Madhya Pradesh High Court
Smt. Pooja Bansal vs The State Of Madhya Pradesh on 28 May, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH AT
JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAJ MOHAN SINGH
&
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 28th OF MAY, 2024
CRIMINAL APPEAL NO.65 OF 2017
BETWEEN:-
SMT. POOJA BANSAL W/O SHRI DINESH BANSAL,
AGED ABOUT 23 YEARS, RESIDENT OF RAHUL
NAGAR POLICE STATION-BAIRAGARH DISTRICT
BHOPAL (M.P.)
...APPELLANT
(BY SHRI MAHESH PURI- ADVOCATE)
AND
STATE OF MADHYA PRADESH THROUGH POLICE
STATION BAIRAGARH DISTRICT BHOPAL (M.P.)
....RESPONDENT
(BY SHRI ARVIND SINGH- GOVT. ADVOCATE)
Reserved on : 20.05.2024
Delivered on : 28.05.2024
__________________________________________________
Signature Not Verified
Signed by: MANZOOR
AHMED
Signing time: 29-05-2024
11:36:16
2
JUDGMENT
RAJ MOHAN SINGH, J:
The appellant has preferred the present criminal
appeal against the judgment of conviction and order of sentence
dated 14.12.2016 passed by the Fifth Additional Sessions
Judge, Bhopal in Sessions Trial No.135/2016, convicting and
sentencing the appellant under Section 302 of IPC to undergo
life imprisonment with fine of Rs.1,000/- with default
stipulations.
2. The prosecution story started with the allegations
that on 6.10.2015 at about 10:00 AM the appellant came to the
house of deceased Kamini Bansal when she was alone in her
house and started quarreling with her by saying that the
deceased was in love with the husband of the appellant, and the
appellant with an intention to kill her poured kerosene oil from
a lantern (Lalten) and set her on fire. On raising alarm by the
deceased, the appellant fled away from the spot and thereafter
neighbour Ramkishna Bansal came there and he extinguished
the fire by pouring water upon the deceased. The then
injured/deceased was taken to the Bairagarh Hospital from
where information was given to the police by Dr. R.K.Verma
(PW-6) vide information (Ex.P-8). On the basis of information
given to the police, Rojnamcha Sanha No.19 was recorded on
6.10.2015. Due to serious medical condition, the deceased was
referred to the Hamidia Hospital, Bhopal and was admitted in
Kamla Nehru Burnt Ward, Hamidia Hospital, Bhopal for
treatment. Naib Tahsildar was called for recording the statement
of the then injured, but the doctor found the patient not fit to
make statement, and therefore the statement could not be
recorded. On 7.10.2015 Naib Tahsildar Motilal Ahirwar (PW-5)
recorded the dying declaration (Ex.P-7) of Kamini Bansal. With
these allegations, the investigating agency started the
investigation and after completing the investigation submitted
the charge sheet in the Court of competent jurisdiction. The
charges were framed against the appellant to which the
appellant pleaded innocence and claimed the trial.
3. In order to prove the guilt of the appellant, the
prosecution examined 11 prosecution witnesses i.e. PW-1 Rissu
alias Munnalal (father of the deceased), PW-2 Chhotibai
(mother of the deceased, PW-3 Tulsiram (witness to the
seizure- Ex.P-5), PW-4 Ramkrishna Bansal (one of the relatives
of deceased Kamini Bansal and witness to Ex.P-6), PW-5
Motilal Ahirwar, Naib Tahsildar/Executive Magistrate (who
recorded the dying declaration of the deceased), PW-6 Dr.
R.K.Verma (who gave intimation to the police regarding
admission of the deceased in Bairagarh Hospital, Bhopal vide
Ex.P-8, PW-7 Pooja Bourasi, PW-8 Harpal Singh, Assistant
Sub Inspector of Police (who recorded the Rojnamcha and
recorded seizure memo-Ex.P-5), PW-9 Ganesh Dehariya (who
recorded the seizure memo- Ex.P-9), PW-10 Dr. Rajendra
Kumar Mourya (who conducted the postmortem examination of
dead body of the deceased), PW-11 Manoj, Head Constable
(who recorded the marg intimation- Ex.P-17), PW-12 Rakesh
Verma, Assistant Sub Inspector of Police (who prepared the
Naksha Panchayatnama- Ex.P-3, seizure memo- Ex. P-9 and
recorded the statements of prosecution witnesses vide Ex.P-1 &
P-6 and also investigated the offence). After leading
prosecution evidence, the incriminating material was put to the
accused in his statement under Section 313 of Cr.P.C. and the
appellant denied all the incriminating material and put forward
the statement that she is innocent and did not set Kamini Bansal
on fire, rather Kamini Bansal set herself on fire.
4. Learned counsel for the appellant submitted that
PW-1 Rissu alias Mannulal, father of the deceased has not
supported the case of the prosecution. He stated in his statement
that on 6.10.2015 he went to Bhopal for begging. He was told
by some relative on telephone that his daughter Kamini was
hospitalized on account of burn injuries. When he saw his
daughter in Hamidia Hospital, Bhopal, no talk took place
between him and his daughter. After two days his daughter
died. The witness pleaded no information as to how his
daughter was burnt. He further stated that his statement was not
recorded by the police nor was any spot map was prepared in
his presence. The witness was declared hostile and even in his
cross examination, nothing incriminating could be extracted
from him. Chhoti Bai, mother of the deceased has been
examined as PW-2. She has stated that her daughter was
hospitalized on 6.10.2015. When she came to know about this,
she went to the Hamidia Hospital, but no talk took place
between her and her daughter. Her daughter was not in a
position to speak. After two days she died. The police did not
record her statement and she pleaded no information as to the
cause of burn injuries upon her daughter. The witness was
declared hostile and nothing incriminating could come out from
her cross examination. Tulsiram has been examined as PW-3.
This witness has stated that he does not know the deceased and
the accused. No seizure was done in his presence. The witness
pleaded no information about the occurrence and was declared
hostile. In his cross-examination he denied the suggestion that
on 6.10.2015 in Peepal Wali Gali, Bairagarh, Bhopal the police
had recovered in his presence a Lalten without cover
(dhakkan), match box and burnt clothes having smell of
kerosene oil. This witness has admitted his signature on Ex.P-5
at A-A part. It is further stated that at Bairagarh Chowk there
was a crowd and he was present there and the police got his
signature at that time. He denied the suggestion that he was
given statement under the influence of the appellant.
5. Ramkrishna Bansal has been examined as PW-4.
He has also not supported the case of the prosecution and was
declared hospital. This witness has stated that he is living in
Bairagarh and is working with Gurumukhdas Seth. He was
going from his house to the place of work. There was a crowd
on the way and he stopped there. There he came to know about
the fact that Kamini had set herself on fire. Kamini was sitting
there with blanket wrapped around her body. Thereafter Kamini
was hospitalized in Civil Hospital, Bairagarh and he proceeded
to his place of work. The witness pleaded no information as to
how Kamini got fire. He also stated that the police never
recorded his statement. Even in his cross-examination, nothing
incriminating could be extracted. Motilal Ahirwar has been
examined as PW-5. The witness has stated that on 7.10.2015 he
was posted as Naib Tahsildar/Executive Magistrate. On that day
at about 12.35 PM he went to the Burn Ward of Hamidia
Hospital for recording the dying declaration of Kamini Bansal
and recorded the statement. Before recording the statement, he
obtained the medical opinion of Dr. Brijendra and the doctor
declared the patient to be conscious. In the dying declaration
the patient told that her Mausi Pooja wife of Dinesh had
quarreled with her and she put kerosene oil upon her and set her
on fire. The patient also told that the date of occurrence is one
day prior to 7.10.2015 at 10:00 AM in a room. The patient also
told that at the time of occurrence she and her Mausi were
alone in the house. She also told that her Mausi was having
suspicion that the patient Kamini was in love with her husband,
and therefore Pooja in order to kill her set her on fire. She also
told that the uncle living in neighbourhood put water upon her
and extinguished the fire. The witness after recording the dying
declaration (Ex.P-7) put his signature at place A-A and also
obtained right hand thumb impression of Kamini Bansal. In his
cross examination, the witness has stated that at the time of
recording dying declaration, no person was present except
himself and deceased Kamini Bansal. Before recording the
dying declaration, the doctor examined the patient and the
doctor has made the endorsement on Ex.P-7. The witness
admitted that on the Ex.P-7, the doctor has not mentioned the
blood pressure and pulse of the patient.
6. Dr. R.K.Verma has been examined as PW-6. He
was posted as Medical Officer in Civil Hospital, Bairagarh,
Bhopal on 6.10.2015 and prepared Ex.P-8, which was an
intimation sent to the concerned Police Station. This witness
has stated in his cross examination that he had seen the patient
but the condition of the patient could not be narrated for want
of pre-MLC. The pre-MLC report was not in front of him,
therefore the witness could not tell the extent of burn injuries
on patient Kamini. Pre-MLC report has not been brought on
record. Pooja Baurasi has been examined as PW-7. She was
posted as Female Constable on 9.10.2015 in Police Station
Bairagarh. She is a witness of recovery of a sealed box
containing vaginal slide of the deceased and sealed box of hairs
of the deceased. Harpal Singh has been examined as PW-8,
who as posted as Assistant Sub Inspector on 7.10.2015 in
Police Station Bairagarh and has investigated the Rojnamcha
Sanha No.19. He has prepared the Dehati Nalishi (Ex.P-10) on
the basis of which the offence was registered. The witness has
investigated the offence thereafter. Ganesh Dehariya has been
examined as PW-9. On 9.10.2015 he was posted as Head
Constable in Police Station Bairagarh. He received the sealed
box in respect of vaginal slide and sealed box of hairs of the
deceased from Hamidia Hospital, Bhopal. Rajendra Kumar
Maurya has been examined as PW-10. He was posted as
R.M.O. in the Forensic Medicine Department on 9.10.2015 and
had examined the dead body of deceased Kamini Bansal. He
conducted the postmortem of the deceased and prepared the
postmortem report. Manoj has been examined as PW-11. He
was posted as Head Constable in Police Station Bairagarh on
8.10.2015 and informed the Hamidia Hospital at 7:30 PM and
has testified the death of Kamini and her hospitalization in the
Hamidia Hospital on 6.10.2015. Rakesh Sharma has been
examined as PW-12. He was posted as Assistant Sub Inspector
in Police Station Bairagarh on 9.10.2015 and conducted the
investigation in the present case.
7. We have heard the learned counsel for the parties
and perused the record. This Court found that the appellant is
having three children. At the time of her arrest, she was
pregnant and gave birth to third child. The material witnesses
have not supported the case of the prosecution. PW-1 Rissu
alias Munnalal, father of the deceased, PW-2 Chhoti Bai,
mother of the deceased, PW-3 Tulsiram, seizure witness, PW-4
Ramkrishna Bansal, neighbour of the deceased, who
extinguished the fire and did not support the case of the
prosecution. Ramkrishna Bansal rather stated that the deceased
put herself on fire and when he reached there she was sitting
after wrapping a blanket around her. The cross examination of
the aforesaid witnesses did not yield any incriminating
information against the present appellant. In order to ascertain
the veracity of the proceedings undertaken in respect of dying
declaration, this Court found that there are some un-exhibited
documents on record, which are also part of the challan.
8. Perusal of the un-exhibited document dated
6.10.2015 would indicate that Dr. Brijendra gave his report on
6.10.2015 at 1:50 PM that "patient is conscious and
disoriented to give valid statement". Perusal of the word
disoriented would indicate that the insertion of alphabets "dis"
appeared to have been added later on. On the basis of the
aforesaid medical opinion, Shri Vikas Chandra Jain, Naib
Tahsildar/Executive Magistrate, Bhopal had endorsed that the
patient was not in a position to give statement, therefore
recording of her statement was not possible. The doctor had
also certified it. On 6.10.2015 itself Dr. Pranay had certified at
about 8:45 PM that the patient was drowsy and not oriental to
time, place and person on 6.10.2015 at 8:50 PM. On the basis
of aforesaid medical opinion, Shri Vikas Chandra Jain, Naib
Tahsildar/Executive Magistrate, Bhopal had endorsed that the
patient Kamini was not in a position to give her statement.
Recording of dying declaration was done on 7.10.2015 at 1:35
PM, wherein Dr. Brijendra gave a medical certificate that
"patient is conscious & oriented to give valid statement." On
the basis of the said medical opinion, Shri Motilal Ahirwar,
Naib Tahsildar/Executive Magistrate, Bairagarh, Bhopal
proceeded to record the dying declaration (Ex.P-7) at 12:47
PM. Perusal of the aforesaid Ex.P-7 with reference to the
medical opinion given by Dr. Brijendra if compared with the
document dated 6.10.2015 at 1:50 PM, wherein Dr. Brijendra
had also given the same opinion, but the alphabets "dis" are
proved to have been added between the words "conscious &
oriented". Shri Vikas Chandra Jain, Naib Tahsildar/Executive
Magistrate, Bhopal did not record the dying declaration on
6.10.2015 in pursuance of the medical opinion given by Dr.
Brijendra and Dr. Pranay.
9. It is a settled principle of law that un-exhibited
documents can be relied, if the same go in favour of the
accused. Dr. Brijendra and Dr. Pranay have not been examined
as prosecution witnesses so as to test their medical opinion at
the threshold of the legality. It is a settled principle of law that
the document, which is not proved by the prosecution cannot
be read against the accused, but since it is a prosecution
document, it can be read in favour of the accused, as the same
is part of the challan. The view expressed by this Court in
Vrijlal Ghosi and another Vs. State of MP, ILR (2012) MP
1351 and Ramesh @ Dabbu Vs. State of MP, 2014 (3)
MPHT 470 can be relied. In a criminal trial if the Court comes
to the conclusion that ocular evidence is not believable, then the
remaining evidence cannot be left unconsidered. It is the duty
of the Court to assess the remaining circumstantial evidence so
as to ascertain whether chain of circumstantial evidence is
complete and the accused may or may not be held guilty on the
basis of such evidence.
10. In the present case, the occurrence took place all of
sudden, when the appellant went to the house of the deceased
and made complaint to the deceased as to why she was having
love affairs with her husband and due to which a quarrel took
place and appellant is alleged to have poured kerosene oil from
the lantern and set the deceased on fire. The aforesaid story is
the part of Dehati Nalishi (Ex.P-10) as well as FIR (Ex.P-11).
The alleged eye-witness Ramkrishna Bansal (PW-4) has
corroborated the stand of the convict appellant in the statement
under Section 313 of Cr.P.C. that the deceased put herself on
fire and she was found sitting with a blanket wrapped around
her body and the witness Ramkrishna Bansal (PW-4) got her
admitted in the Civil Hospital, Bairagarh and from there he
went to his work. The pre-MLC has not been brought on
record. Dr. R.K.Verma (PW-6) could not give extent of burns
on the person of deceased Kamini. From the circumstances
leading to the incident, it can be found that the appellant had no
predetermined motive or enmity to commit murder of the
deceased. The incident occurred due to sudden quarrel, which
ensued between the appellant and the deceased on account of
having love affairs by the deceased with the husband of the
appellant.
11. Alternatively learned counsel for the appellant has
argued that in such a situation the complicity of the appellant
would fall under Exception 4 to Section 300 of IPC, and
therefore Section 304 (Part-II) of IPC i.e. culpable homicide not
amounting to murder would be attracted. Learned counsel for
the appellant has referred to Sarup Singh Vs. State of
Haryana, 1995 CRI.L.J.4168, Kalu Ram Vs. State of
Rajasthan, (2000) 10 SCC 324, Ramdayal Vs. State of MP,
1993 MPLJ 532 and K. Ravi Kumar Vs. State of
Karnatana, 2015 CRI.L.J. 553.
12. In the instant case after considering the prosecution
evidence as well as un-exhibited documents on record, we are
of the considered opinion that the prosecution could not prove
the guilt of the appellant beyond all reasonable doubt. The
material witnesses have not supported the case of the
prosecution. The conviction based on the dying declaration of
the deceased if tested on the basis of un-exhibted documents,
the same would reveal that the recording of dying declaration
by Motilal Ahirwar, Naib Tahsildar/Executive Magistrate on
7.10.2015 at 12:47 PM was on questionable note in view of the
medical opinion given by Dr. Brijendra on 6.10.2015 at 1:50
PM and endorsement made thereupon by Vikas Chandra Jain,
Naib Tahsildar/Executive Magistrate, Bhopal. Similarly, the
medical opinion given by Dr. Pranay on 6.10.2015 at 8:50 PM
and endorsement made by Vikas Chandra Jain, Naib
Tahsildar/Executive Magistrate, Bhopal at 8:50 PM, would go
in a long way to spell out the circumstances in favour of the
accused, as these circumstances based on the aforesaid un-
exhibited documents would not prove that the dying declaration
recorded by Motilal Ahirwar, Naib Tahsildar/Executive
Magistrate on 7.10.2015 was a valid dying declaration,
particularly, when Dr. Brijendra has not been examined as
prosecution witness. This very Dr. Brijendra has also given
medical certificate of disorientation of the patient on 6.10.2015
at 1:50 PM. The medical certificate of Dr. Brijendra had been
duly testified by another Dr. Pranay on 6.10.2015 at about 8:50
PM. In the light of these un-exhibited documents, the recording
of dying declaration by some different Naib Tahsildar on
7.10.2015 at 12:44 PM would be on questionable note. The
present appellant is in custody for the last more than eight and
half years without remissions. If the period of admissible
remissions is also included to the tally of actual period of eight
and half years, the total custody of the appellant would come
out to be about 11 years. In the light of the aforesaid custody as
well as circumstances in which the dying declaration of the
deceased has been recorded, we deem it appropriate to give
benefit of doubt to the appellant and acquit her on the basis
thereof.
13. For the reasons recorded hereinabove, we hereby
accept the present criminal appeal by setting aside the
impugned judgment of conviction and order of sentence dated
14.12.2016 passed by the Fifth Additional Sessions Judge,
Bhopal in Sessions Trial No.135/2016. It is directed that if the
present appellant is not required in any other case, she shall be
released from the jail forthwith.
(Raj Mohan Singh) (Vivek Jain)
Judge Judge
28/05/2024 28/05/2024
Ansari
