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2018 DIGILAW 1856 (RAJ)

Shillo Devi v. State of Rajasthan

2018-09-07

NIRMALJIT KAUR, VINIT KUMAR MATHUR

body2018
JUDGMENT 1. The instant criminal appeal has been filed by the appellants to challenge the judgment dated 25.11.2003 passed by the Additional District and Sessions Judge (Fast Track) Hanumangarh in Sessions Case No. 104/2003, whereby the appellants have been convicted for the offence under Section 302 IPC and sentenced for life imprisonment with a fine of Rs. 500/- each, in default of payment of fine, to further undergo one month rigorous imprisonment. 2. During the pendency of the present appeal, Smt. Shillo Devi and Madan passed away. Their death certificates are produced on record by learned counsel for the appellants. The fact of their death has been verified by learned public prosecutor also. Since they have passed away, the appeal qua them stands abated. 3. In nutshell, the facts giving rise to the present appeal are that on 27.06.1991 at around 2.15 a.m. a Parchabayan of Dalip Kumar at Bed No. 2, Government Hospital, P.N.B. was recorded. In the said Parchabayan, it was stated that his in-laws are staying at Dhakka Basti Mandi, Pilibanga. His father-in-law is Amarchand Oad. His wife is staying with his in-laws, therefore, he came there yesterday morning to meet his wife and returned the next morning. Thereafter, again he came to the place of his in-laws and in the evening, while he was sitting in the in-law's house, he did not remember the time but it was quite dark and there was no electricity, suddenly, his in-laws poured oil on him and alighted the fire. In alighting the fire, his wife and kids were not involved. After alighting the fire, nobody came to rescue him and he was struggling himself. He did not remember who brought him to the hospital, but a number of persons were present there. It was further stated that his in-laws were harassing him for the last six years and whenever his wife came to her parental house, they delayed her coming back, whereas he could not live without his wife. 4. On this parchabayan, an F.I.R. bearing No. 144/91 was registered and investigation was conducted. After investigation, police filed a negative final report. A protest petition was filed by Diwan Chand. After hearing learned counsel for the complainant, this protest petition was also dismissed vide order dated 10/03/1993. 4. On this parchabayan, an F.I.R. bearing No. 144/91 was registered and investigation was conducted. After investigation, police filed a negative final report. A protest petition was filed by Diwan Chand. After hearing learned counsel for the complainant, this protest petition was also dismissed vide order dated 10/03/1993. Thereafter, a revision petition was filed by the complainant before the Additional Sessions Judge No. 2, Hanumangarh, which was partially allowed vide order dated 19/10/1994, and the matter was remanded to the trial Court. The complainant produced ten witnesses in his favour and ultimately, the Judicial Magistrate, First Class, Pilibanga vide order dated 29.07.1999 took cognizance against five persons i.e. Amarchand, Smt. Shillo Devi, Sharwan, Madan and Bhagwana for the offence under Sections 302 and 120B of IPC. They were summoned by the warrant of arrest and the matter was committed for trial before the Sessions Judge, Hanumangarh. 5. Learned trial Court framed charges against the accused appellants for the offence under Sections 302 and 120B of IPC. The accused denied the same and preferred trial in the matter. 6. During the trial, as many as 10 prosecution witnesses were examined and in all 9 documents were exhibited, whereas 2 defence witnesses were examined on defence side and as many as 11 documents were exhibited. 7. Thereafter, accused appellants were examined under Section 313 Cr.P.C. and were confronted with the evidence adduced during trial to which they denied and submitted that they are innocent persons and have been falsely implicated in the matter. 8. Learned trial Court, after hearing the arguments advanced on both the sides and after taking into consideration the statements of witnesses and the documents exhibited, convicted and sentenced the accused appellants Smt. Shillo Devi, Sharwan and Madan vide judgment dated 25.11.2003 but acquitted the father-in-law Amarchand of the charges under Sections 302 and 120B of IPC. 9. For appreciating the facts in detail, we have gone through the statements recorded during the trial along with documents produced and exhibited before the trial Court. 10. PW-1 Dr. R.B. Poonia has stated that on 27.06.1991, while he was posted as Senior Medical Officer, Pilibanga, on 28.06.1991, he examined Santosh W/o Dalip. He found that there were burn injuries on her body. 10. PW-1 Dr. R.B. Poonia has stated that on 27.06.1991, while he was posted as Senior Medical Officer, Pilibanga, on 28.06.1991, he examined Santosh W/o Dalip. He found that there were burn injuries on her body. On the same day, he also examined Smt. Shillo Devi W/o Amarchand Oad and found that her half portion of right side face and below lips, there were blisters and crust; on the forehead, there were certain burn injuries on the mid line of the hair; on the left elbow, there was a burn injury of 5 inch x 2.5 inch & on the front right side of the nose, there were bruises. He further stated that all the injuries stated above were due to burning. He has also stated in his cross-examination that the injuries sustained by Smt. Shillo Devi cannot be self inflicted. 11. PW-2 Diwan Chand has stated in his statement that his son Dalip was married to Santosh for last 16 to 17 years. Two to four months after the marriage, Santosh started to quarrel with Dalip and forced him to live in Pilibanga. After some time, Santosh in annoyance went to her parental house and started to live there. Dalip went to his in-law's house for picking up his wife but she was not allowed to go with him. Thereafter, the Panchayat was held and ultimately Santosh and Dalip were separated from the joint family and were staying in a rented house at a distance from his house. He further stated that last time when Dalip went to his inlaw's house 10 to 11 years back, then he was beaten by Amarchand, Shillo, Madan, Bhagwana and Sharwan. These persons were forcing Dalip to come and stay at Pilibanga. This was told by the deceased Dalip to his mother. On the same day in the afternoon, Madan and Sharwan came by jeep to Hanumangarh and took Dalip along with them saying that they have committed a mistake by beating Dalip. On the same day in the evening, Sharwan came to his house in a jeep again and said that after having taken liquor, Dalip is creating nuisance in the Pediwal's factory. This was told by Sharwan to his wife, Salim, Maan Singh and Prathvi. Thereafter, his wife, Salim, Maan Singh went with Sharwan who took them to the Pilibanga Hospital. On the same day in the evening, Sharwan came to his house in a jeep again and said that after having taken liquor, Dalip is creating nuisance in the Pediwal's factory. This was told by Sharwan to his wife, Salim, Maan Singh and Prathvi. Thereafter, his wife, Salim, Maan Singh went with Sharwan who took them to the Pilibanga Hospital. When they went inside, they saw that Dalip was in a very bad condition and Dalip stated that after giving beatings, his father-in-law Amarchand, Shillo Devi, Madan, Sharwan and Bhagwana poured kerosene oil upon him and alighted the fire. This was told by Dalip to his wife. Thereafter, he was taken to the Hanumangarh Hospital but Dalip died. 12. PW-3 Shahab Ram is a head constable in Police Station Pilibanga who is the author of Rojnaamcha. 13. PW-4 Salim is the neighbour and he has stated that there were differences between Dalip and his wife Santosh and after the mediation by the Panchayat, Dalip was separated and after some time, wife of Dalip went to her parental house. When Dalip went to his in-law's house, a fight took place between Dalip and his inlaws and, therefore, Dalip came back. In the afternoon, Sharwan and Madan took Dalip along with them in a jeep for mediation, so that they will send Santosh back with Dalip. At around 11 p.m. Sharwan came in the jeep and said that Dalip is doing nuisance in the factory of Pediwal, therefore, they should come with him. Then he along with mother of Dalip, Maan Singh and Prithvi went with Sharwan, who instead of stopping at Pediwal's factory, took them to the hospital. When they saw Dalip in the hospital, he was in a very bad condition. Dalip said to them that Bhagwana, Amarchand, Shillo, Madan and Sharwan have burnt him by putting kerosene oil. Thereafter, doctor advised for taking Dalip to the Hanumangarh Hospital and, therefore, they took him to Hanumangarh Hospital where his father came at around 10-11 a.m. the next day and thereafter, after a period of one and half hour, Dalip died. 14. PW-5 Sita Devi has stated almost on the same lines on which PW-2 Diwan Chand and PW-4 Salim have deposed. She has stated that when she asked Dalip, he stated that Amarchand, Shillo Devi, Sharwan, Madan and Bhagwana have burnt him by putting kerosene oil. 14. PW-5 Sita Devi has stated almost on the same lines on which PW-2 Diwan Chand and PW-4 Salim have deposed. She has stated that when she asked Dalip, he stated that Amarchand, Shillo Devi, Sharwan, Madan and Bhagwana have burnt him by putting kerosene oil. The same story was narrated by Dalip to his father also. 15. PW-6 Dr. Rajendra Kumar Gupta has deposed that on 27.06.1991 he was posted as a Medical Jurist at Government Hospital, Hanumangarh, he conducted the postmortem of the deceased Dalip on the very same day i.e. 27.06.1991 and stated that the entire body was numbness and almost all the parts of his body were having burn injuries and his skin at a number of places was peeled off and hair was also burnt and in his opinion, the cause of death was burning. 16. PW-7 Maan Singh is the younger brother of deceased Dalip Kumar and he has also stated almost on the same lines as stated by PW-2 Diwan Chand, PW-4 Salim and PW-5 Sita Devi in their statements. 17. PW-8 Kaushaliya is the sister of deceased Dalip. She has also deposed on the same lines as stated in the statements of PW-2 Diwan Chand, PW-4 Salim and PW-5 Sita Devi. 18. PW-9 Amar Singh has stated that Dalip was married to Santosh Kumari and before 6-7 years, Amarchand, Bhagwana, Sharwan, Madan along with Meharchand and two known persons of the Village came and Sharwan, Bhagwan and Madan said that they have killed Dalip by burning and they should be pardoned then he said that they should go to meet his uncle Diwan Chand. Therefore, they went to Hanumangarh where they stayed in a hotel and then they spoke to his uncle Diwan Chand. He, Meharchand and two other persons went to meet his uncle Diwan Chand and said the entire story but his uncle said that Dalip in his statement has categorically stated that Amarchand, Bhagwana, Madan and Sharwan have killed him by burning and, therefore, his uncle stated that he would file a police case against them and, therefore, the compromise was not done. 19. PW-10 Sultana Ram has stated that on 27.06.1991, he was posted as Tehsildar, Pilibanga and at night at around 12.15, he recorded the statement of deceased Dalip as stated by him which is Ex.P.3. 20. 19. PW-10 Sultana Ram has stated that on 27.06.1991, he was posted as Tehsildar, Pilibanga and at night at around 12.15, he recorded the statement of deceased Dalip as stated by him which is Ex.P.3. 20. DW-1 Badri Prasad stated in his statement that on 27.06.1991, while he was posted as ASI at Pilibanga on having been informed by the doctor of the Government Hospital, he reached there and saw that Dalip was lying there having burn injuries. He stated that Dalip in his statement was saying that he does not remember who has burnt him. 21. DW-2 Ved Prakash who has taken over the investigation from Badri Prasad has stated that in his investigation, it is revealed that Dalip Kumar himself has poured the kerosene oil upon him and has ignited the fire. Nobody killed him by pouring kerosene. He has stated that he has taken the statements of all the persons who are living in the neighbourhood. On the basis of these statements, negative final report in the matter has been filed by him. 22. We have heard learned counsel for the appellant, learned public prosecutor and learned counsel for the complainant and perused the material available on record. 23. Learned counsel for the appellants has relied upon the statements of the Investigating Officers Ved Prakash and Badri Prasad, who have categorically stated that their investigation on the basis of the statements recorded of the persons residing in the neighbourhood, shows that nobody has burnt Dalip, rather he himself has poured kerosene and alighted the fire. He further submits that the relationship between the deceased and the inlaws were very bad and hostile. The counsel has further submitted that in the Parchabayan (dying declaration), there is no mention of the appellants' name nor anybody else have been named. Since, the deceased Dalip Kumar was in such a condition who has categorically mentioned that his wife and children were not involved but despite knowing the names of all the members of his in-laws' family, none of the person was named in his Parchabayan (dying declaration). Counsel for the appellant further submits that the names mentioned in the statements of PW-2 Diwan Chand, PW-4 Salim, PW-5 Sita Devi, PW-7 Maan Singh and PW-8 Kaushaliya are just improvisation and since they were the interested witnesses i.e. mother, father, sister and brother of the deceased, they have falsely implicated the appellants. 24. Counsel for the appellant further submits that the names mentioned in the statements of PW-2 Diwan Chand, PW-4 Salim, PW-5 Sita Devi, PW-7 Maan Singh and PW-8 Kaushaliya are just improvisation and since they were the interested witnesses i.e. mother, father, sister and brother of the deceased, they have falsely implicated the appellants. 24. Counsel further submits that in order to save the deceased Dalip, his wife Santosh and his mother-in-law Shillo Devi have sustained burn injuries and their injury reports are placed on record as Ex.P.1 and Ex.P.2. This shows that an effort was made by them to save the deceased in the incident. Therefore, implicating Shillo Devi is just an attempt to falsely implicate the entire family. In the statements of PW-1 Dr. R.B. Poonia, it has also come on record that the injuries sustained by Shillo Devi cannot be inflicted by herself. Counsel further submits that since the statements of all the material prosecution witnesses were on the same lines but Amarchand, who is the father-in-law of the deceased in whose residence the incident has taken place, has been acquitted by the trial Court. The appellants also deserves the same and needs to be acquitted. He further submits that the present appellants Sharwan and Madan (dead) are the brothers of his mother-in-law Shillo Devi and, therefore, their presence at the residence of Amarchand is also under the cloud. He, therefore, prays that the appeal filed by the appellants may be allowed and they may be acquitted of the offence levelled against them. 25. On the other hand, learned public prosecutor along with learned counsel for the complainant have submitted that dying declaration was recorded immediately after the incident without any loss of time by a competent officer i.e. PW-10 Sultana Ram who was working as Tehsildar at that relevant time. In his statement, he has submitted that he has recorded the statement of Dalip as narrated by him and the same was read over and explained to him after having been written by him. In these circumstances, the statement is worth credence and has not been tutored. He further submits that in the statements of PW-2 Diwan Chand, PW-4 Salim, PW-5 Sita Devi, they have supported the dying declaration and has submitted that after pouring kerosene on Dalip, he was burnt by the accused persons. 26. In these circumstances, the statement is worth credence and has not been tutored. He further submits that in the statements of PW-2 Diwan Chand, PW-4 Salim, PW-5 Sita Devi, they have supported the dying declaration and has submitted that after pouring kerosene on Dalip, he was burnt by the accused persons. 26. Learned public prosecutor has also submitted that PW-9 Amar Singh in his statement has submitted that the accused party has approached him for getting the matter settled by way of compromise but the same could not be materialized as the complainant refused to compromise the matter. He further submits that place of the incident is also the house of the accused person where the incident has actually occurred, therefore, as per Section 106 of the Indian Evidence Act, it is an obligation or burden upon the accused persons to dispel the correct fact as they were the persons in whose custody or place, the present incident has taken place. Therefore, it is prayed that the order passed by learned trial Court may kindly be affirmed and the appeal preferred by the accused appellants may kindly be dismissed. 27. We have considered the submissions made at the bar and perused the material available on record. 28. We are of the view that the condition of Dalip was such that he could narrate the incident and mention the correct facts in his Parchabayan/dying declaration. If we closely look at the Parchabayan/dying declaration then the exclusion made by him of his wife and children is very clear and categorical then on the same lines, it was well within the knowledge of deceased Dalip that who are involved in burning him but curiously nobody's name is mentioned in this Parchabayan despite the fact that he knows each one of his in-law's family members. It will not be safe to rely upon the dying declaration of Dalip solely for convicting the appellants. 29. Further, we find in the statements of his father Diwan Chand, mother Sita Devi, neighbour Salim and brother Maan Singh and Sister Kaushaliya, the names of the accused persons as told by Dalip are mentioned. We pondered over the situation and find that if a man can disclose the names of the accused persons to his mother father, neighbour, brother and sister then why the same were not disclosed by him in his dying declaration/ Parchabyana. We pondered over the situation and find that if a man can disclose the names of the accused persons to his mother father, neighbour, brother and sister then why the same were not disclosed by him in his dying declaration/ Parchabyana. It is a fact that all these persons who have deposed before the Court are mother, father, brother and sister of the deceased. Since Diwan chand, Sita Devi, Maan Singh, Kausaliya are close relative of the deceased, the false implication of the present appellants cannot be ruled out and, therefore, it would not be safe for us to rely upon the testimony of these witnesses solely. In our view, corroborating the evidence does not lead to the only conclusion that the appellants are the only persons who have killed the deceased Dalip by burning. It has also come on record that there was hostility/enmity between the two families. The relationship was not good, therefore, the implication of the accused persons at the hands of the complainant being the close family member of the deceased cannot be ruled out. Rather, in the facts of the present case, it clearly establishes that the appellants have been roped in by false implication. 30. Santosh, who is the wife of the deceased though present at the time of incident, has not appeared in the witness box who could have thrown light on the present incident but having not produced by the prosecution, the benefit of doubt will have to be extended in favour of the accused persons. 31. A close scrutiny of the statements of DW-1 Badri Prasad and DW-1 Ved Prakash also lead us to believe that when the statements of the neighbours were recorded by the police and it revealed that nobody has burnt deceased Dalip, rather he himself has poured kerosene upon him and alighted the fire, leading to the filing of the negative final report. We are also conscious of the fact that since the relationship between the deceased Dalip and his in-laws were very strained, logically there was a reason for frustration in Dalip as his wife was not being allowed to accompany him and stay there with him and in sheer frustration, the possibility of pouring kerosene upon himself and alighting the fire is more probable and our opinion nearly established. The injury report of Santosh Ex.P.1 who is the wife and Smt. Shillo Devi who is the mother-in-law Ex.P.2 also support the theory that in order to save Dalip they have sustained injuries. In the statements of PW-1 Dr. R.B. Poonia, it has also come on record that such injuries sustained by Shillo Devi cannot be inflicted by herself. 32. The confessional statement made by PW-9 Amar Singh is also not worth credence as he is also a relative of the complainant party and in his statement, he has named Meharchand and two other persons of the Village who had accompanied them to Hanumangarh for settling the matter. Those three persons had not appeared to support the case of the prosecution. Therefore, the testimony of Amar Singh is not worth credence in the present case. 33. The argument of learned public prosecutor with respect to the place of incident and Section 106 of the Evidence Act is also not sustainable as the house belongs to Amarchand being the father-in-law of deceased who has been acquitted by learned trial Court. Therefore, no different view in the matter could have been taken by learned trial Court qua the appellants 34. After appreciating the evidence on record and also the fact that for the same accusation, father-in-law of the deceased Amarchand has been acquitted by the learned trial Court, but the reasons distinguishing the case of the present appellants from the case of Amarchand are absent as the reasons which have been given for acquitting the Amarchand in the present case squarely apply for the present appellants also and having not done so, the learned trial Court clearly committed error by passing an order of conviction in the present case against the accused appellants. 35. Therefore, in view of whatever stated above, we are of the view that there is no evidence on record including the dying declaration/parchabayan to prove the offence alleged against the present appellants and, therefore, we are of the view that in view of the statements and material before learned Trial Court, it was not sufficient to hold the present appellants guilty of committing the offence under Section 302 of IPC, and therefore, on the basis of the same, conviction could not have been sustained. 36. 36. Resultantly, on the discussion made above, benefit of doubt is given to the accused appellants and thereby the appeal preferred by the appellants is allowed and judgment of conviction and order dated 25.11.2003 awarding sentence, passed by the learned trial Court is set aside. Since the appellants Madan and Smt. Shillo Devi have passed away, the appeal qua them stands abated. The appellant-Sharwan is acquitted of the charge levelled against him.