Bitto Bee vs State Of Madhya Pradesh

Subodh Abhyankar, J

This appeal has been filed under Section 374 (2) of the Code of Criminal Procedure being aggrieved by the judgment dated 04.09.2009 passed by the IV Additional Sessions Judge, Bhopal in S.T. No.120/2009, whereby the appellant has been convicted and sentenced as under :

Conviction u/s Sentence Default clause 302 of IPC Life Imprisonment with fine of Rs.1,000/- RI for six months 498-A of IPC RI for two years with fine of Rs.500/- RI for three months Both the sentences are directed to run concurrently.

In brief the facts giving rise to the present appeal are that on 22.04.2018 deceased — Rani W/o Shamim (PW-3) and the daughterin-law of the appellant was admitted in the Hamidia Hospital, Bhopal by her sister Anisha Bee (PW-1) and brother — Rehman. As per the treating doctor - Dr. S.K. Ahirwar (PW-8) she was burnt by acid by her husband around eight days ago as she had acid burn injuries on various parts of her body. On an intimation to the police, Dehati Nalishi (Ex.P/5) was recorded by Sub Inspector - Akhtar Ali (PW-5) and subsequently FIR (Ex.P/7) was lodged under Section 324 and 498-A of IPC. The dying declaration of the deceased was also recorded through Executive Magistrate and Naib Tehsildar Smt Saroj Agniwanshi (PW-9). The learned Judge of the Trial Court after recording the evidence has convicted the appellant the mother-in-law of the deceased as above and being aggrieved by the same, this appeal has been preferred by the appellant.

Learned counsel for the appellant has submitted that the impugned judgment is contrary to law and facts on record. The counsel has further submitted that contradictory version of the prosecution story has been brought on record by the prosecution itself and as such the benefit of doubt ought to have been given to the appellant/accused.

It is further stated that on one hand as per report Ex.P/14 prepared by Dr. S.K. Ahirwar (PW-8) it is stated that the injured had given her statement that her husband has caused the injuries by acid whereas on the other hand in the Dehati Nalshi (Ex.P/5) recorded by Akhtar Ali Khan (PW-5) at the instance of deceased Rani it is stated that the injuries have been caused by the mother-in-law of the deceased and subsequently vide dying declarationEx.P/15 dated 23.04.2008 also which is recorded by the Naib Tehsildar and Executive Magistrate Saroj Agnivanshi (PW-9) it is stated that her mother-in-law i.e. the appellant-accused had caused burn injuries by acid. The counsel has further submitted that there is material discrepancies between the statements of the deceased hence no reliance can be placed on such evidence of dubious nature. It is further submitted that the deceased was admitted in the hospital on 22.04.2008, her dying declaration was recorded on 23.04.2008 and she died on 06.08.2008 after around four months and as such the imputation of alleged murder is based on the concocted story of the prosecution.

Learned counsel for the respondent/State has opposed the appeal and has submitted that the appellant is convicted for a crime of heinous nature as the appellant has committed the murder of her daughter-inlaw by pouring acid on her who has died a painful death.

Heard, counsel for the parties and perused the record.

So far as nature of death of the deceased Rani is concerned, the pre-MLC report (Ex.P/14) of the deceased was prepared by Dr. S.K.Ahirwar (PW-8) the then C.M.O, Hamidia Hospital, Bhopal. He has stated that the deceased, while she was alive was brought by her elder sister Smt Anisha Bee and brother Rehman on 22.04.2008 and as per the history of the patient they informed that the deceased was burnt by her husband even the patient also said that she was burnt by her husband. So far as the nature of death is concerned, admittedly the deceased was around 24 years’ old and had died on account of acid burn injuries on 06.08.2008 and her postmortem report (Ex.P/2) was prepared by Dr. Jayanti Yadav (PW-2).

According to Dr. Jayanti Yadav (PW-2), the deceased had burn injuries almost all over her body, which are as under :-

^^3- tyh gqbZ pksVs& 1& 1 ls 2 fMxzh tys gq;s ?kko nksuksa da/ks ,oa Nkrh ds vkxs ds fgLls rFkk isV ij ekStwn FksA nk, Lru vkSj dej ds chp ds fgLls esa 2 ls 3 fMxzh tys gq;s fu’kku ekStwn FksA 2&1 ls 2 fMxzh tys gq;s fu’kku nksuksa vxzHkqtk ds vkxs ,oa fiNys fgLls esa ekStwn FksA gFksfy;k lqjf{kr FkhA 3& 2 ls 3 fMxzh tys gq;s fu’kku 1 ls 2 fMxzh cuZ ds lkFk iSj ds vkxs ,oa fiNys fgLls esa ekStwn FksA nksuksa iSjksa ds fupys fgLls esa vkxs dh rjQ ;g fu’kku T;knk FksA 4& 2 ls 3 fMxzh tys gq;s fu’kku ihB ij txg&txg ekStwn FksA nksuksa dwYgksa ij Hkh tys gq;s fu’kku FksA 2 ls 3 fMxzh tys gq;s fu’kku tys gq;s fu’kku T;knkrj xksykdkj Fks ftlds Nksj Hkj jgs Fks rFkk ;s cwan ds vkdkj ds fn[k jgs FksA blesa cMs cawn mij dh rjQ rFkk uhps NksVs cwan ekStwn FksA 2 ls 3 fMxzh tys gq;s fu’kku ihyk ,oa dkysjax dk cncwnkj xzsU;wys’ku b’;w ekStwn Fkk ,oa blds Nksj bujsX;qyj FksA^^

According to Dr. Jayanti Yadav (PW-2), the death was caused on account of complications resulting from acid burn injuries. The doctor has also depicted the injuries caused to the deceased in a figure which is exhibited as Ex.P/3 and a perusal of this figure reveals that the deceased had received burn injuries on just about every part of her body which leads to only conclusion that the death was homicidal in nature.

So far as the allegation of murder is concerned, in this behalf theprosecution has examined various witnesses including Anisha Bee (PW-1) who happens to be the real sister of the deceased- Rani but has been declared as hostile. She has stated that around 11 months ago when she had gone to the house of the appellant Bitto Bee, she found that her sister who was married to the son of Bitto Bee was lying in an injured state, however she has stated that at the time when she asked her sister Rani as to who has caused the injuries, she did not reply properly as her mental state was not good. Even in her crossexamination, she has not accepted having given any statement to the police and on the contrary has made misleading statement.

Shamim (PW-3) happens to be the son of the appellant and the husband of the deceased - Rani. He has stated that as his wife was mentally disable, he has also got her treated but he did not disclose the same to anybody for fear that it would bring ignominy to their family.

Akhtar Ali Khan (PW-5) is the Sub Inspector. According to him, he had got the dying declaration Ex.P/15 of the deceased recorded through the Naib Tehsildar & Executive Magistrate PW-9 Saroj Agnihotri and thereafter had also recorded Dehati Nalishi (Ex.P-5) for the offence under Section 324, 498-A of IPC at the instance of the deceased and subsequently the First Information Report (Ex.P/7) was also recorded by him. He has admitted that he did not find any bottle/container of acid nor the clothes burnt by acid from the house of the appellant. He has further stated that the information was received by him on 23.04.2008 at around 00.35 hours whereas the date of incident is 13.04.2008 at around 2 O’clock. The cause for not lodging the FIR in time is stated to be that the deceased was not treated at the appropriate time and when the deceased’s sister came to her house on 22.04.2008 only then she was admitted in the hospital.

In the entire prosecution case, the deposition of Dr. S.K.Ahirwar (PW-8) is important as he is the person who had prepared the MLC (Ex.P/14) wherein it is stated that the deceased who was alive was brought by her elder sister Smt Anisha Bee (PW-1) and brother Rehman (who has not been examined) on 22.04.2008 and as per the history of the patient they informed that the deceased was burnt by her husband even the deceased Rani also said that she was burnt by her husband. In his cross-examination he has admitted that this information was given to him by the deceased and her brother and sister on their own. This Court has no reason to disbelieve the testimony of this witness who was independent and was not at all concerned with the outcome of the case.

Saroj Agnivanshi (PW-9) is the Naib Tehsildar who hasrecorded the dying declaration (Ex.P/15) in which the deceased has clearly mentioned the name of the present appellant i.e. her mother-inlaw to be the person who had poured acid on her and had run away from the spot. In her cross-examination she has stated that the dying declaration was recorded in the presence of a doctor and has denied that she has not obtained any certificate from the doctor regarding the fitness of the deceased. In this regard it is observed that the statements of the endorsing doctor has not been recorded by the prosecution which can be said to be a serious lapse on the part of the prosecution because when the deceased had given a different version in her dying declaration Ex.P-15 then what she had given to Dr. S.K.Ahirwar (PW8) in Ex.P-14 then such evidence needs to be closely scrutinized. A perusal of the dying declaration (Ex.P-15) also reveals that it also does not bear the full name of the endorsing doctor who has signed as, “Varun” and has written his name to be, “ Dr. Varun, RSOI”. There is nothing on record that who was this Dr.Varun, there is no explanation on record either that why he could not be examined. Apart from that, Saroj Agnivanshi (PW-9) although in her cross-examination has admitted that before recording the dying declaration she had asked the doctor that whether the deceased was in a fit condition to give the statement but there is no such endorsement of the doctor in the beginning of the dying declaration which also gives rise to reasonable apprehension about the veracity of the dying declaration under the facts and circumstances of the case.

It would be germane to observe here that the deceased wasadmitted in the hospital on 22.04.2008 at 11.45 pm and in her preMLC (Ex.P/14) prepared by Dr. S.K. Ahirwar (PW-8) the deceased and both her brother and sister have informed the doctor that she was burnt by acid by her husband whereas in her dying declaration recorded on 23.04.2008 at around 12 noon she has made allegations against the appellant and she died on 06.08.2008 i.e. after around four months. It is surprising that despite such discrepancy in her statements in a span of 12 hours, why no efforts were made by the prosecution to keep the track of the deceased’s health for the next four months and to enquire from her as to why she has given two contradictory statements within a span of 12 hours but no such pains appear to have been taken by the Investigating Officer because the deceased’s further medical record has not even been brought on record by the prosecution to demonstrate her true mental and physical health during the last four months of her death.

Abid Ali (PW-10) happens to be a neighbour. He has stated that deceased - Rani was suffering from small pox and had rashes all over her body and because of which when her mother-in-law i.e. appellant — Bitto Bee used to apply Dettol which is highly irritable in nature and hence the deceased used to say that it appears that Bitto Bee has poured acid over her. He has also stated that deceased Rani was not mentally fit and her husband Shamim was also disable. He has further stated that Bitto Bee had good relations with the deceased and he has never seen them quarreling with each other. In his cross-examination, he has admitted that he has never seen the appellant clearing the wounds of deceased but has heard it through his children. He has denied any information regarding the demand of dowry by the appellant from the deceased. This witness is a prosecution witness not supporting the prosecution story and has not been declared hostile, and it is a trite law that a prosecution witness not supporting the case of the prosecution and not declared hostile can be relied upon by the accused. Thus, his testimony is binding on the prosecution and hence in the considered opinion of this Court the benefit of doubt ought to have been given to the appellant. In this regard reference may be had to the decision of the Apex court in the case of Mukhtiar Ahmed Ansari v. State (NCT of Delhi), (2005) 5 SCC 258, the relevant paras of the same read as under:-

“29. The learned counsel for the appellant also urged that it was the case of the prosecution that the police had requisitioned a Maruti car from Ved Prakash Goel. Ved Prakash Goel had been examined as a prosecution witness in this case as PW1. He, however, did not support the prosecution. The prosecution never declared PW 1 “hostile”. His evidence did not support the prosecution. Instead, it supported the defence. The accused hence can rely on that evidence.

A similar question came up for consideration before this Court in Raja Ram v. State of Rajasthan 9. In that case, the evidence the doctor who was examined as a prosecution witness showed that the deceased was being told by one K that she should implicate the accused or else she might have to face prosecution. The doctor was not declared “hostile”. The High Court, however, convicted the accused. This Court held that it was open to the defence to rely on the evidence of the doctor and it was binding on the prosecution.

In the present case, evidence of PW 1 Ved Prakash Goel destroyed the genesis of the prosecution that he had given his Maruti car to the police in which the police had gone to Bahai Temple and apprehended the accused. When Goel did not support that case, the accused can rely on that

evidence.”

(emphasis supplied)

In his statement under Section 313 of Cr.P.C, the appellant has taken a defence that the deceased was suffering from small pox and for which she was also treated but could not be cured. In her defence, the appellant has also examined Mohammadi Bee (DW-1) who has stated that the deceased was suffering from small pox. She has also stated that the deceased used to go out of the house for two-three days at a stretchand then when they used to taunt the appellant about her conduct, the appellant used to say that her son Shamim is also disable hence she has no option but to keep up with the deceased. Kaneeja Bee has been examined as DW-2 who has also deposed the same.

From the aforesaid evidence on record, this Court finds thatalthough the dying declaration (Ex.P-15) has been recorded by Smt Saroj Agnivanshi (PW-9) but the same has also been endorsed by Dr. Varun, RSOI of Hamidia Hospital, Bhopal. However, while the doctor has endorsed at the foot of the dying declaration wherein it is stated that the patient was fit to give statement. However, Dr. Varun has not been examined by the prosecution. It is surprising that the doctor has not bothered even to append a note before starting of the dying declaration that the deceased is fit to give a statement and on the other hand as already discussed above, the prosecution witness Abid Ali (PW-10) has not supported the case of the prosecution on any particulars and is an independent witness and has not been declared hostile by the prosecution which is a serious infirmity on the part of the prosecution and in the considered opinion of this Court the benefit of doubt must go to the appellant.

As a result, the appeal stands allowed. The impugned judgment dated 4.9.2009 passed by the learned Trial Court in S.T. No.120/2009 is hereby set aside. The appellant is acquitted of the offences punishable under Sections 302 and 498-A of IPC. The appellant is in jail, she be released forthwith if not required in any other case.

We also express our words of gratitude for the assistance rendered by Amicus Curiae.