Saraswati Devi vs The State Of U.P.
2012 Latest Caselaw 4278 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

RESERVED
 

 

 
CRIMINAL APPEAL NO. 220 OF 2007
 

 
Saraswati Devi, wife of Ram Suresh Tewari, resident of Srikant Ka Purwa, H/o Amrauna, P.S. Jethwara, District Pratapgarh.        								......		Appellant
 

 
Versus
 
State of U.P.					.....		Respondent
 

 

 
Connected with
 

 
CRIMINAL APPEAL NO. 221 OF 2007 
 
												
 
Vijai Prakash Tewari, son of Ram Suresh Tewari, resident of Srikant Ka Purwa, H/o Amrauna, P.S. Jethwara, District Pratapgarh.   					.....		Appellant
 

 
Versus
 

 
State of U.P.					.......		Respondent.
 
		
 

 

 
Hon'ble Imtiyaz murtaza, J.

Hon'ble D.K. Upadhyaya, J.

(Delivered by Hon'ble Imtiyaz Murtaza, J)

The above appeals have come to be preferred by the appellants assailing the verdict dated 10.1.2007 rendered by Addl Sessions Judge Room No 4 Pratapgarh in ST No. 143 of 1990 whereby the appellant, Saraswati Devi has been visited with the punishment under section 302 read with section 120-B IPC followed by sentence of imprisonment for life. The trial of the case was conducted against all the accused persons out of which Vijai Prakash Tewari had been convicted for offences under section 302/34 IPC while the appellant, Saraswati Devi was awarded punishment for offence under section 302/120-B IPC. The trial against another accused namely Ram Chandra Tewari abated as he had been spirited away by death during trial. The other accused Ram Suresh Tewari was purged of the offences by the trial court.

The complainant in the case, who lodged the FIR is the father of the deceased. The complainant introduced himself in the FIR as native of village Basupur within the circle of PS Mandhata Pratapgarh. The deceased was married to one Vijai Prakash Tewari, a native of village Purva Majre Amrona which lies within the circle of PS Jethwara Pratapgarh. It is alleged in the FIR that his daughter, Usha Devi had been married to accused Vijai Prakash Tewari in the year 1980 but after Gauna/Bidai (send-off) ceremony, her in-laws began to ill-treat her for bringing in less dowry. It is also alleged that on receiving report of persecution/harassment, he had gone to meet her daughter and tried to impress upon the in-laws of the deceased that he was not in a position to meet the demand of motorcycle etc. as he was not in affluent circumstances and could not afford to give anything more as dowry. Thereafter, it is further alleged, the ill-treatment with his daughter escalated and as he was given to understand during the period, the in-laws had conceived a plan to get rid of the deceased and it is as a sequel to the conspiracy hatched by the husband, and the in-laws of his daughter, proceeds the deposition that she was burnt to death on 10.8.1985 at 4 pm in her matrimonial house by dousing her with kerosene. It is further alleged that intimation of her death was kept a closely guarded secret and after sometime, his brother Raj Kumar got wind of the death of Usha Devi who immediately transmitted a telegram intimating about the death of Usha Devi upon which he rushed back and met the village people who told him that the deceased had been ill-treated and subjected to cruelty and lastly she was burnt to death. It is also alleged that since Ram Suresh Tewari was serving as Sub Inspector in the police Department, and was posted in the district Fatehpur the village people dared not to come forward to speak the truth about the facts underlying behind the murder of his daughter.

It may be noted here that prior to lodging of the FIR, an intimation by way of an application was given at the police station by Ram Chandra Tewari on 11.8.1985 at 8 am the substance of which is that his daughter in law had caught fire while cooking food at 5 pm on 10.8.1985 and as a result of which, she was taken to hospital in precarious condition but on way to hospital, she succumbed to her burn injuries. In the said application, permission was sought from the police for performing her last rites. It was explained in the said application that since there being no transport available in the night, he could not give intimation about the death of deceased immediately after the occurrence. This information was entered in GD which is marked as Ex Ka 6. The police, it would transpire, galvanised into action and sent the body for post mortem after performing inquest on the body. The inquest was performed on 11.8.1985 and according to the opinion of the signatories to the inquest, the causative factor of death was burn injuries. The body was sent for post mortem and autopsy was conducted on the body on 12.8.1985 at 11.30 am at district hospital Pratapgarh. In the post mortem report, the doctor opined that the deceased had died of shock as a result of burn injuries.

Initially the investigation was taken over by the local police but subsequently, the investigation was entrusted to CBCID. As a result of investigation conducted by CBCID, a case of murder was registered and charge sheet was submitted against the accused under section 498 A, 302, 182, 120B and 3/4 of the Dowry Prohibition Act.

During trial, Sadhana Tewari, sister-in-law of the deceased, was also put on trial but subsequently, when it transpired that she was juvenile, her case was transferred to juvenile court. During trial, Ram Chandra Tewari, grand father of accused Vijai Prakash had breathed his last and as a result, the trial against him abated. Ultimately, accused Vijai Prakash Tewari, husband of the deceased, Smt Saraswati Devi, mother in law of the deceased and Ram Suresh Tewari, father in law of the deceased were put on trial.

The prosecution to substantiate its case, examined in all 10 witnesses out of which PW 1 Shyam Sunder Shukla, PW 2 Raj Kumar Shukla, PW 3 Vishwanath Prasad Tewari, PW 4 Sangam Lal and PW 5 Hari Prasad Tewari were examined as witnesses of fact. PW 6 Doctor K.K.Singhal was examined as an expert witness by the court. PW 7 B.B. Singh, Chief Pharmacist proved post mortem report of the deceased in the court. PW 8 SI Ram Naresh Singh was examined in the court as investigating officer who had initially conducted investigation before it was entrusted to CBCID. PW 9 Ved Prakash Tyagi Investigating officer CBCID proved the documents in relation to initial investigation conducted by CBCID. PW 10 SI Om Prakash was also examined. This witness had conducted inquest on the body of the deceased. PW 11, Jagdish Singh was also examined. He was the person who had given final touch to the investigation and had submitted charge sheet in the court.

In defence, the accused persons abjured the guilt submitting that they had been falsely nominated for lending colour to a case of suicide with the avowed object of harassing and humiliating them. The defence proved in court as many as 10 documents as enumerated in index marked as 253 Kha which include the orders and judgments rendered in civil and criminal cases slugged out between the accused persons and the witnesses in the court of law. The documents were produced ostensibly with the object of proving that the witnesses were on inimical terms with the family of the accused persons.

PW 1 Shyam Sunder is the father of deceased. The substance of his deposition is that immediately after Gauna, his daughter had complained that she was being taunted, teased and harassed for the demand of a motor cycle and she was offered meal only once in a day.

In cross examination, the witness stated that no doubt motor cycle was demanded by Vijai Prakash but he had expressed his inability to meet the demand. He also stated that Vijai Prakash had not demanded motor cycle by talking to him directly but it was demanded through her daughter. He also stated that the accused persons had motor cycle, scooter and tractor at their house. He expressed ignorance whether Ram Suresh was at the house or at Fatehpur at the time of occurrence. He also stated that on arriving at the village, he had tried to ascertain correct facts from Amresh Tewari, Vishwanath Tewari and that he had also enquired from one Ojha and it was through talks with the above persons, that they appeared to him as eye-witnesses, from whom he came to know about the persecution and torture suffered by her daughter. He also stated that his daughter was literate enough and he had written a letter complaining about ill treatment and harassment and that the said letter was handed over to the personnel of CBCID. He denied knowledge that wife of Ram Suresh was afflicted with cancer. He also denied knowledge that Vijai Prakash was suffering from blood vomiting. He also denied knowledge that at the time of occurrence, Ram Chandra had gone for grazing cattle. He denied the suggestion that the accused were falsely nominated with a view to extorting money from them. This witness was again recalled for cross examination and in his cross examination he stated that all the accused were privy to conspiracy hatched against his daughter. He also stated that he got information about the occurrence from his brother through a telegram which was received by him on 13th August 1985 at about 1.30 or 2 pm. He immediately left for Pratapgarh and arrived at Pratapgarh the next day. He also stated that he arrived at his house in village Basupur on 14.8.85 at 5 pm. He further stated that he had gone to the village of the in-laws of his daughter on 16th and 17th August 1985. He also stated that he initially made application before the Sr Supdt of Police who endorsed the said application for action to the concerned police station. He conceded the fact that Ram Suresh Tewari was at Fatehpur on the day of occurrence. He lastly denied the suggestion that he was falsely deposing in the case.

PW 2 Raj Kumar, who happens to be the uncle of the deceased also deposed on the similar lines further mentioning that husband of the deceased namely Vijai Prakash Tewari was addicted to liquor and often gave her beating pressing for his demand for a motor cycle. He deposed that he got information about the occurrence on 11.8.1985 and immediately he sent information to his brother PW 1 through telegram. Upon receiving information, his brother immediately boarded the first available train from Bhilai and when they arrived at the village, they found the deceased placed on a cot with burn injuries. He also deposed that after 10 to 12 days of the occurrence, Ram Suresh had come to his house in the company of certain persons. Ram Suresh impressed upon him that this case was of no consequence; that his son was given to the bad habit of consuming liquor and wanted him to settle the dispute and offered whatever amount was demanded to withdraw the case but he was unyielding. He stated that prior to incident, the deceased had sent a letter but the same was not in the hand writing of the deceased and it appears that she had dictated the letter to someone else. He also deposed that the said letter was received after 2-3 days of the occurrence. He also deposed that the said letter was handed over to the personnel of CBCID.

During cross examination, he stated that he had received a letter from the deceased one day prior to the arrival of his brother from Bhilai but admitted that he had not shown the said letter to his brother. He also stated that even prior to the receipt of post card, he had come to believe that she had been murdered. He could not tell the exact date and time when the letter was delivered to the personnel of CBCID but stated that it was delivered to CBCID when they had come to investigate the case. He denied knowledge of any enmity between Ram Suresh and Basdev. He denied that deceased had sent any other letter besides this letter. He denied the suggestion that he had maneuvered for this letter to prop up the case against the accused. He stated that he was not aware of the identity of the person who gave information about the occurrence to him. He stated that he did not enquire about the identity or name of the person. He also stated that when inquest was conducted he was present on the spot but was at some distance as he was too distraught due to excessive weeping and wailing. He also stated that the people present on the spot were pointing accusing fingers at the accused for burning to death the deceased. He also stated that investgating officer who had initially conducted investigation had recorded his statement after 6 or 7 days of the occurrence and that at that time, he was too distraught and hence he could not tell about receipt of post card. He denied the suggestion that acting on the advice of the enemies of Ram Suresh he had set up a false case ostensibly to extort money from the accused persons.

PW 3 Vishwanath Tewari deposed that at the time of Khichdi ceremony, a demand for motor cycle had been made and when the demand was not met, Vijai Prakash Tewari delayed the ceremony of send-off (Bidai) insisting that he would take the deceased only after his demand for a motor cycle was met. It was also deposed that complainant had assured that he being mired in financial straits, was unable to meet the demand then and there and that he would manage to meet with the demand as soon as he was redeemed from financial straits.

This witness was extensively cross examined and during sustained cross examination, he conceded to the fact that he and family of the accused were horn-locked in litigation for the last 15 years and some of the litigations were still pending. He stated that he had no kinship with the family of the accused. He also stated that during Kichdi ceremony, the accused Vijai Prakash had demanded motor cycle upon which the father of the deceased had assured to meet the demand later-on. He could not tell whether the way to the upper story had staircase from inside the house or not. He also could not tell whether the room on the upper storey was bolted from inside or not. He could not tell whether the deceased had gone to upper storey through ladder or that the people gained entry into the room through window. He denied the suggestion that the deceased had been set afire in his presence but at the same time he stated that what he gathered from the spot, it appeared to him that the deceased was set afire. He also stated that the deceased was taken in burnt condition on a cot to the hospital but she breathed her last on the way to hospital. He denied the suggestion that he was deposing falsely on account of enmity.

On similar lines is the deposition of PW 4 Sangam Lal. Substance of his deposition is that when he arrived at the place of occurrence he had seen the deceased burning and a heap of Arhar stubs were burning both underneath and above the deceased. He also deposed that in the upper story there was no Chulha or chimney. He also deposed that when he arrived at the spot, accused Vijai was present. After removing burning Arhar stubs, he further stated, he came back to his house and subsequently, he came to know that the deceased had succumbed to her injuries. He denied the suggestion that he was aware of enmity between the accused and his maternal grand father. He also deposed that the house of the accused was a three storeyed house and that the deceased had suffered burn injuries in the uppermost storey of the house. He also deposed that before his arrival, number of village people were present and he had not seen anyone throwing blanket to douse the fire.

In cross examination this witness also conceded to the fact of his kinship with witness Vishwanath Tewari. He conceded the fact that there was kitchen only and there was no room on the third storey of the house. He denied the suggestion that he was deposing falsely on account of enmity.

PW 5 Hari Prasad Tewari deposed that he arrived at the scene upon hearing the hue and cry and at that time, the place was thronged with lot of people. He also deposed that he saw smoke emanating from upper storey of the building. He also deposed that he came to know from the people thronging there that wife of Vijai Prakash Tewari was burning. When he went upstairs, he saw that heap of Arhar straws were burning both underneath and above the deceased.

In cross examination the witness conceded to the fact that he was related to witness Vishwanath Tewari. He stated that the accused and his uncle were hornlocked in litigation. He denied the suggestion that his family was on inimical terms with the family of the accused. Rather he stated that if there was any enmity it was with his uncle not with his family. He could not tell whether the deceased died as a result of conspiracy or otherwise.

PW 6 is Dr K.K.Singhal, who had been called by the Court as an expert witness. This witness proved his opinion which is marked as Ex Ka 2. The substance of his opinion is that the causative factor of death was not any fatal disease. He denied that the deceased was administered poison. He also opined that since there was no congestion in Oesophagus, Buccal cavity, Pharynx, peritoneum, stomach, small intestine, large intestine etc, the death cannot be said to have been caused by strangulation. He also opined that congestion could occur in brain, lungs, liver, spleen and kidneys as a result of assault by some blunt weapon or the deceased could be assaulted by feet and firsts. He also opined that the deceased had taken food about 6 hours prior to the occurrence. He also opined that her body had been burnt with some inflammable liquids after her death. He reasoned that since no effect of puffs of smoke, carbon, redness and swelling was found in the Oesphagus, it can be assumed that she had been burnt after her death. He also explained that blood had not coagulated in any part of the body further explaining that in case of death by burn injuries, the blood tends to get clotted. He also explained that a burning person breathes in carbon monioxide gas emanating from burning as a result of which line of redness appears in the blood and inner part of the body. He also opined that the causative factor of death was not the burn injuries. He also opined that the death of the deceased could have occurred at about 5 pm on 10.8.85. He also opined that if the deceased had been hit with fist or other with some other blunt object on her head, it could result in her death. He also opined that if she had suffered burn injuries thereafter, in that event, injury prior to her being burnt would not be visible. He also answered the queries on similar lines in respect of spleen and kidney.

In the cross examination the witness admitted to the fact that his opinion was based on the contents of post mortem report. On a query made to him, he answered that he had not seen the deceased in burnt condition nor at the time of post mortem examination, but he was sure that the doctor who had conducted post mortem had mentioned all precise details but whatever he could not find, he did not mention in the report. He also stated that his opinion was contrary to the opinion enumerated in the post mortem report but at the same time, it remains the fact that he had drawn inference on the basis of whatever was mentioned in the post mortem report. On a specific question posed to him he replied that he did not agree that the deceased had died as a result of burn injuries. On a further specific question posed to him whether the doctor who had conducted the post mortem had given erroneous opinion, he merely stated that since the matter was in active consideration of the court, he could not say whether the opinion given by the doctor was correct or was erroneous.

The next witness is SI Ram Naresh Singh, P.W.8, who had initially conducted investigation and prepared the inquest report. He deposed that he had conducted initial investigation and thereafter the investigation came to be entrusted to Circle officer. He also deposed that he had recorded statements of Savitri, Raj Kumari on 15.8.1985 and according to their statement and at the time of occurrence, the door on the ground floor was bolted from inside and on being asked by the village people, Raj Kumari had gone to upper storey and opened the door and it was thereafter that the village people gained entry into the room.

In cross examination, he denied the suggestion that any pressure was exerted on him to close the case. Whenever any pressure is exerted during investigation, this fact is mentioned and some time it is not mentioned. He denied the suggestion that he had registered the case on account of pressure exerted on him. He also stated that he had conducted investigation between 15.8.85 to 17.8.85. He admitted the fact that the case was registered on 17.8.85 and that during the period he had conducted investigation, the present case had not been registered. He denied the suggestion that he had not conducted the investigation fairly on account of pressure exerted on him by his fellow colleagues.

The next witness is P.W.9, Inspector Ved Prakash Tyagi. He had conducted the investigation. This witness was also subjected to gruelling cross examination.

During cross examination on a specific query he stated that from the statement of Vishwanath, the deceased was alive at the time when she was aflame. On a further specific query, he stated that he had examined the papers relating to investigation conducted by the local police but he did not find any such mention in the statement of Sangam Lal. He also stated that no such facts came to his light during investigation that the deceased had been set aflame after her death. He also stated that he had taken over investigation on 22.1.86 and earlier investigating officer of P.S.Jethwara had conducted investigation upto 11.12.85 and during investigation conducted by earlier investigating officer, nothing came to light that any conspiracy had been hatched to burn the deceased to death. He also stated that the fact of conspiracy surfaced during statements of Raj Kumar Shukla, Smt Sobaran Devi, Ram Raj Shukla and Raj Narain witnesses. He also stated that he had mentioned the age of Sadhna as 14 years and she had been told to be unmarried but what he gathered on the spot was that she was married but could not tell further details pertaining to her marriage.

PW 10 is Om Prakash who was then posted as second officer at PS Jethwara. He made entry upon receipt of information from Ram Chandra Tewari about the death of Usha who had died of burn injuries.. He deposed that he immediately rushed to the spot and conducted inquest on the dead body. After completing inquest, he prepared papers for sending the body for post mortem examination. He also prepared recovery memos on the spot which were marked as Ka 8 to Ka 14.

PW 11 is Jagdish Singh Deputy Supdt of Police CBCID. He deposed that he had recorded the statement of Shyam Sunder Shukla on 26.4.88 and visited the spot on 9.6.1988 where he inspected the spot and recorded the statements of witnesses. After completing investigation he submitted charge sheet on 6.12.1988 nominating Vijay Prakash Tewari, Smt Saraswati Devi, Ram Chandra Tewari etc.

In cross examination, this witness stated that the persons whose statements were recorded by him were all respectable persons but none of them were the ocular witnesses of the occurrence. He also stated that during investigation, no specific date was brought to my notice on which the deceased was subjected to cruelty and ill treatment. He also stated that during investigation, he did not come across any witness who could tell him about any conspiracy hatched against the deceased. He also stated that he had recorded the statement of Ram Suresh Tewari at PS Dhata Faehpur where Ram Suresh Tewari was posted as Sub Inspector. He also stated that he could not get any evidence propping the story of conspiracy hatched by the accused against the deceased and it was on this count that he excluded the names of two persons from the charge sheet.

From a close scrutiny of the finding and also testimonies of the witnesses and from the documentary evidence on record, it transpires that the conclusion about guilt of the accused has been drawn mainly on the testimony of Expert witness who has been examined as PW 6. His testimony is based on the contents recorded in the post mortem report of the deceased. The witness has based his opinion about the fact that the deceased had died before being burnt, on close scrutiny of the contents of the post mortem report. In the post mortem report, the opinion expressed by the Doctor was that the causative factor of death was shock and burn injuries. On the contrary, this expert witness based his opinion on the basis of contents mentioned in the Post Mortem report. The trial court also heavily relied on the opinion of the expert witness and drew corroboration from the testimonies of the witnesses examined by the prosecution.

We have heard learned counsel for the appellants and also learned AGA appearing for the State. We have also been taken through the record in all precise details concerning the contentions raised across the bar.

The learned counsel appearing for the appellants has vehemently contended that this is a case in which the prosecution has failed to bring home the guilt with which the appellants were charged; that there is no clear evidence about proximate motive against the appellants; that the prosecution tried to establish the motive by adducing evidence of various witnesses but their version stood contradicted with their police statements which ought not to have been relied upon; that the relations between the deceased and the accused were not at all strained inasmuch as there is nothing on record that during the span of about five years of married life, the deceased was ever harassed or physically tortured by the accused or any one of them; that the demand for motorcycle as alleged by the prosecution harks back to the date of marriage i.e the year 1980 and cannot be said to be too proximate to actuate the accused to have committed the crime; that the dead body was found in the room situated in the uppermost storey which was in fact a kitchen and it goes to prove the defence story that she caught fire while cooking; and her body was found in burnt condition and this circumstance ruled out any foul play in the death of the deceased; that the trial court heavily relied upon the testimonies of partisan and inimical witnesses and also the evidence of expert witness without reckoning with the fact that the evidence of expert witness was not admissible; that there is no ocular witness of the occurrence and it being a case of circumstantial evidence which suffered from absence of complete links and the entire chain of circumstances of linking the accused with the crime was not established by the prosecution. It is also contended that the prosecution has miserably failed by cogent evidence about the involvement of the accused and ultimately it was submitted that it was a case of accidental fire and no cogent and convincing evidence has been brought home for bringing home the charge under section 302/120 B read with section 34 IPC.

Per contra, learned AGA tried to support the judgment and order of the court below whereby the appellants have been convicted and sentenced as aforesaid.

In the light of the aforesaid rival contentions, the following points crop up for consideration-

(a) whether it was a case of accidental fire or whether there was a conspiracy to murder her;

(b) whether any motive is proved for committing the crime;

(c) whether the expert medical evidence where opinion of the expert is based on scrutiny of post mortem report is admissible in the facts and circumstances of the case

(d) whether the witnesses 3 to 5 could be said to be reliable witnesses in the facts and circumstances of the case when they and accused were horn-locked in both civil and criminal litigation for the last 15 years.

(e) whether the circumstantial evidence is cogent enough to warrant conviction of the accused in the case.

Dealing with the first point, we would take up for consideration the evidence of those witnesses who claimed to be present on the spot immediately after coming to know of the incident. The witnesses are PW 3 Vishwanath Prasad Tewari, PW 4 Sangam Lal and PW 5 Hari Prasad Tewari. It is noteworthy that PW 1 Shyam Sunder Shukla and PW 2 Raj Kumar Shukla were admittedly not present and they came to the spot after receiving the information. PW 1 has admitted that at the time of occurrence he was employed in Electricity Department and was posted in a workshop at Bhilai and upon receipt of telegraphic information, he rushed to Pratapgarh. According to the witness Raj kumar arrayed as PW 2, he got information about the incident on 11.8.1985 and he immediately rushed to the spot where he saw the deceased lying on a cot in burnt condition.

According to PW 3 Vishwanath Prasad Tewari, at the time of occurrence he was on the roof of his house and that his house is situated adjacent to the house of the accused. He deposed that he saw smoke billowing from the house of the accused. He immediately rushed to the house but found Usha Devi lying supine but was groaning due to pain as a result of burning of her body while murmuring that "whatever Ram Suresh, Ram Chandra, Sadhna and her mother and Vijay had wanted has occurred". He also deposed that except Ram Suresh, all male and female of the family were present at the house. He also deposed that when he enquired about the occurrence, he was rebuked at the same-time asking him to leave the house immediately as it was their internal matter. He also deposed that the village people brought Usha Devi down from the upper-most storey and she was rushed to hospital on a tractor trolley but as he later-on came to know, she breathed her last on way to hospital. In his cross examination, he minced no words to say that he was on inimical terms with the family of the accused and that both he and family of the deceased were horn-locked in litigation both civil and criminal for the last 15 years. He also admitted that he had no kinship with the family of the accused. He also conceded that as many as 8 to 10 litigations were going on between him and the family of the accused. He denied in cross examination that he gave any information relating to the incident to the uncle and father of the deceased on their visit to the village and it was when the CBCID personnel came to record his statement, he revealed the fact of whatever the deceased had uttered at the time of occurrence.

PW 4 Sangam Lal has deposed that at the time of occurrence, he was sitting in the house of Hari Prasad Tewari chatting companionably and he further deposed that he heard a hue a cry that the deceased was burning, and immediately he rushed to the spot. He also deposed that the house of Hari Prasad Tewari was jutting back to back to the house of the accused. He also deposed that when he and Hari Prasad went upstairs, they saw that the deceased was burning and a heap of Arhar stubs were placed above and underneath the deceased and she was aflame. He removed the burning Arhar stubs and thereafter he came down the house. At the time of occurrence, he deposed, Vijai Prakash was present but in the same vein he stated that he did not see the mother of the accused Vijai Prakash anywhere. He admitted his kinship with Vishwanath PW 3. He however denied knowledge that there was any running feud and litigation between Vishwanath and the family of the accused. He could not give precise details about the inner topography of the house and admitted that he never happened to be in the house of the accused. He stated that his statement was recorded after 2-3 days after the occurrence but at the same time, he stated that the investigating officer had obtained his signatures on the blank paper and he was not aware of the contents of his statement. He also admitted that the kitchen was situated on the third storey in which deceased had sustained burn injuries. He emphasized that it was a kitchen and not a room.

PW 5 Hari Prasad Tewari deposed that his house was situated jutting back to back to the house of the accused. He further deposed that he was attracted to the scene of occurrence after hearing hue and cry and when he reached the place of occurrence he saw deceased burning. He removed the heap of Arhar stubs from the body of the deceased upon which she enquired from him about his identity and thereafter asked him to keep her feet straight. He also deposed that at the time of occurrence accused Vijai Prakash was present on the occurrence. In his cross examination this witness admitted his kinship with Vishwanath. He admitted that he had never gone inside the house of the accused and therefore could not give precise details about the topography of the house. He also admitted the fact that his uncle Vishwanath and the family of the accused were on inimical terms with litigation going on for the last 15 years. He also admitted that before his arrival on the spot, knots of people were already present. He however denied any enmity with the family of the accused. He could not tell whether the door of the kitchen was bolted from inside or not.

`It has come in the evidence of PW 2 uncle of the deceased that the deceased had been married in the year 1980 and Gauna ceremony was performed in the year 1983 and ever since then, she was living in her matrimonial house. There is no evidence on record that the door of the kitchen was bolted from inside or not. All the witnesses conceded that the occurrence took place in the uppermost storey of the house which was kitchen and at the time of occurrence, they saw the deceased burning. All the witnesses also admitted that before their arrival, knots of village people both male and female were already present. All the witnesses also admitted the fact that Vijai Prakash accused was seen but his mother was nowhere to be seen. PW 4 stated in his deposition that the deceased was murmuring and blamed the accused persons for the incident but PW 5 did not say anything supporting this aspect of the testimony of PW 5.

In the facts and circumstances of the case, we are not inclined to place implicit reliance on the testimonies of the above witnesses as they were partisan witnesses being on inimical terms with the family of the accused.

The next point which we take up for consideration pertains to whether the motive alleged for committing murder of the deceased was proximate enough or not. In connection with it first of all, we would examine the evidence of PW 1. It has come in the evidence of PW 1 that the accused Vijai Prakash had demanded motor cycle at the time of Khhichdi ceremony which demand was reiterated at the time of Gauna in the year 1983. The PW 2 has countenanced this part of version of PW 1. The demand of motor cycle was also supported by PW 3 Vishwanath in his testimony. However, there is nothing on record which may prop up the case of the prosecution that the deceased had ever complained about cruelty, harassment or ill treatment. PW 2 in his testimony has made a vague allegation that the deceased was ill treated and that the accused Vijai Prakash was addicted to consuming liquor and used to give beating to the deceased. He has also referred to a letter sent by the deceased which was received one day after the incident. This letter, it is admitted by the PW 2 was not in the hand writing of the deceased. It was also stated by him that the said letter was not disclosed to the father of the deceased and that the said letter was revealed to the personnel of CBCID. There is also a vague allegation that the deceased had complained to him about ill treatment at the hands of the accused persons. It has also come in his evidence that the accused Vijai Prakash had reiterated his demand for motor cycle and for Rs 20,000/- on the ground that he had to purchase a jeep. PW 1 also supported the version of PW 2 in all its details about the demand. Although PW 3 Vishwanath has countenanced the version of demand of dowry but all such details do not find mention in the statement recorded by the CBCID. On being queried, he replied that he had mentioned the entire facts to the investigating officer but in case such details are wanting in his statement, he cannot explain the reason for want of such details. There is no whisper about the letter by the CBCID in its investigation. It may be noted here that the incident had taken place on 10.8.1985 and next day, i.e.11.8.1985, the father and uncle of the deceased who are arrayed as PW 1 and PW 2 are said to have visited the village but the FIR was lodged on 17.8.1985. There appears to be some substance in the submission of the learned counsel for the appellants that the FIR was lodged after due deliberation. In the facts and circumstances of the case, it cannot be said that there was any strong or proximate motive for the accused to have pestered her or committed her murder. In our considered view the finding of the trial court was quite unreasonable one in the facts and circumstances of the case.

Our attention has also been drawn to the subsequent conduct of the appellants. It finds mention in the testimony of all the witnesses i.e Pw3 to PW 5 that Vijai Prakash immediately rushed her to the hospital on a tractor trollery but she succumbed to her injuries on way to hospital. It also finds mention in the testimonies of the PW 3 to PW 5 that Smt Saraswati was not seen on the spot and this reinforces the defence taken in the case that Smt Saraswati was not present at the house at the time of occurrence. It is on the record that the accused immediately gave information at the police station and on receipt of information, entry was made in the general diary and immediately police rushed to the spot conducted inquest and sent the body for post mortem. There is nothing on the record that the accused Vijai Prakash had fled from the house or had escaped from his responsibility of rushing the deceased to hospital. None of the witnesses has stated that any dying declaration was made by the deceased to any of the witnesses. Mere saying by the PW 4 and PW 5 that the deceased had murmured that whatever accused wanted to happen has happened cannot be treated as implying that she had raised accusing finger at the accused for the offence. None of the witnesses stated that the deceased was found tied to the cot. Only two witnesses stated that heap of Arhar stubs were placed above and beneath the deceased which were burning and they removed the burning Arhar stubs but during initial investigation, no such recovery of burnt Arhar stubs was made by the investigating officer. It finds mention in the papers relating to initial recovery that a written information was received at the police station at 8 am on 11.8.1985 that her grand daughter in law had died of burn injuries on 10.8.1985 at 5 pm while cooking food and that on account of non availability of any transportation he could not give information the same day at the police station. All the Panchas were of the opinion during inquest that the deceased had died of burn injuries but none could tell how she caught fire. In our view the aforesaid conduct of the accused had not revealed any clinching circumstance to necessarily connect the accused with the crime.

The trial court while placing reliance on the testimonies of the witnesses namely PW 3 to PW 5 gave excessive credence to the testimony of Expert witness namely PW 6 Dr Singhal, oblivious of the fact that none of the witnesses had stated that at the time when they arrived at the scene, the deceased had already died. The witnesses PW 3 to PW 5 have consistently stated that at that time, Smt. Usha was alive and she was then rushed to hospital but she succumbed to her injuries on way to hospital and thereafter, she was brought back to the village.

The question now remains to be analysed is as to whether the opinion of Dr. Singhal could be relied upon in the light of the facts and circumstances of present case. The learned counsel for the appellants submitted that the evidence of this Expert witness could not be relied upon as it was inadmissible under the Evidence Act.

In connection with the above submission that Expert evidence as relied upon by the trial court is not admissible, we feel called to look into the provisions of Section 293 of the Cr.P.C as to what does it postulate. The above Section provides for admissibility of reports of certain Government Scientific Experts. It being germane to the cvontroversy, is quoted below:

"293. Reports of certain Government sicientific experts.- (1) Any document purporting to be a report under the hand of a Government scientific expert to whom this Section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.

(2) The Court may, if it thinks fit, summon and examine any such expert as to the subject-matter of his report.

(3) Where any such expert is summoned by a Court, and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf.

(4) This Section applies to the following Government scientific experts, namely:-

		(a) 	any Chemical Examiner or Assistant Chemical 				Examiner to Government;
 

 
		(b)    the Chief Inspector of Explosives;
 
		(c)    the Director of the Finger Print Bureau;
 
		(d)    the Director Haffkeine Institute, Bombay;
 
		(e)    the Director, Deputy Director or Assistant 				Director of a Central Forensic Science 					Laboratory or a State Forensic Science 					Laboratory;
 

 
		(f)     the Serologist to the Government;
 
		(g) 	any other Government Scientific Expert 					specified, by notification, by the Central 					Government for this purpose." 
 

 

Reverting to the facts of the present case, Dr. K.K.Singhal (PW 6) was at the relevant time serving as State Medico Legal Expert/Additional Director. As stated supra, Section 293 of the Cr.P.C postulates that opinion of the Director/Deputy Director or Assistant Director of a Central Forensic Lab or a State Forensic Science Lab is admissible. As would appear, Sri Singhal was not posted in any of the aforesaid capacities in any of the Forensic Scientific Labs falling under clause (c) of Section 293 (4) Cr.P.C. He also does not fall in either of the categories of Government Scientific Experts mentioned in other sub-clauses of Section 293 (4) Cr.P.C. Thus, on this count, his opinion does not fall within the ambit of Section 293 of the Cr.P.C.

By way of abundant caution, decision of the Apex Court in 'Tanviben Pankaj Dumar Diveti versus State of Gujrat' reported in 1993(7) SCC 156, may also be referred to in which the Apex Court has held as under:

"We may also indicate here that the Doctor who had held the post mortem examination had occasion to see the injuries of the deceased quite closely. In the absence of any convincing evidence that the Doctor holding post mortem examination had deliberately given a wrong report, his evidence is not liable to be discareded and in our view, in the facts of the case, the opinion of the Doctor holding the post mortem examination has to be preferred to the Expert Opinion.........."

In the instant case, the finding of the trial court is solely based on the testimony of the Expert witness who is arrayed as PW 6 which is not countenanced by any of the witnesses. The trial court has not laid any sustainable foundation to discard the opinion expressed in the post mortem report in which it has been opined that Smt. Usha died due to shock as a result of burn injuries.

In view the discussion made above and regard being had to the provisions of Section 293 of the Cr.P.C, when the evidence of the expert witness namely Dr. K.K.Singhal has been held to be inadmissible, it would not be proper to record verdict of conviction against the appellants. It is also worth noticeable that the evidence of Expert witness runs counter to the evidence of other witnesses who in one voice deposed that the deceased was alive after sustaining burn injuries.

It is also important to mention that the evidence of PW 6 is silent about the cause of death of the deceased. From his testimony, it is not certain that death of the deceased is homicidal. Therefore, main ingredient of Section 300 IPC is missing, in the absence of which the appellant cannot be convicted for murder.

As a result of foregoing discussion, the appeals succeed and are hereby allowed. The judgment and order of the court below convicting the appellants is set aside.

Appellant Saraswati is on bail. She need not surrender. Her bail bonds are cancelled and sureties are discharged.

Appellant Vijai Prakash Tewari in jail. He shall be released forthwith unless wanted in some other case.

The office shall remit the record to the court below alongwith a copy of judgment for compliance.

MH/LN

Sept. 20, 2012