Research › Search › Judgment

Rajasthan High Court · body

2017 DIGILAW 2572 (RAJ)

Bhoj Raj v. State of Rajasthan

2017-11-23

GOPAL KRISHAN VYAS, VIRENDRA KUMAR MATHUR

body2017
JUDGMENT : 1. The instant criminal appeal has been filed by the accused appellants under Section 374, Cr.P.C. against the judgment, dated 24.09.2008 passed in Sessions Case No. 10/2008 by the learned Addl. Sessions Judge (Fast Track) No. 1, Bhilwara whereby the accused appellants convicted for offense under Section 302, IPC and sentenced for life imprisonment along with Rs. 10,000/- fine was imposed against them and in default of payment fine is further undergo 6 months rigorous imprisonment. As per facts of the case on 21.12.2007 an information was received from Police Control room at Police Station Kotwali, Bhilwara that a person is burnt, the ASI Man Singh went on spot and took deceased Kundanmal to the Mahatma Gandhi Hospital, where he was admitted for treatment. 2. The statement (Parcha Bayan) (Ex.P/7) of the injured Kundanmal were recorded by the A.S.I. of Police Station Kotwali at 2.00 p.m. on 21.12.2007, in which the following statement was given by the deceased Kundanmal which reads as under:- ^^Jh dqUnuey iq= dksM+key fla/kh fuoklh ckiw uxj HkhyokM+k Fkkuk Árkiuxj tSj bykt cfuZax okMZ] cSM uaŒ 2, us crk;k fd vkt eSa lokjh 'kkL=huxj ls NksM+dj okfil vk jgk Fkk dkWyst jksM+ ij Hkkst jkt mQZ ew[kh o cscw vuqokyk nksuks feysA nksuksa LdVwj ij Fks vkrs gh eq>sa jksddj VsEiks ls ckgj fudkykA eq[kh us idM+ fy;k o cscw vuqokyk us isVªksy Mky fn;k o ew[kh us vkx yxk nh ftuls eSa ogh fxj iM+k dkQh yksx bdV~Bk gks x;sA bu nksuksa us igys Hkh eq>s tku ls ekjus dh /kedh nh Fkh ftldh fjiksVZ ns j[kh gSA eq>s Hkksxjkt mQZ eq[kh o cscw vuqokys us tku ls ekjks dh xjt ls esjs Åij isVªksy Mkydj vkx yxk nhA iqfyl okyks us eq>s ykdj vLirky esa HkrhZ djk;kA gj nksuksa us eq>sa tku ls [kRe djus dh uh;r ls isVªksy Mkydj vkx yxk;h gS c;ku i<+dj lquk;sa@lqu lgh eku gLrk{kj fd;saA lqcg esjs dks /kedh nhA ftldk gh dksroky ,lŒihŒ lkgc ds uke ls i= Mkyk gSA** 3. Upon aforesaid parcha bayan (Ex.P/7) an FIR No. 645/2007 (Ex.P/8) was registered on 21.12.2007 at Police Station, Kotwali, district Bhilwara under Section 307, IPC. 4. The statement of deceased were also recorded by Rakesh Sharma (PW-20) Judicial Magistrate (First Class) No. 3, Bhilwara in which specific allegation was levelled by the deceased against the appellant for pouring kerosene and to lit fire. 5. 4. The statement of deceased were also recorded by Rakesh Sharma (PW-20) Judicial Magistrate (First Class) No. 3, Bhilwara in which specific allegation was levelled by the deceased against the appellant for pouring kerosene and to lit fire. 5. The deceased Kundanmal died during treatment, therefore, post-mortem was conducted in the hospital on 22.12.2007 at 9.40 a.m. and post-mortem report (Ex.P/9) was given to the Investigating Officer for further investigation. 6. The Investigating Officer after inspection of the place of occurrence prepared site plan (Ex.P/1) and map (Ex.P/2). The Autorikshaw was also seized and taken in possession vide Ex.P/3. The parcha bayan of dead body of deceased Kundanmal (Ex.P/4) was recorded in the hospital. After post-mortem the dead body of deceased Kundanmal was handed over to his son Moolchand vide Ex.P/5 in presence of two witnesses Ankur Jain and Mohd. Akram. After the death of Kundanmal offense under Section 302, IPC was added in the investigation. The accused appellants Bhojraj alias Mukhi was arrested by the police vide Ex.P/20 on 22.12.2007 at 6.30 p.m. in the presence of two witnesses Bhawani Singh and Rameshwar Lal, similarly the other accused Pursautam alias Bebu was also arrested on 22.12.2007 at 6.15 p.m. in presence of Bhawani Singh and Rameshwarlal. During investigation it is found that the accused are habitual offender, therefore, details of cases registered against Bhojraj alias Mukhi and Pursautam alias Bebu were also obtain for the purpose of investigation. The Investigating Officer, after recording the statement of prosecution witnesses under Section 161, Cr.P.C. on completion of investigation, filed charge sheet against the accused appellants in the Court of Addl. Chief Judicial Magistrate, Bhilwara from where case is committed to the Court in the Court of Sessions Judge, Bhilwara for trial but later on transferred to the Court of Addl. District and Sessions Judge (Fast Track) No. 1 Bhilwara. 7. The learned trial Court, after providing an opportunity of hearing, framed charge against the accused appellants for offense under Section 302, IPC, but both the appellants denied the charge and prayed for trial. 8. District and Sessions Judge (Fast Track) No. 1 Bhilwara. 7. The learned trial Court, after providing an opportunity of hearing, framed charge against the accused appellants for offense under Section 302, IPC, but both the appellants denied the charge and prayed for trial. 8. To prove the prosecution case the statement of 23 prosecution witnesses were recorded during trial, thereafter statement of accused appellants were recorded under Section 313, Cr.P.C. in which the accused appellant Bhojraj gave explanation that at 2 O'clock he was forcibly taken by the police from Tempo Stand, at police Station they knew about the incident of burning, same explanation is given by the co-accused Pursautam alias Bebu and in defense two witnesses namely DW-1 Suresh Kumar and DW-2 Mangal alias Nathu were produced in the trial. After recording evidence of both the parties, the learned trial Court finally heard the arguments and delivered the impugned judgment on 24.09.2008 in Sessions Case No. 10/2008 and held the accused-appellants guilty for the offense under Section 302, IPC and pass sentence for life imprisonment along with fine of Rs. 10,000/- against each appellants and in default of payment of fine to further undergo 6 months rigorous imprisonment. In this appeal the said judgment is under challenged. 9. Learned counsel for the appellant vehemently argued that entire prosecution case is based upon two dying declarations, first dying declaration (Ex.P/7) was recorded by the ASI of Police Station Kotwali, Bhilwara and another dying declaration (Ex.P/10) was recorded by the Judicial Magistrate No. 3, Bhilwara. But as per evidence on record before recording the statement by the ASI of Police Station Kotwali, Bhilwara or by the Magistrate, no written information was given to the doctor, so as to ascertain that deceased Kundanmal is in position to understand or to give statement, therefore, in absence of any documentary evidence for seeking fitness certificate by the doctor, it cannot be presumed that prosecution has prove its case beyond reasonable doubt. According to learned counsel for the appellants trial court was under obligation to disbelieve the dying declaration (Ex.P/7) recorded by the ASI Police Station Kotwali, District Bhilwara and dying declaration (Ex.P/10) recorded by the learned Magistrate because both these witnesses accept in their statement that no certificate was obtained in writing from the doctor in writing with regard to the fitness of the deceased Kundanmal, therefore, the whole prosecution case is under the cloud because it is the duty of prosecution to prove its case beyond reasonable doubt. 10. Learned counsel for the appellant further argued that as per statement of doctor, deceased died due to 100 per cent, burn and this fact is correct then obviously, it was not possible for the deceased to put his signature upon the statement recorded by the ASI of Police Station Kotwali, District Bhilwara or by the Judicial Magistrate No. 3, Bhilwara. It is true that evidence of doctor cannot be disbelieved but at the same time it is the duty of prosecution to follow procedure laid down in the law for recording dying declaration which has not been done in this case, therefore, the instant appeal may kindly be allowed. Learned counsel for the accused appellants argued that prosecution has failed to produce any reliable or trustworthy evidence so as to connect the accused appellant with the crime but learned trial Court convicted the accused appellants only on the basis of surmises and conjunctures, therefore, it is prayed that judgment may kindly be quashed and appellants may kindly be quashed from the charge levelled against them for offense under Section 302, IPC. Per contra, learned public prosecutor submits that the police receiving information from control room immediately went to the hospital where the injured Kundanmal was admitted on bed No. 2-A of burn ward. The ASI of Police Station Kotwali recorded the statement of deceased and the said statement obtain verification from doctor at 2.15 p.m. which is evident from the statement (Annx.P-7). It bear signature of deceased Kundanmal. 11. The police registered the case on 21.12.2007 under Section 307, IPC and commenced the investigation but unfortunately deceased died during the treatment, therefore, postmortem was conducted and post-mortem report Ex.P/9 was obtained by the Investigating Officer. It bear signature of deceased Kundanmal. 11. The police registered the case on 21.12.2007 under Section 307, IPC and commenced the investigation but unfortunately deceased died during the treatment, therefore, postmortem was conducted and post-mortem report Ex.P/9 was obtained by the Investigating Officer. Learned public prosecutor further argued that upon application (Annx.P-15) moved by the SHO Police Station, Bhilwara to the Chief Judicial Magistrate, Bhilwara passed an order for recording the statement by the Judicial Magistrate (First Class) No. 3, Bhilwara, the said Magistrate immediately went to the hospital for recording dying declaration and before recording dying declaration the certificate of fitness of patient to give statement was obtained upon the dying declaration itself, which is evident from dying declaration Ex.P-10. The deceased categorically made allegation against the appellant for pouring kerosene and lit him fire and as per post-mortem report deceased died due to burn injury and this fact is further corroborated by the medical evidence, therefore, the learned trial Court while accepting the prosecution evidence as trustworthy and reliable evidence, held accused appellants guilty. The witness Dr. Sarita Kabra (PW-9) categorically stated in her statement that at the time of recording his statement of deceased Kundanmal, he was alive and I gave my opinion with regard to fitness of the deceased upon Ex.P-10 itself and after giving information with regard to fitness of the deceased the Magistrate PW-20 recorded the statement of deceased Kundanmal in which the whole prosecution story was disclosed by the deceased. 12. As per argument of learned public prosecutor prosecution has proved the incident beyond reasonable doubt, therefore, there is no question to interfere in the finding recorded by the trial Court for the offense under Section 302, IPC against the accused appellants. Thus, it is submitted that the instant appeal may kindly be dismissed. 13. After hearing learned counsel for the parties, we have considered the arguments in the light of oral evidence and documentary evidence. 14. Thus, it is submitted that the instant appeal may kindly be dismissed. 13. After hearing learned counsel for the parties, we have considered the arguments in the light of oral evidence and documentary evidence. 14. To ascertain the correctness of investigation, first of all we have perused the statement of Investigating Officer PW-22 Rajendra Singh, the said witness categorically stated that on 21.12.2007 when I was posted as SHO, Police Station Kotwali, District Bhilwara, on that date I received information from the control room that on the Girls College Road one person is burning, upon said information ASI Maan Singh with other police authority went on spot, and saw the Kundanmal in burn condition, therefore, took him to the Mahatma Gandhi Hospital for treatment. In the meantime this witness went from Police Station to the Hospital, where ASI Maan Singh recorded the statement (Ex.P-7) of the injured Kundanmal, in which following allegations were made by him which reads as under:- ^^Jh dqUnuey iq= dksM+key fla/kh fuoklh ckiw uxj 3Mh2 HkhyokM+k Fkkuk Árkiuxj tSj bykt cfuZax okMZ] cSM uaŒ 2, us crk;k fd vkt eSa lokjh 'kkL=huxj ls NksM+dj okfil vk jgk Fkk dkWyst jksM+ ij Hkkst jkt mQZ ew[kh o cscw vuqokyk nksuks feysA nksuksa LdVwj ij Fks vkrs gh eq>sa jksddj VsEiks ls ckgj fudkykA eq[kh us idM+ fy;k o cscw vuqokyk us isVªksy Mky fn;k o ew[kh us vkx yxk nh ftuls eSa ogh fxj iM+k dkQh yksx bdV~Bk gks x;sA bu nksuksa us igys Hkh eq>s tku ls ekjus dh /kedh nh Fkh ftldh fjiksVZ ns j[kh gSA eq>s Hkksxjkt mQZ eq[kh o cscw vuqokys us tku ls ekjks dh xjt ls esjs Åij isVªksy Mkydj vkx yxk nhA iqfyl okyks us eq>s ykdj vLirky esa HkrhZ djk;kA gj nksuksa us eq>sa tku ls [kRe djus dh uh;r ls isVªksy Mkydj vkx yxk;h gS c;ku i<+dj lquk;sa@lqu lgh eku gLrk{kj fd;saA lqcg esjs dks /kedh nhA ftldk gh dksroky ,lŒihŒ lkgc ds uke ls i= Mkyk gSA** 15. On the basis of above statement FIR No. 645/2007 was registered on 21.12.2007 at Police Station Kotwali, Bhilwara and was commenced. 16. After the death of deceased offense under Section 302, IPC was added and as per the post-mortem report (Ex.P/9) the cause of death was 100 per cent burn injuries. On the basis of above statement FIR No. 645/2007 was registered on 21.12.2007 at Police Station Kotwali, Bhilwara and was commenced. 16. After the death of deceased offense under Section 302, IPC was added and as per the post-mortem report (Ex.P/9) the cause of death was 100 per cent burn injuries. We have also perused the dying declaration (Ex.P/10) recorded by the Magistrate Rakesh Sharma (PW-20) in which specific allegations were levelled by the deceased Kundanmal against the accused appellants for motive as well as for the incident in which deceased was burn. The SHO Police Station Kotwali submitted an application Ex.P-15 before the Chief Judicial Magistrate, Bhilwara on 21.12.2007 for recording the statement of the injured by the Magistrate, the learned Chief Judicial Magistrate gave direction to the Judicial Magistrate (First Class) No. 3 Bhilwara Rakesh Sharma (PW-20) for recording the statement of deceased which is evident from the document Ex.P/15 available on record. In the statement Ex.P/10 of the deceased a fitness certificate was also obtained by the Magistrate from Dr. Sarita Kabra (PW-9). The said witnesses Dr. Sarita Kabra categorically accepted in her statement that statement of injured were recorded by the Magistrate after obtaining fitness certificate from her, which is evident from the dying declaration Ex.P/10. The other witnesses PW-1 Heera Nand, PW-2 Bhanwar Singh, PW-3 Ankur Jain, PW-4 Neveen Joshi and PW-5 Moolchand categorically proved the investigation and recoveries made during investigation by the Investigating Officer. The PW-6 Sumer Singh turn hostile but partly supported the prosecution case. 17. PW-7 Maan Singh is the witness who was working as ASI of Police Station Kotwali, this witnesses categorically supported the entire prosecution case and recording the statement of deceased. PW-8 Dr. V.D. Sharma, who was the member of the medical board, constituted for the purpose of post-mortem of the deceased and Dr. D.L. Kasht who was also one of the member of medical board and Dr. Ajay Narayan Mathur all these witnesses categorically proved that there were serious burn injuries upon the body of the deceased. 18. We have perused PW-20 Rakesh Sharma who has categorically proved the fact of recording dying declaration (Ex.P/10) of the deceased and specifically said that before recording the statement of deceased the fitness certificate was obtained from the doctor. The SHO Police Station Kotwali, Rajendra Singh (PW-22) has categorically proved the entire prosecution investigation. 19. 18. We have perused PW-20 Rakesh Sharma who has categorically proved the fact of recording dying declaration (Ex.P/10) of the deceased and specifically said that before recording the statement of deceased the fitness certificate was obtained from the doctor. The SHO Police Station Kotwali, Rajendra Singh (PW-22) has categorically proved the entire prosecution investigation. 19. In our opinion, there is no strength in argument of learned counsel for the appellants that before recording the statement of injured Kundanmal and before recording his dying declaration by the deceased PW-20 Rakesh Sharma, Judicial Magistrate fail to write letter for obtaining the opinion of doctor with regard to fitness of the injured. In our opinion, such arguments are totally baseless argument because the learned Magistrate (PW-20) before recording the dying declaration of the deceased obtained fitness certificate upon dying declaration itself and this fact is corroborated by Dr. Sarita Kabra (PW-9). In the postmortem report the Board constituted for the purpose of post-mortem categorically gave opinion that deceased died due to 100 per cent burn and that said injuries were ante-mortem injuries. 20. Upon assessment of entire evidence on record and upon the fact that accused-appellants are habitual offenders and there was quarrel in between deceased and accused Bhojraj alias Mukhi for some money transaction, therefore, the accused appellants while pouring kerosene upon the deceased Kundanmal cause death. In view of above, there is no reason to interfere in the finding recorded by the learned trial Court to hold the accused appellants guilty. Consequently, the instant criminal appeal filed by the accused appellants is hereby dismissed.