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2005 DIGILAW 2122 (RAJ)

Mukesh v. State of Rajasthan

2005-08-10

BHAGWATI PRASAD, GOPAL KRISHAN VYAS

body2005
JUDGMENT 1. - The present appeal is directed against the judgment dated 27.2.2003 passed by the Additional Sessions Judge, Banswara in Sessions Case No. 98 of 2001 whereby the learned Trial Court held the accused appellant guilty for offences under Secs. 498A and 302, IPC and sentenced him to undergo 1 year's rigorous imprisonment with fine of Rs. 500/-, in default of payment of fine to further undergo 1 month's rigorous imprisonment (in respect of offence under Section 498-A, IPC and to undergo imprisonment for life with a fine of Rs. 5,000/-, in default of payment of fine to further undergo 1 years's rigorous imprisonment (in respect of offence under Section 302, IPC). The substantive sentences were ordered to run concurrently. 2. The facts of the case reveal that on 7.4.2001 at the Mahatma Gandhi Hospital, Banswara Police A.S.I. Devi Singh recorded statement of burn-injured patient Smt. Anju to the effect that she was married in the year 1993 to Mukesh (accused-Appellant) and out of the wedlock she has two daughters and one son; the incident occurred today (7.4.2001) at 10.00 PM.; she had gone to her father's house at Bhagakot and returned to her house at about 6 PM. in the evening; her husband came home at about 9 PM.; he assaulted her; gave her two blows with hand and kicked her, she bled in the mouth; after having so beaten her, he poured kerosene upon her clothes and set her a fire with match - stick; she shouted whereupon her neighbours Nazma, Zarina her son Vikas came there; one Gamubhai poured two bruckets of water upon her and extinguished the fire; her husband ran away. In her statement given to the police Assistant Sub-Inspector Devi Singh, she further stated that her husband often beat her and called bad names; from her house, Kanti, Ramesh and Dinesh brought her in a tempo to the hospital. In the statement, she categorically stated that her body has been burnt due to her husband having burnt her with kerosene. 3. On the aforesaid statement of allegation, the police registered regular FIR under Secs. 498A and 307, IPC and commenced investigation. During the course of investigation, Smt. Anju succumbed to the burn-injuries. After completion of investigation the police presented challan against the accused-Appellant for offences under Secs. 3. On the aforesaid statement of allegation, the police registered regular FIR under Secs. 498A and 307, IPC and commenced investigation. During the course of investigation, Smt. Anju succumbed to the burn-injuries. After completion of investigation the police presented challan against the accused-Appellant for offences under Secs. 498A and 302, IPC in the concerned magisterial Court wherefrom, the case being exclusively triable by the Sessions Court, the case was committed to the Court of Sessions Judge, Banswara. 4. Before the Trial Court (Additional Sessions Judge, Banswara), the accused pleaded innocence for the charges read out to him and claimed trial for the offences under Secs. 498A and 302, IPC. At the trial the prosecution examined 15 witnesses in support of its case and exhibited 28 documents. The accused-Appellant gave his statement under Section 313, Cr.PC. and produced DW 1 Nathu and DW 2 Mahendra as his witnesses. 5. It may be noted here that after recording of the statement of Smt. Anju at the hospital by the police A.S.I. Devi Singh (Ex.P/6), during investigation, statement of the deceased was also recorded by Judicial Magistrate, Banswara which is Ex.P/7 on the record. In both these statements, there is conspicuous, coherency despite there being distance of 9 hours between the two. 6. We have heard learned counsel for the parties. We have also carefully scanned the evidence on record. 7. It is contended by learned counsel for the appellant that in this case the main prosecution witnesses turned hostile and the prosecution has failed to establish its case against the appellant and, therefore, the Trial Court has seriously erred in law in arriving at the conclusion of guilt against the appellant. He has contended that all the neighbour witnesses produced by the prosecution in this case have only indicated about the occurrence but none of them deposed as to how the deceased caught fire. According to him, this evidence is not enough to convict the appellant for murder of his wife. Counsel for the appellant argued that both husband and wife were living in peaceful conjugality and there was no indication of any motive which can be ascribed to the husband for commission of the murder of his wife. He argued that the appellant was not in the house when the deceased caught fire. 8. Counsel for the appellant argued that both husband and wife were living in peaceful conjugality and there was no indication of any motive which can be ascribed to the husband for commission of the murder of his wife. He argued that the appellant was not in the house when the deceased caught fire. 8. Adverting to the dying declarations of deceased Smt. Aanju Ex.P/6 and Ex.P/7, learned counsel for the appellant tried to suggest that these statements were made by the deceased under duress and threat of her father. The learned counsel contended that the in-laws of the appellant are inimically pitted against him and, therefore, under the pressure of her father, the deceased gave statements Ex.P/6 and Ex.P/7. 9. Per contra, the learned Public Prosecutor, appearing on behalf of the state, supported the validity of the judgment under appeal and asserted that only the dying declarations of deceased Smt. Aanju are sufficient to bring home the guilt of the accused. According to him, the appellant continuously harassed his wife Smt. Aanju and beat her. The learned Public Prosecutor contended that none of the neighbours of accused Mukesh has denied the occurrence. According to him, in the face of the dying declarations Ex.P/6 and Ex.P/7 turning of some of the prosecution witnesses hostile is not of much consequence and, therefore, the learned Trial Court has not committed any error in convicting the appellant for the offences charged against him. 10. In his cross-examination, PW 1 Govind, a motbir witness, has categorically testified about the site of occurrence. This motbir has witnessed Exhibits P/1, P/2, P/3, P/4 and P/5. Though not a witness to the occurrence yet his examination and cross-examination only fortifies the credibility of the dying declarations made by deceased Smt. Aanju. Dr. Om Prakash Upadhyay, PW 2 has deposed that he had found Smt. Anju capable of giving her statement and, therefore, at his suggestion her statements were recorded by Shri Pradeep Jain, Judicial Magistrate, Banswara. Prosecution witnesses PW 3 Nazma, PW 4 Zarina, PW 5 Kamaru, PW 6 Firoz Khan, PW 7 Surendra and PW 8 turned hostile. It is noteworthy that all of them testify to the occurrence but do not implicate the accused-Appellant for the prosecution charge. The important aspect in their testimony is that even turning hostile they do not collectively set up any coherent version either. It is noteworthy that all of them testify to the occurrence but do not implicate the accused-Appellant for the prosecution charge. The important aspect in their testimony is that even turning hostile they do not collectively set up any coherent version either. This shows that these witnesses are only concealing facts. 11. PW 9 Manohar, father of deceased Smt. Anju has categorically deposed in his statement that whenever his daughter came to his house her husband chased her in drunken condition. This witness states that normally Mukesh and Anju lived happily but when drunk Mukesh quarreled with his wife (deceased Smt. Anju) and beat her. In his cross-examination, the witness has deposed that Mukesh often quarreled when he was drunk; his daughter had told that her husband consumes too much liquor and, therefore, she is perturbed. In his cross-examination, this witness has deposed that when he arrived at the hospital with his wife, at that time, 10-15 persons were beside Anju in the hospital and before all Anju shoutingly told that Mukesh set her afire. 12. PW 9 Manohar is of course father of deceased Smt. Anju but his depositions do not mar his testimony as an interested witness, rather his testimony fortified our belief in the dying declarations Ex.P/6 and P/7. PW 14 Rajendra Singh Sisodia, SHO, P.S. Kotwali, Banswara, in his cross-examination, has categorically deposed that during the course of investigation conducted by him this fact was nowhere revealed that deceased herself set fire to her after pouring kerosene upon her. Besides, we find that the dying declarations of deceased Smt. Anju Ex.P/6 and Ex.P/7 have been recorded after taking due certificate from the Doctor as to the fitness of the patient for recording her statement. PW 2 Doctor Om Prakash Upadhyay was examined before the Court by the prosecution and in his statement Dr. Om Prakash Upadhyay, PW 2 categorically deposed that deceased Smt. Anju was examined by him for the purpose and he found her fit for making the statement. In his cross-examination, on this score also nothing could be elicited from him to belief his statement. Thus we do not find anything on the record which might shake the Court's believe in the dying declarations Ex.P/6 and Ex.P/7 made by the deceased. 13. We have also scanned the other relevant documentary evidence. In his cross-examination, on this score also nothing could be elicited from him to belief his statement. Thus we do not find anything on the record which might shake the Court's believe in the dying declarations Ex.P/6 and Ex.P/7 made by the deceased. 13. We have also scanned the other relevant documentary evidence. Resuming the appreciation of the evidence of the hostile witnesses, we only find that these witnesses have interested deserted the prosecution and by themselves they do not collectively establish a version. Had this been the case, our belief might have shaken in the conclusion arrived at by the Trial Court so far as the commission of offence under Section 302, IPC by the accused-Appellant is concerned. None of the hostile witnesses has suggested anything to shak th credibility of the dying declaration made by deceased Smt. Anju. The statement of PW 9 does not manifest any enmity of the in-laws of the accused with him. In the face of the evidence on record, we are left with no option but to maintain the conviction of the accused-Appellant under Section 302, IPC. 14. So far as offence charged against the accused-Appellant under Section 498-A, IPC is concerned, on appreciation of the statement of PW 9 Manohar, father of deceased Smt. Anju we are persuaded to believe that the charge is neither sufficiently proved nor established against the accused. Therefore, the order of conviction and sentence as regards offence under Section 498-A, IPC against the accused-Appellant deserves to be set aside. 15. Since the Trial Court has ordered the sentences to run concurrently and we are maintaining the conviction and sentence of the appellant under Section 302 IPC as ordered by the Trial Court, we dismiss the appeal. However, the order of the Trial Court with regard to conviction and sentence of the appellant wider Section 498-A, IPC is set aside.Appeal dismissed. *******