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2023 DIGILAW 372 (RAJ)

Banti @ Laxminarayan v. State of Rajasthan

2023-02-01

ANIL KUMAR UPMAN, PANKAJ BHANDARI

body2023
ORDER : 1. Accused-appellants have preferred this appeal against the judgment and sentence dated 22.01.2016 passed by learned Additional District and Sessions Judge (Women Atrocities Cases) Bharatpur, in Sessions Case No. 22/2014 whereby appellant-Bunti @ Laxminarayan has been convicted for offence under Section 302 IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.25,000/-, in default for non-payment of fine, to further undergo one year simple imprisonment and appellant No. 2-Smt. Ramdulari has been convicted for offence under Section 302/34 IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.25,000/-, in default for non-payment of fine, to further undergo one year simple imprisonment. 2. Brief facts of the case are that a written report was lodged by Bhikkan Singh-maternal uncle of the deceased along with his brother-in-law-Ramkishore at Police Station Nadbai, District Bharatpur on 17.02.2014 about the death of Dheeraj-wife of appellant Bunti. It was mentioned in the FIR that marriage of deceased with appellant-Bunti took place on 18.11.2011. Appellant-Bunti, his brother-Ravi and mother-in-law-Ramdulari used to harass the deceased on account of dowry. There was demand of Rs.50,000/-. The deceased first turned out of the house and she was threatened that if she does not fulfill the demand, she would be burned alive. It was also mentioned in the report that Kerosene was poured upon the deceased and she was put ablaze. The police on the basis of above report, registered FIR No. 102/2014 and after due investigation submitted charge-sheet under Sections 498-A, 302 in alternative Section 304-B of IPC against appellant-Bunti husband of the deceased and Ramdulari- mother-in-law of deceased. The Trial Court framed charges against appellant-Bunti for offence under Section 302 and 498-A IPC and in alternative offence under Section 304-B of IPC and against appellant-Ramdulari under Section 302 read with 34 IPC and Section 498-A of IPC. Accused denied charges and sought trial. On behalf of the prosecution as many as 17 witnesses were examined and 30 documents were exhibited. Explanation of the accused was recorded under Section 313 of Cr.P.C. No evidence was produced in defence. After hearing both the parties learned Trial Court has convicted the appellant vide judgment and sentence dated 22.01.2016, aggrieved by which the present appeal has been filed. 3. It is contended by counsel for the appellants that Bhikkan Singh-complainant(PW.1) has not supported the prosecution version and has been declared hostile. After hearing both the parties learned Trial Court has convicted the appellant vide judgment and sentence dated 22.01.2016, aggrieved by which the present appeal has been filed. 3. It is contended by counsel for the appellants that Bhikkan Singh-complainant(PW.1) has not supported the prosecution version and has been declared hostile. PW.2-brother of the deceased has also not supported the prosecution version and has turned hostile. PW.4-Ramrati aunt of deceased, PW.5-Saroj- mother of deceased, PW.6-Aidel Singh and PW.7-Mahavir neighbour of deceased have turned hostile. It is also contended that learned Trial Court has convicted the appellants solely on the basis of dying declaration(Ex.P-20) recorded by the Magistrate. It is further contended that appellants have been acquitted for offence under Section 498-A and 304-B of IPC meaning thereby that the prosecution has failed to establish that there was any demand of dowry. 4. Learned Additional Govt. Advocate has opposed the appeal. It is contended that dying declaration was recorded by a Magistrate and there is no reason to disbelief the dying declaration given by the deceased, wherein she has specifically stated that oil was poured upon her by her husband. Her hands were also held by her husband and her mother-in-law put her ablaze with candle. 5. We have considered the contentions. 6. As far as the material witnesses are concerned, PW.1- complainant in this case who is also maternal uncle of the deceased has clearly stated that there was no demand of dowry on behalf of the appellants. This witness was declared hostile. PW.2-Pappu who is brother of the deceased has clearly stated that deceased-Dheeraj was happy at her in-laws place and she was properly kept by her-in-laws. He has also stated that Dheeraj committed suicide by putting herself ablaze. This witness was also declared hostile by the prosecution. It is evident that this witness in his cross-examination has stated that the statement which deceased-Dheeraj gave was on account of tutoring by them. PW.4- Ramrati who is aunt of deceased has also stated that Dheeraj deceased was not harassed by her in laws and that she committed suicide. In her cross-examination she had clearly stated that when she reached Jaipur, she talked with the deceased-Dheeraj and Dheeraj gave the statement as per tutoring done by her family members. PW.5-Saroj mother of the deceased has also stated that Dheeraj committed suicide as she was short tempered. In her cross-examination she had clearly stated that when she reached Jaipur, she talked with the deceased-Dheeraj and Dheeraj gave the statement as per tutoring done by her family members. PW.5-Saroj mother of the deceased has also stated that Dheeraj committed suicide as she was short tempered. She has also stated that Dheeraj was not harassed by her in laws and there was no demand of any dowry. 7. PW.7-Mahavir who is residing in the neighbourhood of the appellants' house has stated that when he reached the house, Dheeraj came out of the room in burning condition. The witness put quilt on her body and he has also stated that deceased told him that she has put herself on fire. This witness was also declared hostile. In his cross-examination, he has stated that at the time when deceased came out of the room, the present appellants were not there and after hearing the hue and cry, they came to the spot and tried to extinguish the fire. PW.8-Raju who is also brother of deceased has stated that Dheeraj was kept properly by her-in-laws. He has also stated that he reached the hospital before Dheeraj was brought to the hospital at Jaipur. He had a talk with the deceased-Dheeraj and she did not level any allegations against anyone. 8. From the above evidence, it is evident that none of the witnesses have levelled any allegations with regard to demand of dowry. None of the witnesses have levelled any allegations with regard to harassment and all the witnesses on behalf of complainant have stated that deceased was short tempered and that she committed suicide. The only evidence which now remains is the dying declaration recorded before Magistrate. PW.16- Ramdev Sandhu, the Magistrate who recorded the statement has stated that he had recorded the dying declaration of the deceased. As per his statement, the deceased was in a fit condition to depose before him. He had also obtained a certificate from the treating doctor regarding her fitness and her cabability to depose before him. This witness has admitted that relatives of the deceased were present at the time when he reached the hospital. However he has stated that when he recorded the statement, the relatives were asked to leave the place. As to whether the dying declaration recorded was voluntarily given or she was tutored, is to be appreciated by the Court. This witness has admitted that relatives of the deceased were present at the time when he reached the hospital. However he has stated that when he recorded the statement, the relatives were asked to leave the place. As to whether the dying declaration recorded was voluntarily given or she was tutored, is to be appreciated by the Court. All the relatives of the deceased including her mother, aunt, brothers and an independent witness-her neighbour have stated that deceased had committed suicide. Witnesses have gone to the extent to say that they had asked the deceased to give the statement against the appellants. There is no reason why the relatives would turn hostile and depose that deceased was short tempered and has committed suicide. There is also no reason as to why they would state before the Court that on their saying, the deceased had given statement to the Magistrate. The dying declaration therefore, loses its importance and solely on the basis of the dying declaration the accused cannot be held guilty. More particularly when all the relatives of the deceased including brothers, aunt and mother have deposed that deceased had committed suicide and that she was short tempered. 9. The learned trial Court has erred in convicting the appellants on the basis of dying declaration which was the solitary evidence against the appellant for the very reason that from the evidence it is apparent that the deceased was tutored to depose against the appellants. From the evidence of the Magistrate, it is evident that the relatives of the deceased were present before he reached there for recording the statement under Section 164 Cr.P.C., hence, the possibility that she was tutored cannot be ruled out. More particularly when the witnesses themselves have stated that the statement was given by the deceased as they had asked her to depose against the appellants. 10. Consequently, we deem it proper to allow the appeal and set aside the judgment and sentence dated 22.01.2016 passed by learned Additional District and Sessions Judge (Women Atrocities Cases) Bharatpur. The appellants are acquitted from the charges levelled against them. The appellants be set at liberty forthwith, if not wanted in any other case or for any other purposes. 11. Consequently, we deem it proper to allow the appeal and set aside the judgment and sentence dated 22.01.2016 passed by learned Additional District and Sessions Judge (Women Atrocities Cases) Bharatpur. The appellants are acquitted from the charges levelled against them. The appellants be set at liberty forthwith, if not wanted in any other case or for any other purposes. 11. Appellants are directed to furnish a personal 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 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 appellants on receipt of notice thereof, shall appear before the Hon'ble Apex Court. The bail bond will be effective for a period of six months.