Gopal Singh vs State of M.P. and Others

A.K. Awasthy, J.—Appellant Gopal Singh has filed the appeal u/s 374 of the Cr.P.C. against, the judgment and order dated 30.8.1995 in S.T. No. 75/ 93 passed by learned IInd Additional Sessions Judge, Ratlam of his conviction and sentence u/s 302 read with Section 34 for the life imprisonment and fine of Rs. 5,000/- and in default of payment of fine further rigorous imprisonment for the period of 2 years.

The admitted facts of the case are that appellant accused Gopalsingh and Kamlabai were the parents of accused Shailendra Singh. That the marriage of accused Shailendra Singh was performed on 30.1.1992 with deceased Sumanbai. That it is also not in dispute that on 9.12.1992 at about 6 p.m. deceased Sumanbai has received the burn injuries in her matrimonial house and she was taken to the Primary Health Centre, Sailana and thereafter on the same date she died on account of the burn injuries. That the post-mortem of the deceased was performed on the next day and it was opined that she has died on account of the 100% burns.

That accused Shailendra Singh was convicted and sentenced for the offence punishable u/s 302 of I.P.C. and appellant Gopal Singh and Kamlabai were sentenced under Sections 302/34 of I.P.C. and after filing of the appeal accused Shailendra Singh and accused Kamlabai have expired.

The prosecution case is that on 9.12.1992 at about 6 p.m. in village Sarvan the cries of Sumanbai for the help was heard from her house and on hearing the noise, persons from the neighbourhood reached at the house and the eye-witness Satyanarayan (P.W. 3) and Arjunsingh (P.W. 13) along with others saw from the window that accused persons were beating the deceased and after pouring the kerosene oil on her accused Shailendra Singh lit the fire. After some time accused Shailendra Singh went to the Police Station and the report was lodged by him about the burn injuries to his wife and Sumanbai was taken to the Hospital where Dr. Kushal Lal Yadav (P.W. 8) examined her. That Naib Tahsildar Ramlal Malviya (D.W. 1) reached the Hospital and recorded the dying declaration Ex. D/4 wherein she has stated that she was burnt on account of the fire at the time of cooking the meals.

ASI Bahadur Singh Chandel (P.W. 11) reached on the spot and the spot map Ex. P/9 was prepared by him and a container of the kerosene oil was seized vide seizure memo Ex. P/11. The Investigating Officer has recorded the statement of eye-witnesses and the father of the deceased Raghurajsingh (P.W. 1). That Raghurajsingh (P.W. 1) has disclosed that his daughter was ill-treated by the accused persons to fulfil the greed of dowry. The charge sheet against the accused persons for the offence punishable under Sections 302/34 and u/s 304B of the I.P.C. was filed before the Judicial Magistrate, First Class.

The prosecution has examined 14 witnesses and the defence has examined Naib Tehsildar Ramlal Malviya (D.W. 1). The appellant accused has denied the statement of the prosecution witnesses u/s 313 of the Cr.P.C. and pleaded false implication. The learned Trial Court has held that the offence u/s 302 of the I.P.C. is established against accused Shailendra Singh and the offence under Sections 302/34 of the I.P.C. was proved against appellant accused Gopal Singh and accused Kamlabai and they were sentenced for life imprisonment and also the fine of Rs. 5,000-5,000 was imposed on them. Appellant Shailendra Singh and Kamlabai have died after filing the appeal.

The appellant has assailed his conviction on the ground that the learned Trial Court has erred in believing the statement of hostile eye-witness Arjunsingh (P.W. 13) and overlooked the dying declaration Ex. D/4 and, as such, the appeal should be allowed and the appellant accused should be acquitted.

Eye-witness Satyanarayan (P.W. 3) has stated that at about 6.30 p.m. he saw the fire in the house of the accused persons and when he went there, he learnt that the wife of accused Shailendra Singh has received the burn injuries. Satyanarayan (P.W. 3) has not stated that he has heard the noise of the wife of accused Shailendra Singh to save her. He has also not stated that the accused were beating her and she was burnt by the accused persons. Satyanarayan (P.W. 3) was declared hostile by the prosecution, Satyanarayan (P.W. 3) has denied his entire police statement Ex. P/8. There is nothing in the evidence of Satyanarayan (P.W. 3) to show that the accused persons were responsible for causing the burn injury to the deceased Sumanbai.

Arjunsingh (P.W. 13) has stated that at about 6 p.m. when he was sitting in the shop of the barber, he heard the voice of a lady that Papaji don''t beat me. Arjunsingh (P.W. 13) has not stated that he has seen the accused persons beating Sumanbai and the fire was lit before him to the deceased by the accused person. Arjunsingh (P.W. 13) is also declared hostile. Arjunsingh (P.W. 13) has denied his entire police statement Ex, P/24. He has also denied his statement u/s 164 of the Cr.P.C. which is to that fact that he has seen the accused persons beating the deceased and putting her on fire. Arjunsingh (P.W. 13) has not stated in his statements to the police or to the Magistrate respectively Exs. P/24 and P/25 that he had heard the voice of a lady that Papaji don''t beat me. In view of the fact that Arjunsingh (P.W. 13) has not supported the prosecution at all, he was declared hostile. The learned Trial Court has held that the eye-witness Arjunsingh (P.W. 13) has heard the voice of Papaji save me and, as such, from his evidence and the circumstances that the deceased has died in the matrimonial house it is established that the deceased was murdered in furtherance of the common intention of the appellant accused.

No doubt it is a settled law that merely because a witness has been declared hostile his entire evidence cannot be wiped out. This view is reiterated by the Apex Court in case of Anil Rai v. State of Bihar III (2001) CCR 145 : (2001) SLT 597:2001 SCC 1009. However, dealing with the credibility of the hostile witness in case of State of Rajasthan Vs. Bhawani and Another, . it is observed that the Court should be slow to act upon the testimony of such hostile witness and normally it should look for the corroboration of such witness. There is no evidence to corroborate the statement of Arjunsingh (P.W. 13). However, from the following circumstances it is clear, that the statement of Arjunsingh (P.W. 13) is not supported by this dying declaration Ex. D/4 and other circumstantial evidence.

Defence witness Ramlal Malviya (D.W. 1), who is Executive Magistrate, had stated that on 9.12.1992 at about 9 p.m. he has recorded the dying declaration of Sumanbai in presence of Dr. Kushal Lal Yadav (P.W. 8), Dr. Kushal Lal Yadav (P.W. 8) has also stated that Sumanbai was in fit condition to give her dying declaration and the Executive Magistrate has recorded the dying declaration Ex. D/4 in which he gave his certificate about the fit state of mind of Sumanbai. From Ex. D/4 it is clear, that the burn injury was not caused to the deceased Sumanbai by accused persons but the burn injury was accidental in nature. No reason exists to doubt dying declaration Ex. D/4 which was recorded promptly by Magistrate in presence of doctor. This fact is noteworthy that Dr. Mohan Bhatia (P.W. 12) while performing the autopsy on dead body of Sumanbai has not found the smell of the kerosene on her body. The absence of the smell of the kerosene on the dead body of Sumanbai indicates the burn injury due to the accident and it militates the prosecution story that she was burnt after pouring the kerosene oil on her. Consequently, the learned Trial Court has erred in basing the conviction on the evidence of solitary hostile eye-witness.

The prosecution has failed to prove the case beyond reasonable doubt. The appellant accused deserves the benefit of doubt. He is, hereby, acquitted. The bail bond be cancelled and he be set at liberty.