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Rajasthan High Court · body

2005 DIGILAW 2032 (RAJ)

Gopal Krishan Vyas v. Pooran Singh

2005-08-03

B.PRASAD

body2005
Judgment 1. The present three appellants have filed the appeal being aggrieved by the order of the Additional Sessions Judge, Parbatsar in Sessions Case No. 8/2001 dated 16th March, 2002 whereby, they have been convicted and sentenced to life imprisonment under Section 302, IPC and fine of Rs. 200/-and under Section 449, IPC, ten years rigorous imprisonment and fine of Rs. 200/-. 2. The prosecution was initiated on the basis of the statement recorded by SHO Gachhipura at the primary health centre, Gachhipura on 22.05.2000 at 9:00 a.m of Smt. Kiran Kanwar who later on died due to the injuries sustained by her. In her statement, she stated that she was married to Prahlad Singh 22 years back. She was living with her children and husband separate from her in laws. Her father-in-law Vishal Singh wanted them to vacate the house where they were living. 3. On the fatal day i.e., 27.08.2000, in the night at about 10-10:30 p.m., brothers of husband namely, Puran Singh, Mahaveer Singh and Balveer Singh came alongwith Smt. Anop Kanwar. No sooner they came, they started quarreling with her husband. Puran Singh indulged into scuffle with her husband. At that time, her mother-in-law Smt. Anop Kanwar had kerosene in a container which she poured on her and Mahaveer Singh lit the matchstick. It burnt her hands, chest, back, legs etc. Her husband put a mattress on her and extinguished the fire. After that Kishna Ram Bawri brought the camel cart and she was taken to the hospital at Bhaddu but there was no doctor available at that place, therefore, she was transported to Gachhipura. At Gachhipura, her statement was recorded by SHO. There is a certificate on the statement given by the doctor of Primary Health Centre, Gachhipura showing that her statement was recorded in his presence as narrated by her. 4. On the basis of the aforesaid statement, Exhibit P-14, a formal FIR was recorded being FIR No. 101/2000, Exhibit P-15 at Police Station Gachhipura and investigation started. At Gachhipura hospital, her treatment was not possible, therefore, she was shifted to Sikar hospital. Ms. Seema Jain, Judicial Magistrate, Sikar recorded her statement which is Exhibit P-8. Before her statement was reduced in writing, fitness certificate has been given by Dr. M.P. Jain. In her statement before the Magistrate, Smt. Kiran stated that there was some dispute in the family about the land division. Ms. Seema Jain, Judicial Magistrate, Sikar recorded her statement which is Exhibit P-8. Before her statement was reduced in writing, fitness certificate has been given by Dr. M.P. Jain. In her statement before the Magistrate, Smt. Kiran stated that there was some dispute in the family about the land division. On the fateful day, accused Smt. Anop Kanwar, her father-in-law Vishal Singh and her husbands brother Mahaveer Singh, Pooran Singh, Balveer Singh came to their house and exhorted that they should get out from the house. Her mother-in-law Smt. Anop Kanwar poured kerosene and Mahaveer Singh, brother-in-law lit the matchstick. Pooran Singh and Balveer Singh are alleged to have caught Prahlad Singh while she was being burned. Her husband Prahlad Singh extinguished her fire by putting mattress on her. While she was being burned by her mother-in-law and Mahaveer Singh, her father-in-law did not come to her rescue. She was shifted to the hospital. Apart from these two statements of Late Smt. Kiran Kanwar, one before the SHO Gachhipura and other before the Judicial Magistrate, other evidence produced by the prosecution was not considered sufficient enough to support the prosecution case by the trial Court. At the trial, 11 witnesses were examined and 19 documents were exhibited in evidence. The accused were examined under Section 313, CrPC and they denied their implication. 5. PW. 1 Prahlad Singh, husband, PW. 4 Raju Singh, son of the deceased and PW. 10 Rajkanwar, daughter of the deceased, supported the prosecution in police statement but at trail, they turned hostile. PW. 2 Kishna Ram who had transported the lady to the hospital had also not supported the prosecution case and he has also deposed that it was a case of accident. 6. The trial Court after considering the case of the prosecution came to the conclusion that though the family members have not supported the prosecution case but the two dying declarations; one recorded by the police and other recorded by the Judicial Magistrate are trustworthy and, therefore, convicted the accused appellants as aforesaid. 7. Learned Counsel appearing for the accused submitted before us that in the dying declarations, deceased has named apart from three appellants Balveer Singh also. She has said that Balveer Singh caught her husband alongwith Pooran Singh. Balveer Singh was not put to trial. 7. Learned Counsel appearing for the accused submitted before us that in the dying declarations, deceased has named apart from three appellants Balveer Singh also. She has said that Balveer Singh caught her husband alongwith Pooran Singh. Balveer Singh was not put to trial. If the case of Balveer Singh and Pooran Singh are examined in the light of the dying declarations, then they stand at par. However, if Balveer Singh was not put to trial and he has been given a clean chit, then Pooran Singh also deserves the same treatment. In any case, the learned Counsel submitted that the part played by Pooran Singh has been specifically stated by the deceased in her dying declaration that Pooran Singh alongwith Balveer Singh caught hold of Prahlad Singh. Prahlad Singh has not supported this version, therefore, as far as implication of Pooran Singh is concerned, he deserves to be treated at par with Balveer Singh. 8. Further arguing the case, learned Counsel submitted that the two dying declarations does not inspire confidence. The formalities required to record the statements in the nature of dying declarations have not been strictly followed by the police and the learned Magistrate. Therefore, the statements of the deceased alone could not be made the basis of conviction as has been done by the trail Court. Both the dying declarations have not been recorded in the question answer form or in the language spoken by the deceased. Therefore, the dying declarations deserve to be discarded and if the dying declarations are discarded, then there would not be any other evidence on record as produced by the prosecution to sustain the conviction of the accused appellants. 9. Per contra, learned Public Prosecutor submitted that the dying declarations recorded by the police is first in time. This has been recorded after the doctor certifying the injured victim, where she could herself State in her own voice and, therefore, there is no reason as to why implicit reliance be not placed on the statement recorded by the police. Further in the subsequent dying declaration, which has been recorded by a Magistrate, is free from all such instances which would be required to condemn a dying declaration, therefore, reliance has rightly been placed on the statements so recorded by the police and the Magistrate. 10. We have given our thoughtful consideration and have perused the record. Further in the subsequent dying declaration, which has been recorded by a Magistrate, is free from all such instances which would be required to condemn a dying declaration, therefore, reliance has rightly been placed on the statements so recorded by the police and the Magistrate. 10. We have given our thoughtful consideration and have perused the record. The witnesses including the alleged eye-witnesses have turned hostile and the trial Court was left with only one piece of evidence in the nature of two dying declarations; one recorded by police and another recorded by a Judicial Magistrate. The two dying declarations are the basis of conviction as recorded by the trial Court. 11. We have perused both the dying declarations. Both of them stand in line with each other. There are no such circumstances which can be said to have any contradictory character. In both the dying declarations, it has been clearly stated that the mother-in-law poured the kerosene and Mahaveer Singh had lit the matchstick. The accused had come at the house of the deceased to throw her out of the house and there was a dispute in the family regarding the distribution of land. 12. The statement recorded by the police has been recorded after the doctor certified her to be fit to give the statement. She gave the statement in her own voice and the police officer has recorded it while the injured was in the Primary Health Centre. No possibility of tutoring of any kind has been suggested and there was hardly any possibility of tutoring being there. The eye-witnesses including husband, son, daughter and police have supported the prosecution but that would be of no consequence, when at the trial, they have turned hostile but notwithstanding the hostility of the family members of the deceased, dying declaration recorded by the police being in conformity with the statement recorded by the Magistrate, we feel persuaded that the trial Court had acted perfectly in the light of the criminal jurisprudence as is prevailing in deciding the criminal cases. Merely technicalities would not be considered sufficient to discard the dying declarations. The dying declarations have not been found to be one tainted by any kind of tutoring. The two statements were not such which can be said to be contradiction to each other. Merely technicalities would not be considered sufficient to discard the dying declarations. The dying declarations have not been found to be one tainted by any kind of tutoring. The two statements were not such which can be said to be contradiction to each other. In that view of the matter, the dying declarations were rightly made the basis of conviction by the trial Court and we are in agreement with it. Therefore, the participation of the accused Mahaveer Singh and Smt. Anop Kanwar is clearly proved by the dying declarations in pouring kerosene and burning. As regards the participation of Pooran Singh is concerned, he has either exhorted or held Prahlad Singh who has not supported the prosecution case. Another person who is alleged to have caught Prahlad Singh is said to be Balveer Singh. Balveer Singh was not put to trial. If Balveer Singh has been said goodbye, then the case of Pooran Singh is not distinguishable on the basis of the dying declarations, therefore, his conviction does not appear to be on solid foundation. In this background, we are persuaded that the implication of Pooran Singh as ordered by the trial Court is un-sustainable. 13. In the result, the appeal is partly allowed. The conviction and sentence recorded against the accused Pooran Singh are set aside. The conviction and sentence of accused Mahaveer Singh and Smt. Anop Kanwar are sustained. Accused Mahaveer Singh and Smt. Anop Kanwar are behind the bars. They should serve out their sentence as ordered by the trial Court. Accused Pooran Singh is behind the bars. He should be released forthwith, if not required in any other case.