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2018 DIGILAW 943 (RAJ)

Manoj v. State of Rajasthan

2018-04-06

GOVERDHAN BARDHAR, MOHAMMAD RAFIQ

body2018
JUDGMENT : Mohammad Rafiq, J. These two appeals are directed against the common judgment dated 18.05.2012 by which the Court of Sessions, Ajmer in Sessions Case No.46/2010 has convicted the accused-appellants Manoj S/o Ram Singh for offence u/s.302 IPC and Smt. Prem for offence u/s.302/34 IPC and sentenced to life imprisonment with a fine of Rs.5,000 each and in case of default of payment of fine, to further undergo simple imprisonment of one year. 2. The brief and relevant facts of the case are that the appellant Prem was married with one Shri Ram Gopal, resident of Gotan, from whom three children were born, who all are major. After few years of marriage, matrimonial dispute arose between appellant and her husband Ram Gopal, as her husband contacted illicit relation with another women and meantime appellant also came in contact with one Manoj resident of Ajmer, with whom she developed intimacy for some time and then she started living with him at Jodhpur. An incident occurred on 19.06.2010, wherein the wife of Manoj named Babli got burn injuries and she was immediately taken to Hospital, by the neighbours and police, whereas as per prosecution case a parcha bayan was recorded and on the basis of parcha bayan of deceased Babli, recorded by the police at JLN Hospital, Ajmer, FIR came to be lodged at Police Station Clock Towar Ajmer, on 20.06.2010 by ASI Ramdutt (PW7) against appellant Manoj for offence under Section 307 of IPC and against appellant Prem for offence under Section 307/34 IPC. But later when Babli died, the case was converted against Manoj for offence under Section 302 IPC and against appellant Prem for offence under Section 302/34 IPC. Police proceeded with investigation and on completion of investigation, filed challan against appellants Manoj and Prem for offence under Section 302/34 IPC, which upon committal came to the Sessions Court, Ajmer. Both were tried for said offences. Prosecution produced 12 witnesses and exhibited 24 articles. However, neither any witnesses, nor any documents have been produced by the defence. Statements of accused-appellants were recorded by the learned trial court under Section 313 Cr.P.C. wherein both pleaded innocence and prayed for acquittal. The learned trial court on conclusion of the trial, convicted and sentenced the accused-appellants in the manner as stated above. Hence these appeals. 3. However, neither any witnesses, nor any documents have been produced by the defence. Statements of accused-appellants were recorded by the learned trial court under Section 313 Cr.P.C. wherein both pleaded innocence and prayed for acquittal. The learned trial court on conclusion of the trial, convicted and sentenced the accused-appellants in the manner as stated above. Hence these appeals. 3. Shri Vijay Choudhary, learned counsel for the accused-appellant Manoj has submitted that initially information about the incident was telephonically received by SHO, Police Station Clock Tower, Ajmer with regard to which rapat no.972 was entered in rojnamcha aam at 11.00 pm on 19.6.2010. It is this information which was treated as regular first information report. The subsequent first information report registered on the basis of alleged parcha bayan of the deceased (Ex.P19) is therefore hit by Section 162 Cr.P.C. According to the case of prosecution, Ramdutt (PW7), Sub-Inspector of Police on receiving the telephonic information at 11.00 PM immediately reached the place of occurrence. According to him, when he reached there, Ambulance108 was already there and the deceased was rushed to the JLN Hospital in serious condition. He followed the Ambulance and reached the surgical ward of that hospital. According to this witness, he recorded the statement of victim after Dr. R.K. Boyal (PW10), the Medical Jurist gave permission and that it took him about half an hour to conclude the statement. 4. Referring to the parcha bayan (Ex.P11), learned counsel argued that Ramdutt has recorded the time of 12.15 am in the parcha bayan on 20.6.2010, whereas this witness (PW7) has also stated that he simultaneously sent the request for recording the dying declaration of the deceased by Judicial Magistrate, to the Chief Judicial Magistrate, Ajmer. Learned counsel has referred to Ex.P20, the report given by the Additional Civil Judge (JD & JM) No.5, Ajmer to CJM, Ajmer on 21.6.2010 and contended that on the letter of request received from the SHO Police Station Clock Tower, Ajmer (Ex.P21), the former was instructed on 20.6.2010 by the Chief Judicial Magistrate to record the dying declaration of Smt. Babli W/o Manoj. The Additional Civil Judge Mahendra Kumar Dhabi has stated in the letter Ex.P20 that ASI Ramdutt came to his residence on 12.35 am and they started for the hospital at 12.40 am and reached the Surgical Ward No.1-11 of the hospital at bed no.14 on 12.50 am where Smt. Babli was admitted. When he requested the duty Doctor to give the certificate of fitness, the duty Doctor came there 15 minutes thereafter and stated on 1.10 am that the deceased is not fit for statement. 5. Learned counsel submitted that if according to Ram Dutt, he took half an hour to conclude recording of the parcha bayan of the deceased and since 12.15 am was the time indicated in the parcha bayan, half an hour added thereto would mean that the parcha bayan was concluded by 12.45 am. By that time, the Magistrate as per (Ex.P20) had already reached there at 12.50 am. It cannot be believed that a patient would be conscious and fit to give statement till 12.45 am and would suddenly become unconscious at 12.50 am. Learned counsel referred to the postmortem report of the deceased Smt. Babli (Ex.P17) as also the statement of Dr. R.K. Boyal (PW10), who has proved the postmortem report to argue that since the deceased had received 100% burn injuries and when she reached the hospital, must have been administered sedative drungs, it does not inspire confidence that she would be in a fit condition to give statement. The testimony of Dr. Hanuman Ram (PW11), who allegedly gave certificate of fitness to Ramdutt (PW7) at 11.55 pm on 19.6.2010 cannot therefore be believed. 6. Merely because Dr. R.K. Boyal (PW10) has also signed on the parcha bayan does not mean that he too gave the certificate of fitness to the deceased for recording her statement. Learned counsel in this connection has relied on the judgment of Supreme court in Surinder Kumar vs. State of Harayana, (2011) 10 SCC 173 . 7. Shri Vijay Choudhary, learned counsel for the accused-appellant Manoj further argued that most of the prosecution witnesses have not supported the case of the prosecution except those who were closely related to the deceased and are interested witnesses. Even those witnesses have not claimed themselves to be the eye witnesses of the incident. 7. Shri Vijay Choudhary, learned counsel for the accused-appellant Manoj further argued that most of the prosecution witnesses have not supported the case of the prosecution except those who were closely related to the deceased and are interested witnesses. Even those witnesses have not claimed themselves to be the eye witnesses of the incident. Prem Prakash (PW1), who was sought to be produced as eye witness has also turned hostile and not supported the case of the prosecution. He stated that he did not see anything and he gave the statement to the police on the basis of what he heard from others. In any case, he would be a witness of hearsay. 8. It is argued that deceased in her parcha bayan stated that she contacted second marriage with accused Manoj. Subsequently dispute arose between them when Manoj told her that he too has contacted second marriage. He broke with her (Babli) and started living with his second wife Prem at Jodhpur. Four months prior to the incident, he brought her to Ajmer and rented a room in the house of Anand. But her father Chiman Kishore (PW2) has stated that Prem was the first wife of accused Manoj and that deceased herself was married earlier and had a son and daughter. 9. A quarrel took place between them when Manoj brought his first wife to Ajmer. It is alleged that both Manoj and Prem consumed liquor and burnt Babli by pouring kerosene over her body. The statement of Chiman Kishore (PW2) is not only full of contradictions, but is also inconsistent with the parcha bayan of the deceased. 10. Similarly, Bhuwan Kishore (PW4) has also stated that marriage of deceased Babli was solemnised fifteen years ago with one Suresh. A son and daughter were born from their wedlock, but thereafter they separated. Babli then fell in love with Manoj. The allegation of this witness that Manoj burnt her by pouring kerosene is not on eye witness account but is mere hearsay. Anand Prakash (PW5), the landlord in whose house both the appellants were residing also not supported the case of the prosecution and turned hostile. 11. Learned counsel has referred to the site plan (Ex.P2) and submitted that the room in which the incident is alleged to have taken place at place 'x4' is surrounded by as many as five rooms, most of which were occupied by tenants. 11. Learned counsel has referred to the site plan (Ex.P2) and submitted that the room in which the incident is alleged to have taken place at place 'x4' is surrounded by as many as five rooms, most of which were occupied by tenants. Had the accused actually caused burn injury to the deceased, anyone of these tenants or the landlords would have certainly seen him, but no one has been produced as an eye witness. It is argued that Chiman Kishore (PW2), father of the deceased and Bhuwan Kishore (PW4), brother of the deceased, on their own showing, were residing away and separately from the deceased and, therefore, they could not claim themselves to be eye witnesses. In fact, there is no eye witness of the incident and the case entirely hinges on the circumstantial evidence and the parcha bayan. The parcha bayan suffers from numerous disparities and inasmuch as the manner of its recording, raises serious doubt about the genesis of the same. 12. Shri Vishwanath Karan Rathore, learned counsel for the accused-appellant Prem has argued that it would be evident even from the parcha bayan of the deceased that no active role has been assigned to the appellant-Prem. She has been named only because she happened to be the first wife of the appellant. As per the parcha bayan of Babli, when this fact was divulged upon her by accused Manoj, she (deceased) became seriously angry and in that state of mind, she must have committed suicide. No witness has been produced to show that any person was seen near the place of incident. While the deceased in parcha bayan has stated that Manoj contacted first marriage with deceased Babli and thereafter contacted second marriage with the appellant (Prem), but Chiman Kishore (PW2), father of the deceased has otherwise stated that Prem was the first wife of Manoj and when deceased learnt about this, the dispute between Manoj and deceased Babli took place for this reason. Manoj and his wife Prem quarreled with deceased, both then consumed liquor and burnt Babli by pouring kerosene. The statement of father thus contradicts the version given by the deceased in the parcha bayan. Ramji Lal (PW3) tenant in the room opposite the room, which was taken on rent by deceased Babli and Manoj. He has stated that Manoj often visited that room. The statement of father thus contradicts the version given by the deceased in the parcha bayan. Ramji Lal (PW3) tenant in the room opposite the room, which was taken on rent by deceased Babli and Manoj. He has stated that Manoj often visited that room. When he heard the sound of hue and cry, he went downstairs and saw Babli in seriously burnt condition. She was crying. In cross examination, this witness has stated that on the day when the incident took place only Babli and Manoj was there and there was no third person. He denied the suggestion that Prem and Manoj both burnt Babli. Learned counsel argued that even according to this prosecution witness, charges only against Manoj can be taken to have been proved and not against Prem. 13. Learned counsel therefore submitted that there is absolutely no evidence against accused-appellant Prem and she has been wrongly convicted by the learned trial court. 14. Learned counsel argued that the exhibits produced by the prosecution are doubtful in nature and cannot be considered in evidence. Reference is made to bed head ticket of the deceased (Ex.P22) to argue that therein the name of patient was allegedly mentioned as unknown person, but subsequently, name of Babli wife of Manoj was indicated by interpolation. This interpolation makes the bed head ticket doubtful. 15. Smt. Sonia Shandilya, learned Public Prosecutor opposed the appeal and supported the impugned judgment. She submitted that there is ample evidence against the accused-appellants to convict them for the alleged offence. No interference ought to be made in the impugned judgment. The appeal be therefore dismissed. 16. We have given our anxious consideration to the rival submissions and perused the material on record. 17. Contention that recording of parcha bayan went on for as long as 30 minutes from 12.15 am on 20.6.2010 is wholly misconceived being based on misleading of the statement of Ram Dutt (PW7), the Assistant Sub-Inspector of Police, who recorded the parcha bayan. All that he stated is that on receiving the information at 10.55 PM, he reached the place of incident on 11.20 pm and then came to the hospital following the Ambulance in which deceased was brought to the hospital. A bare perusal of the parcha bayan would indicate that Ram Dutt (PW7) gave a written request to the Duty Doctor of the hospital Dr. A bare perusal of the parcha bayan would indicate that Ram Dutt (PW7) gave a written request to the Duty Doctor of the hospital Dr. Hanuman Ram Jat posted at Surgical Unit-III, JLN Hospital, Ajmer gave the fitness certificate on 11.55 pm on 19.6.2010 and it is thereafter that the parcha bayan of the deceased was recorded by Ram Dutt (PW7) on 20.6.2010. 12.15 AM indicated therein at the bottom was the time of completion of parcha bayan and not the beginning thereof. In fact, Dr. R.K. Boyal (PW10) has also in the statement before the Court stated that the parcha bayan (PW11) was recorded in his presence on 20.6.2010 and that it also contained his signatures at place 'C' to 'D'. He has also stated that prior to recording the statement, the fitness certificate was given by Dr. Hanuman through Ex.P18. He recognised the signatures of Dr. Hanuman because they worked together. 18. Dr. Hanuman Ram (PW11) has also stated that when the deceased was brought in seriously injured condition by ambulance 108 to the hospital, there was no one with her, therefore, he initially mentioned against her name as unknown, but when the treatment got started and the enquiry was made from the injured herself, she disclosed her name to be Babli W/o Manoj. He therefore gave the information to Dr. R.K. Boyal and also sent a communication to ASI. ASI, Police Headquarters gave a written application to him whether or not patient was in a fit condition to give statement. On examination of the patient, he gave the certificate that deceased was fit to give statement and made such endorsement on the application Ex.P18. It cannot be therefore accepted that two Doctors, who were independent persons, would be giving false evidence only in order to see that appellant Manoj is convicted. They were actually on duty on that day and therefore were very much aware of the medical condition of the deceased, which is why they certified the fitness. Even if the fitness certificate was given by Hanuman Ram Jat, counter signature of Dr. They were actually on duty on that day and therefore were very much aware of the medical condition of the deceased, which is why they certified the fitness. Even if the fitness certificate was given by Hanuman Ram Jat, counter signature of Dr. R.K. Boyal, the Medical Jurist on the parcha bayan would also, in the facts of the case, tantamount to the fitness certificate as it has been fully supported by him in the Court as PW10 wherein he has admitted his signatures and stated that parcha bayan was recorded in his presence and that fitness certificate was given by Dr. Hanuman. 19. The case of the accused appellant Prem is distinguishable because although the cause of the dispute between Manoj and Babli was Prem, his first wife, but the evidence in totality does not prove the charge against her beyond reasonable doubt. Even though the deceased in the parcha bayan has alleged that Manoj brought his wife to their room, whom she has referred to as second wife and both quarreled with her and at 9.00 pm, they poured kerosene oil over her body and lit the fire, but in the next statement, she has stated that it was Manoj, who lit the fire. Apart from this discrepancy, even the statement of Ramji Lal (PW3) is also quite crucial in this respect. He has stated that deceased along with Manoj was tenant in the room opposite his own room. 20. Accused Manoj used to frequently visit her. While after returning from the work, he slept, but he woke up on hearing the sound of hue and cry on the fateful day. Another tenant of the house telephonically informed the police. Deceased Babli was crying at that time. Police came there and then took Babli (deceased) to the hospital. He has also stated that on the day of incident, only Babli and Manoj were there and there was no one else. Police had arrested Manoj because people told that it was Manoj who burnt Babli. Even Bhuwan Kishore (PW4), the brother of the deceased has also made specific allegations only against Manoj and not against Prem, of pouring kerosene over body of Babli and litting the fire. Dana (PW6) has stated that he was also a tenant in the house in which the deceased and Manoj were residing. There were in total 10 tenants in the house. 21. Dr. Dana (PW6) has stated that he was also a tenant in the house in which the deceased and Manoj were residing. There were in total 10 tenants in the house. 21. Dr. R.K. Boyal (PW10), the medical jurist has proved the nature of injuries of the deceased and also that duration of the injuries was between 0 to 12 hours. The burnt injuries were dangerous to life and were caused by dry heat flames. The deceased was brought in seriously injured condition and was conscious, but her nature was irritable and non-cooperative. Purna Ram (PW12) has proved all stages of the investigation. The cited judgment is distinguishable on facts and cannot be applied to the facts of the present case. 22. In view of above discussion, while the charges against the accused-appellant Manoj has rightly been held proved, but charge against accused-appellant cannot be held to have been proved beyond reasonable doubt, thus entitling her to benefit of doubt. 23. In the result, the appeal filed by accused-appellant Manoj is dismissed. However, the appeal filed by accused-appellant Prem is allowed. The impugned judgment is accordingly modified. Accused Prem is acquitted of the charges for offence u/s.302/34 IPC. She is on bail, therefore, her bail bonds and sureties are discharged. She need not surrender. 24. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, appellant Prem is directed to forthwith furnish a personal bond in the sum of Rs.20,000/- and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, undertaking that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellant aforesaid, on receipt of notice thereof, shall appear before the Supreme Court. Office to place a copy of this judgment in the connected case.