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2006 DIGILAW 109 (RAJ)

Jagdish v. State of Rajasthan

2006-01-09

SHIV KUMAR SHARMA, VINEET KOTHARI

body2006
Honble SHARMA, J.–The appellant was charged under section 302 of the Indian Penal Code for murdering his wife Munni. He was convicted and sentenced by learned Additional Sessions Judge (Fast Track) Beawar District Ajmer vide Judgment dated February 27, 2003 to suffer life imprisonment and fine of Rs. 2000/-, in default to further suffer six months imprisonment. Against this judgment that the present action for filing the appeal has been resorted to by the appellant. (2). It is the prosecution case that on February 19, 1999 at 9.35 PM Vikram Singh, Circle Inspector of Police Station Beawar Sadar, recorded parcha bayan (Ex.P-6) of Munni, who was admitted in Hospital Beawar after sustaining burn injuries. In the Parcha Bayan Munni stated that she entered into Nata Marriage ten years back with the appellant, who was in the habit of consuming liquor. The appellant came to the house in the evening in a drunken state, poured kerosene on her and set her ablaze. He also gave blow with stone on her chin. On the aforesaid parcha bayan a case under sections 307 and 326 IPC was registered and investigation commenced. During investigation Munni succumbed to her injuries and section 302 IPC came to be added. Autopsy on the dead body was performed, statements of witnesses were recorded, appellant was arrested, necessary memos were drawn and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Beawar District Ajmer. Charge under section 302 IPC was framed. The accused denied the charge and claimed trial. The prosecution in support of its case examined as many as 15 witnesses. In the explanation under section 313 Cr.P.C., the appellant claimed innocence. In defence Dw.1 Moti was examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. (3). We have heard the rival submissions and scrutinised the record. (4). A look at the postmortem report (Ex.P-7) reveals that condition of dead body at the time of autopsy appeared thus:– Rigor Mortis present There is superficial to deep burn of entire body except sobs and part of scalp. Total percent of burn is 95 to 98%. Smell of kerosene present in hairs According to Doctor M.L. Thathera (Pw.9) the cause of death was extensive burn. (5). Total percent of burn is 95 to 98%. Smell of kerosene present in hairs According to Doctor M.L. Thathera (Pw.9) the cause of death was extensive burn. (5). There is no eye witness of the occurrence and the prosecution case is founded on two dying declarations of Munni, recorded by Vikram Singh, CI (Pw.12) and Ajitabh Sharma, SDM, (Pw.13). (6). Before analysing the evidence adduced by the prosecution, it will be useful to consider the principles that have been laid down in the various judgments by the Apex Court in regard to admissibility of dying declaration. They are as under:– (i) There is neither rule of law nor of prudence that dying declaration can not be acted upon without corroboration; (ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration; (iii) The court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination; (iv) Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence; (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (vi) A dying declaration which suffers from infirmity can not form the basis of conviction. (7). Coming to the testimony of Vikram Singh (Pw.12) we notice that in his cross examination he admitted that before recording statement of Munni, he did not procure the certificate of doctor about her fitness. He also did not care to look into her Bed Head Ticket Ajitabh Sharma, SDM (Pw.13), who allegedly recorded the statement (Ex.P-24) of Munni at 10.30 PM, in his deposition stated that the answers given to his questions were dictated by him to Mohan Lal, the Naib Tehsildar. In his cross examination, Mohan Lal, Naib Tehsildar (Pw.14) however deposed that he of his own recorded the statement of Munni. SDM did not give dictation to him. He further stated that Munni was a `Dehati (villager) woman and was speaking in a local dialect. Dr. Purshottam Sharma (Pw.8) in his cross examination deposed that he did not issue fitness certificate after examining the condition of Munni. Dr. SDM did not give dictation to him. He further stated that Munni was a `Dehati (villager) woman and was speaking in a local dialect. Dr. Purshottam Sharma (Pw.8) in his cross examination deposed that he did not issue fitness certificate after examining the condition of Munni. Dr. Jitendra Saraswat (Pw.15) stated that Munni although was in a fit state to give the statement, he did not issue certificate of fitness because it was not demanded from him. In his cross examination he stated that Munni was speaking in Hindi language. Alanoor (Pw.4) stated that on hearing cries when he reached at the spot he found Munni lying burnt. At that time she was not speaking. (8). A perusal of the Bed Head Ticket of Munni (Ex.D-1) demonstrates that she was admitted to Govt. Amritkaur Hospital Beawar at 7 PM on February 19, 1999. The said ticket bears following endorsement:– ``Burn accidental due to fire while cooking food. Patient not fully conscious, unable to respond verbally. The appellant in his explanation under section 313 Cr.P.C. stated that while he was digging stones at the hill he heard cries of Munni. He immediately rushed to the house and made attempt to extinguish fire by putting quilt over her. In that process his hand was burnt. He then took Munni to the Hospital. (9). Factual situation that emerges may be summarised thus:– (i) As per testimony of Alanoor (Pw.4), who rushed to the spot after hearing cries, Munni was lying burnt and was not speaking. (ii) Munni was admitted to Hospital at 7 PM and at that time she was not fully conscious and unable to respond verbally. (iii) Bed Head Ticker of Munni bears the endorsement ``burn accidental due to fire while cooking food. (iv) Dr. Purshottam Sharma and Dr. Jitendra Saraswat though orally stated that Munni was able to speak, yet they did not issue fitness certificate in writing. (v) Dr. Jitendra Saraswat stated that Munni was speaking in Hindi, whereas Mohan Lal, Naib Tehsildar, deposed that she was speaking in local dialect. (vi) Ajitabh Sharma, SDM, deposed that answers of the questions were dictated by him to Mohan Lal, but Mohan Lal stated that he of his own recorded the statement and no dictation was ever given to him by the SDM. (10). In the above factual scenario, we find the alleged dying declaration highly suspicious. (vi) Ajitabh Sharma, SDM, deposed that answers of the questions were dictated by him to Mohan Lal, but Mohan Lal stated that he of his own recorded the statement and no dictation was ever given to him by the SDM. (10). In the above factual scenario, we find the alleged dying declaration highly suspicious. It is inexplicable as to how Munni, who at the time of admission to the Hospital was not fully conscious and unable to verbally respond, could speak at 9.35 PM before Vikram Singh and at 10.30 PM before Ajitabh Sharma and Mohan Lal. In view of the Bed Head Ticket of Munni, we find ourselves unable to accept the testimony of Vikram Singh, Ajitabh Sharma and Mohan Lal. In our opinion, the alleged dying declarations were not true and voluntary and cannot be made basis of conviction. Learned trial Judge, in our opinion, committed error in accepting the said declarations. The prosecution has thus failed to establish the charge under section 302 IPC beyond reasonable doubt against the appellant. (11). For these reasons, we allow the appeal of appellant and set aside the impugned judgment of learned Additional Sessions Judge (Fast Track) Beawar District Ajmer. We acquit the appellant of the charge under section 302 IPC. Appellant Jagdish, who is in jail, shall be set at liberty forthwith if not required to be detained in any other case.