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2016 DIGILAW 173 (RAJ)

State of Rajasthan v. Jagdish Soni

2016-01-29

GOPAL KRISHAN VYAS, P.K.LOHRA

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JUDGMENT : Gopal Krishan Vyas, J. In this Cr. leave to appeal filed under Section 378(iii) and (i) Cr.P.C. the State of Rajasthan is seeking leave to appeal against the judgment dated 27.6.2014 passed by the learned Addl. Sessions Judge, Banswara in Sessions Case No. 9/2011 whereby the respondent Jagdish Soni was acquitted from the charge levelled against him under Section 302 IPC. 2. As per brief facts of the case upon verbal statement (Ex.P/3) made by deceased Kesar on 9.12.2010 at 9.00 am to the Sub-Inspector Rajesh Panchal PW - 13 the FIR no. 317/2010 (Ex.P/2) was registered at Police Station Kushalgarh, District Banswara under Section 307 IPC. In the statement it was alleged by the deceased Keshar Kanwar that she had gone for cooking food at the house of Jagdish Soni where he started abusing her in darken conditions and upon denied to prepare food he poured kerosene upon her and lit fire. As per statement of Keshar Kanwar she went in burnt condition to her house and narrated incident to her sister Radha and daughters on 5.12.2010. The FIR (Ex.P/2) was registered upon the statement of deceased but she died on 11.12.2010, therefore offence under Section 302 IPC was added. 3. During investigation the investigating officer obtained post mortem report (Ex.P/16) and after arrest the respondent, after completion investigation filed charge-sheet against the respondent Jagdish Soni in the court of learned Chief Judicial Magistrate, Kushalgarh, District Banswara. 4. The learned Magistrate committed the case for trial to the court of District Judge, Banswara but the District Judge, Banswara transferred the case for trial in the court of learned Addl. Sessions Judge, Banswara. 5. The learned trial court commenced trial, in the trial statements of 14 prosecution witnesses were recorded including all the daughters of the deceased and son PW - 1 Manoj. 6. In the trial, 19 documents were exhibited and after recording evidence of prosecution, the statements of respondent Jagdish Soni under Section 313 Cr.P.C. were recorded. In the statement recorded under Section 313 Cr.P.C. he said that all the allegations levelled against him are false and he has been falsely implicated in this case. 7. The learned trial court granted an opportunity to lead evidence in defence, but no evidence in defence was produced by the respondent. 8. In the statement recorded under Section 313 Cr.P.C. he said that all the allegations levelled against him are false and he has been falsely implicated in this case. 7. The learned trial court granted an opportunity to lead evidence in defence, but no evidence in defence was produced by the respondent. 8. The learned trial court after hearing final arguments decided the case vide judgment dated 26.6.2014 whereby acquitted the respondent Jagdish Soni from the charge levelled against him. 9. In this Cr. leave to appeal filed by the State of Rajasthan, the learned Public Prosecutor vehemently argued that gross error has been committed by the trial court to acquit the respondent from the charges levelled against him because FIR was registered against him on the basis of the verbal statement (Ex.P/3) made by the deceased in which specific allegations were levelled by the deceased, therefore, it is a case in which leave may be granted. 10. Learned Public Prosecutor further argued that learned trial court without examining the evidence on record acquitted the respondent from the charge levelled against him, therefore, it is case in which grave error has been committed by the learned trial court while discrediting and disbelieving the testimony of prosecution witnesses and dying declaration recorded by the SDM, Kushalgarh under Section 32 of t 32 of the Evidence Act. 11. The learned Public Prosecutor invited attention of this court towards the statement of deceased recorded by the SDM during investigation on 9.12.2010 at about 10.30 pm in the presence of two witnesses Smt. Radha and Manoj. According to learned Public Prosecutor specific allegations were levelled by the deceased against the respondent that he has poured kerosene upon her body and lit fire and incident was reported by her immediately to her sister Radha and other daughters, but the learned trial court discredited and disbelieved the said statement only on the ground that both the witnesses Smt. Radha and Manoj turned hostile and did not support the prosecution case, therefore, judgment impugned is bad in the eye of law. 12. 12. Learned Public Prosecutor further submits that the finding arrived at by the learned trial court for acquittal on the ground of delay in filing FIR as well as on the ground that prosecution has failed to prove its case beyond reasonable doubt is totally erroneous because statement of deceased Kesar were recorded by the SDM, Kushalgarh which is admissible in evidence under Section 32 of the Evidence Act. In view of the above, it is prayed that leave may be granted against the impugned judgment. 13. After hearing the learned Public Prosecutor we have examined the finding given by the learned trial court in the light of the evidence on record. Admittedly the incident took place on 5.10.2010 but FIR was registered on 9.10.2010 upon the statement of Keshar Kanwar recorded by the Sub-Inspector Rajesh Panchal on 9.10.2010 which is on record as Ex.P/3. Upon perusal of Ex.P/3 it is revealed that it does not bear the signature nor the thumb impression of deceased Keshar Kanwar at the bottom of the statement. In the end of the statement (Ex.P/3) signature of Manoj son of deceased and thumb impression of one Radha are appearing, meaning thereby both these witnesses were present at the time of recording statement by the SDM, Kushalgarh which is on record as Ex.P/5, but Manoj son of deceased (PW - 1) turned hostile and did not support the prosecution story and other witness Radha not produced before the court. 14. In the statement of deceased Keshar Kanwar it is specifically stated by her that incident was reported to Radha and his daughters but her daughters Smt. Rekha (PW - 2), Pinki (PW - 4), Laxmi (PW - 9) turned hostile and did not support the prosecution case, therefore, learned trial court gave finding that all the three daughters of deceased and son Manoj turned hostile before the court and did not support the statement given by the deceased allegation against the respondent. The learned trial court while considering the aforesaid facts and the statement of SDM (PW - 3) disbelieved the prosecution case. In the cross-examination, the SDM specifically said that I was called by Sub-Inspector Rajesh Panchal of Police Station, Kushalgarh but there is no document on record which shows that any letter was sent by the police to call him. The learned trial court while considering the aforesaid facts and the statement of SDM (PW - 3) disbelieved the prosecution case. In the cross-examination, the SDM specifically said that I was called by Sub-Inspector Rajesh Panchal of Police Station, Kushalgarh but there is no document on record which shows that any letter was sent by the police to call him. The SDM (PW - 3) stated that statements of deceased Keshar recorded by him nor by his reader, but statements were written by Rajesh Panchal, Sub-Inspector under his instructions. The following statement is made by the witness PW - 3 SDM, in the cross-examination which reads as under:- ^^;g lgh gS fd izn'kZ ihå&5 eSaus ;k esjs jhMj us ugha fy[kk gS] cfYd esjs funsZ'ku esa jkts'k iapky }kjk fy[kk x;k gSA ;g lgh gS fd c;ku fy[krs le; jk/kk o eukst ds vykok vkSj dksbZ xokg ekStwn ugha FkkA eSaus izn'kZ ihå&5 ij Jherh dslj ds c;ku nsus dh fLFkfr ckcr dksbZ MkWDVj dk fyf[kr lfVZfQdsV vafdr ugha gSA ekSds ij v:.k xqIrk vkSj 2&3 MkWDVj ekStwn Fks] ftuds uke ugha irk gSA eSa ugha crk ldrk fd e`frdk fdruh tyh gqbZ FkhA** 15. The learned trial court after considering entire evidence and upon the fact that Manoj son of deceased and daughters turned hostile and did not support the prosecution case, so also statements of deceased were not recorded in the SDM by his hand, therefore, it is a case in which serious doubt is in existence, therefore, it cannot be held that prosecution has proved its case beyond reasonable doubt. In our opinion, finding given by the learned trial court to disbelieve the testimony of dying declaration does not require any interference because the FIR was filed on 9.10.2010 whereas the occurrence took place on 5.10.2010. Further, there is no satisfactory explanation on record to explain the delay for giving information after delay of 4 days. All the family members including son and daughters are not supporting prosecution case, therefore, no case is made out to grant leave to appeal. Therefore, the prayer to grant leave to appeal against the judgment dated 27.6.2014 passed by the learned Addl. Sessions Judge, Banswara in Sessions Case No. 9/2011 is/2011 is hereby rejected. 16. Consequently, the instant Cr. leave to appeal is hereby dismissed.