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2015 DIGILAW 1633 (RAJ)

Banshi Lal v. State of Rajasthan

2015-09-04

GOVIND MATHUR, JAISHREE THAKUR

body2015
JUDGMENT : Govind Mathur, J. Aggrieved by the judgment and order dated 15.12.2008, passed by learned Additional Sessions Judge (Fast Track), Chittorgarh in Sessions Case No.7/2008, recording conviction and awarding sentence under Section 302 Indian Penal Code, the appellant has preferred this appeal. 2. The factual matrix necessary to be noticed is that in the night of 8.10.2007, a young girl of about 14 years seriously burnt was brought to Sanwaria General Hospital, Chittorgarh and while undergoing treatment, at 09:45 PM a statement given by her, was reduced in writing as per document Ex.P/35 by Shri Darshan Singh, Sub Inspector, Police Station, Chittorgarh. The Sub Inspector while reducing the statement of the girl in writing obtained a fitness certificate from the treating doctor Shri Dinesh Kathed (PW-10) on the same paper leaf on which the statement was drawn. The girl disclosed her name as Pooja, aged 14 years, daughter of Shri Banshilal, resident of Kachi Basti, Senti, behind Seeds Godown, Chittorgarh. Kumari Pooja stated that on the same day at 09:00 PM she was cooking food on stove. At that time her father Shri Banshilal came under intoxication and started abusing her. He then poured kerosene on her from a jericane already available in the room and that caught fire from the stove resulting into serious burns. 3. On basis of this statement, a case was lodged for the offences punishable under Sections 307 and 326 Indian Penal Code. During the course of investigation a dying declaration (Ex.P/13) of Kumari Pooja was recorded by Shri Paras Kumar Jain (PW-11), Additional Chief Judicial Magistrate, Chittorgarh. The Additional Chief Judicial Magistrate before recording statement obtained a fitness certificate from treating doctor Shri Dinesh Kathed in the terms that "Pt. is fit to give statement". The dying declaration made by Kumari Pooja reads as under:- "My name is Pooja. My father's name is Banshilal. We live in a Kachi Basti, Senti, behind Seeds Godown. In the evening at 07:00 PM, father came under intoxication. I was at the house of Ismile Khan, our neighbour. My father brought me to home and asked to cook food, but subsequently refused for that. He poured kerosene on me from stove and then put me in fire. I ran out from the room, but I do not know who poured water on him. I am not married. I do not know where is my father. My father brought me to home and asked to cook food, but subsequently refused for that. He poured kerosene on me from stove and then put me in fire. I ran out from the room, but I do not know who poured water on him. I am not married. I do not know where is my father. I am not having mother". (English translation of the original statement given in Hindi) 4. Looking to serious condition of Kumari Pooja she was referred for treatment to Maharana Bhupal Government Hospital, Udaipur where she died on 22.10.2007. As per the medical evidence the cause of death was septicemia shock due to dry heat flames burn. Consequent to death of Kumari Pooja the investigating agency registered a case against the appellant accused for an offence punishable under Section 302 Indian Penal Code. The appellant accused was arrested on 16.10.2007 and as per injury report Ex.P/30 he too was having few burn injuries. 5. The investigating agency after completing the investigation submitted a police report to competent court which committed the case to the court of Sessions being sessions triable. On 18.1.2008 a charge was framed against the appellant accused for commission of an offence punishable under Section 302 Indian Penal Code. He denied the same, therefore, trial commenced as desired. 6. The prosecution supported its case by getting testimony of 20 witnesses examined and by exhibiting 42 documents. The appellant accused while explaining adverse and incriminating evidence against him stated that he has been falsely implicated in the case and whatever evidence available i.e. either false or concocted. No evidence in defence was adduced. 7. Learned trial court after hearing learned counsel for the appellant accused and learned Public Prosecutor recorded conviction and awarded sentence to the accused appellant being held guilty for an offence punishable under Section 302 Indian Penal Code. Learned trial court recorded conviction solely on basis of the dying declaration made by deceased Kumari Pooja. While doing so, learned trial court also kept in mind the post offence conduct of the accused appellant who is said to have run away from the place of occurrence instead of saving her daughter from the fire flames. 8. Learned trial court recorded conviction solely on basis of the dying declaration made by deceased Kumari Pooja. While doing so, learned trial court also kept in mind the post offence conduct of the accused appellant who is said to have run away from the place of occurrence instead of saving her daughter from the fire flames. 8. In appeal, the argument advanced by learned counsel for the appellant is that though conviction can be recorded solely on basis of a dying declaration, but such dying declaration must be convincing and must inspire absolute confidence, which in the instant matter is lacking. 9. Per contra, as per learned Public Prosecutor, the dying declaration made by Kumari Pooja is true, reliable and is recorded in accordance with established practise and procedure, therefore, no wrong has been committed by the trial court in relying upon it and recording conviction of the appellant accused. 10. Heard learned counsel for the appellant and the learned Public Prosecutor. 11. Hon'ble Supreme Court in Atbir v. Government of N.C.T. Of Delhi, reported in (2010) 9 SCC 1 , summed up the factors governing the evidence relating to dying declarations under:- "22. The analysis of the above decisions clearly shows that : (i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court. (ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination. (iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration. (iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. (v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. (vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction. (vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected. (viii) Even if it is a brief statement, it is not to be discarded. (vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected. (viii) Even if it is a brief statement, it is not to be discarded. (ix) When the eye-witness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail. (x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration." 12. On examination of the facts of the case in hand we noticed that at the first instance at 09:45 PM on 8.10.2007 a statement made by deceased Kumari Pooja was reduced in writing by Shri Darshan Singh, Sub Inspector. Shri Darshan Singh while reducing the statement in writing obtained a fitness observation of the patient by Dr. Dinesh Kathed. Dr. Dinesh Kathed also gave a fitness certificate to Additional Chief Judicial Magistrate Shri Paras Kumar Jain who recorded dying declaration at 10:55 PM. Dr. Dinesh Kathed came in witness box before the court as PW-10. Surprisingly enough this witness has not stated a single word about fitness observation made by him either on document Ex.P/35 or on the dying declaration Ex.P/13. The total statement given by Dr. Dinesh Kathed reads as under:- "On 8.10.2007, I was working as Medical Jurist and duty doctor at General Hospital, Chittorgarh. On that day, I examined injuries of Pooja daughter of Banshilal Meghwal, resident of Senti, Chittorgarh on basis of a written request made by the police station. Her body was burnt about 80-85% and the burns were superficial. Except her face and a little part of leg, entire body was burnt. The injury was grievous. Ex.P/10 is my hand written and 'A' to 'B' thereon are my signatures and at 'X' mark thumb impression of Pooja is available. Ex.P/11 is an admission note. The treatment prescription given by Dr. Dinesh Vaishnav is Ex.P/12. Cross examination by counsel for accused. The burns upto 80-85% are written because the fact and lower limb was escaped. The word 'approximately 80-85%' has also been used due to it". 13. Ex.P/11 is an admission note. The treatment prescription given by Dr. Dinesh Vaishnav is Ex.P/12. Cross examination by counsel for accused. The burns upto 80-85% are written because the fact and lower limb was escaped. The word 'approximately 80-85%' has also been used due to it". 13. No care was taken to ask this witness anything about fitness observation made on document Ex.P/35 and fitness certificate given to the Additional Chief Judicial Magistrate Shri Paras Kumar Jain while recording a dying declaration of deceased Pooja as per document Ex.P/13. 14. It is further pertinent to notice that at 09:45 PM Shri Darshan Singh, the Investigating Officer, reduced the statement given by Kumari Pooja in writing as per document Ex.P/35. As per this witness, when accused entered into house, Pooja was cooking food and accused poured kerosene on her from the stove and due to that she received burns. On the other hand, as per the dying declaration (Ex.P/13) when appellant accused came to his house Pooja was at the residence of Shri Ismile Khan, neighbour. Accused appellant called her and instructed to cook food. He then stopped her from cooking food and poured kerosene from a jericane and that caught fire from stove. The versions of incident given under document Ex.P/13 and Ex.P/35 are having material difference and that also create a little doubt about reliability of the dying declaration. The cumulative effect of the facts stated above is that it shall not be safe to record conviction solely on basis of the dying declaration in question. 15. In view of it, this appeal deserves acceptance. Accordingly, the same is allowed. The judgment dated 15.12.2008, passed by Additional Sessions Judge (Fast Track), Chittorgarh in Sessions Case No.7/2008, recording conviction of accused appellant Banshilal and sentencing him for life term imprisonment with fine imposed, is set aside. The accused appellant be released from State custody forthwith, if not required in any other case. Appeal allowed.