Leelawati vs State of M.P.

The appellant has preferred the present appeal against the judgment dated 27/8/1999 passed by the Sessions Judge,Morena in S.T.No. 128/1996; whereby, the appellant has been convicted of offence under Section 302 of IPC and sentenced to Life Imprisonment.

The facts of the case, in short, are that on 13/7/1994 at about 4 pm, the appellant Leelawati told the witness Rameshwar (PW/6) that a fire took place in her house and when she was asked about the cause of fire, then she told about short circuit of electricity. The witness Rameshwar (PW/6) immediately rushed in the house and found the deceased Lalita in burning position, whereas, one rope was found on her neck. She was breathing but she was unable to speak, therefore, she was immediately taken to the District Hospital Morena. Dr. Ravindra Singh Sikarwar (PW/5) examined the deceased Lalita and gave the MLC report Ex. P/8. He found a ligature mark in shape of contusion round her neck and an abrasion of her right forehead. She was burnt approximately 100% but she was unable to speak and therefore, her dying declaration could not be recorded. Smell of kerosene oil was found by Dr. Ravindra Singh Sikarwar (PW/5), however, the deceased Lalita succumbed to the injuries. After her death, postmortem was performed by Dr. H.C.Agarwal

(PW/2) who gave a report Ex. P/3. He also found a ligature mark on the neck of the deceased and her body was found burnt for 95% burns. According to Dr. H.C. Agarwal (PW/2), the deceased died due to burn injuries. According to him, death of the deceased was homicidal in nature.

The Investigating Officer, DSP, Ram Singh Kushwah (PW/1) thereafter registered a crime by FIR, Ex. P/1. He prepared the spot map, Ex. P/2 and he recovered the various articles from the spot found by him and a seizure memo Ex. P/3 was prepared. Various witnesses were examined. Out of them, Kamlabai (PW/3) and Fatehlal (PW/4), mother and father of the deceased were also examined by the police. After due investigation, the charge sheet was filed before the JMFC, Morena who committed the case to the Court of Sessions.

Appellant abjured her guilt. According to her, she went to the field to bring some green grass for buffaloes and when she gave green grass to buffaloes and opened the door, she found some smoke and thereafter she called the various witnesses including Rameshwar (PW/6). According to her, Khubchand, husband of the deceased Lalita went to work in a mill and he was not present in the house. However, no defence evidence was adduced.

During the pendency of the trial, one accused Narayan Krishan alias Munna had expired, whereas, trial Court acquitted the accused Khubchand from the aforesaid charges, but, the appellant Leelabai was convicted and sentenced as mentioned above.

We have heard the learned counsel for the parties at length.

First of all, it is to be considered as to whether the death of the deceased was homicidal in nature or not. In this connection the MLC report Ex. P/8 proved by Dr. Ravindra Singh Sikarwar (PW/5) and postmortem report Ex. P/3 proved by Dr. H.C.Agarwal (PW/2) are important. In both the reports, both the doctors found that there was a ligature mark round the neck of the deceased and she sustained burn injuries of 95%. According to

Dr. H.C.Agarwal (PW/2), deceased died due to burn injuries. Dr. Ravindra Singh Sikarwar (PW/5) found smell of kerosene oil on the body of the deceased. If the situation of the deceased is considered in the light of MLC report Ex. P/8 and postmortem report Ex.P/3,it cannot be a case of suicide or accident. Ligature mark could not be found on the neck of the deceased, if she would have sustained burn injuries accidently. It cannot be a case of suicide because if she would have committed suicide by hanging then remaining rope must be found in the room by which she could commit the suicide and if she had tried to commit suicide with a rope and a dark ligature mark was found on her neck then there was no possibility for her to escape from the loop of rope and to get the second attempt of suicide by setting fire upon herself. Looking to such injuries, it is clear that it is not a case of accident or suicide, but death of deceased was homicidal in nature.

In the present case, there is no ocular evidence against the appellant and case is depending upon the circumstantial evidence. Kamlabai (PW/3), mother of the deceased and Fatehlal (PW/4), father of the deceased did not support the prosecution''s case. Trial Court has convicted the appellant only on two counts. Firstly, she could not prove the plea of her alibi and therefore, she was found guilty and secondly that she was all alone in the house with the deceased and therefore, she was responsible for the crime. In this connection though the trial Court did not mention the judgment passed by the Apex Court in the case of "Trimukh Maroti Kirkan Vs. State of Maharashtra", {(2007) 1 SCC (Cri) 80} but the law laid in this case was applied by the trial Court with the pretest that there was nobody except the appellant along with the deceased and therefore, when she did not give any explanation about the reason of death of the deceased,she alone was responsible for the death of the deceased. The co-accused Khubchand was acquitted because at the time of incident, he was not found present at the spot. On the other hand, he went to mill for his work at the time of incident. Hence, these only two point are to be

considered by this Court.

The appellant took a plea of alibi that she went to her field to fetch some green grass for buffaloes and when she brought the grass and gave to the buffaloes, she found that smoke was coming out from the room of the deceased Lalita and therefore, she shouted and witness Rameshwar (PW/6) was called. If the evidence of Rameshwaar (PW/6) is considered then he has stated that when he went to the spot, he found the appellant present and therefore, except the version of the appellant, which was given under Section 313 of Cr.P.C. there was no evidence in support of the appellant relating to her alibi. But it is not the law applicable in our country that if plea of alibi fails then without any evidence, the accused may be held guilty. Hence, if the plea of alibi could not be proved by the appellant, then only on that count alone she could not be convicted for the offence.

The second circumstance, which was taken as basis of conviction by the trial Court that it was the appellant who was present in the house and therefore, she was responsible for explanation of the incident or it shall be presumed that she was the culprit. Such type of law has been laid down by Apex Court in the case of Trimukh Maroti Kirkan (supra) for the husband who was only found with the deceased wife in the house. However,in this connection, learned counsel for the appellant has invited attention of this Court to the spot map, Ex. P/2 in which it is shown that Phoolchand, Khubchand and Rooplal were residing in the same house but in the separate portions. In spot map, Ex.P/2 at serial No. 11, it is shown that it was the portion of Phoolchand, husband of the appellant, whereas, at serial No. 9, it was the portion of Khubchand, husband of the deceased Lalita. Serial No. 14 was the portion of one Rooplal and various portions like rooms of serial No. 10 and 8 were of common valley. Also the witness Rameshwar (PW/6) has accepted in the cross-examination that the appellant along with her husband and the deceased Lalita along with her husband were residing in a separate portion of the same house. Hence,it is submitted that it cannot be said that the

appellant was the person who was with the deceased in the common house. When she had the separate portion it was not necessary to know about the incident took place with the deceased in her portion. Also when she went to fetch the green grass for the buffaloes then she could not know about the incident which took place with the deceased. Learned counsel for the appellant has also submitted that since no evidence of last seen together is proved against the appellant, she could not be convicted. It is also submitted that evidence of last seen is also not sufficient to convict any accused for the offence of murder, if other ingredient and circumstances are not available. In this connection, reliance has been placed over the judgment passed by the Apex Court in the cases of "Mula Devi and Anr. Vs. State of Uttarakhand",{(2009) 2 SCC (Cri) 854}, "Subramaniam Vs. State of Tamil Nadu and Another", {(2010) 1 SCC (Cri.) 1392}, and "State through CBI Vs. Mahender Singh Dahiya", (AIR 2011 SC 1017) to show that only fact of last seen shall not be conclusive for convicting the accused for offence of murder.

The learned counsel for the appellant has also submitted that there was no motive with the appellant to kill the deceased Lalita. In this connection the reliance is placed upon the judgment passed by the Apex Court in the case of " Sakharam vs. State of Madhya Pradesh ", (AIR 1992 SC 758) with the pretext that though motive is not essential circumstance to be proved for offence of murder but when there is absolutely no motive with the accused then such circumstance will go in favour of the accused. In this connection para 9 of that judgment may be reproduced as under:-

"9. There is absolutely no motive on the part of the appellant to murder the deceased. Absence of motive may not be relevant in a case where the evidence is overwhelming but it is a plus point for the accused in a case where the evidence against him is only circumstantial." 12. If the contentions advanced by the learned counsel for the appellant are considered then it would be apparent that

the prosecution did not prove any motive of the appellant so that she would have killed the deceased Lalita. Also there is no specific evidence of last seen. Evidence of Rameshwar (PW/6) clearly indicates that it was the appellant Leelawati, who called him and when he went inside the room, he found that the deceased Lalita was burning and there after he could arrange for taking the deceased to the hospital. Hence, the conduct of appellant Leelawati does not indicate her guilty conscious soon after the incident. In the present case the law laid down by Hon''ble Apex court in the case of Trimukh Maroti Kirkan (supra) cannot be applied because during the investigation, the prosecution itself found that one of the accused Narayan was also responsible for the crime. Narayan had died during the trial and therefore, neither any evidence could be led against him nor any decision was given by the trial Court. But if Narayan was also involved in the case and he was present then no presumption can be drawn against the appellant that she was the only person present with the deceased and hence she had committed the crime. When there is a possibility that one more person was involved in the crime then it cannot be said that the appellant was the only person who was staying with the deceased at the time of the incident and hence, as per the law laid down by the Apex Court in the case of Trimukh Maroti Kirkan (supra) that other members of the house shall not be responsible for death of the deceased then position of the appellant should fall as other member of the family because her residential portion was separate. Hence, it cannot be said that the appellant was the only person who was staying with the deceased at the time of incident. The prosecution has failed to prove the role of deceased Narayan alias Munna, who was made an accused in the case. Possibility cannot be ruled out that deceased Narayan had tried to strangulate the deceased Lalita with the rope and thereafter when she turned unconscious, some kerosene oil was poured and she was set on fire. Under these circumstances, the chain of circumstantial evidence as proved by the prosecution against the appellant is broken and it is not proved beyond doubt that the

appellant was the person who by strangulation or burning tried to kill the deceased. When a reasonable doubt is created then benefit of doubt is to be given to the accused.

On the basis of aforesaid discussion, the appeal filed by the appellant appears to be acceptable and consequently it is accepted. Conviction as well as sentence passed by the trial Court against the appellant for offence under Section 302 of IPC is hereby set aside. The appellant is acquitted from the charge of offence under Section 302 of IPC.

The appellant is on bail. Her presence is no more required before this Court and therefore, it is directed that her bail bonds shall stand discharged.

A copy of this judgment be sent to the Trial Court along with its record for information.