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2019 DIGILAW 2649 (RAJ)

Narayan Ram v. State of Rajasthan

2019-10-04

ABHAY CHATURVEDI, PUSHPENDRA SINGH BHATI

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JUDGMENT Pushpendra Singh Bhati, J. - The home has traditionally been perceived as a safe haven, and marriage as the most vulnerable of our institution, but the reality for women is that they are at a far greater risk of being assaulted in their own homes, especially by husband, than they are of being assaulted on the streets by a stranger. The crimes or violence against women, as in the present case, which depicts a gruesome and repulsive picture that paints the appellant justifiably as the cruel husband who, invaded by passion of an intoxicated and drunken state, has caused death of his wife, although are not uncommon nowadays, but always shocking in nature, which puts the law to its severest test in ascertaining guilt or innocence of the accused. However, in the words of Justice Vivian Bose, "the shocking nature of the crime, ought not to induce an instinctive reaction against a dispassionate scrutiny of facts and law". Such words of Justice Vivian Bose are locus classicus also in the present scenario of criminal jurisprudence and are worth-noting for the present adjudication as well. 2. The subject-matter of scrutiny is the judgment of conviction and order of sentence dated 03.04.2017 passed by learned Additional Sessions Judge (Women Atrocities Cases), Bikaner in Sessions Case No.26/2013 convicting and sentencing the accused/appellant as under:- Under Section 498-A IPC 2 years' imprisonment and fine of Rs.1000/-, in default of payment of fine, to further undergo 2 months' S.I. Under Section 302 IPC Life imprisonment and fine of Rs.10,000/-, in default of payment of fine, to further undergo 6 months' S.I. Both the sentences were ordered to run concurrently. 3. Appalled by the aforesaid determination made by the learned court below, the accused/appellant is in appeal under Section 374(2) of the Code of Criminal Procedure seeking remedial intervention of this Court for overturning of his conviction and sentence, as above. 4. The skeletal facts portraying the prosecution case, as per the exposition made by deceased Pushpa @ Fusi Devi in the parchabayan, are that on 23.03.2012 at about 11:00 a.m., deceased Pushpa @ Fusi Devi, who was admitted in PBM Hospital, Bikaner gave a statement that her marriage had taken place with present accused/appellant-Narayan Ram 12 years ago. Deceased Pushpa further stated that her husband used to frequently beat her up, which was also informed to her parents and her brother Karna Ram. Deceased Pushpa further stated that her husband used to frequently beat her up, which was also informed to her parents and her brother Karna Ram. She further stated that 5 - 6 months ago, her husband had beaten her, and when a panchayat was done by her brother Karna Ram, Shankar Lal and Magha Ram, then the beatings stopped for the time being. Deceased Pushpa further alleged that on the day of Holi, her husband was completely drunk and came home after hunting, and wanted the deceased to remove the skin of the hunt, but when she refused to do so, he started beating her. Deceased Pushpa also stated that as soon as her husband got up in the morning, he poured kerosene upon her and lit the matchstick and set Pushpa on fire. Deceased Pushpa further stated that upon hearing the commotion, her son Vakil Ram came and put water to douse the fire. Her brother-in-laws Mangilal and Palla Ram took her to a private doctor, Dr. Sunil, and got her treated. Deceased Pushpa also stated that on 22.03.2012, her brother Karna Ram came and took her to the PBM Hospital, Bikaner. 5. On the basis of such statement made on 23.03.2012, an FIR bearing No.32/2012 was registered against the present accused/appellant for the offences under Sections 498-A, 307 and 324 IPC. Charge-sheet was also filed under Sections 307, 498-A and 326 IPC, after thorough investigation. The case was thereafter, committed by the learned court below to the learned Sessions Court, Bikaner. During the charges being framed Pushpa succumbed to the injuries on 02.06.2012, and thus, the accused/appellant was charged under Sections 498-A and 302 IPC. 6. The prosecution produced 10 witnesses and exhibited 13 documents. In course of his examination under Section 313 Cr.P.C., the present accused/appellant having denied the imputations and alleged his false implication, while stating that he neither gave beating to his wife, deceased Pushpa nor had burnt her, and that, while his wife Pushpa was doing the cooking work, her clothes caught fire and he tried his best to douse the fire and also got her treated, but before the treatment could be completed, Pushpa was taken by her family members. Thus, the accused/appellant, in course of such examination, pleaded 'not guilty', and therefore, he was made to stand the trial, and accordingly, the trial commenced. The defence produced three witnesses and one exhibit. Thus, the accused/appellant, in course of such examination, pleaded 'not guilty', and therefore, he was made to stand the trial, and accordingly, the trial commenced. The defence produced three witnesses and one exhibit. After hearing the learned Public Prosecutor as well as the learned defence counsel and perusing the material on record, the learned trial court convicted the accused/appellant, vide the impugned judgment and order, as above. 7. Mr. Shravan Saini, learned counsel for the accused/appellant submitted that deceased Pushpa, wife of the present accused/appellant got injured in the morning next to Holi, on account of her clothes catching fire, while she was cooking, and thus, the family members of Pushpa have wrongfully levelled the allegations against the accused/appellant. Learned counsel further submitted that even their son, Vikram @ Vakil DW-3 has deposed that the clothes of Pushpa caught fire, while she was cooking. Learned counsel also submitted that the son, who was the eye witness, had not supported the prosecution story, and that, there is no independent corroboration of the prosecution story. Learned counsel further submitted that there was no ground to hold the accused/appellant guilty for the offence of murder, and thus, the trial court had erred in recording the guilt against the present accused/appellant under Section 302 IPC. Twelve years old marriage and the children standing by the accused/appellant, as per learned counsel, were sufficient to indicate that the conviction of the accused/appellant under Section 302 IPC was not at all warranted. Learned counsel also challenged the dying declaration on the ground that the deceased was not in a fit condition to make such a declaration. 8. Contrario sensu, Mr. Anil Joshi, learned Public Prosecutor has vehemently opposed the aforesaid submissions made on behalf of the accused/appellant and contended that the impugned judgment has been passed by the learned trial court on the basis of strong evidence of dying declaration recorded after the certification by the doctor concerned and supported by the other prosecution witnesses, and hence, there is no ground for interfering with the findings of the learned trial court. Learned Public Prosecutor thus submitted that the present appeal deserves to be dismissed. 9. We have gone through the record of the case and also the evidence rendered alongwith the submissions made. 10. Learned Public Prosecutor thus submitted that the present appeal deserves to be dismissed. 9. We have gone through the record of the case and also the evidence rendered alongwith the submissions made. 10. For the purpose of appropriate appreciation of the present assailment and to take a proper stock of the factual situation, as prevailing in the present case, essential it would be, to deal with the relevant portions of the evidence of the prosecution witnesses, in bare essentials, in the following paragraphs. 11. Pw-1 Sunil Kumar, who was the salesman at medical store, in his examination, has stated that the lady was brought for treatment, but since the doctor was not available, therefore, he told them to go to the Hospital. 12. Pw-2 Karna Ram, the brother of deceased Pushpa, in his statement, deposed that the accused/appellant used to frequently make his demands and also used to beat his sister, deceased Pushpa. This witness further deposed that he went to meet his sisters on 22.03.2012, as his other sister Chhoti also was married to another brother of Narayan Ram (accused/appellant) i.e. Palla Ram, and he found that his sister Pushpa was suffering burn injuries as she was burnt on 08.03.2012. He also stated that his sister Pushpa told him that Narayan Ram had burnt her, as he has brought a hunt on the day of Holi and wanted her to remove the skin from the hunt; but when she refused, in the morning, Narayan Ram burnt her after pouring kerosene, and at that time, her elder son Vakil poured water and doused the flame, whereafter, she was admitted in the Hospital by PW-2 on 22.03.2012. PW-2 further stated that Pushpa underwent treatment for three months, and then, succumbed to injuries. In his cross-examination, PW-2 stated that there was no dowry demand initially. He also stated that Pushpa was suffering from 90% burns. PW-2, in the cross-examination has further deposed that his sister was given treatment in a private hospital but was not taken to the government hospital. He also stated that the accused/appellant hunted a deer on the day of Holi and wanted his sister deceased Pushpa to remove skin of the hunt. 13. PW-2, in the cross-examination has further deposed that his sister was given treatment in a private hospital but was not taken to the government hospital. He also stated that the accused/appellant hunted a deer on the day of Holi and wanted his sister deceased Pushpa to remove skin of the hunt. 13. Pw-3 Surja, the mother of deceased Pushpa, has stated in her statement that her daughter, deceased Pushpa used to complain of cruelty, which was being committed by her husband, Narayan Ram, and this witness reiterated the incident, as heard by her. She has further stated that while she was in the hospital, they brought deceased Pushpa home, on advise of the doctor, and after staying at home for 15-20 days, she expired. 14. Pw-4 is Dr. Rashi, who, at the relevant time, was posted as Medical Jurist in PBM Hospital, Bikaner, has deposed in her statement that Pushpa was admitted in the burn ward on 23.03.2012 and was given treatment by her. PW-4 further deposed that there were about 80% - 90% burns on the surface area of the body of Pushpa. In cross-examination, She stated that Pushpa was fully conscious, while under treatment. 15. Pw-5 Dr. Ashok Parmar, who was Professor and Head of Department of the Burn Ward in PBM Hospital, Bikaner, stated in his statement that there were burn injuries to the extent of 90% on the body of deceased Pushpa, and after treatment, she was discharged from the hospital on 06.05.2012. The doctor in his cross-examination has however, deposed that after discharge of Pushpa from the hospital, if her condition deteriorated due to improper nursing, then the same cannot be denied. 16. Pw-6 Thana Ram who was the witness to recovery memo, has turned hostile. 17. Pw-7 Chhoti, the wife of Palla Ram (brother of present accused/appellant) and sister of deceased Pushpa, has deposed in her statement that around 13 years ago, both the sisters were married together in the same family to the two brothers, and their houses were at a distance of about 20 feet from each other. PW-7 further deposed that she heard commotion at 8:00 a.m. on next day of Holi, and she saw that accused/appellant Narayan Ram was pouring kerosene on her sister Pushpa and also ignited the same. PW-7 further deposed that she heard commotion at 8:00 a.m. on next day of Holi, and she saw that accused/appellant Narayan Ram was pouring kerosene on her sister Pushpa and also ignited the same. She also deposed that her brother-in-law Mangilal and her husband Palla Ram came running and they put water to douse the fire, while the appellant/accused ran away from the scene. Rest of the facts, as stated by this witness, are same. However, Chhoti, in her cross-examination, stated that the accused/appellant did not return after he ran away, for 7-8 days. She however, stated that she did not inform her parents and brother about the incident. 18. Pw-8 Harmukh Singh, at the relevant time, was the Deputy Superintendent of Police in the SC/ST Cell, Bikaner and was having the charge of Circle Nokha. In his statement, he deposed that he inspected the site and recovered the burnt clothes and conducted the investigation under Sections 307, 498-A and 326 IPC against the accused/appellant. In his cross-examination, he stated that the burnt clothes were recovered from outside the dhani, while inside the dhani, there were no signs of any burn place. 19. Pw-9 Priyanka Pilania, at the relevant time, was posted as Judicial Magistrate at Bikaner and she took statement of deceased Pushpa on 23.03.2012 at PBM Hospital, Bikaner, after Dr. Sandeep certified that the patient was fit to give her statement. The Judicial Magistrate has stated that the dying declaration of Pushpa was correctly noted by her. 20. Pw-10 Dr. Bhavesh Bohra, who conducted the postmortem of deceased Pushpa, stated that there were about 40% burn injuries. He pointed out the cause of death to be septicemic shock arising out of the burn injuries. 21. Dw-1 Ganesha Ram, in his statement, has stated that Pushpa's clothes caught fire, while she was cooking, and thereafter, she was treated. This witness however, in his cross-examination, stated that he did not see the incident. 22. Dw-2 Gudki has adopted the deposition as made by DW-1. 23. Dw-3 Vikram @ Vakil, the son of deceased Pushpa and the present accused/appellant, has stated that while cooking, his mother's clothes caught fire and he and his father jointly doused the fire. He also stated that his age, at the time of death of his mother Pushpa, was 12 years. 23. Dw-3 Vikram @ Vakil, the son of deceased Pushpa and the present accused/appellant, has stated that while cooking, his mother's clothes caught fire and he and his father jointly doused the fire. He also stated that his age, at the time of death of his mother Pushpa, was 12 years. DW-3 however, denied any kind of misbehaviour or cruelty committed upon his mother by his father. 24. Injury report and the postmortem report indicate that the death of Pushpa was caused on account of burn injuries. 25. Though there are discrepancies, which are apparent in the evidence being rendered by both the parties, but the strong evidence recorded by Priyanka Pilania, Judicial Magistrate, after the certification of the doctor concerned that deceased Pushpa was conscious and oriented to time, place and person, while declaring her to be fit for making the statement, was the dying declaration made by Pushpa on 23.03.2012, who expired thereafter on 02.06.2012, which was consistent. On clear questions being asked by the Judicial Magistrate, deceased Pushpa replied that the incident was of 8:00 a.m. next day to Holi. Pushpa stated that the incident had happened at her home at Panchu. She further stated that on the night of Holi Festival, her husband Narayan consumed liquor excessively and beat her up. She further deposed that her husband makes liquor at home and thus, he excessively drank on the day in question, and thereafter, poured kerosene upon her and ignited fire, which resulted into her burning. Pushpa also stated that her husband hunted a deer and asked her to take out the skin of the hunt, and her refusal to do so became a ground of her being beaten up. She stated that only because of this, the incident had happened with her. She further stated that her husband did not earn anything and kept on drinking and beating her. Pushpa also stated that the first person, who had come to save her was her son Vakil, and second her son Shiv and third her son Gopal. Vakil poured water and doused the fire. She further stated that after committing the incident, her husband did not disclose the incident to anyone and thus prevented her family members to reach her. Pushpa also stated that the first person, who had come to save her was her son Vakil, and second her son Shiv and third her son Gopal. Vakil poured water and doused the fire. She further stated that after committing the incident, her husband did not disclose the incident to anyone and thus prevented her family members to reach her. Thus, the dying declaration of deceased Pushpa is an absolute version of the crime, and thus, cannot be doubted because of the minor discrepancies in the evidence rendered by the witnesses, as discussed above. 26. Now the question for consideration before us is as to what is the nature of the offence, which had been committed by the present accused/appellant. 27. The narration and depositions made by the witnesses in itself are not sufficient to indicate the crime as alleged, but read with dying declaration of deceased Pushpa given before the Judicial Magistrate, induces confidence of complete truth having come out from the version of deceased Pushpa herself. The issue to be noted is that the incident happened when the accused/appellant was extremely drunk. We further observe that apart from being drunk, he had brought a hunted deer and was seeking clearing of its skin by his wife, and was extremely agitated on her refusing to do the same. The incident at the verge of being committed was preceded by a sudden bout of anger arising out of the drunken state of the accused, apart from the refusal on the part of Pushpa to clear off the skin of the hunted deer. The marriage was 12 years old and the incident reflects a sudden anger on a very small issue of wife Pushpa negativating the demand of her husband, the present accused/appellant, of clearing the skin of the hunted deer. The immediate instigation for the act was the extreme intoxicated condition of the accused/ appellant, which has resulted into the aggravated incident of wife, Pushpa having been set on fire. The husband (accused/appellant) and his family members have tried to put Pushpa in treatment, but after about 15 days, she was taken away by her family members to be treated at Government Hospital. The husband (accused/appellant) and his family members have tried to put Pushpa in treatment, but after about 15 days, she was taken away by her family members to be treated at Government Hospital. If the husband was intending to kill the wife, then the burnt wife being in his custody from 08.03.2012 to 23.03.2012 did not prevent him from causing any further harm or causing death of Pushpa, who was injured at that time. Moreover, Pushpa survived upto 02.06.2012. Thus, while we are fully convinced that the dying declaration made by the deceased is genuine, voluntary, consistent, credible and untutored, but at the same time, though confirming the issue, it also indicates that there was no flash point in the 12 years of marriage between the accused/appellant and deceased Pushpa, where there could be a moment of predetermination of the accused/appellant to cause the incident. This Court further finds that the evidence of Chhoti, the real sister of deceased Pushpa also casts a shadow upon the case of the prosecution, as she did not inform her parents and brother from the date of incident i.e. 08.03.2012 to 22.03.2012. 28. Hon'Ble the Supreme Court in the case of K. Ravi Kumar Vs. State of Karnataka, (2014) CrLR 1260 (SC) observed in para 14 as under : "Keeping in view the approach of this Court for giving benefit of Exception 4 to Section 300 IPC in cases mentioned above and applying the same to the facts of this case, we are inclined to give benefit of Exception 4 to Section 300 IPC to the appellant by altering his sentence awarded to the appellant punishable under Section 304 Part II IPC. This we say so in the facts of this case for more than one reason. Firstly, even according to the prosecution, there was no premeditation in the commission of crime. Secondly, there is not even a suggestion or we may say conclusive evidence that the appellant had any predetermined motive or enmity to commit the offence against the deceased leave alone a serious offence like murder. Thirdly, incident that occurred was due to sudden quarrel which ensued between the appellant-accused and the deceased - Padma on the issue of going to village Mandya to see the ailing appellant's father. Thirdly, incident that occurred was due to sudden quarrel which ensued between the appellant-accused and the deceased - Padma on the issue of going to village Mandya to see the ailing appellant's father. The appellant, on receiving this news, had become upset and, therefore, his insistence to see his ailing father immediately was natural and at the same time, Padma's refusal to leave could lead to heated exchange of words between them. True, it is that it reached to its extreme inasmuch as the appellant in heated exchange of words lost his mental balance and poured kerosene on Padma setting her to burn. However, the fact remains that it was on outcome of sudden outburst and heated exchange with no predetermined motive per se to kill her. Fourthly, no conclusive evidence was adduced by the prosecution to prove any kind of constant quarrel ever ensued in the last 9 long years between the couple and that too for a cause known to others which could lead to killing Padma or whether any unsuccessful attempt was ever made by the appellant to kill her in past and lastly, we have not been able to see from the postmortem report that any stab injury on Padma's body was caused nor prosecution was able to prove that any blood stained knife from the place of occurrence was recovered at the instance of the appellant or of any witness." 29. Thus, looking at the precedent law laid down by the Supreme Court in K.Ravi Kumar (supra), we are fully convinced that an excessive drunken state of the accused/appellant resulted into the alleged incident, intending to punish his wife for refusing to adhere to his command to take out the skin of the hunt. We also find that in the moments of intoxication and anger, the accused/appellant has caused such bodily injuries to her as were sufficient in ordinary course of nature to cause death. The intention of the accused/appellant may not be of causing death of the deceased, but his act was with knowledge of likely consequences that a burn to that extent would result into her death. Thus, the offence in question is punishable under Section 304 Part I of IPC. The intoxication of the accused husband and sudden development of anger due to refusal of wife Pushpa to peel the skin of deer hunted by the accused husband caused the incident. Thus, the offence in question is punishable under Section 304 Part I of IPC. The intoxication of the accused husband and sudden development of anger due to refusal of wife Pushpa to peel the skin of deer hunted by the accused husband caused the incident. The precipitation due to intoxication, when a person is normally not in his own state of mind, has been kept into consideration by this Court. 30. Ex consequenti, the conviction of the accused/appellant for the offence under Section 302 IPC is converted to Section 304 Part I of IPC and the sentence of imprisonment is reduced from life imprisonment to 10 years rigorous imprisonment. The impugned judgment and order shall stand modified accordingly. However, the sentence of fine is maintained. It is made clear that the conviction of the accused/appellant under Section 498-A of IPC is not interfered with. 31. The appeal filed by the accused/appellant is partly allowed in the above terms. All pending applications stand disposed of accordingly. Record of the trial court be returned forthwith.