Jagdish vs State Of Madhya Pradesh

J.K. Maheshwari, J.

Being aggrieved by the judgment of conviction and order of sentence dated 30.04.2007 passed by the II Additional Sessions Judge (Fast Track),

Vidisha (M.P.) in Sessions Trial No.124/2006 convicting the appellant for the offence punishable under Section 302 of IPC and sentencing him to

undergo imprisonment for life with a fine of Rs.3,000/-, in default three months’ RI, this appeal under Section 374 of the Code of Criminal

Procedure, 1973 (“Code for brevityâ€​) has been preferred.

(2) The undisputed facts are that the incident had taken place on 16.01.2006 in which the present appellant caused murder of his wife, namely, Daula

Bai @ Maya Bai (hereinafter referred to as “Deceasedâ€), to which an offence was registered at Crime No.69/06 under Section 302 of IPC on

the intimation given by Phool Singh (PW-1). Arpit (PW-5) is the son of the appellant and the deceased not born out of the wedlock of the appellant

and the deceased but at the time of marriage of the appellant and the deceased, he was in her womb with the previous husband. The conviction of the

appellant is based on the sole testimony of the said child witness. It is also not in dispute that the deceased died on account of the 100% burns

sustained by her and the appellant also sustained 40% burns in the same incident.

(3) The prosecution story, in nutshell, which emerges is that deceased was the wife of the accused-appellant Jagdish. The first marriage of deceased

was solemnized at village Neemkheda near Lalitpur. After her marriage, accused/ appellant had brought her from her matrimonial home and

solemnized court marriage. At that time, the deceased was pregnant and later she gave birth to her child, namely, Arpit (PW-5). A male child, namely,

Ankit was also born out of the wedlock of accused and the deceased. Prior to the incident, accused had started living with the deceased in a house

constructed at Vidisha. On 16.01.2006, in the night, as alleged, the accused assaulted the deceased by means of shoes and then pressed her neck due

to which her tongue came out. Then, accused sprinkled kerosene on the cot on which she was sleeping and set her ablaze. His son Arpit (PW-5) was

there and he also received burn injuries on face and other parts of the body, on which he left out of the house. Phool Singh (PW-1) and Bhoori Bai

(PW-2) rushed to the spot on hearing screams. On rapid intimation, police reached the spot and recorded Marg as Ex.P-1. Burnt articles and clothes

were seized vide seizure memo Ex.P-5 and spot map Ex.P-4 was also prepared. Scientific officer Vinod Shrivastava (PW-8) prepared the spot map

Ex.P-11 and jotted down the details of the articles according to their lying position on the spot Vide Ex.P-10. Naib Tahsildar Dr. Sudeep Meena (PW-

15) prepared Naksha Panchayatnama Ex.P-3 after safeena form Ex.P-2. The dead body was sent for autopsy and Post-mortem report is Ex.P-6.

Accused and child Arpit (PW-5) who were also burnt were medically examined. Seized articles were sent to FSL through Superintendent of Police,

Vidisha (M.P.). The FSL report is Ex.P-16. After enquiry in the Marg Intimation Ex.P-12, FIR Ex.P-13 was registered. After thorough investigation,

charge-sheet was filed before the Chief Judicial Magistrate, Vidisha who in turn committed it to the Court of Session wherefrom it was transferred to

the II Additional Sessions Judge, Vidisha (M.P.) for trial.

(4) The charge was framed under Section 302 of IPC against the accused. On the opportunity extended, accused abjured his guilt and in the statement

recorded under Section 313 of the Code, pleaded complete innocence. He examined Kundan Singh (DW-1) in defence. It is stated that there was

enmity between his wife i.e. deceased and her sisters, namely, Bhoori Bai, Gulab Bai, Laxmi Bai and sister's (Bhoori Bai) husband Phool Singh. His

son Arpit (PW-5) is a tutored witness who lives with Bhoori Bai. Actually, during rescue to his wife from the ablaze, he also got burn. His wife was of

short temperament and she had altercation with Gulab Bai who had not returned Rs.8,000/- and jwellery to the deceased and hence the deceased

ignited herself.

(5) To bring home the charges levelled against the accused appellant, the prosecution examined as many as 17 witnesses, namely, Phool Singh (PW-

1), Smt. Bhoori Bai (PW-2), Bhairo Singh (PW-3), Laxmi Bai (PW-4), Arpit (PW-5), Dr. R.L. Singh (PW-6), Dr. S.C. Bansal (PW-7), Vinod

Shrivastava (PW-8), Santosh Sahu (PW-9), Ganeshram (PW-10), Vikram Datt Dubey (PW-11), Roopnarayan Sharma (PW-12), D.S. Thakur (PW-

13), Vittu Sahgal (PW-14), Dr. Sudeep Meena (PW-15), R.S. Mishra (PW-16) and M.P. Niranjan (PW-17) and exhibited necessary documents.

(6) Learned Trial Court relied upon the testimony of child witness Arpit (PW-5) having narration of the said incident upon hearing from him and

supported by Phool Singh (PW-1) and Bhoori Bai (PW-2) [his maternal uncle and maternal aunt]. The trial court disbelieved the arguments as

advanced by the learned counsel representing defence and recorded the finding that the charge under Section 302 of IPC has been brought home by

the prosecution however convicted and sentenced the accused appellant as described above.

(7) Learned counsel for the appellant submits that it’s a case of false implication of the accused. It is urged that incident took place on 16.01.2006.

In the marg intimation Ex.P-12, nothing has been alleged against the appellant implicating him in commission of the offence. The statement of the

author of marg intimation Phool Singh (PW-1) was recorded after one month and four days wherein the story of setting the deceased ablaze by the

appellant after sprinkling kerosene has been developed. The statement of child Arpit (PW-5) under Section 161 of Code was recorded on 14.04.2006

i.e. after more than two months and 28 days, though he is the star witness of the case and his testimony has been relied upon. The appellant also

received 40% burn injuries on his person as reveal from MLC Ex.P-9 conducted by Dr. S.C. Bansal (PW-7). No explanation has been put forth

regarding such injuries by the prosecution though he has put his defence that the deceased ignited herself and when he tried to save her, he had also

received injuries. It is explained in defence that the reason for taking such a drastic step by his wife i.e. the deceased was the tension so mounted in

her mind that Gulab Bai had not returned the amount taken from her and under pressure the deceased committed theft to which a case was pending

against her. In such facts and circumstances, she committed suicide by igniting herself, however, when the accused/appellant tried to save his wife he

also received burn injuries. The star witness Arpit (PW-5) is a tutored witness because he is residing with his maternal uncle and aunt i.e. Phool Singh

(PW-1) and Bhoori Bai (PW-2). He is not the child born out of the wedlock of the appellant and the deceased but from the previous husband of the

deceased. Although the appellant was maintaining his wife [deceased] and son of her previous husband and his own child Ankit yet he has falsely

been implicated by the family members of the deceased, thus, prosecution has utterly failed to establish the case against the accused appellant beyond

reasonable doubt but the trial court did not consider all these grounds in right perspective. Thus, it is submitted that the findings of conviction and

sentence as recorded by the trial court deserve to be set aside.

(8) Per contra, learned counsel appearing on behalf of the State argued in support of the findings recorded by the trial court and submitted that it is a

case of commission of murder of wife of appellant at his home where the dead body of the deceased was found lying. There is no reason to disbelieve

the testimony of the child witness Arpit (PW-5) and the testimonies of his maternal uncle and aunt Phool Singh (PW-1) and Bhoori Bai (PW-2). The

trial court has rightly relied upon their testimonies and plea taken by the defence of not having kerosene smell has rightly been negative because the

fire was put to rest by sprinkling water by the neighbours. In such facts and circumstances, upholding the findings recorded by the trial court in the

judgment impugned herein, appeal preferred by the appeal deserves dismissal.

(9) After hearing learned counsel for the rival parties, on perusal of the findings recorded by the trial court and having gone through the entire record,

it is apparent that the statement of Arpit (PW-5) i.e. the child witness which co-relates with the statements of Phool Singh (PW-1) and Bhoori Bai

(PW-2) has been relied to convict the appellant. The arguments advanced in defence have been disbelieved in the impugned judgment but how and

under what circumstances the appellant received burn injuries has not been explained by the prosecution and also not been discussed in the impugned

judgment. In the said context, the arguments as advanced by the learned counsel for the rival parties require detail consideration.

(10) On perusal of the record, it is revealed that the incident took place on 16.01.2006 in the night. Presence of the appellant and the deceased at their

home cannot be doubted. Ex.P-12 marg intimation was given by Phool Singh (PW-1) wherein it was mentioned that after hearing the screams of

appellant Jagdish he along with his wife Bhoori Bai (PW-2) rushed to the scene of occurrence where appellant was lying burnt in the house and as per

the information given by the neighbours the deceased was lying outside the house in the burnt position. The other child along with a puppy was found

inside the house, who were saved by him. As per the prosecution, star witness is Arpit (PW-5) but his statement was recorded under Section 161 of

the Code on 14.04.2006 after about two months and twenty eight days to which no explanation is available. He, in his statement, has stated that the

appellant first of all throttled the neck of the deceased and when her tongue came out, sprinkled kerosene and set her ablaze and then he visited the

house of Phool Singh (PW-1) who is his maternal uncle. Statement of Phool Singh (PW-1) was recorded on 20.02.2006 after one month and four days

wherein the story as stated by child witness Arpit (PW-5) was already disclosed by him in his statement without recording the statement of child

witness by the police. It cannot be doubted that in the same incident appellant as well as deceased both received burn injuries. Burn injuries as per

MLC Ex.P-9 which corroborated by Dr. S.C. Bansal (PW-7), it is apparent that the appellant received 40% superficial burns over his hands, chest

and face. No explanation has been tendered by the investigating officer to the injuries received by the appellant.

(11) Perusal of the record as well as the defence of the accused indicates that the deceased had ignited herself on account of tension perceiving and

mounting to the effect that Gulab Bai had not returned a sum of Rs.8,000/- and other articles and for that theft was committed by her and to which the

case was registered. Gulab Bai was though cited as a witness in the seriatim but was not examined by the prosecution in the court and given up

though she was an important and relevant witness who could bring out the truth from the clouds of falsity. In absence of having any explanation

pertaining to receiving the burn injuries by the appellant, his defence cannot be ignored. In case, the deceased herself ignited and the appellant residing

at home had made an attempt to save her then certainly he may have received burn injuries over the hands, face and the chest. It is to be noted that

child witness Arpit (PW-5) is not the real son of the appellant but he was in womb when appellant solemnized marriage with the deceased and being

maintained by the appellant with his own child Ankit. It is also not in dispute that Phool Singh (PW-1) is his maternal uncle and Bhoori Bai (PW-2)

maternal aunt [real sister of the deceased]. It has come on record that the appellant had purchased a house in the joint name of his wife and his own

in which they were residing. In defence, the plea of enmity with Phool Singh (PW-1) and Bhoori Bai (PW-2) has specifically been taken by the

accused. In such circumstances, the prosecution has to prove its case beyond reasonable doubt placing on record the cogent evidence in order to bring

home the charge under Section 302 of IPC levelled against the appellant. The statement of child witness Arpit (PW-5) is relied upon, against whom

story to tutored witness has been taken. In this regard, his statement was not recorded by the prosecution immediately after the incident but it was

recorded after two months and twenty eight days that too after recording the statement of his maternal uncle Phool Singh (PW-1) to which

explanation is not available on record. In his statement, it is admitted by him that he had come along with them in the court to depose. If the entire

statement is read over then we do not inspire trust that his sole testimony can form the basis of conviction without corroboration by independent

witness. In addition, in absence of any explanation regarding sustainment of 40% burn injuries by the appellant by prosecution, except child witness

Arpit (PW-5), there is no other eyewitness of the incident. As per statement given by Dr. R.L. Singh (PW-6) no ante-mortem injuries was found on

the person of the deceased which could co-relate the testimony relating to throttling and after coming out of the tongue setting the deceased ablaze. In

fact, the deceased died due to respiratory failure as a result of extensive burn of body i.e. about 100%. Under such circumstances, due to not having

any plausible explanation of receiving the burn injuries to the accused appellant and the absence of any explanation of the prosecution of recording the

statements of Arpit (PW-5) Phool Singh (PW-1) belatedly in furtherance to the marg intimation by Phool Singh (PW-1), it can safely be concluded

that the prosecution has not proved its case beyond reasonable doubt placing the cogent evidence on record to convict the appellant on the allegations

as levelled against him. In the facts, the sole testimony of Arpit (PW-5), child witness is not safe to rely upon. It is further to be noted here that Gulab

Bai was the relevant witness of the incident because defence of the accused co-relates to her act due to which the deceased put herself into fire and

to forgo the said witness no plausible reason is available in the order sheets of the trial court. As per the prosecution itself various persons reached the

spot in the night and made attempts to extinguish fire but no independent witness has been examined by the prosecution. The finding of the trial court

of not having smell of kerosene on the person of the deceased has been disbelieved relying on the statement of scientific officer Vinod Shrivastava

(PW-8) because water was sprinkled on the spot. Such finding in the facts and circumstances of the case cannot be relied upon looking to the spot

map and the post-mortem report which indicate the burn injuries and the percentage of sprinkling of water on the person at the time of incident.

(12) In view of the foregoing discussion and in the facts and circumstances of the case, in our considered opinion, the trial court has committed an

error in convicting the appellant for the offence punishable under Section 302 of IPC and sentencing him to life with a fine of Rs.3,000/-with default

stipulation, therefore, judgment of conviction and order of sentence rendered by the trial court deserves to be set aside.

(13) Accordingly, the present appeal succeeds and is hereby allowed. The impugned judgment of conviction and order of sentence dated 30.04.2007

passed by the learned Trial Court in Sessions Trial No.124/2006 is set aside.

(14) Appellant is in jail since the date of his arrest and therefore, if he is not required in any other case then jail authorities are directed to set him free.

(15) Let a copy of this judgment be sent to the jail authorities as well as to the concerned court for information and necessary compliance.