“M HiGi-i COURT OF CHHATTISGARH BILA$PUR Criminal Aggeal No.1 of 2006 APPELLANTS: Premchand Pandey and others Versus RESPONDENT: State of Chhattisgarh Post for nro oun ‘ ent of ‘ud meat on Se tember 2003 I wsw- ¥ 7 T. P. Sharma Judge r v r ’ r *r HIGH COURT OF CHHATTISGARH BILASPUR Criminal Appeai No.1 of 2006 m .. Present: Mr. H.B. Agrawal, Senior Advocate with Miss Rinki Tamrakar, Advocate for the appelianis. Mr. Vinod Tekam, Panel Lawyer for the State/respondent. {Criminai appeai under Section 374 (2) of the Code of Criminal Procedure, v 1973} Sinqie Bench: Hon’ble Mr. T.P. Shanna, J JUDGMENT (Passed on 3‘2 September, 2008) 1V This appeai is directed against the judgment of convietion and order of sentence dated 12-12—2005 passed by the 13‘“ Additional Sessions a Judge (F.T.C.), Raipur in Sessions Triai No.230/2005, whereby iearned Additionai Sessions Judge aftertholding the accusedlappeilants guiity for commission of attempt to commit murder and cruelty upon Sandhya Pandey, wife of Premchand appeiiant No.1, ‘sister-in—law (Bhabhi) of appeiiant No.2, daughter-in-iaw of appellant No.3 & sister-in-iaw (Nanand) of appeiiant. No.4, convicted them for commission of offence ’ APPELLANTS: 1. Premchand Pandey, Sic Ramvachan (:n Jail) Pandey, aged about 3G years 2. Devshankar Pandey, Sic Ramvachan Pandey, aged about 28 years ‘» 3. Ramduiari Pandey, Wlo Ramvachan Pandey, aged about 5O years 4. Ku. Shakun Pandey, Dfo Ramvachan Pandey, aged about 24 years A“ Rio sanyasi Para, Po‘ice Station Khamtarai, Distt. Raipur (C.G‘) Versus RESPONDENT: State of Chhattisgarh, Through the District Magistrate, Distt. Raipur (C.G.) under Sections 307 read with Section 3418‘ 498A of the I.P.C. and sentenced each of them to undergo rigorous imprisonment for seven years 8: pay a fine of Rs.500/-, in defauit of payment of fine to further undergo RJ. for two months and to undergo rigorous imprisonment for three years 8: pay a fine of Rs.5GOI-, in default of payment of fine to further undergo rigorous imprisonment fortwo months, respectively. 2. The impugned judgment is chailenged on the ground that the trial Court has convicted and sentenced the appellants on the basis of unreliable and uncorroborated testimony. 34 i have heard learned counsel for the parties and perused the impugned judgment as also the material available on record. 4. Case of the prosecution, in brief, is that complainant Sandhya Pandey was married to appellant No.1 Premchand in’the year 2002, appeltants No.2, 3 & 4 are her brother—in-law, mother~in—law & sister-in-law i.e. relatives of her husband. The appellants used to harass complainant Sandhya Pandey in connection with demand of dowry and other demands. 0n 29-3-2005 at about 10 p.m. the complainant was cooking food in the house of the appellants, the appellants locked the door of the t. house and switch on TV & deck in full sound. Alf the accused assaulted the complainant, thrown her upon the burning gas stove and ran away. Her sari, petticoat & blouse started burning and she shouted on which neighbours Lalit Yadav, Ashok Kumar & other family members of the neighbours came and saved her. The neighbours telephoned to the brothers. of the complainant. At that time, the complainant was unconscious. Eariier, the complainant has reported the matter of l harassment 8. torture meted out to her by the appellants for demand of , ‘ \/V dowry in Police Station Gan}, Raipur. Her brothers came to the house of the appellants and took her to Ashish Dubey Nursing Home where the complainant was admitted. lntimation was sent to Poilce Station Khamtarai vide EXP-3 by the said nursing home. Dr. Ashtsh Dubey (PW—3) examined the complainant and found bum injuries over bath the hands & below breast up to thigh (approx. 30-35%), he prepared the injury report vide EXP-2. The complainant was shifted to Dr. Kalra Nursing Home. Her statement was recorded in Kalra Hospital videEx.P'- 5 and on the basis of EXP-5, F.l.R. Ex.P-7 was recorded. Spot map was prepared by the investigating Officer vide Ex.P-8. Half burnt match stick, burnt cloth piece, pieces of bangles and half bumt Nighty were seized from the spot vide Ex.P—6. Statements of the witnesses were recorded under Section 1‘61 of the Cr.P.C. and after completion of investigation, charge sheet was tiled in the Court of Judicial Magistrate, First Class, Raipur, who in tum, committed the case to the Court of Sessions Judge, Raipur, from where- learned Additional Sessions Judge (F.T.C.), Raipur received the case on transfer for trial, . ln order to establish the guilt of the accused persons, the prosecution has examined as many as eleven witnesses. Sktements of the accused persons were recorded under Section 313 of the Cr.P.C. in whichdtey have denied the circumstances appearing against them, pleaded innocence and false implication. Appellant No.1 Premchand has adduced himself as a defence witness in which he has stated that at the time of incident, appellants Devshankar, Ramduiari & Shakun were not present in the house, he and the complainant were residing a \ \ Sanyasipara, Police Station Khamtarai, on that day at about 9.30 p.m. after he came from his Office, he felt the smetl of burning of doth, he went inside the house where he saw that the petticoat of his wife was burning, he & his wife extinguished the fire, he informed his brother-rin- iaw Manoj and his brother by teiephone about the incidem. He & Mano} took Sandhya to Dr. Ashish Dubey’s Hospital. He has further mted that appellants No.2, 3 & 4 were not residing with them, he and the other appellants have not tortured the complainant. After the incident, he- called his mother, brother & sister to Dr. Ashish Dubey’s hospital where they were assaulted by, the brothers (Kamlesh, Manoj & their friends) of the complainant, whereupon they lodged report at Police $ation Gan}, Raipur and appellants Shakun Pandey & Devshankar Pandey were examined by the doctor. He has also stated that a fatse case has been cooked up against them. 7. lt is argued on behalf of the appellants that conviction of the appellan3 under Sections 307 & 498% of the l.P.C., simultaneously, is not sustainable under the taw; The appellants have not harassed or tortured complainant Sandhya Pandey, or attempted to commit the murder of $andhya Pandey. She received burn injuries on account of an accident. Appellant No.1 Premchand has tried to save her, he informed her brothers and initially took her to Dr. Ashish Dubey*s hospital, but as a result of enmity, Sandhya Pandey & her bothers have falsely implicated the appeilants in the instant case. Appellant No.4 shakun Pandey was married to Pradeep Kumar Mishra, who has flied a petition. against ‘L l appellant No.4 Shakun for divorce, vide Ex.D—9 in which the address of Shakun is shown. as Narmadapara, Raipur. Appellant No.1 Premchand Pandey has purchased a television on loan and paid installment vide Ex. h D-11 and also paid the installment of the Thrift Cooperative Society vide Ex. D-1 2. 8. In order to establish guilt against the appeiiants, the prosecution is required to prove the foliowing essentiai ingredients of the offence: - a. The appellants, who are husband & relatives of husband of complainant Sandhya, used to harass & torture her and subject her to cruelty. b. The appellants have caused injury to Sandhw by burn. c. The appellants have caused injury to Sandhya with intent to kill! murder her. 9‘ in order to establish the guilt of the appellants, the prosecution has adduced ocular and medical evidence. As regards the injuries sustained by Sandhya, it is disputed by the defence that she received burn injuries at the time of incident. Appellant No.1 Pfemohand, who himself has deposed in his defence, has stated that Sandhya sustained injuries by burn and he along with Manoj took her to Dr. Ashlsh Dubey’s hospital. Dr. Ashlsh Dubey (PW-3) has stated in his evidence that on 29-3-2005 at about 11.20 p.m. Sandhya Pandey was brought to his hospital, he has examined and found burn injuries over her body from breast to lower part of thigh, burn injuries were up to 30-35% and they were superficial. Later on, she was shiftedto the Bum Unit of br. Kalra. The injury report prepared by Dr. Ashlsh Dubey is EXP—2. He has intimated to the Police vide Ex.P-3. Manoj Kumar Singh (PW-1), Lam Yadav (Pw.2),"'smt. Anchala Singh (PW4), Ashok Singh (PW-6), Smt. Geeta Devi Singh (PW-7) & Kamlesh Kumar (PW-8) have stated in their evidence that on the date of incident Sandhya received burn injuries and she was admitted in Dr. Ashish Dubey’s hospital. By these facts, it is established that complainant Sandhya received burn injuries on the date of incident \ W \'. r. i up to 30-35% and the burn injuries sustained by her Were superiicial in nature. 1o. Complainant Sandhya Pandey (PW-5), who is wife of appellant No.1 Premchand Pandey, sister-in—iaw of appeiiants No.2 & 4 Devshankar Pandey & Shakun Pandey, respectiveiy, and daughter-in-iaw of appeilant No.3 Ramdulari Pandey, has depased in her evidence that after her marriage with Premchand she was residing with the appellants in \‘x y Sanyasi Para, Khamtarai, Raipur, just after ten days of marriage, the appellants started harassing and torturing her, they used to demand money and quarrel with hers many a times her brothers came and resoived the matter. Sometimes, the appellants used to demand Rs.2D,DODI-, Rs.50,DDOI-, sometimes, T.V. and they used to threaten her that if she will not bring the said items, they will beat her and send her to her maternal house. On the date of incident, the appellants asked for money on which she telephoned to her parents and demanded money, l when she told that there is no money, all the appellants beat her and thrown her on the burning gas stove, locked the door and ran away. She has also stated that the appellants told her that if she will not bring money, they will kill her, Thereafter, the appellants left from the place of incident, she raised cries and came out, her neighbours Ashok Singh & Lalit came and extinguished the fire by throwing water over her. Ashok Singh telephoned to her brother Mano}. Manoj came and taken her to the hospital. He telephoned to her second brother Kamlesh. Her statement was recorded in the hospital vide Ex.P—5, in \ . \, 11.Manoj Kumar Singh (PW—1), who is brother of the complainant has l stated in his evidence that the appellants used to harass & torture the \ complainant. On the date of incident at about 10 pm. Ashok a Santosh telephoned him from Sanyasi Para, Santosh told him that the appeMants have burnt his sister, on which he immediately rushed to Sanyasi Para and saw his sister in burnt condition. On being asked by him, his sister toid him that ail the appeiiants beat her and after closing the door they thrown her over the burning gas stove. Thereafter, she became unconscious and she was shifted to Dr. Dubey’s hospital. Lalit Yadav (PW—2), who is neighbour of the appellants, has stated in his evidence that on the fateful day at about 10-11 pm. he heard the cries of complainant Sandhya Pandey, he came out from the house and saw Sandhya Pandey in bumt condition, his neighbour Ashok Singh was also present there andthey extinguished the tire, with the help of water & ice. At the time of incident relatives of Sandhya Pandey i.e. the appellants were not present there. They removed her burnt clothes and changed her clothes. Ashok Singh telephoned to brother of the complainant Vinod, thereafter, she was shifted to the hospital. 13. Smt. Anchaia Singh (PW-4), who is neighbour of the appellants & wife of Ashok Singh (PW-6),. has corroborated the evidence of Lalit Yadav (PW- 2). She has stated in her evidence that at the time of incident appellant No.1 Premchand, husband of the complainant, was present in the house. Her husband Ashok Singh informed brother of Sandhya by telephone and she was shifted to the hospital. $he told her that she received bum Injuries. x 14. Ashok Singh (PW-6) has deposed in his evidence that after hearing the cries of Sandhya, they came out along with his wife and extinguished the \ minim , l \ \ tire, Premchand was standing there, he teiephoned to Mano; and shifted ‘ Sandhya to Dr. Dubey’s hospital. She was semi-conscious and weeping. 15. Smt. Geeta Devi Singh (PW-7), sister-in—iaw of Sandhya Pandey, has stated in her evidence that the appenants used to harass sandhya and she came to know that they have caused burn injuries to Sandhya. Kamiesh Kumar (PW-8), brother of Sandhya Pandey, has also supported the fact of harassment. He has specificaliy stated in his evidence that Premchand used to demand dowry and used to assauit his sister. On the date of incident also,“his sister was harassed and assauited by the appellants, the appellants caused burn injuries to his sister by throwing m her over the burning gas stove. 16, Appellant No.1 Premchand Pandey has examined himseif as a defence witness and he has deposed that at the time of incident. Sandhya was cooking meal, he was present in his house and on the basis of smeil of burning of cloth when he went near Sandhya, he saw that her petticoat was burning, then he & Sandhya extinguished the fire, rest of the appeliants were not present there and they were residing at Narmada x Para. He telephoned to his brother-in—law & his brother appeilant No.2 Devshankar Pandey and thereafter, they shifted her to Dr. Dubey’s hospital. He has further stated that his sister Shakun Pandey, appellant No.4 herein, is not residing with him at that time, she was residing at Narmada Para. 17. Sandhya Pandey (PW—5), the complainant, has specifically stated that she was beaten by ail the appellants and they threw her over the buming gas stove as a result of which she received burn injuries. She came out ‘\ from her house and shouted, then the neighbours came, thereafter, they l teiephoned to her brother, then finally they shifted her to the hospital. She has also stated that after throwing her over the burning gas stove, the appellants ran away. 18. Complainant Sandhya Pandey (PW-5) has tried to establish that all the appellants were residing at the same house of Sanyasi Para where the alleged incident had taken place, but in her cross-examination para 13 she has specifically admitted that she ls having the key of the house of Sanyasi Para. She has also admitted that articles & clothes Of Devshankar, Shakun Bat 8: Ramdularl (appellants No.2 to 4) are with Umesh Sharma and any articles or things relating to these appellants are not at the house of Sanyasi Para, but she has denied that they were not residing with her. Just after the incident, the complainant cried, wept & shouted and came out from the house, after hearing her shouts, her neighbours Lalit Yadav (PW-2), Smt. Anchala Singh (PW-4) & Ashok Singh (PW—6) came out from their houses and saw her, they extinguished the fire with the help if ice & water, they changed her clothes, thereafter, they telephoned to her brother and finally they shifted her to the hospital. At the time of incident, Premchand was present there and except Premchand, nobody was present. 19. This ls not the case where appellants No.2 to 4 viz., Devshankar, Shakun Bai & Ramdulari came from Narmada Para, they assaulted Sandhya Pandey and after assaulting her they threw her over the burning gas stove. According to the evidence of complainant Sandhya Pandey (PW-5), appellants No.2 to 4 were residing with her, but in para 13 of her cross-examination she has specifically admitted that there were no articies relating to these persons in her house of Sanyasi Para, their 10 clothes & articles were with Umesh Sharma. When there were no articles, clothes & other things for common use of appellants No.2 to 4 viz., Devshankar, Shakun Bai & Ramdulari at the house of Sanyasi Para where the complainant & her husband were residing, it is difficult to presume that they were residing at Sanyasi Para house along with Sandhya Pandey & her husband. The incident took place at about 10 pm. and just after the incident, the complainant shouted, raised cries and came out from her house, after hearing her cries, her neighbours Lam Yadav (PW-2), Smt. Anchaia Singh (Pw.4) a Ashok Singh (PW-6) came out and saw her in bumt condition and they extinguished the fire. They have specifically stated that at that time, only Premchand was present and nobody was present there. lt shows that except Premchand, rest of the appellants was not residing with Sandhya Pandey at the time of the alleged incident. This fact also gets support from the evidence of appellant No.1 ‘F’remchand Pandey who has examined himself as a defence witness. 2o, Comptainant Sandhya Pandey (PW-5) has stated in her evidence that all the appellants used to harass 8: torture her on the ground of demand of dowry just after her marriage. lt is clear from para 13 of her evidence that appellants No.2 to 4 are not residing with her. She has not stated that from how much time appellants No.2 to 4 are residing from her - separately. She has not stated that these appellants used to come to her house at Sanyasi Para and harass & torture her or they used to harass & torture by telephone. ln criminal jurisprudence, the prosecution is required to establish the case beyond all reasonable doubts. Defence is not required to establish its innocence. in order to connect appellants No.2 to 4 with the crime in question, the prosecution is required to g @ estabiish by adducing cogent and reliable evidence that they were residing with the complainant and they used to harass & tarture Sandhya Pandey or they have aesaulted and caused bum injuries to her on the date of incident. The prosecution is also required to establish that appellants No.2 to 4 were residing with the complainant at the time of incident, they used to harass & torture her or they used to reside at other place, but they used to come to the house of the complainant and used to harass & torture her or they used to harass & torture her by means'of telephone or by any other method. But the prosecution has failed to adduce evidence to this effect. 21. Evidence of complainant Sandhya Pandey (PW—5) reveals that appellants No.2 to 4 were not residing with her at the time of commisston of the said incident. She has specifically stated that the appellants used to harass & torture her and on the date of incident, they threw her on the burning gas stove by which she sustained bum injuries. Presence of appellant No.1 Premchand at the time of incident is not disputed. Premchand himself has stated that he was present on the date of. incident, but he has given explanation that on the basis of smell of burning cloth, when he went near the complainant he saw that her petticoat was buming, he & the compiainant extinguished the fire and he telephoned to the brother of the complainant & his brother. When there was simple accident of burning of petticoat by any negligence at the time of cooking meal and they extinguished the fire, then there was no occasion for calling the brother of the complainant or his brother and even there is no occasion to admit the complainant in the hospitai. Lalit Yadav (PW-2), Smt. Anchala Singh {PW-4) & Ashok Singh (PW-6) are neighbours of the complainant who immediately reached on the spot 12 where the complainant was weeping and she was in bumt condition, they extinguished the fire with the help of water & ice, they changed her clothes and after calling the brother of the complainant, they shifted her to the hospital. They have not supported the case of the prosecution and the prosecution has declared them hostile, but in their evidence they have stated that the comptainant was shouting, crying & weeping, they came out and saw that she was burning, they extinguished the fire with the help of water & ice. But according to the evidenceof defence witness appellant No.1 Premchand, he & the complainant have is extinguished the fire. When appellant No.1 8. the complainant have succeeded in extinguishing the fire, there was no propriety or opportunity for extinguishing the tire by the neighbours, even there was no propriety for the comptainant to cry and come out from her house. lt shows that appellant N01 Premchand was present in the house at the time of incident, he has not tried to extinguish the tire and he has not tried to help or protect the complainant. The complainant has specifically stated that the appellants have thrown her over the buming gas stove. Manoj Kumar Singh (PW-1) & Kamiesh Kumar (PW-8), brothers of the complainant have also stated that Sandhya told her that the appellants have caused bum injuries. 22. ln this case, on the basis of para 13 of the evidence of complainant 3 Sandhya Pandey (PW-5) as also on the basis of the evidence of Laiit gi Yadav (PW-2), Smt. Anchaia Singh (PW-4) & Ashok Singh (PW-6), neighbours of the compiainant, presence of appellants No.2 to 4 at the time of incident is not estabiished, but presence of appetant No.1 Premchand at the time of incident is established by the evidence of these witnesses. By the evidence of appellant No.1, who has examined x \V, @@ himself as a defence witness, it is established that he has not extinguished the fire caught on the petticoat of his wife and he has not tried to save her. The complainant has specifically stated that all the appellants have caused bum injuries over her body. The evidence adduced on behalf of the prosecution is not sufficient for drawing inference that appellants No.2 to 4 have caused any burn injury over complainant Sandhya Pandey (PW-5), but her evidence coupled with the evidence of neighbours is, sufficient for drawing inference that appellant No.1 Premchand Pandey has caused bum injuries on Sandhya Pandey. 23. tt is difficult to separate grain from chaff. The maxim ‘falsus in uno, In falsus in omnibus’ is not applicable in lndia. The Court is required to separate grain from the chaff, truth from falsehood i.e. exaggeration, contradiction & omission. Statement of any witness cannot be discarded and rejected out rightly on the ground that the witnesses patently falsely i implicated to one or more accused or his statement is not reliable for- some accused. Statement of a witness may be reiied upon for some accused and may be rejected or discarded‘relating to some accused. _ . ln the case of Sucha Singh and another v. State of Punjab‘ the Apex Court has held that the maxim ‘falsus in uno falsus in omnibus‘ has not received general acceptance nor has this maxim come to occupy the status of a rule of law. it is mereiy a rule of caution. Ail that it amotmts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of ' l 14 circmstances, but it is not what may be called ‘a mandatory ruie of evidence’ Para 18 of the sai judent reads hu . d gm ts “18. To he same effect is the decision in State of Punjab v. Jagir Singh (AIR 19 73 SC 2407) and Lehna . Stae of Hatyana {2002 (3) SCC 76}. Stress as iaid by the accused-appeliants on the on-acceptance of evidence tendered b some witnesses t contend abou desirabiiity to throw out entire prosecutio case. in essence prayer is to apply the principle of “felsus in uo faisus in omnibus” (fais in one hin faise in erything). This plea is clearly untenable. Eve if major porion of evidence is found to