Chhatar Singh & Ors. vs The State Of Madhya Pradesh

Per: Justice Avanindra Kumar Singh

At the outset I.A No. 1529/2026 stands dismissed as withdrawn at the request of counsel for appellants.

This appeal has been filed by the appellant Chhatar Singh Lodhi and Lakkhu @ Lakhan Singh, against the judgment dated 30th July, 2019 passed by learned Additional Sessions Judge, Banda, District Sagar in Session Trial No. 718/2014 wherein the learned trial Court has convicted the appellants/accused under Section 302 read with 34 I.P.C for pouring kerosene on the deceased Bharti and setting her on fire by a match stick and under Section 506 part II I.P.C for threating her and sentenced them for Life Imprisonment and fine of Rs.10,000/- and one year R.I. and fine of Rs.1,000/- with default stipulation of six months, one month R.I. respectively.

It was admitted fact before the trial Court that P.W.-1 Ram Singh, P.W.-7 Bhagwandas, P.W. -8 Rajju, P.W.-12 Parwati Bai, P.W.-13 Narendra Lodhi knew accused previously and deceased Bharti is daughter of P.W.-12 Parwati Bai and P.W.-13 Narendra Lodhi and was married to appellant Chhatar Singh. Lakkhu Singh is younger brother of Chhatar Singh and accused Pratap Singh, their father expired on 27.11.2018.

In short, the prosecution story is that deceased Smt. Bharti, aged about 14 years, on 17.10.2013 was brought to Community Health Centre, Banda in a burnt stage. P.W.-9 Dr. Abhi Mishra, after examining her prepared pre-M.L.C (Ex. P-16) in which he found that general condition of the patient was not good, body was 90 % burnt and there was kerosene smell on the body, therefore, after preliminary treatment by sending a written memo (Ex. D-1) to Police Station Banda, referred her to District Hospital, Sagar where she reached at about 3:45 p.m. . She was brought to the hospital by her husband Chhatar Singh and Udham Singh.

It is further the case of the prosecution that when Police received the information, they reached the hospital wherein it was informed that patient was able to give statement, therefore, he sent a requisition letter (Ex. P-9) to S.D.M. Banda for recording of her dying declaration but on the said date and time no Revenue Officer was available in Banda, therefore, P.W-9 Dr. Abhi Mishra recorded her dying declaration on the request of the police wherein she stated that she has been set on fire by her husband Chhatar Singh, brother-in-law Lakkhu and father-in-law Pratap by pouring kerosene on her. Chhatar Singh set her on fire by use of a match stick. In the dying declaration she has also stated that she wanted to go to her parental house, dying declaration is (Ex. P-17).

Further, it is the case of the prosecution that Sub Inspector H.L. Pal (P.W.-6) on 17.10.2013 also recorded her dying declaration (Ex. P-10) wherein she again stated the same facts and also stated that she wanted to study and had asked the accused person to send her back to parental house but they did not do so, Chhatar Singh also threatened her that if she gives any statement against them then they would kill her. On the basis of the two dying declarations, F.I.R (Ex. P-8) Crime No. 499/2013 under Section 307, 506 I.P.C was registered on 18.10.2013, place of incident was examined before Bhagwan Singh and Tulsiram and spot map (Ex. P-4) was prepared in which it was found that burnt cloths, i.e., blouse and Sari were lying there. On the spot there was a burnt match stick and can of kerosene oil. Spot map Ex. P-12) was made. Kerosene soaked soil and simple soil was seized from the spot, other materials were also seized and seizure memo (Ex. P-13) was prepared. Accused Chhatar Singh was arrested on 21.10.2013. During treatment Bharti expired in hospital on 21.10.2013. Naib Tahsildar (P.W.-1) who has also been examined by the defence as D.W-1 was called, merg Panchnama was prepared, body was sent for post mortem and under the team headed by Dr. H.L. Bhuria (P.W.-4) dead-body of Bharti was examined for postmortem by Dr. Jitendra Saraf and Dr. Smt. Saroj, post mortem report is Ex. P-12 in which it was found that deceased Bharti died due to shock on account of excessive burning and complications.

As per prosecution, further investigation was carried out by Sub Inspector Brijesh (P.W.-11), who recorded the statement of witnesses and after completing the remaining investigation, charge-sheet was prepared and filed before the concerned Magistrate, who committed the case for trial to Session Court.

During trial accused persons denied the charges. After recording of prosecution witnesses statements in examination under Section 313 Cr.P.C the accused again stated that they are innocent they further stated that at the time of incident they were at their agricultural field.

Against the judgment of conviction, appeal has been filed on the ground that appellants have been wrongly convicted. There is no material for conviction. Mother of the deceased Parwati (P.W.-12) has not supported the case of the prosecution and stated that her daughter has committed suicide. There are three dying declarations. In the third dying declaration given to Naib Tahsildar D.W.-1 (also P.W.-1) deceased has also stated that she was burnt while cooking and nothing has been said against the appellant. Therefore, prayer is made that conviction be set aside and appellants be acquitted.

Learned Govt. Advocate Shri Ajay Shukla supports the impugned judgment .

We have perused the record and considered the arguments.

As per the judgment of the learned trial Court itself as mentioned in paragraph 50 deceased was not happy in her matrimonial house. Even mother of the deceased (P.W.-12) and father (P.W-13) have not stated that she was being harassed in her Sasural (matrimonial house). Therefore, there was no cause such as dowry demand or any other fact but only one circumstance emerges out that she did not want to live with accused in matrimonial home and she wanted to go to her parental house. In paragraph 15 of the judgment, learned trial Court has also recorded the fact that as the deceased died due to burn injury and there was no eye witness the whole case rests mainly on the dying declarations.

The law regarding multiple dying declaration has been summarized recently by Hon'ble Supreme Court in the case of Abhishek Sharma v. State (Govt. of N.C.T of Delhi) [2024 (13) SCC 660] in which in paragraph 24 Hon'ble Supreme Court has laid down the following principles:

In the case of Abhishek Sharma (supra) Hon'ble Supreme Court in the facts and circumstances of the case allowed the appeal of the appellant accused.

When we look at the statement of prosecution witnesses/defence witness Sahwal Singh who even if he was called as a defence witness his statement should have been recorded in continuation of his previous statement which he gave as P.W.-1 as a prosecution witnesses and there was no need to record the statement of the same witness in the same case both as a prosecution witness and as a defence witness and on examining the various documents exhibited by the prosecution and specially the third dying declaration (Ex. D-3) recorded by Naib Tahsildar Sahwal Singh (P.W.-1/D.W.-1) we find that in this case most important document is postmortem report (Ex. P-5) and has been sought to be proved by P.W.-4 Dr. H.L. Bhuriya but looking to the postmortem report and statement of P.W.-4 Dr. H.L. Bhuriya, we find that the doctor has misread his own postmortem report. The postmortem report at page No. 3 gives the following details.

On the last page of p.m. report at page No. 6 it is mentioned that time elapsed since death is 12 hours. But P.W.-4 in Court statement has stated something materially different:-

बा� पर��ण - उसका शर�र ठंडा था एवं पी. एम. टे�बल पर सीधा लेटा था, पूरे शर�र पर अकड़न मौजूद थी । उसक# दा$हनी अ&भूजा, बांया टखना, दांया गाल, बांये हाथ क# अंगुली एवं अंगूठा, दा$हनी जांघ तथा िसर के बाल पैचेज म1 जले हुये थे । उसके बांये हाथ के अंगूठे पर नीली 2याह� का िनशान था । उसका शर�र पेल था । उस पर और कोई बाहर� चोट नह�ं $दख रह� थी । आंत7रक पर��ण- शर�र के सभी अंतरंग पेल थे । उसके 8दय म1 दा$हनी तरफ थोड़ा खून था एवं बांये तरफ खाली था । उसक# छोट� आंत म1 अधपचा खाना मौजूद था । उसका यू;स सामा<य था । अिभमत- हमार� राय म1 =ीमित भारती क# मृ?यु शाक से हुई थी जो मृ?यु पूव@ अ?यिधक जलने एवं उसके कांपलीकेशन से उ?प<न हुआ था । उसक# मृ?यु पो2टमाट@म से 12 घंटे के अंदर हुई थी । इस संबंध म1 पैनल Bारा द� गई 7रपोट@ C.पी.5 है Dजसके ए से ए भाग पर मेरे ह2ता�र हE । बी से बी भाग पर डॉ. Dजते<G कुमार सराफ एवं सी से सी भाग पर डॉ. =ीमित सरोज भू7रया के ह2ता�र हE । Cितपर��ण Bारा =ी महेश झा अिधवIा वा2ते आरोपीगण: -

2- यह बात सह� है $क मृितका के शर�र पर य$द कोई चोट नह�ं है तो यह घटना सुसाइडल भी हो सकती है ।

Therefore, it is seen that in postmortem report at page No. 3, it is mentioned that hair is partly burnt but in Court statement he has stated that hairs were burnt in patches. In considered view of this Court both sentences are different. Burning of hairs partly and burnt in patches are totally different words. Secondly, in postmortem report in page 3 it has been mentioned that rigor mortis was present all over in patches except some parts which are already mentioned above in paragraph 13 but nothing of this sort has been mentioned in the Court statement, on the other hand in Court statement it is mentioned that rigor mortis (Akdan) was present on whole body, percentage of burn is also not mentioned.

Besides the above factual, inaccuracies while no opinion was given whether the death was a suicidal of homicidal. But in cross-examination P.W.-4 doctor has accepted that since there was no injury on the body, therefore, the incident could have been suicidal also. In fact prosecution should have re-examined this witness because Dr. Bhuriya was making a statement that death could be suicidal even when the team of three doctors did not give any such opinion but as per criminal law this statement of Dr. Bhuriya that death could be suicidal cannot be ignored by this Court.

As in this case and in many other case it is being continuously seen that in case of death by asphyxia and in burnt cases and accidents doctors avoid giving opinion, whether the death was accidental, homicidal or suicidal. In fact to our understanding the purpose of an expert opinion like doctor in case of death is to throw expert witnesses light on the case by giving definite opinion and if at the time of preparing postmortem report certain evidence collected by police during investigation was not available with them then it is the duty of Investigation Officer to submit those additional evidence and seek a clear cut opinion from the postmortem doctor but that was not done in this case.

It is also the considered view of this Court that learned trial Court should not only see the statement of prosecution witness such as doctor but should tally it with the postmortem report and see for himself whether the statement of doctor tallies with his report. Doctor is not allowed to improve or change his statement or give different statement which does not tally with written document in favour of prosecution in criminal trial in which the case has to be proved by prosecution beyond reasonable doubt because even otherwise any ambiguity in prosecution evidence will favour the accused.

Although P.W.-13 Narendra Lodhi who was also declared hostile by prosecution has stated in answer to leading question by prosecution that her daughter has told him that accused persons have threatened her that if she states the correct facts and makes statement against them then they will not get her treated but if she gives statement in their favour then they will get her treated well. He has also stated in examination in chief that he was informed by Police that her daughter has set herself on fire and she was set on fire by Chhatar Singh, Lakkhu and Pratap by pouring castrol on her, now again this statement is self contradictory because this witness also says that her daughter has set herself on fire and in later part says that the accused persons have set her on fire.

Therefore, for the various reasons set out in this judgment from paragraph 12 to paragraph 18 of this judgment we find that conviction of appellants/accused persons cannot be sustained. Therefore, appeal is allowed and judgment of conviction dated 30/07/2019 is set aside. If accused persons are in jail then they may be released from custody if not wanted in any other case.

Let a copy of this judgment be sent to Director General of Police, Bhopal and Principal Secretary Health, Bhopal to take necessary steps so that investigation and medical evidence in such type of cases is quickly and scientifically collected in the light of observation by this Court in paragraph 16 of judgment.