Mool Chand vs State of M.P.

N.K. Gupta, J.�The appellant has preferred the present jail appeal against the judgment dated 30.9.2000 passed by the learned Sessions fudge, Mandla in S.T. No. 89/2000, whereby the appellant was convicted for offence punishable under Sections 302 and 201 of IPC and sentenced to life imprisonment and rigorous imprisonment for 5 years respectively. Both the sentences have to run concurrently. The prosecution''s case, in short, is that, on 10.5.2000, the appellant was present in his house, situated at village Maharajpur (Police Station Maharajpur, District Mandla). His wife had already gone to her parents'' house. The deceased Bhagwati Bai, daughter of the appellant, aged 17 years was also present in the house. Suddenly it as noticed by the neighbours that the deceased Bhagwati Bai had caught fire in her house and was shouting. The appellant took her daughter Bhagwati Bai out of the house. She was badly burnt and therefore, the appellant laid her down on a cot. Thereafter, the appellant went to inform the respected persons of the village. He informed Santadhar (P.W. 1), Ram Kumar (P.W.3), Bhangilal (P.W.4), Chandrabhan (P.W.5) and others about the incident and thereafter, all these witnesses went to the spot but, they did not find the deceased Bhagwati Bai on the cot. The deceased could not be traced in that night. On the next day, i.e. on 11.5.2000, the appellant went to the outpost Hradaynagar of Police Station Maharajpur and lodged a missing report, Ex. P/23. Thereafter, ASI Shri Dharamraj Singh (PW18) visited the spot and found that on the way. from the house of the appellant up to Gurarghat of river Narmada, semi-burnt clothes of the deceased, foot prints with stains of blood and burnt skin of heal were found. Therefore, Shri Dharamraj Singh arranged for divers to trace the dead body of the deceased. However, dead body of the deceased could be recovered on 12.5.2000 and, thereafter, it was sent for post-mortem. Dr. S.K. Nigam (P.W. 14) performed the post-mortem on the body of the deceased and gave his report, Ex. P/19. He found that the deceased sustained 100% burns but she died due to drowning. ASI Shri Dharamraj Singh had seized the semi-burnt clothes of the deceased, burnt skin of heal and portion of mud having blood stains on the way. The appellant was also sent for his medico legal examination. Dr. A.K. Shrivastava (P.W. 15) examined him and gave his report, Ex. P/20. He found some injuries to the appellant due to burning. Nails of the appellant were cut and such pieces were procured for forensic science analysis. All the seized articles were sent for forensic science analysis. After due investigation, a charge-sheet was filed before Chief Judicial Magistrate, Mandla, who committed the case to the Court of Session.

The appellant abjured his guilt. He did not take any specific plea, but has stated that he was falsely implicated in the matter. However, no defence evidence was adduced.

The learned Sessions Judge, after considering the prosecution''s evidence, convicted and sentenced the appellant as mentioned above.

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

In the present case, as per allegations, the incident took place in two parts. Firstly, that the appellant set the deceased on fire and then tried to extinguish the fire and then laid her down on a cot. Secondly, he threw the deceased into river Narmada. There is no ocular evidence to the second part of the incident, whereas the witness Sunderlal (P.W.6), Suniya Bai (P.W.7), Draupadi Bai (P.W.8) and Bhana Bai (P.W.9) who were examined as eye witnesses for the first part of the incident have turned hostile. The witnesses Sunderlal and Bhana Bai are parents of the appellant, whereas Suniya Bai and Draupadi Bai are his sisters-in-law. The possibility cannot be ruled out that being relatives of the appellant, they have turned hostile. In place of supporting the prosecution''s case, Draupadi Bai has stated that when the deceased shouted, the door of the house was latched from inside and the appellant had broken the door and entered the house and extinguished the fire. The deceased was brought outside the house and laid her down on a cot. Thereafter, Draupadi Bai went to call Kotwar Bacchu and the appellant went to call the respected persons of the village including Sarpanch Chandrabhan and Ex-Sarpanch Munnalal (P.W.2).

On the basis of the aforesaid discussion, it would be apparent that no ocular evidence remains available in the case for both the parts of the incident and entire, case hinges upon the circumstantial evidence. ASI Shri Dharamraj Singh (P.W. 18) has proved various seizure memos. He also took the nails of the appellant cut and pieces of nails were sent for forensic science examination. However, no report of forensic science laboratory was filed during the trial. First circumstance against the appellant is post-mortem report, Ex. P/19 given by Dr. S.K. Nigam (P.W. 14), in which he found the death of the deceased to be homicidal. However, he opined that the deceased died due to drowning. If someone jumps in the river and unable to swim then, it could be a suicidal death and not a homicidal death and, therefore, the opinion given by Dr. S.K. Nigam cannot be accepted beyond doubt. Similarly, he has opined that since the deceased had 100% burns and even on the sole of the foot she had burns, therefore, it may be a case of homicidal burning. Such opinion given by Dr. Nigam cannot be accepted beyond doubt because he simply answered the questions of the cross-examination that if someone commits suicide then, there is no possibility that he or she would sustain any injury on the sole of the foot also. However, if someone struggles on the floor to get herself extinguished from fire then, such burn injuries may be caused on the sole of the foot. Under such circumstances, without any aid of ocular evidence or other circumstantial evidence, the prosecution could not prove that the death of the deceased was homicidal in nature.

As discussed above, there is no witness to say that the appellant was the person who had set the deceased on fire. On the contrary, Draupadi Bai (P.W.8) has stated that door was latched from inside and the appellant had broken the door and entered to save the deceased. It is possible that the appellant had strained relations with his wife and daughter but, it is not established by the witnesses that the appellant often assaulted the deceased or they saw her injured prior to the incident. Under such circumstances, it cannot be said that the appellant had any motive to kill the deceased.

The entire prosecution evidence depends upon the extra-judicial confession of the appellant proved by the witnesses Santadhar (P.W.1), Ramkumar (P.W.3), Bhangilal (P.W.4) and Chandrabhan (P.W.5) who have stated that the appellant admitted before them that he had set the deceased on fire and when he realized that if he did not extinguish the fire, his house will be burnt then, he tried to extinguish the fire of the house as well as of the deceased and, thereafter, he threw; deceased in the river Narmada. In this connection, it is pertinent to note that the dead body of the deceased was recovered on 12.5.2000, whereas alleged extra-judicial confession had been done by the appellant on 11.5.2000. The witness Santadhar has stated that at about 9 a.m. in the morning, the appellant came to his house and told about his deeds. However, this witness has accepted that at about 11 a.m. on that day, the police came to the spot and had searched for dead body. No reason has been shown by this witness as to why he did not inform the police about the extra-judicial confession of the appellant on the same very day. Merg statement of the various witnesses were recorded on 12.5.2000, whereas case diary statements of all the witnesses were recorded on 14.5.2000.

Learned Counsel for the appellant has submitted that there are lot of contradictions between the statements of these witnesses relating to text as well as time of confession. Santadhar (P.W. 1) has stated that the appellant confessed before him at about 9 a.m. and other witnesses were present in his house, whereas Munnalal (P.W. 2), Ex-Sarpanch turned hostile. Ramkumar (P.W. 3) has accepted that the appellant informed him along with other witnesses when he came back after lodging the missing report that initially he assaulted the deceased Bhagwati Bai by kicks and fists and, thereafter, he set her on fire. According to his version, the extra-judicial confession was given by the appellant after 11 a.m. because firstly he went to the outpost-Hradaynagar lodge a report about missing of the deceased and, thereafter, he came to the village and gave such confession. Also, none other witness has stated that the appellant had also admitted the fact that he assaulted the deceased by kicks and fists. The witness Bhangilal (P.W.4) has accepted that he was called by Santadhar at about 10 a.m. and the appellant confessed to him. The witness Chandrabhan (P.W.5) has stated that in the noon of the second day, the appellant told about his guilt at the house of the witness Santadhar. Under such circumstances, the witnesses are telling a different time period in which the appellant had confessed before them, whereas, it is admitted that he has confessed only at one time before the witnesses. Similarly, the witness Chandrabhan did not say in his case diary statement, Ex. D/5 that when the appellant confessed before him, other witnesses were also present. The witnesses did not give any reason as to why they had gathered at the house of Santadhar at a particular time.

In this connection, the evidence given by ASI Shri Dharamraj Singh (D.W.18) is relevant and important. He has stated that when he reached to the spot, he found that there were footprints on the way from the house of the appellant up to the bank of Narmada river. He also seized the blood stained mud from those footprints and semi-burnt clothes of the deceased lying on the way. Also he had seized the part of skin of heal of the deceased from the way. Such seizure and observations made by ASI Shri Dharamraj Singh confirms the story that the deceased herself went to the river and jumped there.

Dr. S.K. Nigam (P.W. 14) has stated that the burn injuries caused to the deceased were of such nature that she could not walk. His opinion may be accepted up to a natural conduct of the deceased. The witnesses Santadhar, Ramkumar, Bhangilal and Chandrabhan have stated that initially the appellant had informed them that he saved her daughter from fire and, thereafter, he laid her down on a cot but, when these witnesses went to the spot, she was not found on the cot. Looking to the various indications found by ASI Shri Dharamraj Singh in the entire way from the house of the appellant to the bank of river, it appears that due to acute pain because of burn injuries, the deceased was bent upon to reach and dive into the water, so that her pain and suffering of heat could be extinguished. In natural course, a person has burn injuries in the sole cannot walk. However, it is apparent that the deceased walked with her obstinacy to jump into the river because she was bent upon to do it and therefore, the blisters caused due to burn injuries were broken and blood had oozed from her sole causing blood stains on her foot marks. ASI Shri Dharamraj Singh also found a piece of skin burnt out of her heal on that way. It is not the case of prosecution that the appellant sustained any injury on his leg and those foot prints were of the appellants or those blood stains were of the appellant. ASI Shri Dharamraj Singh has clearly made an entry in the seizure memo that skin of heal of the deceased was found. Hence, it is proved by the prosecution itself that the deceased herself went from her house to the bank of river and, therefore, it is not a case that the appellant threw her into the river.

If the extra-judicial confession as recorded by the witnesses, is considered in the light of aforesaid circumstances then, second part of that confession is also proved false. If the deceased went herself to the bank of river and jumped into the river then, the appellant would not confess that he threw his daughter into the river. Specially when he went to the respected persons of the village and took them to the cot on which he left the deceased. According to the confession when he changed his mind and saved his daughter then, there was no need to the appellant to throw his own daughter into the river. The portion of his statement that after the incident of fire, he laid down his daughter on a cot and, thereafter, she is found missing is duly corroborated by the witnesses Santadhar, Ramkumar, Bhangilal and Chandrabhan and also by missing report, Ex. P/23 lodged by the appellant soon before his alleged confession. If the appellant accompanied the deceased to throw her in the river then, there should be two sets of foot marks on the entire way. If the appellant lifted the deceased then, there was no possibility of any foot marks of the deceased on the way as found by ASI Shri Dharamraj Singh. If the appellant accompanied her then, there was no possibility of plain foot marks. In that case, foot marks of dragging should have been visible by ASI Shri Dharamraj Singh. Under these circumstances, when the appellant did not throw his daughter into the river then, it was not possible for him to confess about that fact that he threw his daughter in the river. Therefore, that part of confession as told by the witnesses cannot be believed.

On the basis of the aforesaid discussion, it would be apparent that due to testimony of the witnesses Draupadi Bai, etc., it is established that the appellant did not set the deceased on fire. On the contrary, he had broken the door of the house, which was closed from inside and saved his daughter. Also, it is established that the appellant did not throw the deceased into the river but, she herself went to the bank of the river and when the appellant returned to his house along with the witnesses, he did not find the deceased on the cot, where he laid her down. Under such, circumstances, where there was no possibility that the appellant would have made such confession before the witnesses, the statement of these witnesses relating to confession cannot be accepted. It is possible that the witnesses could not believe the unnatural story told by the appellant that he laid down a badly burnt girl on a cot and, thereafter, she was found missing and therefore, the possibility cannot be ruled out that looking to an unnatural explanation given by the appellant before the witnesses, they would have thought that the appellant threw his daughter in the river and, therefore, they gave such statement before the police against the appellant. However, the testimony of the witnesses Santadhar, Ramkumar, Bhangilal and Chandrabhan is not at all trustworthy to the fact that the appellant confessed before them.

It could not be proved by the prosecution that the appellant was the person who had set the deceased on fire. On the contrary, a doubt is created that the deceased sustained burn injuries due to another reason. There is nothing on record to show that as to how the fire was ignited. It is established that the appellant by breaking the front door of the house, saved the deceased and laid her down on a cot. Similarly, it is not proved beyond doubt that the appellant threw her into the river and a doubt is created that she herself went to the bank of the river and jumped into the river. If reasonable doubts are created then, no accused can be convicted on the basis of circumstantial evidence, if its chain is not complete. In the present case, the prosecution has failed to prove a complete chain of circumstantial evidence against the appellant to conclude that either the appellant set the deceased on fire or he threw the injured deceased into the river. Under such circumstances, the appellant cannot be convicted for offence punishable under Section 302 of IPC or any inferior offence of the same nature. The learned Sessions Judge has committed an error in convicting the appellant for offence punishable under Section 302 of IPC.

While framing of the charges, it was alleged against the appellant that to conceal the evidence, he took the deceased and threw her dead body in river Narmada. As discussed above, the deceased was alive after getting burn injuries and she herself went to the bank of river Narmada and possibly she jumped into the river to get rid of pain and suffering of heat caused due to burn injuries and, therefore, it cannot be said that the appellant threw the deceased into the river. Under such circumstances, the appellant cannot be convicted for offence punishable under Section 201 of IPC because nothing could be proved against him that he concealed the evidence to save himself. Under such circumstances, the learned Sessions Judge has committed an error in convicting the appellant for offence under Section 201 of IPC.

On the basis of the aforesaid discussion, when it is found that the appellant cannot be convicted either for offence under Sections 302 or 201 of IPC then, the appeal filed by the appellant is acceptable. Consequently, the appeal filed by the appellant is hereby allowed. His conviction as well as the sentence directed for offence under Sections 302 and 201 of IPC is hereby set aside. He is acquitted from all the charges appended against him.

The appellant is in jail and, therefore, Registry is directed for issuance of release warrant forthwith, so that the appellant may be released from the jail, without any delay. Copy of the judgment be sent to the trial Court alongwith its record for information and compliance.