BHAGWATI BAI Vs. STATE OF M.P.

JUDGEMENT

(1.) The appellant was tried by the court below in Sessions Trial No.312/92 for committing offence under section 498-A and 304-B and in alternatively under section 302 of the Indian Penal Code (for short 'IPC'). By the impugned judgment dated 9.11.95, the appellant was exonerated from the offence under section 498-A and 304-B IPC. However, she is held guilty for committing murder of her daughter-in-law Shobha. The appellant is accordingly convicted under section 302 IPC and was directed to undergo life imprisonment with fine of Rs.500/- with default stipulation.

(2.) The prosecution story, as narrated by Shri Siddharth Datt, learned counsel for the appellant is that deceased Shobha was married with son of appellant, namely, Govind within seven years from the date of incident i.e 5.7.1992. The appellant used to abuse Shobha for bringing less dowry. She used to deprive her from getting food and also used to misbehave with her.

(3.) After recording the evidence of parties and hearing the arguments, the impugned judgment is passed which is called in question by Shri Siddharth Datt by contending; (i) The incident had taken place on 5.7.92 at 10 A.M. The FIR (Ex.P/14) was recorded at 10.50 A.M. There exists an over writing on the relevant column which is related to date and time of receiving information. Shri Datt submits that although this F.I.R may be treated as a dying declaration, this document is not trustworthy because at the bottom of this document, in a different hand writing name of deceased Shobha is written. Putting it differently, it is argued that under the thumb impression of deceased Shobha, in a different writing, her name is mentioned which creates serious doubt on this dying declaration; (ii) The dying declaration (Ex.P/10) recorded by the Doctor is also not trustworthy because time mentioned in it is 10.15 A.M. There is interpolation in one entry of this dying declaration. In answer to the question; "How deceased was put to fire ? She narrated some thing which was tampered by interpolating certain words which are marked on Ex.P/10 as "D to D". Apart from this, this dying declaration contains two thumb impressions of Shobha which shows that it is not safe to rely on this dying declaration; (iii) Dr. Nema (P.W.9) deposed that Shobha's body was almost 100% burnt except her right palm. This witness could not give satisfactory explanation regarding existence of two finger impressions on the dying declaration (Ex.P/10). Similarly, he could not give justifiable explanation about adding of words in the portion of impression which is marked as "D to D"; (iv) Dr. Nema was unable to show the reason of death whether it is homicidal or suicidal hence it is totally unsafe to hold the appellant guilty; (v) In cross-examination, Rakesh Tiwari (P.W.14) admitted that there exists an over writing in Ex.P/14 in " l to l" portion. As per statement of this witness also Shobha, was 100% burnt. If she was 100% burnt, it cannot be believed that she was in a fit state of mind to give the dying declaration. This witness was unable to explain as to how two finger impressions are available on Ex.P/10; (vi) Gulab Bai (P.W.2) mother of deceased did not support the prosecution story and turned hostile hence it is not safe to give stamp of approval to the impugned judgment; (vii) Reliance is also placed on the statement of defense witnesses wherein they have stated that Shobha had committed suicide;