Research › Search › Judgment

Rajasthan High Court · body

2017 DIGILAW 2611 (RAJ)

MANGAL SINGH LODHA v. STATE OF RAJASTHAN

2017-11-28

KAILASH CHANDRA SHARMA, MOHAMMAD RAFIQ

body2017
JUDGMENT : MOHAMMAD RAFIQ, J. 1. This appeal is directed against the judgment dated 3.7.2012 passed by the Additional Sessions Judge, Dholpur in Sessions Case No. 164/2011 by which accused-appellants have been convicted for offence under section 302 IPC and sentenced to undergo imprisonment for life with a fine of Rs. 500 each and in default whereof to further undergo imprisonment of six months each. They were also convicted for offence under section 323 IPC and sentenced to six months rigorous imprisonment with fine of Rs. 200 each and in default whereof, to further undergo imprisonment of one month each and also convicted for offence under section 341 IPC and sentenced to simple imprisonment of 15 days with fine of Rs. 100 each and in default of payment fine to further undergo imprisonment of 15 days each. All sentences were ordered to run concurrently. 2. Brief facts are that the appellants have been convicted and sentenced by the learned trial court in a case registered on the basis of parcha bayan (Ex.P16) of Smt. Sukhdevi recorded by ASI, Police Station Kotwali, Dholpur on 09.09.2010 regarding an incident alleged to have taken place on the same day. On the said parcha bayan, the Police Station, Kotwali had registered an FIR No. 439/10 for the offence under Sections 324, 307 and 498A IPC and started investigation. During the investigation, Smt. Sukhdevi died on 12.10.2010 therefore, the case was converted to Section 302 IPC. After completion of investigation, the police submitted the charge sheet against the accused appellants for the offence under Sections 302, 341 and 323 IPC in the court of Chief Judicial Magistrate, Dholpur, who committed the case to the Court of Sessions as the case was being triable by the Sessions Court and in due course, it was transferred to the Court of Additional Sessions Judge, Dholpur for its trial. The learned trial court framed the charges against the accused appellants for the offences under Sections 341, 323, 323/34, 302 and 302/34 IPC, which the accused appellants denied and opted to face the trial. During the trial, prosecution examined 14 prosecution witnesses and exhibited 22 documents in support of its case. After completion of prosecution evidence, the accused appellants were examined under Section 313 Cr.P.C., 1973 and in their defence, exhibited certain documents. During the trial, prosecution examined 14 prosecution witnesses and exhibited 22 documents in support of its case. After completion of prosecution evidence, the accused appellants were examined under Section 313 Cr.P.C., 1973 and in their defence, exhibited certain documents. After completion of trial, the learned trial court after hearing the arguments convicted the accused appellants as above vide its impugned judgment dated 03.07.2012. 3. Shri Anil Jain, learned counsel for the accused-appellants has argued that the findings arrived at by the learned trial court are contrary to the evidence produced by the prosecution and the settled preposition of law. The learned trial court has committed an error in not considering this fact that it is the duty of the prosecution to prove its case beyond reasonable doubt and it can not take the advantage of weakness of defence. The learned trial court has failed to consider that there are several major contradictions and omissions in the evidence of the prosecution witnesses and the prosecution witnesses made improvements in their court statements on many aspects. 4. It is contended that alleged offences are not made out against the appellants from the evidence produced by the prosecution. The learned trial court has failed to consider this fact of the case that while appreciating the evidence in a criminal case, the court should keep in view the two cardinal principles i.e. (i) the guilt against the accused must be proved beyond reasonable doubt and (ii) the burden on the accused is not so heavy to prove the plea taken by him as it lay on the prosecution. The burden can be discharged by the accused merely by showing the preponderance of probability in favour of the plea taken by him. 5. Learned counsel for the accused-appellants has submitted that the learned trial court has committed illegality in convicting the appellants on the evidence of the interested witnesses. The independent witnesses have not corroborated the prosecution story and from the statement of the prosecution witnesses no offence is made out against the appellants. The learned trial court has wrongly dismissed the application filed by the accused appellants under Section 231 (2) read with Section 311 Cr.P.C., 1973 for recalling of the witness Dayanand (PW8) who did not call the independent witnesses at the time of recording the parcha bayan of the deceased. The learned trial court has wrongly dismissed the application filed by the accused appellants under Section 231 (2) read with Section 311 Cr.P.C., 1973 for recalling of the witness Dayanand (PW8) who did not call the independent witnesses at the time of recording the parcha bayan of the deceased. The learned trial court has failed to consider the fact that the parcha bayan (Ex.P16) which has been treated as dying declaration is not recorded as per the provisions of Section 6.22 of Rajasthan Police Rules and also not recorded by the Magistrate. There was ample opportunity for the prosecution to record the statement of deceased Smt. Sukhdevi by the Magistrate. It shows that the prosecution deliberately did not make any effort to record parcha bayan by the Magistrate. On this point, the learned trial court has ignored ratio of the cited judgment of State (Delhi Administration) Etc. v. Laxman Kumar & Ors. Etc.-1985 Cr.LR (SCC) 501, Raj Kunwar Kalani (Smt.) & Rekha Kalani v. State of Rajasthan & Anr.-2008 (1) Cr.LR (Raj.) 59 and Bashir Shah & Ors. v. State of Rajasthan-1994 (2) RLR page 30 cited by the appellants before the learned trial court. Therefore, on such dying declaration, the accused appellants cannot be convicted as held in the judgment reported in Arjun Ram & Ors. v. State of Rajasthan-2008 (1) Cr.LR Rajasthan 286. 6. Learned counsel submitted that the learned trial court has committed an error in not considering the fact that parcha bayan of the deceased Smt. Sukh Devi is not reliable and trust worthy because this parcha bayan was not read over to the deceased before obtaining her thumb impression and also she had not accepted it correct. In this respect, the judgment cited before the learned trial court State of Himachal Pradesh v. Karanvir-2007 (8) Cr.LR (SC) page 507 has not been considered by the learned trial court and also the judgment in Surinder Kumar v. State of Haryana- (2011) 10 SCC 173 has not been considered and discussed by the learned trial court in its judgment. It is further submitted that the learned trial court has failed to consider that when the deceased Smt. Sukhdevi was a literate lady, then why on her parcha bayan thumb impression was obtained. As per the statement of Doctor her both her palms were injured and burnt therefore it was impossible for her to put her thumb impression. It is further submitted that the learned trial court has failed to consider that when the deceased Smt. Sukhdevi was a literate lady, then why on her parcha bayan thumb impression was obtained. As per the statement of Doctor her both her palms were injured and burnt therefore it was impossible for her to put her thumb impression. This fact makes the parcha bayan doubtful and on this point, the judgment cited by the accused appellant before the learned trial court in Surinder Kumar, supra and State (Delhi Administration) Etc. v. Laxman Kumar & Ors. Etc.-1985 Cr.LR (SC) 501 (para 24) has not been discussed and appreciated. Even the learned trial court has failed to consider that the parcha bayan of the deceased is not in the form of question and answer, therefore, is not reliable and trust worthy. In this connection, reliance is placed on the judgment of the Supreme Court in Surinder Kumar, supra and Laxman Kumar & Ors., supra. 7. It is argued by learned counsel for the appellant that the learned trial court has failed to consider that before recording the parcha bayan, medical fitness certificate was not obtained by the ASI who recorded parcha bayan of the deceased Smt. Sukhdevi. No document relating to fitness of the deceased has been submitted and exhibited by the prosecution in its evidence. Therefore the said parcha bayan in the form of dying declaration is not acceptable. The learned trial court has not considered and appreciated that before recording the parcha bayan, the deceased Smt. Sukhdevi was tutored by her parents and this fact has been proved from the evidence of the prosecution witnesses but ignoring this fact, the trial court has passed the impugned judgment. In this aspect, learned counsel cited the judgment of this Court in Raja Ram v. State of Rajasthan-2000 (4) CCR 111. It is contended that even the learned trial court has not considered the evidence of the parents of the deceased recorded during the trial in which they have not supported the prosecution version and in their statements, they have stated that the deceased Smt. Sukhdevi died due to accidental burn. 8. It is submitted that the learned trial court has failed to consider that prosecution has not produced the Doctor, who has for the first time attended the patient Smt. Sukhdevi and treated her. 8. It is submitted that the learned trial court has failed to consider that prosecution has not produced the Doctor, who has for the first time attended the patient Smt. Sukhdevi and treated her. As soon as the patient was brought in the hospital in burnt condition, the doctor gave her pain killer and injection to control the pain and from that point of time, the patient went in unconscious state and within this period, if any parcha bayan is recorded, it can not be said to be reliable and trustworthy. The learned trial court has also failed to consider that the deceased Smt. Sukhdevi died after a period of more than one month from septicemia, therefore cause of death is not clear. It is argued that the learned trial court has failed to consider that whether Dayanand (PW8), ASI who recorded the parcha bayan of deceased was not empowered to do so. The prosecution has not proved this fact as to who authorized Dayanand, ASI to record the parcha bayan. Besides, neither departure nor arrival of the ASI was recorded in the rojnamcha, nor was submitted and executed by the prosecution. 9. Shri Anil Jain, learned counsel for the accused-appellants referring to the statement of Om Prakash (PW10) submitted that this witness happens to be the real uncle of deceased Sukh Devi and was attesting witness to the inquest memo. He has in cross examination stated that he went to the hospital at Dholpur on 9.9.2010 when the deceased was initially hospitalised. He also had a talk with deceased Sukh Devi. She told him that her clothes caught fire while she was cooking food. At that time, she was semi conscious and thus the argument is that if she was not fully conscious, how could her parcha bayan be recorded by ASI Dayanand (PW8). Learned counsel for the accused-appellant has argued that Dr. Bhagwat Prasad (PW7) has stated that the kind of injuries sustained by Ramveer and Naththu can be caused by fall on the ground, therefore, accused-appellants cannot be convicted on that basis. 10. Shri R.S. Raghav, learned Public Prosecutor opposed the appeal and submitted that on the basis of parcha bayan and other evidence on record, the accused-appellants have rightly been convicted for the alleged offences and there is no justification for interference by this Court. 10. Shri R.S. Raghav, learned Public Prosecutor opposed the appeal and submitted that on the basis of parcha bayan and other evidence on record, the accused-appellants have rightly been convicted for the alleged offences and there is no justification for interference by this Court. He has relied on the judgment of the Supreme Court in State of Uttar Pradesh v. Ram Sagar Yadav & Ors, (1985) 1 SCC 552 and Atbir v. Government of NCT of Delhi- (2010) 9 SCC 1 in support of his arguments. 11. We have given our anxious consideration to the rival submissions and perused the material on record. 12. Admittedly, parcha bayan of deceased Sukh Devi was recorded by ASI Dayanand (PW8). Contention that he was not authorised to record such parcha bayan is liable to be rejected because in the opening line of his statement, this witness has stated that he was in-charge of the police outpost located in the pricents of Government Hospital, Dholpur on 9.9.2010 where the deceased was hospitalised in Female Surgical Ward at bed No. 18 and that he recorded the parcha bayan of deceased, which is marked as Ex.P16. This parcha bayan also contains the fitness certificate issued by Dr.Anil Bansal (PW12) and thumb impression of deceased on the right hand. Dr. Anil Bansal has also been produced by prosecution as PW12, who has supported case of the prosecution and stated that on 9.9.2010, he was posted as Medical Officer in General Hospital, Dholpur. In-charge of the police outpost at Hospital came to him and requested that he wanted to record the statement of patient admitted in Female Surgical Ward. He accompanied him to the Ward and examined medical condition of the patient and then gave the fitness certificate for recording her statement. The thumb impression of the patient was also obtained on the certificate so recorded. He then also recorded that she is fit for statement and made its signatures. Although, it is true that in the cross examination, this witness has been made to say that 'fit for statement' was mentioned after recording of parcha bayan was complete, but in the very next statement, this witness has clarified that he had medically examined the patient before statement and only when she was found fit to give statement, he gave permission to record her statement. Obviously, it was in this context that the fitness certificate was mentioned in the parcha bayan. Dayanand (PW8) has also deposed that when he recorded the parcha bayan of Sukh Devi, he was fully conscious and that he recorded whatever was stated by her and then forwarded the parcha bayan to the police station for registering a regular FIR. This witness in the cross examination when was again asked to clarify whether he had competence or authority to record the parcha bayan, he clarified that since he was in-charge of the police outpost in the government hospital itself, he was fully competent to record such statement. 13. Argument of the learned counsel appearing for the appellant in view of judgment of the Supreme Court in Surinder Kumar v. State of Haryana- (2011) 10 SCC 173 , supra is that parcha bayan should have read over and clarified to deceased is not tenable as no such rigid rule can be laid down in the case of parcha bayan of the injured, who sustained extensive burn injuries. In Surinder Kumar, supra, the Supreme Court was dealing with a case where the accused was acquitted by the trial court, which found many discrepancies/inconsistencies in the statement of the Executive Magistrate and came to the conclusion that the dying declaration recorded by him did not inspire confidence of the Court and, therefore, extending the benefit of doubt, acquitted the accused. In that case, the High Court had set aside the order of acquittal and convicted the accused. When the matter reached the Supreme Court, it was argued that the deceased made the statement in local dialect of mixed Hindi/Punjabi, whereas Executive Magistrate had recorded her statement in Hindi script only. It is in this context that the aforementioned observation fell from the Supreme Court that statement was not read over to her. This was therefore in the peculiar facts of that case that the said view was taken by that Court. Besides, several other arguments found favour with the Supreme Court especially the fact that when the deceased was brought to the local hospital, he was in critical condition having 100% burns and then referred to P.G.I., Chandigarh. The Doctor treating her reported it to be a case of 95% burns. Besides, several other arguments found favour with the Supreme Court especially the fact that when the deceased was brought to the local hospital, he was in critical condition having 100% burns and then referred to P.G.I., Chandigarh. The Doctor treating her reported it to be a case of 95% burns. The Supreme Court therefore observed that it was therefore doubtful that whether it would be possible for her to give her thumb impression below her statement in such a condition. But such are not the facts in the present case. Herein, Dr. Anil Bansal (PW12) has supported the case of the prosecution and had given the fitness certificate. Moreover, the statement of Dayanand (PW8) that deceased was fully conscious finds corroboration from other circumstances. It is significant to notice at this stage that the deceased though was admitted in the hospital in 99% burn condition, as per her MLR (Ex.P14) prepared on 9.9.2010 itself, she had burn on the back of lumber region, burn on both whole upper limbs present except right palm and burn on the anterior lateral aspect of lower ?rd of left leg. Despite having suffered such extensive burns, she could still survive for as long as 31 days and eventually died on 12.10.2010 as that condition was developed in the later stage though her initial condition was quite stable. We are therefore not inclined to countenance the argument that she was not in a condition to give statement. 14. Further contention that when the deceased remained alive for more than a month, why no effort was made by the Investigating Officer to get her dying declaration recorded in the proceeding before Judicial Magistrate or even a Gazetted Officer, may have been a lacuna on the part of the Investigating Officer, but what we are called to decide in the present appeal is whether the learned trial court was justified in recording the conviction on the basis of available evidence on record and for that purpose we have to scrutinise the parcha bayan, which has been treated as dying declaration to come to conclusion whether it inspires confidence or if it would require corroboration in view of what has been argued by the defence and if there is sufficient corroboration, whether it can be acted upon for sustaining conviction of the accused-appellant. 15. 15. Law on the subject was delivered in the case of Ram Sagar Yadav, supra wherein it was held that it is well-settled question of law that a dying declaration can be acted upon without corroboration. There is not even a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. The primary effort of the Court has to be to find out whether the dying declaration is true. If it is, no question of corroboration arises. It is only if the circumstances surrounding the dying declaration are not clear or convincing that the Court may, for its assurance, look for corroboration to the dying declaration. 16. In Munnu Raja and Another v. The State of Madhya Pradesh, (1976) 3 SCC 104 , this Court held:- "....It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subject to cross-examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated...." It is true that in the same decision, it was held, since the Investigating Officers are naturally interested in the success of the investigation and the practice of the Investigating Officer himself recording a dying declaration during the course of an investigation ought not to have been encouraged. In State of Rajasthan v. Wakteng, (2007) 14 SCC 550 , the view in Balbir Singh's case(supra) has been reiterated. The following conclusions are relevant which read as under: "14. Though conviction can be based solely on the dying declaration, without any corroboration the same should not be suffering from any infirmity. 15. While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lie or to concoct a case so as to implicate an innocent person but the court has to be careful to ensure that the statement was not the result of either tutoring, prompting or a product of the imagination. It is, therefore, essential that the court must be satisfied that the deceased was in a fit state of mind to make the statement, had clear capacity to observe and identify the assailant and that he was making the statement without any influence or rancour. Once the court is satisfied that the dying declaration is true and voluntary it is sufficient for the purpose of conviction." In Muthu Kutty & Anr. v. State By Inspector of Police, T.N., (2005) 9 SCC 113 , the following discussion and the ultimate conclusion are relevant which read as under: "14. This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on the deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason that the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence. 15. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. 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." 17. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. 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." 17. Whatever has been argued on behalf of the defence, if we look at the parcha bayan of Sukhdevi, we find that Dr. Anil Bansal (PW12) has proved the recording of the parcha bayan when she was in fit state of mind. Then further corroboration to what has been stated by deceased Sukhdevi is found in the medico legal report of the two brothers of the accused-appellants namely; Ramveer and Naththu. Sukhdevi in her parcha bayan recorded on the day of incident at 2.30 pm alleged that while she was sleeping alone in the room, her husband Mangal Singh and her 'devar' (younger brother of Mangal Singh) Narayan Singh entered his room. Mangal Singh commanded Narayan Singh to catch hold of deceased as he wanted to kill her. While Narayan Singh caught hold of deceased, Mangal Singh poured kerosene oil on her body by a jerrican that he was having and then Mangal Singh lit the fire by a match box. When she cried for help, at that stage, Ramveer and Naththu came there and tried to save her, whereupon Mangal Singh and Narayan Singh threw stones and bricks at them and started beating them, as a result of which they sustained injuries. Thereafter, her father-in-law Rameshwar came there, then Mangal Singh caught hold of his neck. 18. Although, it is true that the prosecution has not produced Rameshwar, the father in law of the deceased and injured brothers Ramveer (PW5) and Naththu (PW6) who as per her dying declaration, intervened to save her and were beaten by the accused-appellants the dying declaration certainly finds corroboration from their medico legal report. The injury report of Ramveer is Ex.P10, according to which, he sustained the following six injuries: "1. Abrasion of 4.5 x 2 cm & 2.5 x 1.5 cm on the posterior lateral aspect of upper end of left arm near shoulder. 2. Abrasion of x cm on left occipital region middle side. 3. Bruise mark of 2 x 1.5 cm on the posterior middle side of right leg upper end. 4. Abrasion of 4.5 x 2 cm & 2.5 x 1.5 cm on the posterior lateral aspect of upper end of left arm near shoulder. 2. Abrasion of x cm on left occipital region middle side. 3. Bruise mark of 2 x 1.5 cm on the posterior middle side of right leg upper end. 4. Complaint of pain on anterior aspect of left leg middle ?. 5. Bruise mark of 2 x 1.5 cm on superior aspect of right shoulder. 6. Abrasion of 3.5 x 2 cm at the back of left side of chest lower area." Similarly, the injury report of Naththu is Ex.P12, who sustained following three injuries: "1. Lacerated wounds of (i) 3 x cm scalp layer on the left frontal region, (ii) 3 x cm scalp layer on the left occipital region. 2. Abrasion of 1 x cm on anterior aspect of left shoulder. 3. Lacerated wound of 1.5 x 1 cm on the denbal aspect of middle phalanx of middle finger of right hand." 19. Mere fact that these two injured brothers of the accused-appellants have been declared hostile, would not be a reason for the Court not to use their proven injury reports as evidence of corroboration. Dr. Bhagwat Prasad (PW7) has proved these two injury reports of injured Naththu (Ex.P12) and Ramveer (Ex.P10). The argument that Ramveer and Naththu sustained injuries by fall is noted to be rejected as the name and location of injuries does not command us to accept this argument. Besides, it cannot be a matter of co-incidence that two brothers of the accused-appellants, who received the injuries are those with respect of whom the deceased on the very first day in her parcha bayan alleged that when they tried to save her, the accused-appellants subjected them to beating and also hit them by stones and bricks. Ramveer (PW5) and Naththu (PW6) when confronted with their earlier version given to the police (Ex.P11 & Ex.P13), not only they failed to explain their conduct, but rather said that their statement was not even recorded by the police. Fact that they are not supporting the case of the prosecution can be easily understood, given the fact that both happens to be real brothers of the accused-appellants. 20. Fact that they are not supporting the case of the prosecution can be easily understood, given the fact that both happens to be real brothers of the accused-appellants. 20. Only because the statement of uncle of deceased Om Prakash (PW10) that she in the hospital told her that her clothes caught fire while she was cooking food, does not inspire confidence because in the next line, this very witness stated that at that time the deceased was in a stage of unconscious mind and that he has also stated that her father tutored her to mention the name of Mangal Singh and Narayan Singh. The allegation of Om Prakash (PW10) that the father of the deceased told her that she could mention the names of Mangal Singh and Narayan Singh as the accused would have no consequence in view of the finding that dying declaration inspires confidence as it also finds corroboration from the attending circumstances. 21. In view of above discussion, we do not find any infirmity in the impugned judgment. No interference is called for. The appeal is dismissed.