Research › Search › Judgment

Rajasthan High Court · body

2005 DIGILAW 2101 (RAJ)

Teju v. State of Rajasthan

2005-08-09

B.PRASAD, GOPAL KRISHAN VYAS

body2005
Judgment 1. The instant appeal is directed against the Judgment and order of conviction and sentence dated 14.08.2002 passed by the learned Additional Sessions Judge, Bhinmal in Sessions Case No. 44/2000, State of Rajasthan vs. Nimba Ram & Anr., By the impugned Judgment , the learned trial Court convicted the appellant (herein) for offence under Section 302, IPC and sentenced her to undergo imprisonment for life and to pay a fine of Rs. 500/-and, in default of payment of fine, to further undergo one months rigorous imprisonment. The appellant alongwith co-accused Nimba Ram has also been convicted for offence under Section 498-A, IPC and both of then have been sentenced to suffer rigorous imprisonment for a term of 2 and a half years and to pay fine of Rs. 500/-each and, in default of payment of fine, to further undergo one months rigorous imprisonment. Against his conviction and sentence by the impugned Judgment and order, co-accused Nimba Ram has also filed S.B. Criminal Appeal No. 671 of 2002 before this Court which shall also stand disposed of in terms of the Division Bench Judgment in the instant appeal. 2. The summed up facts of the case reveal that, the Station House Officer, Police Station Bagora (Jalore) presented challan against the appellant and her son Nimba Ram for offences under Sections 498-A and 304-B, IPC before the Court of Additional Chief Judicial Magistrate, Bhinmal, whereupon after committal proceedings, the case came to be tried by the learned Additional Session Judge, Bhinmal. The complainant Abha presented a written complaint (Exhibit P/9) before the police at Bhinmal that his daughter Shanta was married to accused Nimba; she used to complain about her harassment by her husband Nimba and his mother Smt. Teji for demand of dowry whenever she came to her parental house; earlier also, one Wali Khan, jeep driver had informed him that he had seen Shanta being beaten by the accused, therefore, he had gone to Lakhani to bring his daughter Shanta back but the accused had begged pardon and assured him not to do so again; today (26.08.2000), he has been informed that Shanta has been brunt by her in-laws and has been admitted to hospital at Bhinmal on 25.08.2000. 3. 3. On the said complaint filed by complainant Abha, case was registered at Police Station Bagora under Sections 498-A and 307, IPC, Since, Shanta died during the course of investigation, the trial Court took cognizance for offences under Sections 498-A and 302, in the alternative Section 306, IPC against the accused appellant Smt. Teju and for offences under Sections 498-A and 304-B, in the alternative Section 306, IPC against co-accused Nimba. 4. At the outset, it may be noted that Shanta died of burn injuries and during the course of investigation three dying declarations have been recorded. These dying declarations are the basis for arriving at a conclusion in this case. Exhibit P/38 is statement of Shanta recorded on 25.08.2000 at 10.30 p.m. by the SDM Exhibit P/44 is her statement recorded on 26.08.2000 at 1.00 p.m. by the Judicial Magistrate, Raniwara. Exhibit P/34 is her statement recorded on 26.08.2000 at 1.30 p.m. by the SDM. There is sharp contradiction in her dying declaration Exhibit P/38 dated 25.08.2000 recorded at 10.30 p.m . and subsequent dying declarations Exhibit P/44 and Exhibit P/34. In the dying declaration Exhibit P/38, deceased Shanta had stated about the burn incident to be an accident caused while she was lighting up the lamp and categorically denied having been burnt by anybody else. In the subsequent statements recorded on 26.08.2000, she specifically implicated her mother-in-law Smt. Teji as accused for having set fire to her. 5. At the trial, the prosecution adduced evidence to prove its case and, in all, 25 prosecution witnesses have been examined. Statement of accused under Section 313, CrPC have been recorded. From the side of the defence, 2 witnesses have been examined. The prosecution exhibited 55 documents and 14 documents have been exhibited by the defence. 6. We have heard learned Counsel for the parties. We have also carefully perused the impugned Judgment and considered the findings of the learned trial Court in juxtaposition to the evidence on record. 7. It is contended by learned Counsel for the appellant that the main thrust of the impugned Judgment for convicting the appellant is based upon the dying declarations made by deceased Shanti. Though there have been three dying declarations recorded in the case but the trial Court has placed reliance only upon the subsequent dying declarations recorded on 26.08.2000. 7. It is contended by learned Counsel for the appellant that the main thrust of the impugned Judgment for convicting the appellant is based upon the dying declarations made by deceased Shanti. Though there have been three dying declarations recorded in the case but the trial Court has placed reliance only upon the subsequent dying declarations recorded on 26.08.2000. In the dying declaration recorded on 25.08.2000 at 10.30 p.m. by the SDM she categorically denied implication of any one in the burn accident. 8. It is contended by the Counsel that after filing of the complaint by the father of the deceased two subsequent dying declarations have been recorded on 26.08.2000. In the complaint Exhibit P/9 the father specifically stated that his daughter Shanti was in the state of unconsciousness. Learned Counsel for the appellant vehemently argued that the trial Court has committed grave error of law in discarding the initial dying declaration. 9. Looking to the deteriorating condition of the patient the doctors at the Manas Hospital, Bhinmal referred deceased Shanti for treatment at Ahmedabad. It is stated by the father of the deceased that she had lost consciousness at about 12. It was about time when she was being driven off to Ahmedabad. Intrestingly the two dying declarations were stated to be recorded after 1.30 p.m., therefore, credibility of the subsequent dying declaration is not beyond suspicion. 10. The learned Counsel submitted that the first dying declaration was recorded by the SDM, Raniwara promptly after taking certificate from the doctor as to the fitness of the patient for recording her statement. He has contended that the trial Court has failed to consider this aspect of the matter. Counsel for the appellant further contended that as per the complaint itself the condition of deceased Shanti was critical and she was unconscious. He argues that this circumstance itself is sufficient to create suspicion in the authenticity and credibility of the subsequent dying declaration. 11. Counsel for the appellant then drew our attention to Exhibit D/2 which is receipt memo under the hand of PW. 4 Abharam regarding taking possession of the dead body of deceased Shanti after the post-mortem in which the complainant stated that his daughter died due to burn accident. 12. Learned Counsel for the appellant has contended that there is no material evidence on record with regard to demand of dowry. 4 Abharam regarding taking possession of the dead body of deceased Shanti after the post-mortem in which the complainant stated that his daughter died due to burn accident. 12. Learned Counsel for the appellant has contended that there is no material evidence on record with regard to demand of dowry. There is categorical denial from the mouth of the deceased herself that there was any issue with regard to demand of dowry. In such circumstances, the trial Court did not have any basis for establishing the guilt of the accused under Section 498-A, IPC. 13. It has lastly been contended on behalf of the appellant that the appellant has been falsely implicated in the case. According to him, the credibility of the first dying declaration is self -suggestive inasmuch as the deceased has clearly indicated in her statement that it was evening time and due to darkness coming over she tried to light up lamp which accidentally resulted into her clothes catching up the fire; her brother-in-law tried to extinguish the fire and she was promptly rushed to hospital for treatment. According to him, there is nothing to suggest malicious motive on the part of the accused and the deceased was promptly brought to hospital for her treatment. The learned Counsel has, therefore, submitted that the trial Court has committed grave error in not believing the initial dying declaration whereas no formidable basis has been laid for not believing the initial dying declaration and for believing the subsequent dying declarations. 10.14. On the other hand, the learned Public Prosecutor has supported the impugned Judgment and the sentence awarded to the accused. According to him, the trial Court rightly discarded the first dying declaration which was recorded in the presence of the in-laws of the deceased under duress. He argued that bare perusal of the first dying declaration brings home the suggestion of the tutorial inasmuch as the entire statement is versioned up for the defence of the accused and, on the face of it, it smacks duress and threat. The learned Public Prosecutor then contended that the subsequent declarations have been recorded by two different officers and there is complete harmony in the version of both these statements. The learned Public Prosecutor then contended that the subsequent declarations have been recorded by two different officers and there is complete harmony in the version of both these statements. He has, therefore, submitted that while relying upon the subsequent dying declarations the trial Court has rightly believed the testimony of the prosecution for the conviction of the accused appellant and accused Nimba, He has, therefore, submitted that there is no illegality in the finding of the trial Court and the trial Court could not have arrived at any other conclusion in the face of evidence on record. 15. As aforenoted, it will be useful in this case to examine the dying declarations made by deceased Shanta on 25.08.2000 and 26.08.2000, Exhibit P/38 is the dying declaration of deceased Shanta recorded at 10.30 p.m. on 25.08.2000 by SDM, Bhinmal on the report of the doctor (Exhibit P/35). In this statement Exhibit P/38, she has categorically denied having been brunt by any one else. She has stated that her father-in-law rushed to her succour and her (elder) brother-in-law also came for her help. In this statement, there is no mention form her mouth about her mother-in-law accused-appellant Smt. Teji. As against this statement recorded on 25.08.2000, the next day on 26.08.2000, two declarations of the deceased have been recorded, one Exhibit P/34 recorded by the SDM and another Exhibit P/44 recorded by the Judicial Magistrate, Raniwara, at 1.30 p.m and 1.00 p.m respectively. In both these statements, deceased has stated that her mother-in-law set fire to her after pouring upon her kerosene oil. In all the three statements, the common thing said is that father-in-law and (elder) brother-in-law of the deceased had rushed to save her from fire and her brother-in-law poured two pitchers of water upon her in an attempt to extinguish the fire. In Exhibit P/34 and Exhibit P/44 she has stated about the quarrel and having been beaten by her mother-in-law. In Exhibit P/34, she stated that she was brought to the hospital by her husband, (elder) brother-in-law and mother-in-law. Thus, on 25.08.2000 when Exhibit P/38 was recorded at 10.30 p.m. by the SDM, only these persons were present in the hospital beside the patient. In Exhibit P/34, she stated that she was brought to the hospital by her husband, (elder) brother-in-law and mother-in-law. Thus, on 25.08.2000 when Exhibit P/38 was recorded at 10.30 p.m. by the SDM, only these persons were present in the hospital beside the patient. The next day i.e., on 26.08.2000 her father alongwith other family members of deceased Shanta arrived at the Manas Hospital and, therefore, the subsequent dying declarations appear to have been recorded in the presence of family members from both sides which fact, it appears, was within the conscious knowledge of the deceased. Filial affection is always very quick to react at a burn-injured daughter with frowns up. It is commonplace for a father to be haunted with hundred questions as to how his daughter was burnt. Sense dawns gradually and much later by which time, it is more often the case, the malicious process of criminal litigation has already set in. In the instant case, quarrels were already there but, from all the three statements, it is very evident that these quarrels were domestic in nature and were not of the kind that generates criminal motives. 16. The tenor of the statement recorded on 25.08.2000 exonerates the accused persons. In that background, why statements recorded on 26.08.2000 came to be recorded, wherein they implicate the accused. First reason appears to be the presence of family members. This gives a scope for tutoring. If a dying declaration can be viewed in the possibility of tutoring then the same has to be considered one which by itself cannot form the basis of conviction. 17. While the first dying declaration Exhibit P/38 was recorded on 25.08.2000 no suspicious circumstances have been indicated by the Magistrate recording the statement. If the statements Exhibit P/38 was voluntary then theory of pressure stands ruled out. 18. We are faced in this case with two kinds of statements by the deceased. One is Exhibit P/38 which is said to be in her own voice by the doctor. The other two statements are Exhibit P/44 and Exhibit P/34. These statements were recorded after 1.00 P.M. on 26.08.2000. According to the statement of the father of the deceased she had lost consciousness at about 12 noon and this was about the time when she was being transported to Ahemdabad. The other two statements are Exhibit P/44 and Exhibit P/34. These statements were recorded after 1.00 P.M. on 26.08.2000. According to the statement of the father of the deceased she had lost consciousness at about 12 noon and this was about the time when she was being transported to Ahemdabad. If that part of the statement of the father of the deceased is true then it becomes doubtful that any statement was recorded on 26.08.2000. 19. We are persuaded to have a view that in view of the statement of the father of the deceased it was not possible to record the statement of the deceased on 26.08.2000 as has been stated. If the possibility of recording the statement is doubtful then there is scope for doubting the very foundation of the prosecution case. The edifice brought about by the prosecution appears to be raised on weak foundation. 20. Apart from the contradictory statements there is no other evidence available on record. The conscience of the Court is not touched by the totality of the prosecution case. Exhibit P/38 dying declaration being a natural statement we are persuaded to hold that the trial Court could not have placed reliance on the subsequent dying declarations Exhibit P/44 and Exhibit P/34. If the subsequent dying declarations are excluded from consideration then there remains nothing to support the prosecution case. The conviction thus recorded by the trial Court is held to be without foundation. 21. In the result, the appeal of the appellant deserves to be allowed. The same is accordingly allowed. The conviction and sentence of the appellant Smt. Teju in Sessions Case No. 44/2000, recorded by the trial Court, is set aside. The appellants is behind the bars. She shall be released forthwith, if not required in any other case. 22. Since, we have held the prosecution evidence in the sessions trial insufficient for arriving at any conclusion as to establishing the guilt and recording the conviction, as a natural corollary, S.B. Criminal Appeal No. 671 of 2002, filed by co-accused Nimba Ram, also stands allowed in the light of the decision in the instant case. Accordingly, conviction and sentence of accused Nimba Ram is also set aside. Accused Nimba Ram, is on bail. His bail bonds stand discharged.