a» 3o.g-f| HIGH COURt OF CHMATTISGARH. BILASPUR cosafe Hon'bleShri^rtl Kumar Sinba & Hon'bJeShri Radhe Shvam Sharma, J J, Criminal Appeal No. 7A5 of 1994 Smt. Madhu .alias Madhuri Vs. Tb^aatgoflVladhya Pradesh <Now State of Chhattisgarh) JUDGM6NT For consideration Sd/- iiKumarSinha Judge HON'BLESHRIJUSTICERADHESHYAMSHARMA o ^i Sd/- R.S.Sltarma Judge '«»- Post for Judgment .jo /08/201 1 Sd/- Sunil KumarSinha Judge ^F^. ^ -2& HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: UaBSite-Shrl^BtltlKumarSinha& Hon'ble Shri ft^h^ ShvamSharina. J J. APPELLANT RESPONDENT Criminal Appeal No. 745 of 1994 J» Smt. Madhu llias MadhUri, daughter of Ram Prdsad Gupta, aged 20 years, resident of Pendra, Police Station Gorela, District Bilaspur Versus Th&StateofMadhya Pradesh (Now Stateof Chhattisgarh) (Criminal Appeal under Section 374 (2) of TheCode of Criminat Procedure.1973) Appearance: Mr. Surendra Singh, Senior Advocate with Mr, Neeraj Mehta, Advocate forthe appetlant. Mr. Ashish Shukla, Govt. Advooate for the State. .te&©MSW (^0.08.2011) Following judgment of the Court was delivered by Sunil KumarSinha. J. (1) This appeal is directed against the judgment dated 20h of July, / 1994 pass^d/in Session Trial No. 174/87 by the Second Additional '•-»- ^ ^ . . ' Session Judge, Bilaspur. By the impugned judgment, the appellant has been coRviete^ ute XS IPC aad sentenc.ed to undergo tmprisoruiaeBtfoTRTe. w e'; :?'''" . .^'' Criminal Aooeal No. 745 of 1994 (2) The facts, briefly stated, are as under:- The appellant is sister-in-law (Nanad) of deceased- Pratima Gupta. Deceased- Pratima was married to Virendra Kumar. Themarriage took place 7'8 years prior to the incident which occurred at about 8.30 p.m. bn 25.5.85. Pratima was having 3 dau^iters'ftaffiefy-Ku. Rfla'^PW-'l^), Varsha & Neha. Pratma was joirtly residing wlth her pardnts-in-law, liusband, daughters and 3 sisters-ih-law (Nanads) including the appellant. The allegations are that on account of some quarrel in the day, the appellant, at about 8.30 p.m. on 25.5.85, poured kerosene on the body of the deceased and thereafter put her on fire. The deceased sustained serious burn injuries. On hue and cry, Shankarlal Agrawal (PW-4) and many other persons came there .and she was taken to Sanatorium 1-tespital, where stTer-<^©^at atoyt 1^40 aTm. e>n 26.5.S&. The deeSt was^-Feported by the Hospltat Authorities to the police vide memo Ex.-P/16-A. Based on this memo, merg intimation (Ex.-P/17) was lodged. The Investigation Officer reached'to the hospital, gave notice to the panchas and prepared inquest (Ex.-P/15) on the dead body of thedeceased. Ghanshyamdas Gupta (PW-12 - father of the deceased) and Rakesh Kumar (brother of the deceased) were also present at the time of ihquest. All the witnesses of the inquest (Ex.-P/15) expressed their opinhm ttisrt since^he ^eee^ed dieel ynnatural death, '" deatf'^ody^houTd be sent for post-rnortem examinationso as to find out the causeof death etc. The post-mortem exaWnation was conducted byDr, P.K. Niyogi (PW-1). He noticed 90% burn ir'rjyries on the body of the deceased. hle also noticed injuries onliver, right kidney and intestine because clotted blood was present over these orgaris. The Autopsy Surgeon opined that the above injuries were ante- , mortem and would have been caused by hard and blynt ^-'\ lini Criminal Aooeal No. 745 of 1994 objeeL hle dl'd ttot glve any definite opinkm aboyt cause of death as to whether it was homicidal or suicidal, and referred the matter to Director of Medicolegal Institute of Forensic Scienee and Medicine, M.P, Bhopal for taking his opinion. Dr. B.K. Tiwari (PW-6) took the mater for opinion and a reasoned opinion was given by him vide Ex.-P/9, according to whieh it was homicidal death. (3) The case af tbe pr^ecutioo was based on eye-witness account of Ky. Ritu <PW-13 - daughter Of the deceased) and oral dying declaration before Shankarlal Agrawal (PW-4). Ku. Ritu (PW- 13) was a child witness. The learned Session Judge relied on her testimony and also relied on the testimony of Shankarlal Agrawal (PW-4) and held that it was a case of homicidal death which took place in the house of the appellant. According to the eye-witness, theappettant poured kerosene orrthexteteased anchputh^r on fire. (4) Mr. Surendra Singh, learned Senior Advocate appearing on behalf of the appellant, argued that testimony Qf Ku. Ritu (PW-13) was not reliable as she has exaggerated her version and tried to involve other inmates of the house; she was aged about 4 years on the'date of incident; after the incident, she throughout remained with her matemat/grand-father aftd her evictence appears to be tutored. Abdut Shaffkarlal-Agrawal (8W-4), Ae argued that, in fact, he was a .witness of seizure memo of pieces of bangles (Ex.-P/16), but, he depdsed about the oral dying declaration. There was no previous statement of Shankarlal Agrawal (PW-4). He deposed about the oral y •^'••.. \ \\ !<31'Vh\ ^'%' ji! .> Criminal Appeal No. 745 of 1994 dying declaration for the first time before the Court. Therefore he was also unreliable. Even for the sake of argument It is taken that the deceased made oral dying d^ctaration before Shankarlal Agrawal (PW-4), but by th6 alleged dying declaration, identity of the appellant was never established. He also argued on an important circumstance that the father 6f the deceased namely Ghanshyamdas Gupta (PW-12) met the deceased in the hospital. They talked about the future of children of the deceased, but the deceased never disclosed him that she was put to fire by the appellant, tlqat is to say that no ctying declaration was made bef&re father of the deceased impli.cating the appellant. If the deceased was put on fire by the appellant, in normal human conduct, the deceased must have disclosed this fact to her father. (5) On the other hand, Mr. AshishShukta, learned Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Session Court. (6) We have heard learned counsel for the parties at length and have also perused the records of the sessions case. (7) The spfe eye-witness of the incident is a child witness namely Ku^ Ritu (PW-13 - daught^of the deceased). She was aged about 4 years on the date of Incident. She deposed that hermother was put to fire by her grartd-mother, father and aunt (appellant). She has narrated the story as to how her mother was put on fire. She <\''- -- yf' liB-lt ,y s. 3 i ,\' 1^ \ '' A <*y ' Cdminal Appeal No. 7^5of 1994 deposed that her grand-mother caught the hands and legs of her mother, her father poured kerosene on the body of her mother and thereafter her aunt (appellant) put her mother on fire by inflaming a match-stick. The incident-took place in a room in the first floor of their house. hter motlter-tHaCte-hu&aBd ay, but nobody casse-io rescue. SbeLferther deposed that thepe was quarrel between her mother and her grand-mother & aunt. This was the reason for putting her mother on fire. The quarrel took place on account of cleaning the tea which had spread over the floor. She very categorically deposed that her mother was not taken to the hospital. In the last sentence of her examination-in-chi6f, she deposed that hermolher was put on fire on the upper platform (roof) offhe house. The facts retafing to involvement of the father and grand-mo^ther in commission of murder of the deceased are omissions in the case diary statements of this witness. Her case diary statements (Ex.-D/S & D/4) were recorded on two occasions. First statement (Ex.-D/S) was recorded on 26.6.85, whereas the second statement (Ex.-D/4) was recorded on 29.6.85. In her above two statements, she only deposed about the appellant aad sh$ did not depose about the father or grand-mother. When she was faced with the case diary /: statements,' she deposed that she had stated these facts to the N«>. police, but if the abov.e facts are not mentioned in her diary statements, she cannot tell reasons for that. This is not a case in which both the.previous statements were recorded by the same gQlise6fficer.It appears that the first diarystatement of Ku. Ritu -CT-i; "^;1 - '^ ^sSis,', a -.<L.fSi'"' ^' Criminal Appeal No, 745 of 1994 (PW-13) was recofd by the Investigafion X3fficer, whereas the second diary statement was recorded by the Criminal Investigation Department (C.I.D.). (8) In Daftu Ramrao Sakhare -Vs- State of Maharashtra. (1997) 5 SCC 341, it was held that "A chitd witness if found competent to depose to the facts and reliable o'ne such evidence could be the basis of canviction. ta 1 in the absence of oath-the evidence ot-a-chftd witness can be eoinsidered under SecKon 118 of the Evidence Act pravided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind white a$sessing the evidence of a chiTd wrtness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored." The same view has been further reiterated in Nivrutti Pandurana Kokate and Ors. -Vs- State of Maharashtra. AIR 2008 SC 1460. (9) No doubt a-.child witness is a competent witness in theeyes of ^ / law but a pssstbiiity oOutoiH^-is aJways present in such case. While ^». basic innocsnce-and truthfylness of a child witness is always to be taken into consideration, but at the same time the reliability has to be examined in light of other factors and a possibility of being ^?-*},' ^ (w^ «(£- '...• '^/ Criminal Apceal No. 745 of 1994 tutored has to be fully ruled Qut, particularly when the conviction has totiebased on the sote testimony ofltrenchfM-wrtness. f (10) If we scrutinize the evidence of Ku. Ritu (PW-13) it woUld appear that earlier to hercourt evidence, she never implicated the father or grand-mother for commission of murder of her mother. Even on 2 occasions, she did not make whisper to the police officers that the above 2 persons were also involved in commission of murder of her mottieF. Hosueyer, for tbe first time before the Court i.e. on 25.5.S3 she deposed against :herfather and the grand-mother and told that they were also involved in commission of murder of her mother. She did not giveomnibus evidence in general manner. On the contrary, she has attributed specific role to the above 2 persons who were not at all arrayed as accused in this case. She deposed that her grand-mother caught hands and legs of her mother and thereafter her father poured kerosene on the body oflier mother and then her aunt (appeltant) put her mo er on fire by inflaming a mateh-stick. The conduet of this child witness implicating the 2 other persons who were not ac&used in case makes her evidence unreliable, We note that even after her clear evidencein the said manner,'n<5 action was taken by the prosecution to make the above 2 persons accused in thisnnatter. That is to say that no application was moved by the prosecution u/s 319 Cr.P.C. on the above evidence of Ku. Ritu (PW-13). The evidence of Ku. Ritu is further .shadowed on the ground that she deposed that her mother was \ /\ Cruninal Aroeal No. 745 of 1994 never taken to the hospital, whereas, it is an admitted fact that after the incident the deceased was taken to the hospital where she survived till late night and died at about 1.40 a.m. The evidence of Ku. Ritu (PW-13) is also shakey \r\ relation to the place of occurrence.it appears that the occurrence took place in a room in first floor, but at one occasion she deposed that the occurrence took place on upper ptatform (Chhat) ofthe house. Ku. Ritu (PW-13) has denied the suggestibn in Para-15 that her mother committed suicide by closing the door of the room from inside. However, she admitted that the door of the room was closed from inside and it was opened by putting the han^s ffem ©ytsi^et.he F©offi.She {urtlier tl-iat initially the.d.aor was Closed from ocrtSBJe, but when after the burn, her mother was trying to open the door, the door got closed from inside which was later on open from outside by other person. Therefore, in appreciation it comes that the door was ctose from inside for which the above explanation was given by Ku. Ritu. This also creates a doubt. If a person was really put to fire by somebody, how the door of the room can be bolted from inside leaving the deeeased alone. (11) GhasAiyamdas Gupta.(PW-12) is father ofthe deceased. He deposed that one daughfSr of the deceased namely Varsha was residing with them at Anuppur since back, and the other 2 daughters jncluding Ku. Ritu (PW-13) are also residing with them at Anuppur .afteF.thetneident. Therefofe, itis ctear tiiat Ku. Ritu J& eentiRaQbisly '«:•: Criminal Aoueal No. 745 of 1994 B. g::" resid'iftg w ,=^er maternal grand-father smce the date of mcident i.e, since 1985 till the date of her examination in the Court which took place on 25.6.93 and in the above situation, a possibility of her being tutored cannot be fully ruled out in this matter. In above facts and circumstances of the case, we are of the view that the learned Session Judge was not justified jn relying on the testimony of the child witness Ku. Ritu (PW-13), who was aged about 4 years on the date ofincident. (12) Nowwe shall considerthe evidence ofdying declaration. (13) The case ofthe prosecution is thatjust after the incident, on hueand cry, many. villagers including Mohammad Nayeem (PW-2) and Shankarlal Agrawal (PW-4) rushed to the house of the appellant. They saw the deceased in burnt condition. Mohammad Nayeem (PW-2) has,turned hostile and he has not supported the case of the prosecution. Shankarlal Agrawal (PW-4) deposed that the deceased told him that she was burnt by her nanand. Shankarlal Agrawal (PW-4) was not cited as a witness of oral dying declaration. According to the prosecution, he was witness of a seizure memo (Ex.-P/16),/Wh'en he appeated in the Court, he deposed that the deceased mad& orat dyingdeclar-atton before him in the above .manneF. Mr Surendra-Singh, learned Sr. Counsel for the appellant, has argued that Shankarlal Agrawal (PW-4) was not examined by the police and there is no previous statement of this witness u/s 161 Cr.P.C. Therefore, his version relating to oral dying declaration, ,j,!»gna^,\ ^^ ^' ? . ^// ''•-.^-^' 10 Criminal Apceal No. 745 of 1994 which he is comingwith for the first time before the Court, cannot be relied on. He referred to the decision of Supreme Court in Ram Lakhan Sinah and others -Vs- The State of Uttar Pradesh. AIR 1977 SC 1936. (14) In the above judgment, the Supreme Court held that "In a grave charge like murder, it will nbt be proper to place reliance on a witness who never figured during the investigation and was not naFned in the chargesheet. The-aeeysed Jwho are entffled to-kFtow his eariier version to the potice are naturally deprived of an opportunity of effective cross-examination and it will be difficult to give any credence to asfatement which was given for the first time in court after about a year bf the occurrence. We cannot therefore, agree that the High Court was right in accepting the evidence of this witnessas lending assurance to the testimony of other witnesses on the basis of which alone perhaps the High Court felt unsafe to convict the aecused." (15) Admittedly, there is no 161 Cr.P.C. statement of Shankarlal Agrawal (PW-4). He was a witness of a seizure memo (Ex.-P/16). He deposed for the first time before the Court after more than 7 / • years that the deceased had made oral dying declaration before s«*. htm. Even rn the sarcl—dymgdeelafat-ief), he deposeet that the deceased steted that she was burnt by her mother-in-taw and nanand. According to his evidence the deceased never disclosed fhe name of the appellant while giving the atleged oral dying .../-.. ..f 11 Crimmal Aoueal No. 745 of 1994 declaration. It is an admitted position that there were 3 sisters-in-law {nanands) of the deceased which fact Ghanshaymdas Gupta (PW- 12) has admitted in his cross-examination. Mother-in-law was not an accused. Therefore, even if we rely on the version of Shankarlal Agrawal (PW-4) that the deceased had given alleged dying declaration to him, the identity of the appellant was never established by the said dyingdeclaration. IBii > (16) In Gooal Sinah and another-Vs- The State of Madhva Pradesh and another, AIR 1972 SC 1557, the Supreme Court held that "It is settled law that a court is entitled to convict on the sole basis of a dying declaration if it is such that in the circumstances ofthe case it can be regarded as truthful. However, a dying declaration which does not contain complete names 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. It cannot be accepted without corroboration." (17) Ghanshyamdas Qypta (PW-^2) that as soofl s& he j-eceived tfee-aessage about the injuries sustained by the deceased, he immediateiy rushed to the house of the in-laws of the deceased / and after knowirifl that the deceased has been shifted to the s-». hospita], hewent to the hospital. The deceased was in conscious condition. He had a talked with the deceased. The deceased never disclosed to her father GhanshyamdasGupta (PW-12) that shewas :put on fire by the appellant. If the deceased in fact was put on fire by B 1:-^. ^ 12 Criminal Appeal No. 745 of 1994 ^y Eli the appellant, we are of the view, in normal human conduct, the above fact must have been disclosed by the deceased to her father, but the deceased never disclosed all this to her father and she simply talked about her chlldren. i ^w: (18) In the above facts and circumstances ofthecase, we are of the view that theevidence of oral dying declaration was shakey and it was not proved beyond all reasonable doubt that the deceased, in fact, gave oral dying declaration before Shankarlal Agrawal (PW-4). (19) We further note that Ghanshyamdas Gupta (PW-12) and Rakesh Kumar (brother of the deceased) both were present at the time of inquest (Ex.-P/15). There is no whisper in the inquest that the deceased was put to fire by the appellantand it was a homicidal ^eath. If Ghanshaymctas ©upta(PW-12 - father ©fthe deeeased) and Rakesh-Kumar (brother of the deceased) were knowtng that it was a case of murder and the appellant had put the deceased on fire, they woutd have disclosed this fact to the police at the time of the inquest. Ghanshyamdas Gupta (PW-12) claimed that Ku. Ritu (PW-13) had told him that her mother was put to fire by the appellant. .Therefore, even that information could have been / - disclosed by him to the police at the time of the inquest. This makes s-*.- clear that nobody was.aware as to how the incident took place at least till the pceparation of the inquest and evidence of alleged oral dyjng declarat'ron further becomes shadowed. vatti 13 Criimnal Aripeal No. 745 of 1994 (20) In the above facts and circumstances of the case, we are unable to sustain the conviction of the appellant either on the eye- witness account of tl-ie-sole^hikLwitness Ku. Ritu (PW-13) oismVae evidence of oral dying declaration altegedly made by the deceased before Shankarlal Agrawal (PW-4). We are of the view that the convtetion based on the above set of evidence deserves to be set- aside andthe appellant is entitled to benefit ofdoubt. (21) Accordingly, the appeal is allowed. The conviction and sentence awarded to the appellant u/s 302 IPCare set-aside. She is acquitted of the charges framed against her. The appellant is on bail. Her bail bonds are cancelled and surety stands discharged. Sd/- Sunii Kuniar Sinha Judge Sd/- R.S. Slkarina Judge -•*>- |!lil!«i %^S^S!^^S^BE^K^^^^sg@g^