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Judgment
The instant criminal appeal has been filed under
Section 374 (2) Cr.P.C . by the appellant, Smt. Kamla W/o
Banshi Lal Meena, against the judgment dated 15th of
July, 2008 passed by learned Addl. Sessions Judge (Fast
Track), Dungarpur in Session Case No.40/2008 (3/2008)
arising out from F.I.R. No.119/2007 of Police Station
Dovera, District Dungarpur, whereby the learned trial
court convicted the accused appellant for offence under
Sections 302 and 459 of IPC and passed following
sentence, which reads as infra:
302 of IPC :- Life Imprisonment and fine of Rs.5000/- and in default of payment of fine, to further undergo six month''s simple imprisonment.
459 of IPC : - Life Imprisonment and fine of Rs.5000/- and in default of payment of fine, to further undergo six month''s simple imprisonment.
FACTS OF THE CASE:
Complainant, Thanwra (PW.9) submitted an oral
complaint at Police Station Dovera, District Dungarpur on
09.12.2007 at 10.30 AM, upon the said complaint, formal
F.I.R. No.119/2007 (Ex.P/12) was registered on
09.12.2007 against the accused appellant. As per oral
complaint the complainant (father in law of deceased and
appellant), he was having five sons and he was living with
son Narayan. His son Narayan solemnized ''Nata'' marriage
with one Smt. Khatri ten years back, and from the
wedlock of ''Nata'' Marriage, two daughters and two sons
were born. On 08.12.2007 in the morning, he went out for
some work and in his back a quarrel took place at about
01.00 PM in between accused appellant, Smt. Kamla and
Smt. Khatri (deceased) W/o Narayan in the said quarrel
the appellant, Smt. Kamla, poured kerosene upon Smt.
Khatri and lit fire upon her body. Due to said fire, Smt.
Khatri received burn injuries and ultimately died. The
aforesaid information was given to him by his
granddaughter Ms. Aarti (minor daughter of deceased
PW.8). During investigation upon prayer made by the
investigating officer, statements of Ms. Aarti were
recorded u/s 164 Cr.P.C . by the Addl. Civil Judge (Sr.
Division)-cum-Addl. Chief Judicial Magistrate, Dungarpur.
In the FIR registered against the appellant under
Section 459, 326 and 302 of IPC at Police Station, the
investigation was conducted by the S.H.O. and after
completion of investigation, police filed charge sheet
against the accused appellant, Smt. Kamla, for offence
under Sections 459, 326 and 302 of IPC in the court of
learned Judicial Magistrate, Dungarpur, from where the
case was committed to the court of Sessions Judge,
Dungarpur but during trial the case was transferred to the
court of Addl. Sessions Judge (FT), Dungarpur, for further
trial.
After providing opportunity of hearing, the learned
Addl. Sessions Judge (FT) Dungarpur, framed charges
against the accused appellant, Smt. Kamla under Sections
459 and 302 of IPC and thereafter recorded the
statements of 12 prosecution witnesses and 23
documents were exhibited in support of prosecution case.
The statements of accused appellant, Smt. Kamla, were
recorded under Section 313 Cr.P.C., in which she denied
all the allegations levelled by the prosecution witnesses
and said that, "VERNACULAR MATTER OMITTED"
In defence, accused appellant Smt. Kamla herself
appeared as witness (DW.1) and produced her minor son,
Ajay (DW.2) to support the explanation furnished by her
in the statements recorded under Section 313 of Cr.P.C.
which it is stated by her that Smt. Khatri committed
suicide while pouring kerosene upon her.
Learned trial court after recording the evidence of
both the sides finally heard the arguments and convicted
the accused appellant for offence under Sections 459 and
302 of IPC vide judgment dated 15.07.2008, which is
under challenge in this appeal.
While challenging the finding of guilt recorded by the
trial court, the learned counsel for the appellant submitted
that whole prosecution case is based upon doubtful
testimony of child witness viz. PW.8, Ms. Aarti, because all
other witness except complainant, Thanwra (PW.9) upon
whose oral information, FIR was registered, turned hostile
and did not support the prosecution case.
It is submitted that during investigation statements
of Ms. Aarti (PW.8) were recorded under Section 164 of
Cr.P.C. (Ex.P/16) by Magistrate on 22.12.2007, in which
the satisfaction with regard to competence of witness to
give statements was recorded and while doing so, the
statement u/s 164 Cr.P.C . were recorded on oath,
whereas in the trial, statements of PW.8- Aarti, were
recorded by the learned trial court without recording the
same on oath because the child witness (PW.8- Aarti) was
not understanding, nor she is literate and did not know
the consequence of telling lie. However, the learned trial
court proceeded to record her statement as PW.8 without
oath.
Learned counsel for the appellant submitted that the
complainant, Thanwra (PW.9) gave oral information for
registration of FIR, in which it was stated by him that he
was not present at the place of occurrence but incident
was reported to him by Ms. Aarti, child witness, daughter
of deceased that the accused appellant poured kerosene
upon my mother and lit fire. The conviction of the accused
appellant is solely based upon the testimony of child
witness PW.8 Ms. Aarti only but her statement is seriously
doubtful because during investigation when her
statements were recorded u/s 164 Cr.P.C . by the
Magistrate, the magistrate specifically observed that
witness is competent to give statement, therefore, I am
recording her statements on oath, whereas in the trial,
the learned trial court observed that child witness Aarti
neither understanding nor she is literate, therefore, I
deem it appropriate not to record her statements on oath.
Learned counsel for the appellant, therefore, argued
that the conviction based upon the testimony of Ms. Aarti
(child witness PW.8) cannot be relied upon because it
does not inspire any confidence so as to hold accused
appellant guilty, more so, when other witnesses turned
hostile and did not support the prosecution case, some of
witnesses gave statements that deceased, Khatri herself
poured kerosene upon her and lit fire, therefore, it is a
case of suicide.
As per learned counsel for the appellant, finding of
conviction recorded against the accused appellant is not
sustainable because the accused appellant herself
appeared before the court as defence witness and
categorically stated on oath that before the incident,
deceased, Khatri received 4-5 calls of her husband from
Ahmedabad, and thereafter she said that I will not talk to
anybody, I am in anger. After sometime I was informed
by the children of the family that Khatri poured kerosene
upon her and lit fire. Therefore, the whole prosecution
story is highly doubtful.
While inviting our attention towards the statement of
PW.8, Ms. Aarti, it is submitted that said witness in cross-
examination specifically said that quarrel was going in
between my grandfather Thanwra (complainant) and my
elder father Banshi, husband of accused, Smt. Kamla; and
my mother said that I do not want to live and want to die.
It is also pointed out that in the statements recorded
under Section 313 Cr.P.C., accused appellant categorically
stated that I am innocent. Deceased Khatri, committed
suicide while litting fire and my father-in-law, Thanwra,
has indulged me in this false case. Therefore, involvement
of appellant is outcome of whole incident of quarrel in
between Thanwra (complainant) and Banshi (son of the
complainant). In view of above fact, it is argued that the
judgment impugned deserves to be quashed and set aside
because it is based upon doubtful testimony of PW.8, Ms.
Aarti, who was child witness, and her statements were
recorded without any oath, therefore, the appeal may
kindly be allowed.
Per contra, learned Public Prosecutor submitted that
although most of the witnesses of the locality tune hostile
and did not support the prosecution case but father-in-law
of the deceased (PW.9- Thanwra) categorically proved the
fact that oral complaint was given by me to the police on
the basis information of incident reported by PW.8 Ms.
Aarti, child witness. The witness PW.8- Ms. Aarti made
specific allegation in her statement against the accused
appellant of pouring kerosene upon her mother Smt.
Khatri, and litting fire upon, which resulted into her death.
Therefore, there is no question to disbelieve the
statement of child witness PW.8 Ms. Aarti.
Learned Public Prosecutor further submitted that
there is no question to disbelieve the statement of PW.8,
which is subsequently supported by her grandfather, i.e.
PW.9 Thanwala, therefore, the instant appeal may kindly
be dismissed.
After hearing the learned counsel for the parties, we
have minutely scanned the entire evidence in the light of
findings recorded by the learned trial court against the
appellant for conviction.
Admittedly, the entire case is based upon
statements of 12 witnesses, out of which PW.1, Halia,
turned hostile and did not support the prosecution case.
PW.2 Bhepa, turned hostile and specifically said that I do
not know how Smt. khatri died. PW.3, Kaliya, is the Motbir
witness, who put his signatures on Ex.P/2-
"Panchayatnama", Ex.P/3-Memo of handing over of dead
body, and Ex.P/3- memo of collecting soil and half burn
clothes from the place of occurrence and Ex.P/6 site plan.
He is not the eye witness.
PW.4- Dr. B.P. Verma, is the witness who performed
the postmortem, the said witness categorically stated that
I was one of the member of the Medical Board, who
conducted the postmortem of the deceased in Govt.
Hospital, Dungarpur, on 09.12.2007. I was working as
Medical Jurist and postmortem report (Ex.P/5) was
prepared by the Medical Board, for which requisition
(Ex.P/8) was given by the police. It is further said that
age of the deceased was 30 years and there was no injury
upon her body. The burn injuries were caused upon her
prior to her death. In the cross-examination, it is stated"VERNACULAR MATTER OMITTED"
PW.5 Kewla, is the witness, to whom incident was
reported by the complainant prior to filing the FIR. The
said witness specifically stated before the court that no
information was given by the complainant, Thanwala, that
accused appellant poured kerosene upon the body of
deceased and lit fire and turned hostile.
PW.6 Kodar, is the witness, to whom the
complainant informed that my daughter-in-law has burnt,
therefore, police has came on the spot, please come. The
said witness turned hostile because he has denied the fact
of information given by complainant, Thanwra for pouring
kerosene upon Smt. Khatri by the accused Smt. Kamla.
PW.7 Vaga, is the Motbir witness, before whom
Ex.P/5 and Ex.P/6 were prepared by the police and
photographs were taken in his presence. He is not the eye
witness.
We have perused the statement of PW.8, Ms. Aarti.
Admittedly, Ms. Aarti (PW.8) is the daughter of deceased,
Smt. Khatri, and during investigation her statements
(Ex.P/16) were recorded by the Magistrate u/s 164
Cr.P.C . Before recording statements of Ms. Aarti, u/s 164
Cr.P.C . on 22.12.2007, the learned Magistrate observed as under: -
"VERNACULAR MATTER OMITTED"
Admittedly, the incident took place on 09.12.2007
but the statement of Ms. Aarti, child witness, were
recorded under Section 164 Cr.P.C. on 22.12.2007 after
13 days, that too on oath by the Addl. Civil Judge (Sr.
Division)-cum-Judicial Magistrate, Dungarpur, whereas
during trial Ms. Aarti was examined as PW.8, the learned
trial Judge put eight questions and opined that oath is not
required because she does not understand the things and
that she is not literate. The following observations were
made by the learned trial court before recording the
statements of Ms. Aarti PW.8: -
"VERNACULAR MATTER OMITTED"
Admittedly, in the statements of PW.8 Ms. Aarti,
made allegations against the appellant for pouring
kerosene upon her mother, Khatri, and litting fire and said
in the examination-in-chief that nobody was present at
the time of occurrence and the incident was reported by
me to my grandfather, Thanwala (PW.9). In the cross-
examination, it is stated by the said child witness that, "VERNACULAR MATTER OMITTED"
Upon consideration of both these statements of
PW.8, firstly, recorded under Section 164 Cr.P.C. by the
Magistrate on 22.12.2007 and secondly during trial as
PW.8, we are of the opinion that testimony of said child
witness, is doubtful and does not inspire much confidence,
therefore, cannot be relied upon so as to hold accused
appellant guilty because there is no corroboration by any
other evidence with regard to truthfulness of the
statement of PW.8, Ms. Aarti. It is admitted fact that
complainant, Thanwala (PW.9) grandfather of PW.8, Ms.
Aarti was not present in the house at the time of incident
and, furthermore, as per statement of PW.8, a dispute
was going in between her elder father (Banshi, husband of
accused, Smt. Kamla) and Thanwala, with regard to some
land, therefore, this Court cannot lose sight of the fact
that witness PW.8 was tutored witness because except her
statement there is no other evidence on record to prove
the fact that any quarrel took place in between accused
appellant and the deceased, upon the place of occurrence.
PW.4, Dr. B.P. Verma, categorically stated that there
was no injury upon the body of deceased, nor he said that
the incident arises due to quarrel of two ladies, therefore,
in our opinion upon doubtful testimony of child witness
(PW.8, Ms. Aarti), whose statements were recorded
without any oath, the finding of guilt recorded by the trial
court cannot be upheld. It is also important fact that the
Magistrate who has recorded the statements of Ms. Aarti
under Section 164 Cr.P.C. has not been examined before
the trial court to prove the fact that Ms. Aarti was in a
position to understand the things. The prosecution has
purposely left the said witness to be examined and did not
produce him before the court, therefore, the statements
recorded under Section 164 Cr.P.C. cannot be treated to
be proved. Furthermore, the statements of PW.8 recorded
during the trial, and relied upon by the trial court, it is
specifically observed by the trial Judge that witness is not
understanding the facts correctly nor is she literate,
therefore, oath is not required to be taken from her.
However, it is very strange that trial court relied upon the
testimony of this child witness so as to hold accused
appellant guilty.
In this case the accused appellant was arrested on
10.12.2007 and since she is in custody. It is also very
important to mention here that except clothes of Smt.
Khatri, and plastic jeriken were recovered from the house
of Smt. Khatri. In the site plan, the house of accused Smt.
Kamla is shown at Mark "D" whereas the place where the
occurrence place is the house of deceased herself, which
is marked as "A" in the site map, therefore, obviously the
house of accused appellant is far from the house of
deceased. All these facts loudly speak that the entire
prosecution case is seriously doubtful, so also, there is no
evidence of motive on record to accept the allegations
levelled against the accused appellant to commit murder
of Smt. Khatri. More so, as per evidence on record, a
dispute was going on in between the husband of accused
appellant, Banshi Lal, with his father i.e. complainant,
Thanwala (PW.9) with regard to some land. The accused
appellant herself appeared before the trial court as DW.1
and has categorically stated that there was no dispute in
between her and the deceased but relationship of my
father-in-law and husband was not good, the prosecution
story has been fabricated by her father-in-law, who was
not even present at the time of occurrence.
In view of above, we are of the opinion that the
findings of conviction recorded by the learned trial court
solely on the basis of testimony of child witness PW.8- Ms.
Aarti, which has been recorded without any oath, has
wrongly been relied upon by the trial court so as to hold
accused appellant guilty.
In our opinion, the entire prosecution evidence,
which has been relied upon by the trial court, is highly
doubtful and the finding is based upon doubtful evidence,
therefore, the conviction of the accused appellant, Smt.
Kamla, is not sustainable in law and she is entitled for
benefit of doubt. Accused appellant, Smt. Kamla is behind
the bars since December 2007.
In view of above discussion, the instant criminal
appeal is hereby allowed. The judgment impugned dated
15.07.2008 passed by learned Addl. Sessions Judge (Fast
Track), Dungarpur in Session Case No.40/2008 (3/2008)
convicting and sentencing the accused appellant for
offences under Section 302 and 459 of IPC, is hereby
quashed and set aside. The accused appellant be released
forthwith, if not required in any other case.
Keeping in view, however, the provisions of Section
437A Cr.P.C. the accused appellant is directed to forthwith
furnish personal bond in the sum of Rs.20,000/- and a
surety bond in the like amount, before the learned trial
court, which shall be effective for a period of six months
to the effect that in the event of filing of Special Leave
Petition against the judgment or for grant of leave, the
appellant, on receipt of notice thereof, shall appear before
Hon''ble the Supreme Court.