Chhogalal vs State of M.P.

S.K. Seth, J.—This is an appeal by one Chhogalal, who has been convicted by the learned Sessions Judge, Dewas under Sections 302 and 498-A of the IPC; for the murder of his wife Sorumbai and cruel treatment meted out to her in connection with demand of dowry. He has been sentenced to life imprisonment and to pay a fine of Rs. 1000/- for the offence u/s 302, IPC. The sentence imposed u/s 498-A is rigorous imprisonment for two years and a fine of Rs. 500/-. Both sentences have default stipulation but the substantive sentences, however, have been directed to run concurrently. Prosecution case against the appellant at the trial was that in the night of 27-7-2001 Sorumbai (since deceased) was admitted in the District Hospital, Dewas with burn injuries. In the hospital, on 6-8-2001 she gave information to the Investigating Officer B.P. Morya (P.W. 11) who recorded the dehati nalishi (Exh. P-11) and based on it a FIR and criminal case was registered against appellant u/s 307/498-A/34, IPC at Police Station Tonk-Khurd, District Dewas. This set the investigation rolling. Same day Executive Magistrate Pushpa Kusham (P.W. 6) visited Hospital and recorded statement of Sorumbai (Exh. P-5). Appellant was arrested on 8-8-2001 and a canister of Kerosene was recovered at his instance vide Exh. P-3 from his house. Sorumbai succumbed to burn injuries on 30-8-2001 in MY. Hospital Indore, where she was shifted for better treatment. Because of her death, the case, which was earlier registered against the appellant u/s 498-A read with Section 307, IPC was converted by the police u/s 498-A read with Section 302, IPC. After holding inquest enquiry, the dead body was sent for post-mortem. Dr. G.L. Sodi (P.W. 10) performed the autopsy and found that deceased died of cardio respiratory failure as a result of burns and its complications. The report is Exh. P-10. After completing the investigation, challan was put up and appellant was committed to face trial. He denied the charges and examined five defence witnesses.

Relying on prosecution evidence, learned Trial Judge found the appellant guilty of the offences and sentenced him to undergo jail sentences as stated above.

In this appeal, learned Counsel for appellant challenged the findings of the Trial Court and submitted that the conviction of appellant is unsustainable. According to him, findings are perverse and resulted in injustice. It is submitted that Court below failed to see that there is no cogent and reliable evidence to hold that the appellant committed and act by which death was caused. The appeal therefore, deserves to be allowed. On the other hand, learned Counsel appearing for State justified the conviction and the sentence.

Perusal of record shows that death of Sorumbai due to burn injuries is not disputed. The evidence of Dr. Sodi (P.W. 10) and the post-mortem-report (Exh. P-10) is not questioned before us. We, therefore, find difficulty in confirming the finding of the Trial Court on this count.

Chenalal (P.W. 1) and Kamlabai (P.W. 2) are the parents of the deceased. They were examined to prove the cruel treatment meted out to deceased during the past fourteen years of married life and demand for dowry. They stated that on 27-7-2001 at the dinner time an altercation took place between appellant and deceased and the appellant had poured kerosene oil on her body and set her ablaze. They further stated that after about 5 days of the incident, hearing a rumour, they visited the Hospital and found that victim was none else than their daughter Sorumbai. Even after talking to her, they made no attempt to inform the police (See Para 9 of P.W. 1). This is quite unusual and unnatural conduct makes their version very suspicious. As regards the previous ill treatment, father admitted that differences were sorted out and things were patched up. They speak about ill treatment of Sorumbai, but their conduct makes their story very doubtful and in absence of any cogent and corroborative evidence, it would be unsafe to place implicit reliance on their evidence. There is no evidence to establish the willful conduct of the appellant to come within the purview of Section 498-A of the Penal Code.

The Indian Evidence Act, 1872 (in short "the Evidence Act") does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. A child of tender age can be allowed to testify if he has intellectual capacity to understand question and give rational answers thereto. This legal position is now well settled. The evidence of a child witness is not required to be rejected per se, but the Court as a rule of prudence considers such evidence with close scrutiny. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness. In the case in hand, prosecution examined son of the deceased Suresh (P.W. 3). He is a child witness. In the trial, he was projected as an eye vulnerable. It seems that the Trial Court did not attach importance to this piece of prosecution evidence and rightly so.

Now the only evidence remains to be considered is the oral statements of the deceased Exh. P-11 and Exh. P-6 recorded by I.O. and the Executive Magistrate. The only provision under which such statements can be considered is sub-section (1) of Section 32 of the Evidence Act. The said sub-section provides that a statement made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, is relevant. The expression "circumstances of the transaction which resulted in his death" means only such facts or series of facts which have a direct or organic relation to death. The circumstances admissible under this sub-section must have some proximate relation to the actual occurrence.

In AIR 1933 136 (Nagpur) , it was held that the transaction resulting in death contemplated by Section 32 (1) of the Evidence Act cannot possibly mean any fact or series of facts which have no direct and organic relation to death; and statements made by the deceased long before the actual incident of murder are inadmissible under the said sub-section.

In AIR 1939 47 (Privy Council) , Their Lordships, while considering the scope of sub-section (1) of Section 32, Evidence Act held that the expression "circumstances of the transaction" in the said sub-section is not as broad as "circumstantial evidence" which includes evidence of all relevant facts. The circumstances must have some proximate relation to the actual occurrence and they can only include the acts done when and where the death was caused. In other words, the circumstances must be circumstances of the transaction which resulted in death (vide observations at p. 50). Circumstantial evidence of the transaction is to be distinguished from the circumstances of the transaction itself. In the instant case evidence has been led about statements made by the deceased long before this incident which may suggest motive for the crime. Such statements, in our opinion, are inadmissible in evidence under sub-section (1) of Section 32 of the Evidence Act, and must be excluded from consideration.

Even otherwise, if statements are considered relevant and admissible u/s 32 of the Evidence Act, then also we do not consider it safe to rely on them. Absence of MLC report; confabulation and unexplained delay in making of FIR; non-examination of any Doctor who treated Smt. Sorumbai before or after her statement was recorded by the Executive Magistrate or I.O.; these are some of the important but unexplained features of the prosecution case which lend support to the defence version that incident was a mishap or accident as narrated by Ganesh; Ramchander; and Sumersingh (D.W. 1 and D.W. 3). In this background, we find evidence on record is quite shaky leaning more towards acquittal rather than for his conviction and sentence. In the result, we allow this appeal and set aside the judgment of conviction and sentence passed by the Trial Court. Appellant is on bail. His bail bonds stand discharged. Fine amount, if paid, be refunded to appellant. Order accordingly.