Babulal Vs. State of Madhya Pradesh - Court Judgment

S.K. Kulshrestha, J.

1. Both these appeals have been filed by the same appellant to assail his conviction under Section 302 of the Indian Penal Code, recorded by judgment dated 2241-1997 of the learned Sessions Judge, Mandsaur, passed in Sessions Trial No. 79/1997 by which the appellant has been sentenced to imprisonment for life.

2. The appellant was indicted for offence punishable under Section 302 of the IPC for having caused death of his wife Chandrakala on 2-24997, at about 5.00 p.m., in Village Padliya Lalmuha, by striking her with fuel wood and causing burns on various parts of her body with 'Chimta' (tongs), 'Fukni' (an iron pipe) and 'Kalchi' (a serving spoon). A report of the incident was lodged by Ramlal (not examined by the prosecution), at Police Station, Bhavgarh, pursuant whereto the investigation was commenced. On receipt of the report (Ex. P-24), Onkar Singh, Head Constable (P. W. 8), proceeded to the spot where he recorded Dehati Nalish (Ex. P-25). S.D. Sharma, Asstt. Sub-Inspector (P.W. 10), took the photographs of the place of the incident and prepared spot map at the instance of Ramlal. He arrested the accused vide Panchnama (Ex. P-9) and on the basis of the disclosure made by the accused and duly recorded in memorandum (Ex. P40), he effected seizure of the Articles at the instance of the accused, as recorded in Exs. P-21 and P-22. He recorded Dehati Nalish (Ex. P-25). On the basis of the report (Ex. P-24), lodged by Ramlal, the dead body was forwarded along with requisition (Ex. P-28) to the Hospital for post-mortem examination and query was made vide Ex. P-29. Articles were sent to the Forensic Science Laboratory vide Ex. P-30 and report Ex. P-32 was received. After completion of the investigation, the appellant was prosecuted.

3. The appellant denied the charge and pleaded that he was innocent. The learned Sessions Judge, however, found that the appellant was guilty and convicted and sentenced him as hereinabove stated. It is against this conviction and sentence that the appellant has filed the above two appeals, one through the Counsel and the other from the jail. This judgment shall, therefore, govern the disposal of both the appeals.

4. learned Counsel for the appellant submits that there is not an iota of evidence to suggest that the injuries sustained by the deceased and the marks of burns caused to her, were caused by the accused and merely because the accused was the husband of the deceased, the prosecution proceeded on the hypothesis that it must have been the accused who had caused the injuries which resulted in the death of the deceased. learned Counsel, therefore, submits that there being no evidence even to suggest that the accused was, at the time of incident, in the house, there was no warrant for supposing that it was the accused who had committed the offence and, therefore, the judgment based on such speculation, suspicion and conjecture was unsustainable.

Learned Dy. Advocate General for the respondent-State,/?er contra, supports the judgment of the conviction and submits that apart from the fact that there is evidence to the effect that in the past the accused had caused burn marks to the deceased by electric current, there is evidence of the parents of the deceased which indicates the complicity of the accused and the judgment of the conviction, therefore, does not call for any interference.

5. We have heard the learned Counsel for the parties and perused the record.

6. The homicidal death of Chandrakala has not been disputed before us though, in view of the judgment of a Division Bench of this Court in Nahadariya v. State of Madhya Pradesh 1980 JLJ 501, learned Counsel does contest about the admissibility of the post-mortem report in the present case. We shall advert to this contention at the appropriate stage. The prosecution has examined ten witnesses. Out of these ten witnesses, Ramratan (P.W. 1) is the father of the deceased, Nandibai (P.W. 2) is the mother. Jujharsingh (P.W. 3) examined as an eye-witness has not supported the prosecution. Prabhulal (P.W. 4) is only a photographer, Devisingh (P.W. 6) is a witness to the seizure; Satyanarayan (P.W. 7) had gone to give information to the Police while Onkar Singh (P.W. 8); Omprakash (P.W. 9); and S.D. Sharma (P.W. 10) are police witnesses.

7. Ramratan (P.W. 1), father of the deceased, has deposed that about two months prior to her death, Chandrakala had come to their house and complained that accused had applied electric current to her. He had, therefore, warned the accused. He does not, however, say anything about misbehaviour of the accused otherwise, or any ill-treatment. Nandibai (P.W. 2) had deposed that deceased Chandrakala was issueless and used to limp in one leg. She had complained that accused had applied current to her and just third day they had received the information that she had died. Apparently she contradicts her husband who refers the incident of applying current as dating back to two months. She has been declared hostile but in cross-examination she supports the prosecution and states that she had seen the burn marks on her body and also seen the broken nails. However, in Paragraph 5, she has, in her cross-examination, against clarified that she had only seen her face and had thereafter collapsed as she had become unconscious.

8. As stated above, Jujharsingh (P.W. 3) who was initially proposed as eye-witness, has not supported the case of the prosecution. The only other circumstance relied upon by the prosecution is the recovery of the Articles from the accused. The recovery was made by S.D. Sharma, Asst. Sub-Inspector (P.W. 10). S.D. Sharma has deposed that by Ex. P-19, the accused was arrested and on being interrogated, he gave information with regard to the 'Chimta', 'Khurpi', 'Fukni', log of wood and clothes. This information was recorded in Ex. P-20 and these Articles were seized vide Exs. P-21 and P-22. The clothes of the accused which he was wearing, were also seized vide Ex. P-23. He has stated that these Articles along with other Articles were sent for analysis to the Forensic Science Laboratory, from where report Ex. P-32 was received. A perusal of report Ex. P-32 indicated stains of blood on Bamboo stick; C-l - his shirt; and, C-2 - his trousers. No report is available to confirm that the alleged stains were that of human blood.

9. learned Counsel has submitted that upon admission of a document under Section 294 of the Cr.PC, the contents of the document had not become admissible but only the formal proof of the said document was dispensed with and, therefore, the opinion of the Doctor cannot be relied and acted upon by the prosecution unless the same is proved by examining the expert who had tendered the said opinion in the manner prescribed by Section 45 of the Evidence Act. In this connection, reference has been made to a Division Bench decision of this High Court in Nahadariya v. State of Madhya Pradesh 1980 JLJ 501. Learned Dy. Advocate General has, however, invited attention to the decision of the Apex Court in Amit alias Ammu v. State of Maharashtra : 2003CriLJ3873 . In the said case the post-mortem report was assailed by the accused, it was observed that the post-mortem report having been admitted, it is not open to the accused to criticise the recitals without giving an opportunity to the Doctor to explain it. If the said observation of the Apex Court is examined in the context of the ratio of the case of Nahadariya (supra), it becomes clear that Their Lordships were dealing with a situation where a right was claimed to call the Doctor to cross-examine him on the basis of the report, notwithstanding that the report had been admitted under Section 294 of the Cr.PC. It was observed that the defence Counsel having accepted the genuineness of the document, should not be estopped from cross-examining the expert on the findings arrived at by him and the opinion given by him. Under these circumstances and in view of the said observation of the Apex Court, it is luculent that insofar as the right of the accused to cross-examine the expert on his report is concerned, it does not get extinguished merely because he has admitted the report under Section 294 of the Cr.PC. However, otherwise, it is binding subject to his right to call the expert concerned for cross-examination.

10. Adverting to the evidence of the prosecution in the case, as observed by us earlier, apart from the vague assertion by Ramratan (P.W. 1), father of the deceased, and Nandibai (P.W. 2), her mother, that the accused had in the past applied current to the deceased, about which also the two witnesses are at variance to the extent of contradicting each other, there is nothing to indicate that relationship between the husband and wife was such as would have driven the accused to take such a step as to cause his wife several burns and injuries and cause her death. There is no evidence to suggest that the accused at the time of the causing of the injuries, soon before or after, was in the house. We may clarify that the incident has taken place in the afternoon and not at night when one may assume the presence of the husband in his house. The evidence of recovery of Articles like Bamboo stick, iron pipe (Fukni), tongs (Chimta) is not incriminating as they were firstly, found in the house, and secondly, they were all household implements. The presence of blood stains apart from being not incriminating, as there was nothing to suggest that it was human blood, even otherwise, do not arouse any suspicion because these Articles have, in any case, been used in the incident. The blood stains are not of human blood. At the most, they create the suspicion against the accused which cannot take the place of proof.

11. From the circumstance alluded to above on which the prosecution has relied, we are of the view that the circumstances create only a suspicion against the accused and that too not a very strong one. This suspicion cannot take the place of proof and, therefore, the accused is entitled to benefit of doubt. Under these circumstances, the accused deserves to be acquitted of the charge against him.

12. Accordingly, the appeal is allowed. The conviction and sentence passed against the accused are set aside and he is acquitted of the charge against him. The accused be released from custody, if not required in connection with any other case.