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2018 DIGILAW 2284 (RAJ)

Banshidhar v. State of Rajasthan

2018-12-11

PANKAJ BHANDARI

body2018
JUDGMENT Pankaj Bhandari, J. - Petitioners have preferred this revision petition aggrieved by order dated 09.02.2017 passed by Additional Session Judge No.4, Sikar, whereby court has framed charges for offence under Sections 304-B/34 of I.P.C. against the petitioners. 2. Petitioner No.1 is husband of the deceased. Petitioner No.2 is brother in law of the deceased. Petitioner No.3 is father in law of the deceased. Petitioner No.4 is mother in law of the deceased. Petitioner No.5 is brother in law of the deceased and petitioner No.6 is sister in law of the deceased. 3. It is contended by counsel for the petitioners that the incident took place on 24.08.2010 at 06.00 PM, when son of petitioner No.1 accidentally emptied a bottle of kerosene on a cot on which his younger brother aged five months was lying and pressed a lighter, which set his brother on fire. When the deceased noticed the smell, she rushed into the room and took her younger son in her arms and rushed out of the room, where she slipped and caught fire. Her father in law rushed to the spot, poured water on the deceased and her younger son and rushed them to the hospital, where the deceased expired after six days. 4. It is contended that the Parcha Bayan of prosecutrix was recorded on the next date, wherein she mentioned that it was an accidental fire and family members are not responsible for the same. Statement of deceased was thereafter recorded by the Magistrate on 27.08.2010, wherein also she repeated the statement as given in Parcha Bayan. Deceased died on 28.08.2010 and F.I.R. was lodged on 30.08.2010. 5. It is contended that marriage of the deceased with petitioner No.1 took place on 28.05.2005. There was no complaint whatsoever with regard to demand of dowry against the family members. 6. It is also contended that the matter was investigated by different officers and even by C.I.D.(C.B.) and negative final report was submitted against all the petitioners. There was no justification for the Court below to frame charges against the petitioners, as it was an accidental death. It is also contended that no burn injuries were found on the head of the deceased, so there was no question of pouring kerosene upon her. 7. Counsel for the complainant has opposed the revision petition. There was no justification for the Court below to frame charges against the petitioners, as it was an accidental death. It is also contended that no burn injuries were found on the head of the deceased, so there was no question of pouring kerosene upon her. 7. Counsel for the complainant has opposed the revision petition. His contention is that cognizance was taken against the petitioners, which was challenged before the revisional court and revisional court by a detailed order upheld the order passed by the Magistrate. It is argued that there is no change in the circumstances necessitating entertaining the present revision petition as the objection raised by the petitioner was taken note of by the revisional court while deciding the revision petition on 06.12.2016. 8. It is also contended that sister of deceased has given statement under Section 161 Cr.P.C., 1973 against the petitioners. It is further contended that deceased has sustained 90% burns and her sister was married in the same family she did not want to give statement against the family members as that would have resulted into breaking of her sister's family. It is contended that after the incident, Savitri who is the sister of deceased was turned out of the house. 9. I have considered the contentions. 10. Pracha Bayan of deceased was recorded on 25.08.2010 at 02.50 pm. Before recording the Pracha Bayan report was taken from the medical officer regardig the condition of the deceased and when she was found in a position to give statement, her statement was recorded. In her Pracha Bayan, she stated that her marriage took place five years back and she has two sons aged four years and five months. She has stated in detail about the incident. She has mentioned that her son aged four years accidentally emptied a kerosene bottle on the cot on which his younger son was sleeping and pressed the lighter, as a result of which, the younger boy, who was lying on the cot was set ablaze. When deceased noticed the smell, she rushed to the room and took her son in her arms and ran out of the room due to which she caught fire. Thereafter, her father in law poured water on her and on her younger son. She has mentioned that there was no one else in the house. When deceased noticed the smell, she rushed to the room and took her son in her arms and ran out of the room due to which she caught fire. Thereafter, her father in law poured water on her and on her younger son. She has mentioned that there was no one else in the house. Thereafter, her brother in law and father in law took her to Sikar hospital and then to Jaipur hospital. She has mentioned that her younger brother and family members came to Jaipur to see her. She also mentioned that she has informed her family members about incident. 11. The reason assigned for framing of charges in the impugned order is that witnesses have stated that the deceased was harassed in relation to demand of dowry and that she died otherwise than under normal circumstances. The fact that there is delay of six days in lodging of F.I.R., the fact that deceased has not levelled any allegations against the petitioners in her Parcha Bayan and in dying declaration, the fact that there was three days gap in recording the statement and that she had met her brothers, the chances of tutoring the witness is not there. The chances of petitioners threatening the deceased who was in the Hospital with 90% burns is also not possible, since the Parcha Bayan was recorded immediately on the next date after taking certificate from the medical officer. 12. The deceased was in a fit state of mind when her Parcha Bayan was recorded and when her statement was recorded by Magistrate she had even mentioned her date of marriage hence the declaration is voluntary and inspires full confidence of the Court. In Atbir v. Government of NCT of Delhi (2010) 9 SCC 1 , Apex court has exhaustively laid down the guidelines with respect to admissibility of dying declaration. The story as narrated by the deceased inspire confidence hence her version that it was an accident is to be believed as held by the Apex Court in Atbir's case (Supra). 13. Proceedings against the petitioners, when there is clear dying declaration of the deceased and there is no evidence with regard to demand of dowry soon before death, would be abuse of process of court. 13. Proceedings against the petitioners, when there is clear dying declaration of the deceased and there is no evidence with regard to demand of dowry soon before death, would be abuse of process of court. The Court below has not taken note of the fact of delay in lodging of F.I.R., the dying declaration of the deceased and the negative final report submitted by the Investigating Officer including C.I.D.(C.B.). The impugned order, therefore, suffers from illegality and impropriety and deserves to be set aside. 14. The revision petition is accordingly allowed. The impugned order is quashed and set aside. Petitioners are discharged from the offence. Record of the court below be returned forthwith. Stay application stands disposed.