Chattisgarh High Court
Keshavram Lodhi And Anr vs State Of Chhattisgarh on 16 January, 2023
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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
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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
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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
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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
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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
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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.
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(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
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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)
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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,
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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-
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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
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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
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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
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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
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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:
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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
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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
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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
