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2019 DIGILAW 2791 (RAJ)

Heera Lal v. State of Rajasthan, Through PP

2019-11-05

GOVERDHAN BARDHAR, SABINA

body2019
JUDGMENT 1. Appellant has filed this appeal challenging his conviction and sentence ordered by the Trial Court vide judgment/order dated 14.06.2019 under Section 302 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC'). 2. Prosecution case was set in motion on the basis of Exhibit-P-18 statement of Janki Bai. On the basis of Exhibit-P-18, formal FIR Exhibit-P-19 bearing No.181 dated 04.10.2012 was registered at Police Station Kelwara, District Baran for offence punishable under Section 307 IPC. Statement of Janki Bai Exhibit-P-22 was also recorded by the Magistrate under Section 164 Code of Criminal Procedure, 1973. Janki Bai died on 20.10.2012. Thereafter, offence under Section 302 IPC was added in the FIR. 3. As per the statements Exhibit-P-18 and Exhibit-P-22 of Janki Bai recorded by the police as well as by the Magistrate, the allegation is that the appellant had set his wife (Janki Bai) on fire after pouring kerosene oil on her under the influence of liquor. 4. After completion of investigation and necessary formalities, challan was presented against the appellant. 5. Charge was framed against the appellant by the trial court under Section 302 IPC. 6. Appellant did not plead guilty to the charge framed against him and claimed trial. 7. In order to prove its case, prosecution examined 23 witnesses, during trial. Appellant when examined under Section 313 Code of Criminal Procedure, 1973, after the close of prosecution evidence, prayed that he was innocent and had been falsely involved in this case 8. Appellant did not examine any witness in his defence. 9. Learned counsel for the appellant has submitted that the material witnesses have not supported the prosecution case during trial. No reliance could be placed on the statements Exhibit-P-18 and Exhibit-P-22 of deceased Janki Bai. Doctor who had given the fitness certificate of deceased Janki Bai at the time of recording of her statement Exhibit-P-22 had not been examined during trial. Statement Exhibit-P-18 was recorded without any certificate of fitness granted by the doctor. Janki Bai had died after 16 days of the incident. In-fact, it was a case of suicide. 10. Learned State counsel has opposed the appeal. 11. Present case relates to murder of Janki Bai. 12. Pw-11 Doctor Vivek Jain proved the medico-legal-examination report of deceased Janki Bai, i.e., Exhibit-P-13. Janki Bai had died after 16 days of the incident. In-fact, it was a case of suicide. 10. Learned State counsel has opposed the appeal. 11. Present case relates to murder of Janki Bai. 12. Pw-11 Doctor Vivek Jain proved the medico-legal-examination report of deceased Janki Bai, i.e., Exhibit-P-13. A perusal of the same reveals that Janki Bai had suffered flame burns on her face, whole trunk, both hands, thighs and knees. 13. As per postmortem examination report Exhibit-P-23, cause of death of deceased Janki Bai was septicemia shock as a result of antemortem external burn injuries. Postmortem examination report was proved by PW-21 Doctor Surendra Meena. 14. Material witnesses, including the brother and children of deceased Janki Bai have not supported the prosecution case, during trial. Case rests on dying declarations of the deceased, i.e., Exhibit-P-18 and Exhibit-P-22. 15. It has been held by the Hon'ble Supreme Court in Muthu Kutty And Another Vs. State By Inspector of Police, T.N., (2005) 9 SCC 113 , as under:- "Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Smt. Paniben v. State of Gujarat, (1992) AIR SC 1817 : (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Smt. Paniben v. State of Gujarat, (1992) AIR SC 1817 : (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja & Anr. v. The State of Madhya Pradesh, (1976) 2 SCR 764 ) (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of Uttar Pradesh v. Ram Sagar Yadav and Ors., (1985) AIR SC 416 and Ramavati Devi v. State of Bihar, (1983) AIR SC 164 ) (iii) The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. [See K. Ramachandra Reddy and Anr. v. The Public Prosecutor, (1976) AIR SC 1994 ]. (iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg. v. State of Madhya Pradesh, (1974) 4 SCC 264 ). (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. [See Kaka Singh v. State of M.P., (1982) AIR SC 1021 ]. (vi) A dying declaration with suffers from infirmity cannot form the basis of conviction. (See Ram Manorath and Ors v. State of U.P., (1981) 2 SCC 654 ) (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. [See State of Maharashtra v. Krishnamurthi Laxmipati Naidu, (1981) AIR SC 617 ]. (viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. [See Surajdeo Oza and Ors v. State of Bihar, (1979) AIR SC 1505] . (ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. [See Nanahau Ram and Anr. v. State of Madhya Pradesh, (1988) AIR SC 912 ]. (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [See State of U.P. v. Medan Mohan and Ors., (1989) AIR SC 1519 ]. (xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. [See Mohanlal Gangaram Gehani v. State of Maharashtra, (1982) AIR SC 839 ]." 16. Let us examine the dying declarations suffered by deceased Janki Bai to come to a conclusion as to whether the same inspire confidence. 17. Exhibit-P-18 was recorded by PW-16 Badri Lal Vaishnav. The said witness has deposed that he had reached the hospital on receipt of information that Janki Bai was admitted there on account of burn injuries. He had recorded the statement of deceased Janki Bai Exhibit-P-18. In his cross-examination, he admitted that he had not taken the certificate from the doctor regarding the fitness of Janki Bai at the time of recording of her statement. However, he stated that Janki Bai was conscious at the time of recording of her statement. 18. Pw-17 Doctor Shyam Sundar Nagar deposed that on 04.10.2012, Janki Bai was brought to the hospital for treatment by the police. Statement of Janki Bai was recorded by the police and at that time, Janki Bai was conscious and was fit to make a statment. In his cross-examination, he deposed that fitness certificate of the injured was not taken from him before recording of her statement. 19. Thus, in the present case, although, PW-16 Badri Lal Vaishnav had not taken the fitness certificate of Janki Bai from the doctor before recording her statement, but PW-17 has categorically stated that statement of Janki Bai was recorded in his presence and at that time, she was fit to make her statement. 19. Thus, in the present case, although, PW-16 Badri Lal Vaishnav had not taken the fitness certificate of Janki Bai from the doctor before recording her statement, but PW-17 has categorically stated that statement of Janki Bai was recorded in his presence and at that time, she was fit to make her statement. Janki Bai had stated in her statement Exhibit-P-18 that her husband had poured kerosene oil on her while she was sleeping, at about 11.00 a.m. Her husband was suspecting her character and had set her on fire. Appellant had run away from the spot after setting her on fire. Her mother-in-law took her to the hospital for treatment. 20. Exhibit-P-22, dying declaration of deceased Janki Bai was recorded by the Magistrate. Magistrate, who had recorded the statement Exhibit-P-22 appeared in the witness box as PW-23 and deposed that on 04.10.2012, he had gone to the hospital to record the statement of Janki Bai. In his cross-examination, he deposed that he had taken the fitness certificate from doctor Hemraj Bhardwaj before recording the statement of Janki Bai. 21. A perusal of Exhibit-P-22 also reveals that the doctor had declared Janki Bai fit to make a statement. As per Exhibit-P-22, Janki Bai had stated that she was sleeping and her husband came under the influence of liquor and poured kerosene oil on her and set her on fire. She had extinguished the fire with the help of 'Dupatta'. Her mother-in-law brought her to the hospital. 22. Although, the doctor who had given a fitness certificate at the time of recording of dying declaration of Janki Bai Exhibit-P-22, has not been examined during trial, but it has been stated by the Magistrate that he had recorded the statement of Janki Bai after obtaining her fitness certificate from the doctor. The said fitness certificate is available on Exhibit-P-22. 23. In the facts and circumstances of the present case, after carefully going through the dying declarations suffered by the deceased, we are of the considered opinion that the dying declarations Exhibit-P-18 and Exhibit-P-22 suffered by deceased Janki Bai inspire confidence and appear to have been made by the deceased voluntarily. 24. Although, it has been argued by the learned counsel for the appellant that it was a case of suicide, but the said plea has not been taken by the appellant when he was examined under Section 313 Cr. 24. Although, it has been argued by the learned counsel for the appellant that it was a case of suicide, but the said plea has not been taken by the appellant when he was examined under Section 313 Cr. P.C. It has also not been pleaded by the appellant that he was not at home at the time of incident. In-case, it was a case of suicide as argued by learned counsel for the appellant then a normal circumstances, appellant would have made an effort to save his wife. Rather, as per the dying declaration suffered by the deceased Exhibit-P-18, appellant had run away from the spot after setting his wife on fire. Hence, the plea taken by the appellant that deceased had committed suicide does not inspire confidence. 25. Thus, the learned Trial Court had rightly ordered conviction and sentence of the appellant under Section 302 IPC basing reliance on the dying declarations suffered by the deceased. Dismissed.