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2024 DIGILAW 1227 (RAJ)

Arjun Singh S/o Madan Singh v. State Of Rajasthan

2024-09-10

MUNNURI LAXMAN, PUSHPENDRA SINGH BHATI

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JUDGMENT : [Per Hon’ble Mr. Justice Munnuri Laxman] : 1) The challenge in the present appeal is to the judgment of conviction dated 20.03.2017 passed by the learned Additional Sessions Judge (Women Atrocities Cases), Jodhpur Metropolitan on the file of Sessions Case No.150/2013 (N.C.V. No.886/2014), wherein and whereby the appellants-accused were convicted for the offences punishable under Sections 498-A and 302/34 of IPC and sentenced as under:- Offences Sentence Fine 302/34 IPC Life imprisonment Rs.10,000/-, in default thereof to further undergo 1 month’s additional imprisonment 498-A IPC 3 years’ simple imprisonment Rs.2000/-, in default thereof to further undergo 10 days’ additional imprisonment 2) The case of the prosecution is that on 15.05.2013, PW-1 Smt. Sanu Kanwar, the mother of the deceased-Poonam lodged a report stating that the marriage between Mangal Singh and the deceased were performed on 02.01.2007 as per the Hindu rituals and customs. Out of the said wedlock, a female child, namely, Ranu was born, who is now 4 years of old. At the time of marriage, gold, silver, clothes, utensils and other household items were given as per their financial capacity. After 3 years of marriage, the in-laws started harassing the deceased to bring money from parents. Two to three times, the compromise talks were held. The husband was a drunkard. He used to beat the deceased. All the accused used to harass her demanding additional dowry. Two days prior to the incident, she was physically assaulted. On 15.05.2013, accused-Madan Singh, father-in-law of the deceased called and informed that the deceased received burn injuries and they were shifting the deceased to MGH Hospital, Jodhpur. When she reached the hospital, she found that her daughter was lying on bed with burn injuries. On enquiry with her daughter, she informed that her co-sister, Guddi i.e. wife of accused-Arjun Singh who is younger brother of Mangal Singh, caught hold her hands, father-in-law poured kerosene and lit the fire. At that time, her brother-in-law was watching her standing at the gate outside the room. While her husband was shouting again and again. He saw the deceased getting burned by his father and sister in law and later he also lit fire on her foot. Basing on the above report, an FIR was lodged against the accused for offences under Sections 498-A, 307, 324 of IPC. While her husband was shouting again and again. He saw the deceased getting burned by his father and sister in law and later he also lit fire on her foot. Basing on the above report, an FIR was lodged against the accused for offences under Sections 498-A, 307, 324 of IPC. 3) The A.S.I. of the concerned police station rushed to the hospital and he recorded the statement under Exhibit-P/41 on the same day at about 10:10 p.m. During the course of investigation, the statements of Smt. Sanu Kanwar, mother of the deceased (PW-1), Jeevraj Singh, maternal uncle (PW-3) and Gopal Singh, father of the deceased (PW-9) were recorded. The Investigating Officer also recorded the statement of the deceased under Exhibit-P/37. On the same day, PW-17, the Additional Chief Judicial Magistrate recorded the dying declaration of the deceased under Exhibit-P/19. After investigation, charge-sheet was filed. 4) The final investigation reveals that there was constant harassment to the deceased from all the accused demanding her to bring additional dowry, two days prior to the incident, there was physical assault on her by husband, father-in-law and sister-in-law. On 15.05.2013 at about 6:30 pm, the deceased was in her room. The co-sister Guddi and her husband Arjun Singh caught hold her hands, father-in-law Madan Singh poured kerosene and husband Mangal Singh lit the fire. The unknown neighbours rescued the deceased and shifted her to the hospital. While undergoing treatment, she succumbed to burn injuries on 24.05.2023. 5) The trial court on the basis of above allegations framed the charges for the offence under Section 498-A, 304-B IPC in alternate 302 read with Section 34 of IPC. The prosecution in support of its case examined as many as 19 witnesses and adduced 42 documents. Accused were examined under Section 313 Cr.P.C. and they denied the incriminating evidence. However, they did not produce any defence evidence. 6) The trial court after appreciation of contentions and evidence available on record came to the conclusion that the appellants-accused were not guilty of charge for offence under Section 304-B of IPC and therefore, they were acquitted of the said offence. However, the trial court convicted the appellants-accused for the offences punishable under Section 498-A as well as 302/34 of IPC and accordingly, they were sentenced to the terms as indicated herein-above. Hence, this appeal. However, the trial court convicted the appellants-accused for the offences punishable under Section 498-A as well as 302/34 of IPC and accordingly, they were sentenced to the terms as indicated herein-above. Hence, this appeal. 7) The contention of the learned counsel appearing for the appellants-accused is that the conviction was based on multiple dying declarations without there being any corroboration. According to him, the dying declarations suffer from material inconsistencies and when such material inconsistencies exist from two dying declarations, the court should have insisted for corroboration, which was not done. It is also contended that the injuries referred in the postmortem report demonstrate that it is not a case of homicidal burn injuries. The nature of injuries and the places where there are no injuries, clearly shows that they are of self-inflicted nature. 8) The learned counsel further contended that initial dying declaration, which was recorded by the A.S.I. clearly demonstrates that there was no role attributed to the husband except that he was a silent spectator and the roles were attributed only to father-in-law and co-sister Guddi i.e. Arjun Singh’s wife. According to the said dying declaration, Guddi caught hold her hands and father-in-law poured kerosene and lit fire. The second dying declaration was recorded by PW-14 Ramdeo, the Investigating Officer, u/sec. 161 Cr.P.C. as under Exhibit-P/37, wherein Arjun Singh was not named and it was also stated that on making hue and cry, neighbours came to rescue her and put out a fire. On advice of neighbours, the husband, father-in-law and co-sister have shifted her to hospital. Whereas, in the dying declaration recorded by Magistrate under Exhibit-P/19 and P/37, a specific role has been attributed for each of the accused by changing her earlier version. In these dying declarations, it is stated that Arjun Singh and his wife Gudi caught hold her hands, father-in-law poured kerosene, and her husband lit fire. It is also contended by learned counsel that Exhibit-P/1 refers that husband also lit the fire on the foot after watching the deceased getting burned by his father, brother and sister-in-law. According to him, these inconsistencies creates a great doubt over all the dying declarations. There is no truthfulness in the statement of the deceased. It is also contended by learned counsel that Exhibit-P/1 refers that husband also lit the fire on the foot after watching the deceased getting burned by his father, brother and sister-in-law. According to him, these inconsistencies creates a great doubt over all the dying declarations. There is no truthfulness in the statement of the deceased. 9) It is also contended that the deceased claimed that two days prior to the incident, her husband, father-in-law and co-sister subjected her to harassment demanding additional dowry and in this regard, she claimed to have approach the local police, but to substantiate such a claim, the police did neither produce any such report lodged by the victim, nor any police officer was examined, which falsifies the plea set up by her in the dying declarations. 10) It is also contended that father, mother and uncle of the deceased have not supported the fact of harassment of the deceased for dowry. Therefore, the credibility of the deceased’s claim that she was subjected to harassment by all the in-laws demanding additional dowry has no legs to stand. The statement of the deceased clearly demonstrates that for the last one year, she was in the rented premises and for her stay, a room was constructed and 6 months prior to the incident, she was shifted to that room along with her husband and these circumstances clearly demonstrates that there are improbability of any maltreatment from the in-law’s side. In fact, they tried to provide the best facility to the deceased as she wanted. Therefore, the trial court has committed error in placing reliance on multiple dying declarations, which suffer from inconsistencies in truthfulness and unsupported by any further corroborating material evidence from the family members and the neighbours. Therefore, the conviction of the appellants for the above charge is required to be set aside. 11) The learned Government Advocate-cum-AAG has contended that the previous dying declaration recorded by the police officer has to be discarded since they suffer from lack of certification from the doctors to show the fitness of the declarant and more credibility has to be given to the dying declaration recorded by the Magistrate. The court below has rightly relied upon the dying declaration recorded by the Magistrate under Exhibits-P/19 and P/39 and rightly convicted the accused for the offences charged. The court below has rightly relied upon the dying declaration recorded by the Magistrate under Exhibits-P/19 and P/39 and rightly convicted the accused for the offences charged. 12) It is also his contention that merely because the parents of the deceased and other neighbours have not supported the case of the prosecution, when there is a dying declaration from the Magistrate which proves to be genuine, true, voluntary and consistent, the same cannot be discarded. The trial court has rightly relied upon such dying declaration and rightly convicted the accused for the offences charged. Such a conviction does not require any interference. 13) We have heard the learned counsel for the appellants as well as learned Government Counsel-cum-AAG extensively and carefully perused the material available on record. 14) In the present case, the postmortem report clearly demonstrates that the deceased suffered burn injuries. On account of septicemia, which is resulted from burn injuries, the deceased succumbed to the injuries. This means it has been proved that the deceased death is not normal. It is on account of burn injuries received by the deceased. Now, the question is whether such burn injuries are result of homicidal act or self inflicted. 15) The evidence on record clearly demonstrates that the marriage of the deceased was performed in the year 2007 and the incident occurred on 15.05.2013. Meanwhile, a child was also born. The dying declaration indicates that she had been subjected to physical assault by all the accused demanding additional dowry and two days prior to the incident also, husband, father-in-law and sister-in-law had beaten the deceased, resultantly, she approached the local police. But the Investigating Officer has not collected any such report. The evidence is lacking in this regard. The parents i.e. PW-1 & 9 have not supported any harassment faced by the deceased. Even, PW-3 who is maternal uncle of the deceased has also not supported the prosecution story. The neighbours were examined as PW-10 and P-11, they have also not supported the prosecution story. The only evidence which are available to the trial court to convict the appellants was the dying declarations of the deceased. 16) There are three sorts of dying declarations. The neighbours were examined as PW-10 and P-11, they have also not supported the prosecution story. The only evidence which are available to the trial court to convict the appellants was the dying declarations of the deceased. 16) There are three sorts of dying declarations. The first dying declaration was recorded under Exhibit-P/41 by the A.S.I. of the concerned Police Station on the same day of the incident at 10:10 pm and the second dying declaration was recorded by PW-16 Rampal, the Investigating Officer in the form of statement under Section 161 Cr.P.C. under Exhibit-P/37. The third dying declaration was recorded by Magistrate under Exhibit-P/19 and P/ 39 on the same day at about 11:32 pm. The incident was informed to PW-1 by father-in-law of the deceased at about 8:00 am. In the dying declaration under Exhibit P/41, it is also stated by the deceased that her husband was mute spectator. Co-sister i.e. Guddi caught hold of her hands and father-in-law poured kerosene and lit fire. The same is the statement under Section 161 Cr.P.C. also. The dying declaration recorded by the Magistrate show that Arjun Singh (younger brother of deceased’s husband Mangal Singh) and his wife Guddi caught hold her hands, father-in-law poured kerosene and husband lit the fire. Whereas, in the First Information Report, it is stated that Guddi i.e. co-sister of the deceased caught hold her hands, father-in-law poured kerosene and lit fire and at that time, the brother of the husband i.e. Arjun Singh was standing near the gate outside the room and subsequently her husband while shouting, also lit fire on her foot. 17) A conjoint reading of the above dying declarations and the First Information Report shows that initial allegation was made against father-in-law and co-sister Guddi. No role was attributed to the husband except that he was silent spectator and in fact presence of Arjun Singh was not indicated. Same is the case in dying declaration Exhibit-P/37 recorded by the Investigating Officer under Section 161 of Cr.P.C. However, some sort of improvements are made under Exhibit-P/1 by the mother of the deceased stating that the husband also lit the fire after his father lit the fire pouring kerosene when co-sister of the deceased caught hold the hands of the deceased. The presence of Arjun Singh at the gate outside the room is also mentioned. The presence of Arjun Singh at the gate outside the room is also mentioned. However, the parents did not support the case set up by the prosecution in the court and they were declared hostile. 18) In the light of the above multiple dying declarations and material inconsistencies, the injuries suffered by the deceased are also relevant. The postmortem examination reveals that the deceased received superficial burns all over the body except few places i.e. scalp, perineal region, posterior part of abdomen and thing, both palm and soles. There are signs of septicemia at places. The cause of death is due to septicemic shock as a result of extensive burns. 19) The Apex Court while dealing with the question whether a case of suicidal or homicidal injuries is made out from the presence of injuries on the body or whether it is indicative of self inflicted or injuries in the nature of homicidal, in the case of State of Uttar Pradesh Vs. Veerpal & Another, reported in (2022) 2 Supreme Court Cases (Cri) 224 in Paragraph 15 of the judgments reads as follows:- “Even considering the medical evidence on record and the injuries sustained by the deceased, it is found that there were no injuries at all on the chest and injuries were found on the head and on the backside. As rightly observed by the trial court, if she had committed suicide by pouring kerosene there would have been injures on the chest as well as injuries would not have been on the head and on the backside. In our view, such injuries as found on the body of the deceased could have possible only if somebody had poured kerosene on her from behind her. The aforesaid aspect has not at all been considered by the High Court.” 20) The Court found that on examination of the injuries it shows that the injuries sustained by the deceased on the head and on the backside prima facie shows that it is a case of homicidal death because if the deceased had committed suicide by pouring kerosene there would have been injuries on the chest. In the present case, the consistent statements show that some persons caught hold the deceased and other accused poured kerosene and lit fire. This means there could be no chance of pouring kerosene from the front side when the persons caught hold her hands. In the present case, the consistent statements show that some persons caught hold the deceased and other accused poured kerosene and lit fire. This means there could be no chance of pouring kerosene from the front side when the persons caught hold her hands. It is not the case of the deceased that hands of the deceased were twisted by backside of the body. This means, if it is a case of homicidal injuries, pouring of kerosene and lighting of fire must be from the backside of the body. If an attempt was made to pour kerosene and lit fire, definitely there could have been injuries present on the scalp and posterior parts of thigh and abdominal region. Absence of such injury gives a doubt over the theory propounded by the deceased. If kerosene was poured and fire was lit from the front side, definitely the injuries must have been on the palm also, which is lacking as per PMR report, front portion of body suffers extensive burns. These evidence creates certain doubts over the claim of the deceased. 21) The Apex Court in the case of Abhishek Sharma Vs. State (Govt. of NCT of Delhi), reported in 2023 SCC Online SC 1358 had an occasion to deal with all the case laws relating to dying declaration and laid the following parameters to be looked into before placing reliance on dying declarations:- “9. Having considered various pronouncements of this court, the following principles emerge, for a Court to consider when dealing with a case involving multiple dying declarations: 9.1 The primary requirement for all dying declarations is that they should be voluntary and reliable and that such statements should be in a fit state of mind; 9.2 All dying declarations should be consistent. In other words, inconsistencies between such statements should be 'material' for its credibility to be shaken; 9.3 When inconsistencies are found between various dying declarations, other evidence available on record may be considered for the purposes of corroboration of the contents of dying declarations. 9.4 The statement treated as a dying declaration must be interpreted in light of surrounding facts and circumstances. 9.5 Each declaration must be scrutinized on its own merits. The court has to examine upon which of the statements reliance can be placed in order for the case to proceed further. 9.4 The statement treated as a dying declaration must be interpreted in light of surrounding facts and circumstances. 9.5 Each declaration must be scrutinized on its own merits. The court has to examine upon which of the statements reliance can be placed in order for the case to proceed further. 9.6 When there are inconsistencies, the statement that has been recorded by a Magistrate or like higher officer can be relied on, subject to the indispensable qualities of truthfulness and being free of suspicion. 9.7 In the presence of inconsistencies, the medical fitness of the person making such declaration, at the relevant time, assumes importance along with other factors such as the possibility of tutoring by relatives, etc.” 22) Hence, the present dying declarations must be examined as per the above parameters laid down by the Apex Court. The evidence on record shows that there is no serious, strong motive for the father-in-law and co-sister of the deceased to cause a homicidal death of the deceased. If the husband of the deceased was really present when the incident occurred, he would have taken active role or he would have prevented the acts of his father and sister-in-law. He could not be a silent spectator. Though initial statement of the deceased reflects that her husband was only a silent spectator, but the subsequent dying declaration was tried to improve and attributes serious overt act against the husband that he lit fire whereas in the first dying declaration, it is the father-in-law who poured kerosene and lit fire. In the other dying declaration, it was stated that co-sister of the deceased caught hold of the hands whereas in the dying declaration made before the Magistrate, it is stated that Arjun Singh and his wife caught hold of her hands and father-in-law only poured kerosene and husband lit fire. These are material inconsistencies, which are not trivial in nature. 23) The injuries found on the body of the deceased also creates a doubt over the infliction of homicidal burn injuries. Further the fact is that it is deceased’s own case that she resided outside for one year on rent. Her husband was alcoholic and used to beat her while in drunken condition. The evidence also shows that for facilitation of comfortable leaving, the in laws of the deceased have constructed a separate room for her and she was shifted to that room. Her husband was alcoholic and used to beat her while in drunken condition. The evidence also shows that for facilitation of comfortable leaving, the in laws of the deceased have constructed a separate room for her and she was shifted to that room. If the father-in-law had such a grudge, he could not have created any special residence for the deceased. The factum of creation of separate accommodation for the deceased indicates that there was no serious motive for the in-laws to do away with the deceased by inflicting such injury. The other factor is that the evidence in the earlier dying declaration clearly shows that it is the husband, father-in-law and co-sister, who shifted the deceased to the hospital. The dying declaration made before the Magistrate indicates that she tried to conceal the factum of shifting her to the hospital by husband, father-in-law and co-sister, whereas, she claimed to have been shifted by unknown neighbours. The witness was trying to implicate all the family members at one stage or the other stage so as to take revenge for their unreasonable acts. 24) In the above facts and circumstances, this Court feels that truthfulness of the dying declaration is not convincingly proved beyond reasonable doubt such dying declaration requires corroboration which is absent. The trial court committed error in placing reliance on the dying declaration made before the Magistrate without considering the overall circumstances surrounding the incident. Therefore, the conviction of the appellants-accused for the offence under Section 302/34 of IPC is required to be set aside and they are liable to be acquitted. 25) Coming to the allegation regarding the harassment, absolutely, there is no evidence from the parents and other relatives of the deceased as they have become hostile. Though there are allegations of harassment in the dying declaration but such declaration cannot be made basis for conviction under Section 498-A IPC as it is not relating to cause of death or circumstances of transaction which resulted in death. In fact, the trial court acquitted the appellants for offence under Section 304-B IPC. In the absence of evidence other than dying declaration, the conviction of the appellants under Section 498-A IPC is unsustainable and they are also entitled for acquittal under Section 498-A IPC. 26) Accordingly, the criminal appeal is allowed. In fact, the trial court acquitted the appellants for offence under Section 304-B IPC. In the absence of evidence other than dying declaration, the conviction of the appellants under Section 498-A IPC is unsustainable and they are also entitled for acquittal under Section 498-A IPC. 26) Accordingly, the criminal appeal is allowed. The judgment of conviction dated 20.03.2017 passed by learned Additional Sessions Judge (Women Atrocities Cases), Jodhpur Metropolitan on the file of Sessions Case No.150/2013 (N.C.V. No.886/2014) is set aside. The appellants are acquitted of the charges for offence under Sections 498-A, 302/34 of IPC. The appellant No.2-Saroj @ Guddi is on bail. Her bail bonds stand discharged. The appellants No.1, 3 & 4 shall be set at liberty forthwith, if not required in any other case. 27) Keeping in view the provision of Section 437-A Cr.P.C., the appellants are directed to furnish a personal bond in a sum of Rs.40,000/- each and a surety bond in the like amount, before the learned Trial Court, which shall be made effective for a period of six months, to the effect that in the event of filing of Special Leave Petition against this judgment or for grant of leave, the appellants, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court as soon as they would be called upon to do so.