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2018 DIGILAW 1894 (RAJ)

Girraj Jangid Brahman v. State of Rajasthan

2018-09-11

PANKAJ BHANDARI

body2018
JUDGMENT : PANKAJ BHANDARI, J. 1. Appellant has preferred this appeal aggrieved by judgment and order dated 15.12.1987 passed by Additional Sessions Judge No. 1, Kota in Sessions Case No. 50/86 whereby appellant has been convicted for offence under Section 306 IPC and has been sentenced to five years rigorous imprisonment and fine of Rs. 250/- and on non-payment of fine, to further undergo two months rigorous imprisonment. 2. In brief the factual matrix of the case are that on 11.4.1986 Kanhaiyalal, father of deceased, lodged FIR Ex. P1 at 9.00 a.m. to the effect that the complainant had gone to attend "Kumbh Mela" at Haridwar and when he returned on 11.4.1986 he received information that his daughter has been burnt. Upon receipt of this information, he rushed to the hospital and inquired from his daughter. His daughter informed that the appellant has poured kerosene and after putting her ablaze ran away from the house after locking the room. She also stated that when she shouted, neighbours broke open the ventilator and saved her. Police after due investigation, submitted charge-sheet under Section 302 IPC. Court after hearing the charge argument framed charges under Section 302 IPC and in the alternate under Section 306 IPC. Accused denied the charges and sought trial, upon which as many as 12 witnesses were examined on behalf of the prosecution and 10 documents were exhibited. Accused was examined under Section 313 Cr.P.C. In defence D.W. 1 - Shankarlal was examined and documents Ex. D1 to D5 were exhibited on behalf of the defence. 3. Learned trial Court after hearing the final arguments, acquitted the appellant under Section 302 IPC but has convicted the appellant under Section 306 IPC and has passed the sentence as mentioned hereinabove. Aggrieved by which the present appeal has been filed. 4. It is contended by the counsel for the appellant that the trial Court has acquitted the appellant for offence under Section 302 IPC meaning thereby that Court had not relied on dying declaration of the deceased recorded by the Magistrate. It is also contended that the Court below has not appreciated the evidence of D.W. 1 - Shankarlal, who had recorded the Parcha-Bayan of the deceased immediately after she was rushed to the hospital and of P.W. 11 - Ramesh Chand, who was the witness in whose presence the statement of deceased was recorded by Shankarlal. It is also contended that the Court below has not appreciated the evidence of D.W. 1 - Shankarlal, who had recorded the Parcha-Bayan of the deceased immediately after she was rushed to the hospital and of P.W. 11 - Ramesh Chand, who was the witness in whose presence the statement of deceased was recorded by Shankarlal. It is contended that trial Court has not considered Ex. P7 injury report wherein the doctor has mentioned the history of the case as "Burns by stove today morning". It is also contended that the trial Court has also not considered the statement of P.W. 1 - Dilip Kumar, who was the person who had broke open the ventilator and had saved the victim and who in his statement had mentioned that the room was locked from inside. He has also deposed that a lady was crying that her daughter-in-law has locked the room from inside and has put herself ablaze. 5. It is also contended that prosecution has not produced any independent witness i.e. neighbours to establish that the appellant was present at the time of alleged occurrence and he fled from the place after putting the victim on fire. It is also contended that the first version of the victim has to be given more weightage as the statement of victim was recorded by the Magistrate after 12 hours of the incident and in the intervening period the victim was in company of her relatives and there is every likelihood that she might have been forced to give statement against the appellant. It is also contended that except related witnesses there is no other witness produced on behalf of the prosecution to establish that the victim was harassed or treated with cruelty by the husband as a result of which she committed suicide. 6. Learned Public Prosecutor has opposed the appeal. His contention is that in the FIR Kanhaiyalal, father of the deceased, mentioned that when he reached the hospital, deceased narrated the incident and as per the narration appellant had poured the kerosene upon the deceased and set her on fire. It is also contended that Ex. P5 dying declaration recorded by the Magistrate has to be given more weightage wherein deceased has mentioned that her husband had poured the kerosene upon her and put her ablaze. It is also contended that Ex. P5 dying declaration recorded by the Magistrate has to be given more weightage wherein deceased has mentioned that her husband had poured the kerosene upon her and put her ablaze. It is also contended that only related witnesses can give statement with regard to the harassment and cruelty as the deceased had never complained to the neighbours with regard to harassment and cruelty. 7. I have considered the contentions and have perused the record and statement of the witnesses. 8. P.W. 1 - Dilip Kumar is the witness, who was the first to reach the place of incident and who in his Court statement has stated that when he was returning from his Uncle's house he found a female who was crying and who stated that her daughter-in-law has locked herself inside the room and has put herself on fire. Witness has stated that he tried to open the door, but the door was locked from inside. Immediately thereafter 8-10 neighbours came to the place gave him a hammer with which he broke open the ventilator and from the ventilator he entered the room and opened the aldrops of both the doors. This witness was not declared hostile by the prosecution and there is no reason to disbelieve the statement of Dilip Kumar. It is clear from his statement that the victim had locked herself in the room before putting herself ablaze. 9. In parcha-bayan Ex. P10 recorded at 12.30 p.m. at the hospital victim stated in presence of witness that her husband had left the house for work at 8.00 a.m. and she was alone in the house at 9.00 a.m., while she was cooking food on the stove, the stove fluttered as a result of which her clothes caught fire and when she shouted, villagers rushed to save her. She has also mentioned in her ParchaBayan that she has no dispute with her husband and no one has burnt her. Shankarlal was not produced as a prosecution witness and was produced in defence by the appellant as D.W.1. D.W. 1 - Shankarlal in his examination-in-chief has mentioned that he recorded the statement of victim and that she gave the statement on her own free will and that he recorded the statement in presence of Pratap and Ramesh Chand. Shankarlal was not produced as a prosecution witness and was produced in defence by the appellant as D.W.1. D.W. 1 - Shankarlal in his examination-in-chief has mentioned that he recorded the statement of victim and that she gave the statement on her own free will and that he recorded the statement in presence of Pratap and Ramesh Chand. He has also mentioned that he requested the doctor to attest the statement, but the doctor refused. He recorded the statement of the deceased as no Magistrate was available at that time. P.W. 11 - Ramesh Chand, who is a prosecution witness, has also stated that ASI Shankarlal recorded the statement of Nirmala Kumari - Ex. P10 in his presence and that her signatures were also obtained by ASI on the statement. He has also mentioned that Nirmala Kumari stated that she got burnt when she was preparing food. 10. Trial Court has acquitted the appellant for offence under Section 302 IPC meaning thereby that the trial Court has not fully relied on the dying declaration of the deceased. In dying declaration Ex. P5 deceased has mentioned that her husband had poured kerosene upon her and after putting her ablaze he closed the room. This dying declaration was recorded after 12 hours of the incident and prior to recording of dying declaration, Parcha-Bayan was recorded by Shankarlal-ASI. From the statement of P.W. 1, it is clear that when he entered through ventilators the room was locked from inside. The statement recorded by the ASI Ex. P10 is, therefore, in-conformity with the statement of P.W. 1. P.W. 1 was not declared hostile by the prosecution, thus, the fact that the room was locked from inside is established from the statement of Dilip Kumar. 11. Trial Court has already acquitted the appellant for offence under Section 302 IPC and State has not preferred any appeal against the acquittal, the question that remains for determination by this Court is now confined to the conviction for offence under Section 306 IPC. 12. P.W. 2 - Kanhaiyalal has stated that her daughter used to fell him that appellant consumes liquor and meat at the hotel. She did not tell anything-else regarding his behavior. P.W. 3 - Omprakash had also deposed with regard to appellant burning the deceased but he has not mentioned about any earlier incident of harassment and cruelty. 12. P.W. 2 - Kanhaiyalal has stated that her daughter used to fell him that appellant consumes liquor and meat at the hotel. She did not tell anything-else regarding his behavior. P.W. 3 - Omprakash had also deposed with regard to appellant burning the deceased but he has not mentioned about any earlier incident of harassment and cruelty. P.W. 4 - Dakha Bhai has mentioned that the deceased informed her that when she refused to prepare meat, her husband tied her hands and legs and gagged her mouth and after pouring kerosene and putting her ablaze ran away from the back door. This witness has also not stated about any earlier act of cruelty. P.W. 5 - Shobha Bai has also stated that the deceased informed her that her husband had poured kerosene and after putting her ablaze has ran away from the back door. P.W. 6 - Bhanwari Bai has stated that the deceased informed her that she was sick and could not cook for two days, therefore, appellant had poured kerosene and he set her on fire. 13. These related witnesses have not stated about any prior act of cruelty or harassment. The fact that she was put on fire by the appellant and that he ran away from the back door is also not established as there is no independent witness to the effect that the appellant ran from the back door after putting the victim on fire. 14. Trial Court has convicted the appellant under Section 306 IPC relying on dying declaration of the deceased wherein she has mentioned that she was sick and could not cook food and the Court has come to the conclusion that as the appellant quarreled with the deceased, deceased committed suicide by pouring kerosene and putting herself ablaze. Court has come to the conclusion that appellant had created a situation where the deceased was compelled to commit suicide. 15. To attract the ingredients of abetment, the intention of the accused to aid or instigate or abet the deceased to commit suicide is necessary. If a husband quarrels with his wife for not preparing food, the came cannot be considered as aiding or instigating the deceased to commit suicide. 16. 15. To attract the ingredients of abetment, the intention of the accused to aid or instigate or abet the deceased to commit suicide is necessary. If a husband quarrels with his wife for not preparing food, the came cannot be considered as aiding or instigating the deceased to commit suicide. 16. This Court is of the considered view that the first statement recorded by Shankarlal to which P.W. 11 - Ramesh Chand was a witness is more reliable wherein the deceased had mentioned that her husband had left the house for work at 8.00 a.m. and she got burnt while she was cooking food. She had also mentioned in her Parcha-Bayan that she had no dispute with her husband and it was an accidental act. There being no prior complaint about ill-treatment, merely because deceased had committed suicide, the same cannot be considered to be a criminal act of the appellant which has resulted into the deceased committing suicide. 17. In view of the same, the conviction of the appellant under Section 306 IPC cannot be sustained and the appeal deserves to be allowed. 18. Appeal preferred by the appellant is allowed. Appellant-Girraj son of Mohanlal is acquitted of the charge for offence under Section 306 IPC and the judgment and order dated 15.12.1987 passed by the Additional Sessions Judge No. 1, Kota in Sessions Case No. 50/86 pertaining to conviction for offence under Section 306 IPC is quashed and set aside. 19. Appellant-Girraj son of Mohanlal is on bail, his bail bonds are cancelled. He is directed to furnish bond in the sum of Rs. 50,000/-, and a surety bond in the like amount in accordance with Section 437-A of Cr.P.C. before the Deputy Registrar (Judicial) within two weeks from the date of release to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellant, on receipt of notice thereof, shall appear before the Supreme Court. The bail bond will be effective for a period of six months.