Research › Search › Judgment

Rajasthan High Court · body

2015 DIGILAW 1769 (RAJ)

State of Rajasthan v. Shanti

2015-10-08

GOPAL KRISHAN VYAS, VIJAY BISHNOI

body2015
JUDGMENT : Vijay Bishnoi, J. This Appeal is directed against the Judgment dated 2.12.1996, passed by Additional Sessions Judge, Nagaur (for short 'the Trial Court' hereinafter) in Sessions Case No. 48/1995, whereby the Trial Court has acquitted the accused-respondent from the offence punishable under Sections 302, 201 and 498-A I.P.C. 2. Briefly stated the facts of the case are that on 28.8.1995, PW-14-Bhanwar Lal-Sub-Inspector, Police Station Kotwali, Nagaur had received an information from Medical Jurist, Government Hospital, Nagaur to the effect that a woman in burnt state was admitted in the hospital and there is a lot of crowd assembled, therefore, he should immediately reach the hospital. On receiving the said information, PW-14-Bhanwar Lal reached the Government Hospital, Nagaur and recorded the statement of Smt. Shanti W/o Chhagan Lal, resident of Naya Darwaza, Nagaur vide Ex. P-14. In her statement, Smt. Shanti had stated that she got married to Chhagan Lal seven years ago and today i.e. 28.8.1995 when she was sleeping in the courtyard at 5.30 P.M., her mother-in-law put her on fire by pouring kerosene on her. It is stated that at that time she was laying but not sleeping and nobody burnt her except her mother-in-law. She further stated that at that time, except her mother-in-law, nobody else was there in the house. She also stated that except her mother-in-law, nobody used to quarrel with her. Lastly, it was stated that PW-3-Ram Kumar do used the fire and brought her to the hospital. The time for recording the said statement is mentioned as 6.45 P.M. on 28.8.1995. Thereafter, the statement of Smt. Shashi were recorded by the Judicial Magistrate Nagaur vide Ex. P-16 at 7.30 P.M. 3. Police Station, Kotwali, Nagaur registered the F.I.R. No. 321/1995 for the offences punishable under Sections 498-A and 307 I.P.C. against the accused- respondent and she was arrested on the same day vide Ex. P-18 at about 11.00 P.M. Later on Smt. Shashi was referred to Jodhpur where during treatment she died on 5.9.1995. The police after completion of investigation has filed charge-sheet against the accused-respondent for the offence punishable under Sections 302, 201 and 498-A I.P.C. 4. After committal, the learned Trial Court framed charges against the accused-respondent for the offence punishable under Sections 302, 201 and 498-A I.P.C. During the course of trial, the prosecution got examined as many as 14 witnesses and got exhibited several documents. After committal, the learned Trial Court framed charges against the accused-respondent for the offence punishable under Sections 302, 201 and 498-A I.P.C. During the course of trial, the prosecution got examined as many as 14 witnesses and got exhibited several documents. Statement of accused- respondent was recorded under Section 313 Cr.P.C., wherein she has stated that at the time of incident, she was out of the house and came for rescuing the deceased. She has also stated that deceased burnt herself and she was implicated at the instance of her father. Two witnesses have also been examined in defence. 5. The learned Trial Court, after taking into consideration the prosecution evidence and the defence evidence has acquitted the accused-respondent for the offence punishable under Sections 302, 201 and 498-A I.P.C. 6. Assailing the impugned judgment, learned Public Prosecutor has argued that the learned Trial Court has grossly erred in not placing the dying declarations of the deceased Ex. P-14 and Ex. P-16 recorded immediately after the incident by PW-14-Bhanwar Lal-Sub-Inspector and the then Judicial Magistrate, Nagaur, PW-13-Kamal Dutt. It is argued that when the statements of the deceased were recorded at the earliest opportunity without any influence being approached on her there was absolutely no reason for the Trial Court to disbelieve the same. It is contended that the deceased in her statements Ex. P-14 and Ex. P-16 has specifically stated that the accused respondent had poured the kerosene on her and in view of the above specific assertion, there was no reason for the Trial Court to acquit the accused-respondent from the offence punishable under Section 302 I.P.C. It is further argued that the prosecution has proved beyond reasonable doubt that soon after the incident, the accused-respondent had caused the disappearance of evidence of offence by washing the clothes and other articles but the learned Trial Court without appreciating the said evidence has erred in acquitting the accused-respondent for the offence punishable under Section 201 I.P.C. It is further argued that from the statement of PW-8-Sukh Ram, the allegation of cruelty against the accused-respondent is fully proved, however, the learned Trial Court has not given any reason to disbelieve the testimony of PW-8-Sukh Ram. 7. 7. On the strength of the above arguments, learned Public Prosecutor has prayed that this Appeal may be allowed, the impugned judgment may be set aside and the accused-respondent may be convicted and sentenced for Commission of offence punishable under Sections 302, 201 and 498-A I.P.C. 8. Heard learned Public Prosecutor and scrutinized the record of the case. 9. The prosecution has based its case against the accused-respondent on the basis of two alleged dying declarations of the deceased Smt. Shashi. The first dying declaration Ex. P-14 was recorded by PW-14-Bhanwar Lal-Sub-Inspector at 6.45 P.M. and second dying declaration Ex. P-16 was recorded by PW-16-Kamal Dutt, the then Judicial Magistrate. PW-13-Kamal Dutt, in her statement, has stated that in Ex. P-16, no time is mentioned but in Ex. P-15, when the opinion of Doctor was sought, time 7.00 P.M.' is mentioned. 10. The law regarding consideration of dying declaration is well settled. While dealing with the dying declaration, extra caution is required and when the same found to be voluntary, truthful and free from doubt, it could be made the basis for convicting an accused. Hon'ble Supreme Court in Puran Chand v. State of Haryana, reported in (2010) 6 SCC 566 , in Para Nos. 15 and 18 has held a under: "15. The Courts below have to be extremely careful when they deal with a dying declaration as the maker thereof is not available for the cross-examination which poses a great difficulty to the accused person. A mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous. The Court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, trughful, made in a conscious state of mind and without being influenced by the relatives present or by the Investigating Agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration. 18. The law is now well settled that a dying declaration which has been found to be voluntary and truthful and which is free from any doubts can be the sole basis for convicting the accused." 11. In view of the law laid down by the Hon'ble Supreme Court, we have to see whether two dying declarations Ex. P-14 and Ex. The law is now well settled that a dying declaration which has been found to be voluntary and truthful and which is free from any doubts can be the sole basis for convicting the accused." 11. In view of the law laid down by the Hon'ble Supreme Court, we have to see whether two dying declarations Ex. P-14 and Ex. P-16 made by the deceased Smt. Shashi were voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the Investigating Agency It is noticed that in Ex. P-14 and Ex. P-16, deceased Smt. Shashi had stated that PW-3-Ram Kumar was the first person, who approached her and do used the fire. PW-3-Ram Kumar in his Court statement has specifically stated that when the do used the fire, several other women had come there and thereafter PW-7-Manak Chand also came there and the took the deceased to thee hospital in a tempo. During the course of cross-examination, PW-3-Ram Kumar had specifically stated that when he asked Shashi how this happened then she had stated that the burnt but not named any person. He has further stated that he put Shashi in the tempo and thereafter she became unconscious and in the hospital also, she was not in a position to speak. 12. However, in the statements of deceased vide Ex. P-14 recorded by PW-13-Bhanwar Lal, there is no remark of the Doctor that the deceased was in a fit state to give her statement. It is noticed that the prosecution, during the course of recording of statement. PW-13 had produced document Ex. P-19 to prove that before recording of the statement Ex. P-14, opinion of Doctor was sought and the Doctor had opined that the deceased is in a fit state to give her statement. It is noticed that Ex. P-19 was not produced by the police along with charge-sheet and was produced later on at the fag end of the trial. In Ex. P-19, no time has been mentioned that when the Doctor had given his opinion. 13. Similarly, in Ex. P-16 neither the Magistrate PW-13-Kamal Dutt had made remark that the deceased is fit to give her statement nor the opinion of the Doctor of this effect is there on Ex. P-16. Though the prosecution has produced Ex. In Ex. P-19, no time has been mentioned that when the Doctor had given his opinion. 13. Similarly, in Ex. P-16 neither the Magistrate PW-13-Kamal Dutt had made remark that the deceased is fit to give her statement nor the opinion of the Doctor of this effect is there on Ex. P-16. Though the prosecution has produced Ex. P-15, a letter written by the Station House Officer, Police Station, Nagaur requesting the Judicial Magistrate to record the statement of the deceased but in this letter it is mentioned that Smt. Shashi was brought to the Police Station and the Judicial Magistrate should come to record her statement. PW-13 in her statement has specifically stated that she had recorded the statement of the deceased vide Ex. P-16 in the hospital and not at the Police Station. It is also noticed that on Ex. P-15, there is opinion of the Doctor, who has stated that she is fit to give her statement but in between 'is' and 'fit', the Doctor has written 'not' and thereafter cut it. In Ex. P-16 no time has been mentioned. Two thumb impressions are there on Ex. P-16 at Pages 2 and 3 but it has not been mentioned that those thumb impressions are of deceased Shashi. Looking to the said circumstances and particularly in view of the statement of PW-3-Ram Kumar to the effect that when the deceased was brought to the hospital, she was unconscious and was not in a position to speak, it is highly doubtful that the deceased was in a fit state of mind to give her alleged dying declarations Ex. P-14 and Ex. P-16 after the incident. There was also possibility that two said dying declarations Ex. P-14 and Ex. P-16 were given by the deceased under the influence of her relatives because the near relatives of her PW-7-Manak Chand and PW-9-Murli Manohar had accompanied her to the hospital and immediately her father PW-8 also reached the hospital and in their presence the statements of the deceased were recorded. 14. In view of the above discussions, we are of the opinion that the alleged dying declarations of the deceased cannot be said to be voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present and, therefore, the Trial Court has rightly disbelieved the said piece of evidence produced by the prosecution. 14. In view of the above discussions, we are of the opinion that the alleged dying declarations of the deceased cannot be said to be voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present and, therefore, the Trial Court has rightly disbelieved the said piece of evidence produced by the prosecution. The prosecution has also failed to produce cogent evidence to prove that after the incident, the accused-respondent had caused disappearance of the evidence of offence and has, therefore, committed the offence punishable under Section 201 I.P.C. The prosecution has failed to produce any witness which could verify that they had seen the accused-respondent causing disappearance of the evidence of offence just after the incident. In such circumstances, the Trial Court has rightly acquitted the accused-respondent for the offence punishable under Section 201 I.P.C. 15. In respect of offence punishable under Section 498-A K.P.C., we have noticed that except the statement of PW-8, father of the deceased, none has confirmed that the deceased was subjected to cruelty that the deceased was subjected to cruelty by the accused-respondent. The deceased got married to the son of the accused-respondent seven years back from the date of incident and in those seven years, at no point of time, she had ever complained about the behaviour of the accused-respondent. PW-3-Ram Kumar, who is neighbour of the deceased has stated in his cross-examination that he never saw the accused-respondent and the deceased quarreling at any point of time and both of them were living cordially. The defence witness DW-1-Jaitun has also stated that she is living in the vicinity of the house of the accused-respondent and she never saw the accused-respondent and deceased quarreling. 16. After carefully examining the prosecution evidence, we are of the opinion that the prosecution has failed to produce any cogent and reliable evidence to prove that the deceased was subjected to cruelty by the accused-respondent. 17. In view of the above discussions, no case for interference is made out. 18. Resultantly, we do not find any merit in this Appeal and the same is hereby dismissed. Appeal dismissed.