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2006 DIGILAW 421 (RAJ)

Sabir v. State of Rajasthan

2006-02-07

SHASHI KANT SHARMA, SHIV KUMAR SHARMA

body2006
JUDGMENT 1. - Instant criminal appeal has been filed by accused appellant Sabir against the judgment dated 2.6.2001 passed by Special Judge (Atrocities on Women and Dowry Cases) Kota whereby the accused appellant was convicted for the offence under section 302 Indian Penal Code and was sentenced to life imprisonment and Rs. 1000/- fine, in default to further suffer imprisonment of six months RI. 2. The brief facts relevant and essential for the disposal of the appeal are as under. 3. In this case, accused Sabir is a husband of the deceased Smt.Haseena Parcha Bayan Ex.P/3 of Smt.Haseena was recorded by PW-5 Tejsingh Sub Inspector Police Station Kanhadi on 28.9.2000 at 7.45 pm in MBS Hospital, Kota wherein she stated that her husband Sabir is a drunkard. On the day of her statement i.e. 28.9.2000, her husband consumed liquor and then demanded money from her for liquor. She further stated that she refused to give money and told that she had no money. Accused poured kerosene on her body and lit fire by match stick. Her clothes caught fire and her hands and breasts etc. got burnt. Ratnaram poured water on her body. She also stated in her statement that this incident occurred at 6-7 pm. Police registered a case for the offence under section 302 IPC. Accused Sabir was arrested. Police seized plastic bottle of kerosene and match box and burnt match stick from the place of occurrence. On the application of police, learned Addl.CJM No.3, Kota recorded the dying declaration of Smt.Haseena on 28.9.2000 of 9.10 pm. Ultimately Smt.Haseena died in the Hospital on 17.10.2000. Her autopsy was done and post mortem report Ex.P/10 was prepared by Dr.P.K.Tewari PW6. After completion of the investigation challan was filed for the offence under section 302 Indian Penal Code before the concerned Magistrate wherefrom the case was committed to Sessions Judge Kota and ultimately the case was transferred to Special Judge (Atrocities on women and Dowry case), Kota. 4. After hearing charge arguments the Special Judge, Kota framed charge against the appellant Sabir for the offence under section 302 IPC. Accused denied charges and claimed trial. Prosecution examined as many as six witnesses namely PW1 Nemichand, PW2 Raniesh Chand Meena, PW3 Rajendra Kumar Khandelwal, PW4 Babu Lal, PW5 Tej Singh and P W6 Dr.P.K.Tiwari. Statements of accused were recorded under section 313 Cr.P.C. Accused did not examine any witness in defence. Accused denied charges and claimed trial. Prosecution examined as many as six witnesses namely PW1 Nemichand, PW2 Raniesh Chand Meena, PW3 Rajendra Kumar Khandelwal, PW4 Babu Lal, PW5 Tej Singh and P W6 Dr.P.K.Tiwari. Statements of accused were recorded under section 313 Cr.P.C. Accused did not examine any witness in defence. After hearing arguments, learned trial court convicted the accused for the offence under section 302 Indian Penal Code and sentenced as stated herein above. 5. In this appeal, Smt.Namita Parihar was appointed as Amicus Curiae on behalf of appellant. 6. Learned Amicus Curiae has argued that prosecution could not prove offence under section 302 Indian Penal Code against the accused beyond reasonable doubt. Therefore, appeal should be allowed and the judgment passed by the trial court should be set aside. It is also contended that the trial court has based conviction of the accused only on the basis of ding declaration of deceased Haseena. It is also contended that there is no linking evidence against the accused, therefore, the conviction should be set aside. 7. Learned Public Prosecutor has contended that trial court has rightly convicted the accused for the offence under section 302 IPC. It is also contended that the conviction can be based on uncorroborated dying declaration. 8. We have considered the rival contention of both the parties. We are of the view that learned trial court has based conviction of the present appellant on the basis of dying declaration. We are of the view that it is well settled that there is neither rule of law nor rule of prudence which has hardened fact of rule of law that a dying declaration cannot be acted upon unless it is corroborated. We are of the view that dying declaration can be accepted even if it is not corroborated by any other evidence. We are also of the view that the court must not look for any corroboration unless dying declaration suffers from infirmity. We are of the view that once the court comes to the conclusion that the dying declaration is truthful version then there is no need of further corroboration. 9. We have examined case in hand and its all circumstances. In this case dying declaration of Haseena was recorded twice. She was admitted in hospital. Police was informed about the incident. We are of the view that once the court comes to the conclusion that the dying declaration is truthful version then there is no need of further corroboration. 9. We have examined case in hand and its all circumstances. In this case dying declaration of Haseena was recorded twice. She was admitted in hospital. Police was informed about the incident. Police came in Hospital and PW5 Tej Singh Sub Inspector PS Kanhadi recorded her Parcha Bayan Ex.P/3. Tej Singh has been examined by the prosecution in the court and he was been cross examined in detail. We are of the view that statements of Tej Singh are reliable and the same has proved beyond reasonable doubt that whatever was stated by Mst.Haseena was recorded in Parcha Bayan. It is also proved that there was none else in that room at that time who could tutor or provoke Smt.Haseena to implicate the accused falsely. It is also proved that on the same day, on the application of the police, PW2 Mr.R.C.Meena ACJM No.3, Kota recorded her dying declaration in the hospital. Statement of Ramesh Chand were recorded in the trial court and he was cross examined in detail. After reading statement of R.C.Meena it becomes clear that Smt.Haseena was fit to give statement and it is also proved that when her dying declaration was recorded by Magistrate no member of the family of Haseena was present there. Statements of accused Sabir were recorded under section 313 Cr.P.C. and all the incriminating circumstances appearing in evidence against him were put to him and for all the questions he replied (Does not Know). In the last question he simply said that in the evening when he came to his home police persons were standing there, police persons caught him and told him that he has burnt his wife. In his statement recorded under section 313 Cr.P.C. he has never said that Haseena was tutored to give false statement. We have examined entire evidence available on the record, we do not find any reason after all why his wife Smt.Haseena would falsely implicate him for such a heinous crime. After appreciating all the evidence we come to the conclusion that there is no infirmity in these dying declarations which are recorded by police Sub Inspector and by ACJM No.3 Kota. After appreciating all the evidence we come to the conclusion that there is no infirmity in these dying declarations which are recorded by police Sub Inspector and by ACJM No.3 Kota. There are two dying declarations, first dying declaration recorded by Sub Inspector of Police and another by Magistrate. There is no contradiction in these two dying declarations. After appreciating all the evidence we come to the conclusion that there is no infirmity in these dying declarations and no corroboration is required for basing conviction on these two dying declarations. Prosecution story is corroborated by the statement of PW6 Dr.P.K.Tiwari and post mortem report Ex.P/10. After considering all the facts, we are of the view that trial court has rightly convicted the accused for the offence under section 302 IPC. 10. For these reasons, we do not find any merit in the instant appeal and the same stands accordingly dismissed. The conviction and sentence awarded to appellant under section 302 Indian Penal Code are confirmed.Appeal Dismissed. *******