S.L. Kochar, J.@mdashBoth the aforesaid two appeals one (Cri. A. No. 1244/98) preferred through Jail and another (Cri. Appeal No. 1425/1998) filed through private Advocate u/s 374 of the Code of Criminal Procedure, therefore, they are being decided and disposed of by this common judgment.
2. By these appeals, the appellants have challenged their conviction u/s 302 of the Indian Penal Code and consequently sentence of imprisonment for life and fine of Rs. 500/-, in default of payment of fine, to suffer additional R.I. for one month each passed by the learned Additional Sessions Judge, Narsinghgarh District Rajgarh Biaora on 5-10-1987 in Sessions Trial No. 157/97.
3. According to the prosecution case, four years back from the date of incident, P.W. 7 Radhabai was married with one Poonam resident of village Gadiya. As she was abandoned by her husband, she started living with her parents. Seven to eight months prior to the date of incident i.e. 3-7-1997 she was kept as wife by Pappu Kachhi (since deceased) and was living in Sanjay Nagar, Narsinghgarh and thereafter, she came to live in village Thavariya. Thereafter, on account of strained relations between Radhabai and Pappu, she came to live with her sister Soni Bai. On 3-7-1997 in the night at 8.00 p.m. Pappu came to take his wife Radhabai to the house of Bhanwarlal where Radhabai and the appellants met him. The appellants caught the deceased and Bhandarlal poured kerosene oil on the person of the deceased and lit fire. Pappu while crying Bachao Bachao started running from there on road. People of locality thrown water and extinguished the fire. On receiving information by Sub-Inspector of P.S. Narsinghgarh Shri R. K. Tiwari (P.W. 10) reached on the spot and took Pappu to Civil Hospital, Narsinghgrh, where he recorded Dehati nalishi Ex. P.6, on the basis of which First Information Report Ex. P/13 was also recorded. Dying Declaration. Ex.P/3 was recorded by Executive Magistrate Shri P. K. Shrivastava (P.W. 13) in presence of Dr. P.W. Sathe. Dr. Sathe referred the deceased to District ''Hospital, Rajgarh where Pappu breathed his last on 3-7-2007 at 4.00 p.m. Dr. Banjare (P.W. 14) conducted autopsy on the body of the deceased and found 95 per cent burn. The post-mortem examination report is Ex. P/12. After due investigation, charge-sheet was filed against the appellants for the aforementioned offence.
4. The appellants abjured their guilt and claimed false implication on account of enmity. Appellant Heeralal took the defence of alibi saying that at the time of incident he had gone to Bhopal for disposing of the black plums (Jamun), which were loaded in a truck by Hiralal s/o Dulichand at that time Bhagirath Sarpanch and Nathulal were also present there. He stated that he was arrested from Gadiya school. The defence of appellant Bhanwarlal is that his mother was living separate from him and she had told him that the deceased used to beat his wife Radhabai and also threatened her for false implication. On the date of incident deceased came to his house and tried to pour kerosene oil on Radhabhai and when he could not succeed in achieving that goal he poured the kerosene on his own person and set fire. The appellants examined D.W. 1 Nathulal, D.W.2 Madanlal, D.W. 3 Vinod Kumar, D.W. 4 Chandra Prakash, D.W. 5, Hiralal, D.W. 6 Badriprasad and D.W. 7 Babita, in their defence. Learned trial Court on conclusion of trial and hearing both the parties, convicted and sentenced the appellants as indicated hereinabove.
5. Having heard learned Counsel for the parties and after perusing the entire record carefully this Court is of the view that the conviction of the appellants is not sustainable on the basis of Dehati Nalishi Ex. P.6 and Dying Declaration Ex. P/3. Learned trial'' Court disbelieved the testimony of P.W. 7 Radhabai who has not been declared hostile by the prosecution. In the opinion of this Court, the testimony of Radhabai has been discarded on incorrect premises.
6. First of all, we shall deal with the testimony of Radhabai (P.W. 7) according to whom, she was residing with deceased Pappu Kachhi in a house situated in village Thavariya. She was beaten by deceased because of which she started living with her sister Sonibai. On the date of incident, in the night at 8.00 p.m. the deceased under the influence of liquor having kerosene container came to the house of Sonibai. At that moment, Babita D.W. 6, wife of appellant Bhanwarlal was also present there. Deceased Pappu Kachhi tried to pour kerosene on the person of Radhabai which was objected by D.W. 6 Babita and she also told the deceased that they are sending Radhabai with him. Babita also requested Pappu to take food and thereafter, she had gone to answer the call of nature. Thereafter, the deceased poured kerosene oil on his own person and tried to ablaze himself with the help of a match stick. The match-box was snatched by P.W. 6 Radhabai, but the deceased lit fire by another match-box. She also stated that when she snatched one match box, she was pushed aside by the deceased with the result that she fell down on the ground at some distance. Thereafter, the deceased set fire to himself and while taking the names of both the appellants who are brothers, ran away towards the road. She also followed the deceased with water in bucket which was taken by one man who thrown the water on the deceased. The persons assembled on the road suggested Radhabai to go to the Police Station and lodge the report, therefore, she lodged the report at the Police Station.
7. Learned trial Court called the report lodged by Radhabai which was recorded in Daily Diary on 3-7-97 at 21 hours (9.00 p.m.) at Sr. No. 152. The version of Radhabai is corroborated by this report. It would be apposite to mention here that Radhabai was not declared hostile by the prosecution and was also not confronted with her case-diary statement. Learned trial Court has discussed the statement of Radhabai in para 42. In para 43, the learned Judge of the Trial Court mentioned regarding calling of the report lodged by Radhabai. In para 44, the trial Court has given finding that on the date and time of incident, deceased had gone to bring Radhabai (P.W. 7), which is also clear from the Dehati Nalishi Ex. P/6 treated as Dying Declaration of the deceased admissible under the provisions of Section 32(1) of the Indian Evidence Act and the Dying Declaration Ex. P/3. Learned trial Court discarded the statement of Radhabai on the assumption that when the deceased had gone to take back Radhabai, why he would take a kerosene container with him. In the considered opinion of this Court, this reasoning of the learned trial Court to discard the testimony of Radhabai is incorrect in its entirety. How an individual person in the given circumstance would act or react, may vary from person to person and no straight jacket formula can be made for it. In the case of
16. We are at pains to appreciate the reasoning of the High Court. This witness has not been treated hostile by the prosecution, even then his evidence helps the defence. We think the benefit of such evidence should go to the accused and not to the prosecution. Therefore, the High Court ought not to have placed any credence on the evidence of such unreliable witness.
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8. In view of the aforesaid statement of Radhabai (P.W. 6) and Supreme Court judgment, in the opinion of this Court, the case of the prosecution stands shaken.
9. Now we have to see whether the document Ex. P/6 Dehati Nalishi recorded by P.W. 10 R. K. Tiwari, Sub-Inspector which is admissible as Dying Declaration of the deceased as per provision u/s 32(1) of the Indian Evidence Act, because it relates to the cause of death of the deceased, can be acted upon. P.W. 10 R.K. Tiwari has stated that he recorded the Dehati Nalishi as disclosed by the deceased and neither he had added anything at his own or left anything to record which was stated by the deceased. He has also stated that the deceased had put his thumb impression and he had also signed at portion marked A to A. In this document Ex. P/6, it was mentioned by the deceased Pappu that on 3-7-1997, in the night at 8.00 p.m. he had gone to take back his wife at the house of appellant Bhanwarlal Kachhi where both the appellants and his wife were present. He was caught by both the appellants and appellant Bhanwarlal poured kerosene from a can on his person and set fire. When fire spread up on his person, they left him and he reached on the road and cried for help, and the persons of locality threw water and extinguished fire. This Dehati Nalish was recorded on 3-7-1997 at 21.30 hours (9.30 p.m.). Ex. P.3. Dying Declaration recorded by P.W. 13 Executive Magistrate Shri P. K. Shrivastava. Shri Shrivastava has stated that he recorded the statement of the deceased as Dying Declaration as disclosed by the deceased. He did not add anything at his own or left anything stated by the deceased and he had also taken thumb impression of the deceased on the Dying Declaration. In cross-examination, he has stated that he received requisition from P.S. Narsinghgarh at about 9.45 p.m. for recording Dying Declaration and he reached the hospital immediately and took certificate from the doctor regarding fitness of the deceased which was given at the top of Dying Declaration Ex. P/3 at 10.00 p.m. and he started recording dying declaration. It also stated by Shri Shrivastava in cross-examination that the persons of the hospital shown the deceased and at the time of recording of Dying Declaration, his relations were not present, but the crowd was standing outside and police brought the deceased in a van from village Thavariya. He recorded his statement in question and answer form. In para 4 of his cross-examination, he also stated the contents of Dying Declaration in answer to question put by the defence counsel. In the Dying Declaration Ex. P/3, the deceased had stated that the appellants jointly poured kerosene oil on his person and ablazed him. The overt act described by the deceased in Dying Declaration is contradictory to Dehati Nalish Ex. P/6 (Dying Declaration). In the Dehati Nalish, he stated that the oil was poured only by Bhanwarlal and Bhanwarlal also set fire.
10. P.W. 13 Shri Shrivastava has also stated in cross-examination para 5 that the letter Ex. D/1 was written by him to the Station House Officer and the Dying Declaration was sent in the same condition to the Court along with the letter. Shri Shrivastava started recording Dying Declaration at 10.00 p.m. and completed it at 10.20 p.m. Same is the time for giving certificate of fitness by Dr. Sathe.
11. P.W. 8 Dr. Sathe has deposed that the Dying Declaration was recorded by Tehsildar Narsinghgarh at 10.20 p.m. in his presence. He gave certificate at portion marked A to A and also referred the patient for further treatment to District Hospital, Rajgarh vide Ex. P/4. In his cross-examination, no question was put by the defence in regard to time. Learned Counsel for the appellants has referred the document Ex. P/ 4, a requisition by police of P.S. Narsinghgarh for examination of the deceased by the doctor and Dr. P.W. 8 Sathe admitted his signature at portion marked A to A containing the date and time i.e. 3-7-1997 at 9.45 p.m. It is argued that when the patient was not admitted in the hospital and also referred to the District Hospital, Rajgarh on 3-7-1997 at 0.45 p.m. then how his Dying Declaration could be recorded at 10.20 p.m. in the night in Narsinghgarh Hospital. This Court has perused the document Ex. P/4 as well as the statement of Dr. Sathe (P.W. 8). Dr. Sathe has specifically stated that before sending the patient to Rajgarh, his Dying Declaration was recorded at 10.20 p.m. by the Tahsildar. There is no cross-examination on this point and no question was put to the doctor to clarify the position regarding time mentioned in Ex. P/4 referring the patient and time of Dying Declaration. The opportunity to explain this ambiguity should Have been given to Dr. Sathe.
12. Learned trial Court has also placed reliance on oral Dying Declaration made by the deceased before his father P.W. 4 Chhotelal who has stated that he was knowing the appellants and residing in Narsinghgarh. Police party reached at his house and his son in burnt condition was in the van. He asked his son as to how he sustained injury on Which he replied that Bhanwarlal caught hold of him and poured kerosene on his person, thereafter, Heeralal lit fire. Further say of this witness is that the deceased also disclosed that Sonibai and Babita were also there and they all caught hold of him and left Mm after setting fire. In cross-examination para 2, he has again repeated his thing. He has also stated that his statement was not recorded by the police and for the first time he gave statement in Court and disclosed about oral Dying Declaration of the deceased to him against the appellants. Sonibai and Radhabai (P.W. 7) and both the appellants poured kerosene oil, and lit fire. This witness has also admitted that Pappu was fully burnt and police had come to his house at 10.00 p.m. in the night. He has also stated that while going on motor Pappu was talking with him for two to three hours and when he was admitted in the hospital, he was also talking with him. On perusal of the contents of the Dying Declaration Ex. P/6 Dehati Nalishi Ex. P/3 Dying Declaration recorded by Naib Tehsildar and statement of P.W. 4 Chhotelal, father of the deceased, there are contradictions and inconsistencies in all the Dying Declarations. In Dehati Nalishi Ex. P/6, the allegation regarding pouring of kerosene oil and also setting fire was against the appellant Bhanwarlal. In the Dying Declaration Ex. P/3, general statement was given for pouring kerosene oil and ablazing him by both the appellants and according to the statement of P.W. 4 Chhotelal, Radhabai and Sonibai as well as the appellants caught hold of him. Thereafter, appellants poured kerosene oil and Heeralal lit fire. P.W. 4 Chhotelal has stated in examination-in-chief that in the night between 8.00 and 9.00 p.m., police came to his house and he saw the deceased in police van in burnt condition. In cross-examination, he gave the time of 10.00 p.m. for arrival of the police. Under these circumstances, looking to the inconsistencies and gradual improvement in oral and written Dying Declaration as well as difference in time, no implicit reliance can be placed especially when contradictory story has been introduced by the prosecution through its witness Radhabai (P.W. 6), who lodged the report immediately first in point of time on these points. Learned Counsel Shri C. L. Yadav has placed reliance on the Supreme Court judgment rendered in the cases of
13. It is pertinent to mention here that in the impugned judgment learned trial Court has discussed this issue in paras 43 and 44 regarding calling of Roznamcha Sanha No. 152 recorded in Daily Diary of Narsinghgarh Police Station at the instance of Radhabai, but the same was not exhibited and kept in the record so that this Court could peruse the same. The order-sheet dated 10-9-1998 of the trial Court is disclosing the fact that Head Constable Mohanlal Sharma produced the Daily Diary and the learned trial Court directed to keep the same in the record. No exhibit was marked thereon and no such Roznamcha Sanha finds place in the record of the trial Court. Mohanlal Head Constable was also not examined as a prosecution or defence witness. Learned trial Court has forgotten that his judgment is amenable to appeal before the High Court by the aggrieved party and also after judgment passed by the High Court to the Supreme Court. He acted negligently in following the procedure of law by not examining Head Constable Mohanlal who produced the Daily Diary of the Police Station and in not getting it proved and marking exhibit number on the report lodged by Radhabai (P.W. 6) recorded by P.W. 10 Shri R. K. Tiwari Sub-Inspector. R. K. Tiwari in his statement para 7 has admitted this fact and he also proved the statement of Radhabai Ex. D/1. According to Shri Tiwari, Radhabai disclosed that the deceased poured kerosene on his own person and set fire himself.
14. P.W. 15 Station House Officer Shri R. P. Singh has also stated that Radhabai lodged the report at the Police Station that Pappu ablazed himself. On the basis of her report, he sent Shri R.K. Tiwari on the spot and Shri Tiwari investigated the entire case. This shows that the report by Radhabai was first in point of time.
15. In view of the foregoing discussion, we are of the opinion ,that the prosecution has failed to prove its case beyond reasonable doubt against the appellants. The prosecution has adduced two contradictory sets of evidence, one, regarding homicidal death and another suicidal death.
16. Therefore, this, appeal is allowed. Conviction and sentence of the appellants are hereby set aside. They are on bail, their bail and surety bonds shall stand discharged.
