Smt. Madhu @ Madhuri vs State of Madhya Pradesh (Now State of Chhattisgarh)

Sunil Kumar Sinha, J.—This appeal is directed against the judgment dated 20th of July, 1994 passed in Session Trial No. 174/87 by the Second Additional Session Judge, Bilaspur. By the impugned judgment, the appellant has been convicted U/s. 302 IPC and sentenced to undergo imprisonment for life. The facts, briefly stated, are as under:--

The appellant is sister-in-law (Nanad) of deceased Pratima Gupta. Deceased-Pratima was married to Virendra Kumar. The marriage took place 7-8 years prior to the incident which occurred at about 8.30 p.m. on 25-5-85. Pratima was having 3 daughters namely Ku. Ritu (PW-13), Varsha & Neha. Pratima was jointly residing with her parents-in-law, husband, daughters and 3 sisters-in-law (Nanads) including the appellant. The allegations are that on account of some quarrel in the day, the appellant, at about 8.30 p.m. on 25-5-85, poured kerosene on the body of the deceased and thereafter put her on fire. The deceased sustained serious burn injuries. On hue and cry, Shankarlal Agrawal (PW-4) and many other persons came there and she was taken to Sanatorium Hospital, where she died at about 1.40 a.m. on 26-5-85. The death was reported by the Hospital Authorities to the police vide memo Ex.-P/16-A. Based on this memo, merge intimation (Ex.-P/17) was lodged. The Investigation Officer reached to the hospital, gave notice to the panchas and prepared inquest (Ex.-P/15) on the dead body of the deceased. Ghanshyamdas Gupta (PW-12-father of the deceased) and Rakesh Kumar (brother of the deceased) were also present at the time of inquest. All the witnesses of the inquest (Ex.-P/15) expressed their opinion that since the deceased died unnatural death, dead body should be sent for post-mortem examination so as to find out the cause of death etc. The post-mortem examination was conducted by Dr. P.K. Niyogi (PW-1). He noticed 90% burn injuries on the body of the deceased. He also noticed injuries on liver, right kidney and intestine because clotted blood was present over these organs. The Autopsy Surgeon opined that the above injuries were ante-mortem and would have been caused by hard and blunt object. He did not give any definite opinion about cause of death as to whether it was homicidal or suicidal, and referred the matter to Director of Medico-Legal Institute of Forensic Science and Medicine, M.P., Bhopal for taking his opinion. Dr. B.K. Tiwari (PW-6) took the mater for opinion and a reasoned opinion was given by him vide Ex.-P/9, according to which it was homicidal death.

The case of the prosecution was based on eye witness account of Ku. Ritu (PW-13 - daughter of the deceased) and oral dying declaration before Shankarlal Agrawal (PW-4). Ku. Ritu (PW-13) was a child witness. The learned Session Judge relied on her testimony and also relied on the testimony of Shankarlal Agrawal (PW-4) and held that it was a case of homicidal death which took place in the house of the appellant. According to the eye-witness, the appellant poured kerosene on the deceased and put her on fire.

Mr. Surendra Singh, learned Senior Advocate appearing on behalf of the appellant, argued that testimony of Ku. Ritu (PW-13) was not reliable as she has exaggerated her version and tried to involve other inmates of the house; she was aged about 4 years on the date of incident; after the incident, she throughout remained with her maternal grand-father and her evidence appears to be tutored. About Shankarlal Agrawal (PW-4), he argued that, in fact, he was a witness of seizure memo of pieces of bangles (Ex.-P/16), but, he deposed about the oral dying declaration. There was no previous statement of Shankarlal Agrawal (PW-4). He deposed about the oral dying declaration for the first time before the Court. Therefore he was also unreliable. Even for the sake of argument it is taken that the deceased made oral dying declaration before Shankarlal Agrawal (PW-4), but by the alleged dying declaration, identity of the appellant was never established. He also argued on an important circumstance that the father of the deceased namely Ghanshyamdas Gupta (PW-12) met the deceased in the hospital. They talked about the future of children of the deceased, but the deceased never disclosed him that she was put to fire by the appellant, that is to say that no dying declaration was made before father of the deceased implicating the appellant. If the deceased was put on fire by the appellant, in normal human conduct, the deceased must have disclosed this fact to her father.

On the other hand, Mr. Ashish Shukla, learned Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Session Court.

We have heard learned counsel for the parties at length and have also perused the records of the sessions case.

The sole eye-witness of the incident is a child witness namely Ku. Ritu (PW-13-daughter of the deceased). She was aged about 4 years on the date of incident. She deposed that her mother was put to fire by her grand-mother, father and aunt (appellant). She has narrated the story as to how her mother was put on fire. She deposed that her grand-mother caught the hands and legs of her mother, her father poured kerosene on the body of her mother and thereafter her aunt (appellant) put her mother on fire by inflaming a match-stick. The incident took place in a room in the first floor of their house her mother made hue and cry, but nobody came to rescue. She further deposed that there was quarrel between her mother and her grand-mother & aunt. This was the reason for putting her mother on fire. The quarrel took place on account of cleaning the tea which had spread over the floor. She very categorically deposed that her mother was not taken to the hospital. In the last sentence of her examination-in-chief, she deposed that her mother was put on fire on the upper platform (roof) of the house. The facts relating to involvement of the father and grand-mother in commission of murder of the deceased are omissions in the case diary statements of this witness. Her case diary statement (Ex.-D/3 & D/4) were recorded on two occasions. First statement (Ex.-D/3) was recorded on 26-6-85, whereas the second statement (Ex-D/4) was recorded on 29-6-85. In her above two statements she only deposed about the appellant and she did not depose about the father or grand-mother. When she was faced with her case diary statements, she deposed that she had stated these facts to the police, but if the above facts are not mentioned in her diary statements, she cannot tell reasons for that. This is not a case in which both the previous statements were recorded by the same police officer. It appears that the first diary statement of Ku. Ritu (PW-13) was recorded by the Investigation Officer, whereas the second diary statement was recorded by the Criminal Investigation Department (C.I.D.)

In Dattu Ramrao Sakhare and Others Vs. State of Maharashtra, it was held that "A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered u/s 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored." The same view has been further reiterated in Nivrutti Pandurang Kokate and Others Vs. State of Maharashtra,

No doubt a child witness is a competent witness in the eyes of law but a possibility of tutoring is always present in such case. While basic innocence and truthfulness of a child witness is always to be taken into consideration, but at the same time the reliability has to be examined in light of other factors and a possibility of being tutored has to be fully ruled out, particularly when the conviction has to be based on the sole testimony other child witness.

If we scrutinize the evidence of Ku. Ritu (PW-13) it would appear that earlier to her court evidence, she never implicated the father or grand-mother for commission of murder of her mother. Even on 2 occasions, she did not make whisper to the police officers that the above 2 persons were also involved in commission of murder of her mother. However, for the first time before the Court i.e. on 25-6-93 she deposed against her father and the grand-mother and told that they were also involved in commission of murder of her mother. She did not give omnibus evidence in general manner. On the contrary, she has attributed specific role to the above 2 persons who were not at all arrayed as accused in this case. She deposed that her grand-mother caught hands and legs of her mother and thereafter her father poured kerosene on the body of her mother and then her aunt (appellant) put her mother on fire by inflaming a match-stick. The conduct of this child witness implicating the 2 other persons who were not accused in case makes her evidence unreliable. We note that even after her clear evidence in the said manner, no action was taken by the prosecution to make the above 2 persons accused in this matter. That is to say that no application was moved by the prosecution u/s. 319 Cr.P.C. on the above evidence of Ku. Ritu (PW-13). The evidence of Ku. Ritu is further shadowed on the ground that she deposed that her mother was never taken to the hospital, whereas, it is an admitted fact that after the incident the deceased was taken to the hospital where she survived till late night and died at about 1.40 a.m. The evidence of Ku. Ritu (PW-13) is also shaky in relation to the place of occurrence. It appears that the occurrence took place in a room in first floor, but at one occasion she deposed that the occurrence took place on upper platform (Chhat) of the house. Ku. Ritu (PW-13) has denied the suggestion in Para-15 that her mother committed suicide by closing the door of the room from inside. However, she admitted that the door of the room was closed from inside and it was opened by putting the hands form outside the room. She further added that initially the door was closed from outside, but when after the burn, her mother was trying to open the door, the door got closed from inside which was later on opened from outside by other person. Therefore, in appreciation it comes that the door was close from inside for which the above explanation was given by Ku. Ritu. This also creates a doubt. If a person was really put to fire by somebody, how the door of the room can be bolted from inside leaving the deceased alone.

Ghanshyamdas Gupta (PW-12) is father of the deceased. He deposed that one daughter of the deceased namely Varsha was residing with them at Anuppur since back, and the other 2 daughters including Ku. Ritu (PW-13) are also residing with them at Anuppur after the incident. Therefore, it is clear that Ku. Ritu is continuously residing with her maternal grand-father since the date of incident i.e. since 1985 till the date of her examination in the Court which took place on 25-6-93 and in the above situation, a possibility of her being tutored cannot be fully ruled out in this matter. In above facts and circumstances of the case, we are of the view that the learned Session Judge was not justified in relying on the testimony of the child witness Ku. Ritu (PW-13), who was aged about 4 years on the date of incident.

Now we shall consider the evidence of dying declaration.

The case of the prosecution is that just after the incident, on hue and cry, many villagers including Mohammad Nayeem (PW-2) and Shankarlal Agrawal (PW-4) rushed to the house of the appellant. They saw the deceased in burnt condition. Mohammad Nayeem (PW-2) has turned hostile and he has not supported the case of the prosecution. Shankarlal Agrawal (PW-4) deposed that the deceased told him that she was burnt by her nanad. Shankarlal Agrawal (PW-4) was not cited as a witness of oral dying declaration. According to the prosecution, he was witness of a seizure memo (Ex.-P/16). When he appeared in the Court, he deposed that the deceased made oral dying declaration before him in the above manner. Mr. Surendra Singh, learned Sr. Counsel for the appellant, has argued that Shankarlal Agrawal (PW-4) was not examined by the police and there is no previous statement of this witness u/s. 161 Cr.P.C. Therefore, his version relating to oral dying declaration, which he is coming with for the first time before the Court, cannot be relied on. He referred to the decision of Supreme Court in Ram Lakhan Singh and Others Vs. State of Uttar Pradesh,

In the above judgment, the Supreme Court held that "In a grave charge like murder, it will not be proper to place reliance on a witness who never figured during the investigation and was not named in the charge-sheet. The accused who are entitled to know his earlier version to the police are naturally deprived of an opportunity of effective cross-examination and it will be difficult to give any credence to a statement which was given for the first time in court after about a year of the occurrence. We cannot therefore, agree that the High Court was right in accepting the evidence of this witness as lending assurance to the testimony of other witnesses on the basis of which alone perhaps the High Court felt unsafe to convict the accused".

Admittedly, there is no 161 Cr.P.C. statement of Shankarlal Agrawal (PW-4). He was a witness of a seizure memo (Ex.-P/16). He deposed for the first time before the Court after more than 7 years that the deceased had made oral dying declaration before him. Even in the said-dying declaration, he deposed that the deceased stated that she was burnt by her mother in law and nanad. According to his evidence the deceased never disclosed the name of the appellant while giving the alleged oral dying declaration. It is an admitted position that there were 3 sisters-in-law (nanads) of the deceased which fact Ghanshyamdas Gupta (PW-12) has admitted in his cross-examination. Mother-in-law was not an accused. Therefore, even if we rely on the version of Shankarlal Agrawal (PW-4) that the deceased had given alleged dying declaration to him, the identity of the appellant was never established by the said dying declaration.

In Gopalsingh and Another Vs. State of Madhya Pradesh and Another, the Supreme Court held that "It is settled law that a court is entitled to convict on the sole basis of a dying declaration if it is such that in the circumstances of the case it can be regarded as truthful. However, a dying declaration which does not contain complete names and addresses of the persons charged with the offence, even though may help to establish their identity, is not of such a nature on which conviction can be based. It cannot be accepted without corroboration."

Ghanshyamdas Gupta (PW-12) deposed that as soon as he received the message about the injuries sustained by the deceased, he immediately rushed to the house of the in-laws of the deceased and after knowing that the deceased has been shifted to the hospital, he went to the hospital. The deceased was in conscious condition. He had a talk with the deceased. The deceased never disclosed to her father Ghanshyamdas Gupta (PW-12) that she was put on fire by the appellant. If the deceased in fact was put on fire by the appellant, we are of the view, in normal human conduct, the above fact must have been disclosed by the deceased to her father, but the deceased never disclosed all this to her father and she simply talked about her children.

In the above facts and circumstances of the case, we are of the view that the evidence of oral dying declaration was shaky and it was not proved beyond all reasonable doubt that the deceased, in fact, gave oral dying declaration before Shankarlal Agrawal (PW-4).

We further note that Ghanshyamdas Gupta (PW-12) and Rakesh Kumar (brother of the deceased) both were present at the time of inquest (Ex.-P/12). There is no whisper in the inquest that the deceased was put to fire by the appellant and it was a homicidal death. If Ghanshaymdas Gupta (PW-12 - father of the deceased) and Rakesh Kumar (brother of the deceased) were knowing that it was a case of murder and the appellant had put the deceased on fire, they would have disclosed this fact to the police at the time of the inquest. Ghanshyamdas Gupta (PW-12) claimed that Ku. Ritu (PW-13) had told him that her mother was put to fire by the appellant. Therefore, even that information could have been disclosed by him to the police at the time of the inquest. This makes clear that nobody was aware as to how the incident took place at least till the preparation of the inquest and evidence of alleged oral dying declaration further becomes shadowed.

In the above facts and circumstances of the case, we are unable to sustain the conviction of the appellant either on the eye-witness account of the sole child witness Ku. Ritu (PW-13) or on the evidence of oral dying declaration allegedly made by the deceased before Shankarlal Agrawal (PW-4). We are of the view that the conviction based on the above set of evidence deserves to be set-aside and the appellant is entitled to benefit of doubt. Accordingly, the appeal is allowed. The conviction and sentence awarded to the appellant U/s. 302 IPC are set-aside. She is acquitted of the charges framed against her. The appellant is on bail. Her bail bonds are cancelled and surety stands discharged.