RAM BAI Vs. STATE OF M P

JUDGEMENT

(1.) THE appellant being aggrieved by the judgment dated 18-7-2000 passed in Sessions Trial No. 412 of 1998 by the learned Sessions Judge, Raipur convicting the appellant under Section 302 of the Indian Penal Code and sentencing her to undergo imprisonment for life has filed this appeal. The prosecution case in brief is that appellant Ram Bai is wife of the elder brother of the husband of the deceased. Deceased Vidya Bai was married to Balram who has been examined by the defence as D.W. 2. As alleged Ram Bai was generally quarrelling with deceased Vidya Bai on very small issues, in particular relating to children. The deceased, therefore, started living in a separate room with her husband and children. On 8-10-1998 Balram (D.W. 2), husband of deceased Vidya Bai, had gone to his duties, the present appellant Ram Bai had some quarrel with deceased Vidya Bai. On the return of Balram at about 2.30 P.M., Vidya Bai informed him about the said quarrel. Balram went to wash himself and in the meantime deceased Vidya Bai started cooking food on the stove, accused Ram Bai came from behind and poured kerosene oil on Vidya Bai from a jerrycan and burnt her. Ablazed with fire said Vidya Bai ran out of the house, Balram came to her rescue and tried to extinguish the fire, in this process Balram suffered burn injuries to his hands. Immediately thereafter Vidya Bai was taken to the hospital where she was admitted for her treatment. P.W. 17 Dr. Kiran Agrawal examined the injuries of Vidya Bai and found almost about 85% burns on her body and certified the injuries under Ex. P-15. She also examined Balram, gave him some treatment and certified under Ex. P-16 that he had 2% burns on his hands. After receiving the information from the hospital, the police authorities went to the hospital to record the statements of Vidya Bai but as she was alternating between consciousness and unconsciousness her statements could not be recorded. On 12-10-1998 when she regained consciousness her Dehati Nalish (Ex. P-9) was recorded by P.W. 11 G.S. Gaharwar. On the same day said G.S. Gaharwar recorded her dying declaration under Ex. D-4. On a request made by the police to the Tahsildar/Executive Magistrate to record dying declaration of Vidya Bai, K.K. Bakshi (P.W. 12) recorded the dying declaration of the deceased under Ex. P-11. On 13-10-1998 Vidya Bai died, therefore, the case originally registered under Section 307, IPC was re-registered under Section 302, IPC. Thereafter the body was sent for post mortem and further investigation was conducted. Armed with the substantial and substantive evidence against the present appellant the police filed the challan before the Competent Court. After observing the committal proceedings the matter was committed to the Court of Sessions. On 7-12-1998 charges were framed against the accused but as she denied commission of the offence she was put to trial. The prosecution agency in support of its case examined as many as 19 witnesses while the defence examined 3 witnesses. The accused, in her statements recorded under Section 313, Cr.P.C. took the specific defence that at the time of the mishap she was preparing incense sticks, she went to extinguish the fire and as the mother of the deceased required the deceased to falsely implicate the accused the deceased made false allegations against the accused. After hearing the parties the learned Court below recorded the findings that the prosecution could bring home the guilt, it accordingly convicted and sentenced the accused.

(2.) SHRI B.P. Sharma, learned counsel for the appellant, submits that the prosecution, in fact, has failed in proving its allegations and the defence could successfully prove that present was a case of an accidental fire and as the dying declarations contained in Exs. P-9, P-11 and D-4 are result of tutoring and depicts non-understanding of the deceased, the same could not be relied upon and the accused deserves to be acquitted. He submits that from the report of D. W. 3 Dr. Sunanda Dhenge and statements of the husband of the deceased namely Balram it would appear that present was a case of accident, the Court below was unjustified in recording the findings against the present appellant. He also submitted that the statements of P.W. 7 Janki Bai and P.W. 8 Suresh do not inspire confidence, therefore, and as conduct of P.W. 11 G.R. Gaharwar, P.W. 12 K.K. Bakshi and P.W. 19 Dr. Ashok Kumar Sharma is not above board nor is free from doubts, the appellant deserves to be acquitted. Referring to certain works of different authors on forensic science he submits that as the soles were conspicuously unburnt it would suggest a suicide and the same result must be drawn because the hair of the deceased did not catch fire. During the course of the arguments he made a submission that statements of the defence witnesses could not be rejected simply on the ground that they were examined by the defence. He submits that if the statements of the defence witnesses are taken in their true perspective it would clearly appear that present was a case of an accidental fire. He also submits that the dying declarations could not be relied upon because the same were not recorded immediately, the deceased was not in a fit mental condition and the investigating officer and relatives of the deceased were present on the spot. It is also his submission that if on 8-10-1998 and 10-10-1998 the deceased was not in a fit condition to give her statements, she could not resume consciousness nor she could be certified to be fit for giving her deposition, therefore also, the dying declarations should not have been relied upon. It is also submitted by him that the deceased was requiring her husband to live separately and as her husband was not ready and willing to leave the house, under the tutoring of the mother she made false statements in her declarations. It was lastly contended that the accused was successful in giving a positive dent to the prosecution case, therefore the accused deserves to be acquitlcd.

(3.) CONTENDING contrary to the above arguments, Shri Ranveer Singh, learned Govt. Advocate for the Statesubmits that if the things are seen in their true perspective it would appear that the deceased was suffering under the hands of the accused. On the fateful day before the arrival of the husband of the deceased, the accused had some quarrel with the deceased, when the husband of the deceased had gone for a wash and the deceased was cooking food on a stove the accused came from behind and poured kerosene oil. According to him if somebody was working on a burning stove and the kerosene is poured from the back side the kerosene would immediately burn and would not leave the deceased in a position either to resist or fight. He submits that immediately after suffering the said burns the deceased came out of the house, raised alarms, her husband came to her rescue tried to extinguish the fire, some neighbour gave a blanket for extinguishing the fire and immediately she was brought to the hospital. According to him even if the deceased was not in a fit condition either on 8th or on 10th October to give her statements it would not mean that she continued to remain unfit for giving her statements. He submits that the statements recorded by P.W. 11 G.R. Gahar-war and P.W. 12 K.K. Bakshi cannot be thrown away just for the sake of the suggestions. He submits that Dr. Ashok Sharma who certified on Ex. P-11 that the deceased was in a fit mental condition cannot be disbelieved because neither he is inimical to the appellant nor had any axe to grind against the accused. Condemning the statements of D.W. 2 it was submitted that the manner in which he had changed his version it would clearly appear that he was not ready and willing to sacrify the accused though he had suffered the loss of his wife. For D.W. 3 Dr. Ku. Sunanda Dhenge he submits that the report of this Forensic Expert cannot be relied upon because she had tried to re-construct the spot after two years of the alleged incident and that too at the request of the accused. He submits that the report of D.W. 3 Dr. Ku. Sunanda Dhenge suffers with latent improbabilities and patent defects. He submits that in view of the certificate appended by Dr. Ashok Sharma on Ex. P-l 1 there is no room to hold that the deceased was not in the fit mental condition to give her statements. According to him the law does not require that the dying declaration of a person should only be relied upon if it is corroborated by some other independent witness. He also submits that if the circumstances do support the dying declaration then the solitary dying declaration can provide foundation for recording the conviction of the accused. During the course of the arguments Shri B.P. Sharma submitted before this Court that the accused made an application for her release on bail and along with the said application the husband of the deceased that is D. W. 2 Balram had filed an affidavit in support of the defence, therefore, it must be presumed that the defence of the accused is neither manufactured nor concocted. At the request of Shri Sharma we called for the records of Bail Petition No. 1900 of 1998. To the surprise of all of us the said record does not contain the affidavit of the husband. It is, however, to be noted that in the order dated 16-10-1998 passed in the said bail petition the learned Sessions Judge had recorded as under :--