cooking separately from deceased and her husband Bhanu. It is incumbent upon the CRA-678-2013 Page 14 of 18 prosecution to establish appellants' presence before or after the incident, particularly when it is alleged against them that they have poured kerosene oil and set deceased ablaze. But, in the instant case, as per the statements of aforesaid witnesses, when the door was opened and deceased was burning only Bhanu (deceased's husband) and Mahettar (PW-04) were present on the spot and when fire was extinguished by Mahettar (PW-04) then only the present appellants reached over the spot i.e. the house of Bhanu and deceased. Thus, presence of present appellants at the place and time of the incident is not clearly established and they cannot be implicated merely by reason that they are father-in-law and mother-in-law of the deceased, specially when they were living and cooking separately and their house was divided by a partition wall. As such, presence of the appellants immediately after the incident or prior to the incident and particularly the alleged commission of offence of their pouring kerosene oil on deceased and setting her ablaze is not established beyond reasonable doubt.
(19) The next circumstance that has been pointed out by the prosecution is the dying declaration recorded vide Ex.P/17 by the Executive Magistrate- S.S. Som (PW-14), wherein deceased alleged stated that it is the appellants herein who first quarreled with her then poured kerosene oil and set her ablaze. Though the said dying declaration (Ex.P/17) has been recorded by S.S. Som (PW-14) after CRA-678-2013 Page 15 of 18 deceased having been certified by the medical officer of the Community Health Center, Navagarh to be in fit state of mind to give dying declaration, wherein to some extent present appellants were implicated, but the said dying declaration become doubtful in light of the fact that dying declaration (Ex.P/17) was recorded on 19.03.2012 at 08:44 PM and deceased died on 20.03.2012 at 09:30 AM and as per the statement of S.S. Som (PW-14), he handed over the dying declaration to the police on the next day and same was not handed over on the same day. Further, it has not been brought on record that said dying declaration from 19.03.2012 till 20.03.2012, before it was handed over to police by S.S. Som (PW-14), was kept in a safe custody or in sealed cover or, it was, on account of some technical reason or otherwise, could not be handed over to the police immediately after recording of the dying declaration and it was sent to police on the next day vide Ex.P/18. Furthermore, though the identification of the appellants to some extent is said to have been established by the dying declaration, as deceased has named Laxmi to be her mother-in-law and Kesho to be her father-in-law, but with reference to Section 32 of the Indian Evidence Act, 1872 a dying declaration which does not contain complete name and addresses of the persons charged with the offence, even though may help to establish their identity, is not of such a nature on which conviction can be based and it cannot be accepted without corroboration (See:
CRA-678-2013 Page 16 of 18 Gopal Singh another vs. The State of Madhya Pradesh and another2).
(20) Reverting to the facts of the case in light of the aforesaid legal analysis and discussions, it is quite established that deceased, who is second wife of Bhanu, was living and cooking separately alongwith his husband and one child from the appellants after partition took place between the appellant No.01 and his two sons, namely, Bhanu (deceased's husband) and Gorelal by constructing a partition wall in the courtyard of the house and on the date of incident immediately upon hearing the noise/shout of Bhanu, Mahettar (PW-04) reached to the spot first in time and, thereafter, when Bhanu got the door opened by deceased, who was in burning condition, Mahettar (PW-04) extinguished the fire by water and immediately thereafter appellants came on the spot and Bhanu informed the aforesaid incident to Ramsharan Verma (PW-01), nephew of deceased, who in turn, informed the incident to Dauram Verma (PW-02) and Arun Kumar Verma (PW-03), brothers of the deceased. But, surprisingly Bhanu has not been arraigned an accused nor has been cited as an witness in the case by the prosecution, who could have unfold the genesis of the incident, therefore adverse inference under Illustration (g) of Section 114 of the Indian Evidence Act, 1872 read with the principle of law laid down by their Lordships of Supreme Court in the matter of 2 AIR 1972 SC 1557 CRA-678-2013 Page 17 of 18 Takhaji Hiraji (supra) is liable to be drawn against the prosecution in the instant case. Furthermore, Mahettar (PW-04) has clearly stated that Bhanu has informed him and Ramsharan (PW-01) that deceased herself got burn by fire, which has also been stated by the investigating officer- Anup Kumar Bajpeyi (PW-17) in Para-06 of his statement before the Court. Moreover, the presence of the appellants prior to the incident or immediately after the incident is also not established, as admittedly appellants reached on the spot when Bhanu got opened the door by deceased and fire was extinguished by Mahettar (PW-04) and, as such, they did not have an opportunity to pore kerosene oil and set deceased ablaze. Similarly, the dying declaration (Ex.P/17) recorded by Executive Magistrate- S.S. Som (PW-14) on 19.03.2012 at 08:44 PM has no evidentiary value and it would be unsafe to rely upon the said dying declaration to record conviction of the appellants in absence of any corroborating circumstances noticed herein above. More particularly when it is an evidence brought on record that the said dying declaration (Ex.P/17) was handed over to the police vide Ex.P/18 by Executive Magistrate- S.S. Som (PW-14) on the next day and not immediately after recording of the same and it was not kept in safe custody or sealed cover. Hence, in our considered opinion the prosecution has failed to prove the five golden principles to constitute the 'panchsheel' of proof of a case based on circumstantial evidence, as laid down by their CRA-678-2013 Page 18 of 18 Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda vs. State of Maharashtra3, in absence of which, the appellants are entitled to benefit of doubt.
(21) Accordingly, the impugned judgment of conviction and order of sentence dated 29.05.2013, passed by the learned trial Court in convicting the appellants for offence under Section 302/34 of IPC is not sustainable. Consequently, the conviction of the appellants for offence punishable under Section 302 read with Section 34 of IPC as well as the sentence imposed upon them by the learned trial Court is hereby set aside. They are acquitted of the said charges. Since the appellants are in jail from 20.03.2012, we direct that they be released from jail forthwith, if not required in any other matter/case. (22) This criminal appeal is allowed to the extent indicated herein- above.
Sd/- Sd/-
(Sanjay K. Agrawal) (Radhakishan Agrawal)
Judge Judge
[email protected]
3 (1984) 4 SCC 116