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2024 DIGILAW 1422 (RAJ)

Shanta v. State Of Rajasthan

2024-10-17

MUNNURI LAXMAN, PUSHPENDRA SINGH BHATI

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JUDGMENT : Dr. Pushpendra Singh Bhati, J. 1. This criminal appeal under Section 374(2) Cr.P.C. has been preferred claiming the following relief: “It is, therefore, respectfully prayed that this appeal may kindly be accepted and accused appellant may be acquitted under section 302 IPC and she may be set at liberty.” 2. The accused-appellant laid a challenge to the judgment of conviction and order of sentence dated 02.11.1993 passed by the learned Sessions Judge, Udaipur in Sessions Case No.142/92 (State of Rajasthan vs. Smt. Shanta), whereby the accused-appellant has been convicted and sentenced as below: Offence under Section Sentence Fine 302 IPC Life Imprisonment - 3. Brief facts of this case, as placed before this Court by learned counsel for the accused-appellant, are that on 24.01.1992, a telephonic information was given to the police official, namely, Deva Ram (PW-6) by one Yogendra Chandra (Medical Jurist), General Hospital, Udaipur to the effect that on the said date, one Smt.Wali Bai, wife of Mangilal Banjara, resident of Ode Mohalla, has been brought to the hospital in a burnt condition, whereupon she was admitted in the hospital and treatment started accordingly. 3.1. Upon receiving such information, PW-6 Devram along with the then ASI Bhagwantilal went to the General Hospital, Udaipur, where Smt. Wali Bai was undergoing treatment, to make the necessary enquiry in relation to the incident in question. Upon reaching the hospital, the said police officials prepared Parcha Kayami (Ex.P-10) wherein it has been mentioned that Smt. Wali stated, upon being questioned, that her co-wife Shanti @ Shanta (accused-appellant) had burnt her by pouring kerosene, while Smt. Wali was sleeping. When Smt. Wali raised an alarm, her husband came to her rescue and covered her with blankets, while her co-wife ran away as she wanted to kill Smt. Wali. 3.2. On the basis of the above, an FIR bearing No.19/92 dated 25.01.1992 was registered under Section 307 IPC and the investigation commenced thereafter. During the course of investigation, Smt. Wali died on 01.02.1992, as a consequence whereof, offence under Section 302 IPC was added. The learned Trial Court framed charges against the accused-appellant under Section 302 IPC; the said charges were read over to the accused-appellant, which she denied and claimed to stand due trial and the trial accordingly commenced thereafter. 3.3. During the course of investigation, Smt. Wali died on 01.02.1992, as a consequence whereof, offence under Section 302 IPC was added. The learned Trial Court framed charges against the accused-appellant under Section 302 IPC; the said charges were read over to the accused-appellant, which she denied and claimed to stand due trial and the trial accordingly commenced thereafter. 3.3. During the course of trial, the prosecution produced witnesses (PW-1 to PW-8) and got exhibited the documents (Ex.P-1 to Ex.P-13); in defence, witness (DW-1) was produced and the documents (Ex.D-1 & Ex.D-2) were exhibited, whereafter, the accused-appellant was examined under Section 313 Cr.P.C., in which she pleaded innocence and her false implication in the criminal case in question. 3.4. Thereafter, upon hearing the contentions of both the parties as well as considering the material and evidence placed on record, the learned Trial Court, convicted and sentenced the accused-appellant, as above, vide the impugned judgment of conviction and order of sentence dated 02.11.1993 against which the present appeal has been preferred by the accused-appellant. 4. Learned counsel for the accused-appellant submitted that though no eyewitness of the incident in question was produced by the prosecution during the trial, but the husband (DW-1 Mangilal) of the deceased, deposed that at the relevant time, he alongwith the accused-appellant were present at the place of incident and both tried to save the deceased from burning, in course of which, they sustained burn injuries on hands. Furthermore, as per learned counsel, in case the incident had happened in the manner as claimed by the prosecution, then also it is highly doubtful as to how the daughter of the deceased, sleeping with her at the relevant time, did not receive any burns, and thus, by no stretch of imagination, the prosecution case regarding happening of the incident in question as alleged, is worthy of being believed. Moreover, it is apparent on the face of record that there was neither any motive nor any enmity between the accused and her co-wife, as they lived separately. 4.1. It was further submitted that the deposition of the mother (PW-1 Amba Bai) and brother (PW-3 Babulal) of the deceased, which have been claimed by the prosecution to be consistent in their testimonies, cannot be relied upon as they were interested witnesses. 4.2. It was further submitted that Dr. 4.1. It was further submitted that the deposition of the mother (PW-1 Amba Bai) and brother (PW-3 Babulal) of the deceased, which have been claimed by the prosecution to be consistent in their testimonies, cannot be relied upon as they were interested witnesses. 4.2. It was further submitted that Dr. G.L. Daad (PW-4) who prepared the postmortem report (Ex.P.-5) stated in his testimony that injuries sustained by the deceased could have been caused when the person is standing, as her foot-sole, hands and part of the face were not burnt and that the prosecution story to the effect that the accused-appellant poured kerosene on her while she was sleeping, does not match with the medical evidence on record, and therefore, in light of such material contradiction, the conviction of the accused-appellant by the learned Trial Court is not justified in law. 4.3. It was also submitted that the conviction cannot be ordered solely on the basis of the dying declaration, as done in the present case vide the impugned judgment, more particularly, when there is no corroborative evidence available on record, and thus, the impugned judgment of conviction and order of sentence is not sustainable in the eye of law. 5. On the other hand, Mr. Neeraj Kumar Gurjar, learned Government Advocate cum Additional Advocate General while opposing the submissions made on behalf of the accused-appellant submitted that the deceased sustained burns to the extent of 80% which were superficial to deep in nature and the cause of the death as indicated in the post mortem report Ex.P.- 5 was shock due to burns. It was also submitted that the recovery of the ‘kerosene ki pipi’, ‘lit match-stick’, burnt blankets, and clothes and the burnt spots on the mattress, show that the incident did take place as narrated by the deceased. 5.1. It was also submitted that the learned Trial Court before passing the impugned judgment has rightly relied on the dying declaration recorded by the concerned Magistrate PW-8 Shri O.P. Singh, in the presence of PW-5 Dr. Shivcharan, as the sufficient corroborative evidence was available on record. Therefore, the impugned judgment of conviction and order of sentence does not warrant any interference in the instant appeal. 6. Heard learned counsel for the parties as well as perused the record of the case. 7. Shivcharan, as the sufficient corroborative evidence was available on record. Therefore, the impugned judgment of conviction and order of sentence does not warrant any interference in the instant appeal. 6. Heard learned counsel for the parties as well as perused the record of the case. 7. This Court observes that the accused-appellant Shanti was charged with the commission of murder of Smt. Wali (deceased) by burning her with kerosene and after conducting the trial, the learned Trial Court convicted and sentenced her vide the impugned judgment, as above. 8. This Court also observes that at the time when the deceased was admitted in the hospital, PW.5-Dr. Shivcharan prepared a Bed Ticket (Ex.P/9) wherein it was written that the deceased sustained burns (kerosene burns) at 9:40 a.m. and the said Bed Ticket was also further confirmed by PW.5 during his testimony during the trial. This Court further observes that neither there was anything mentioned in the Bed Ticket, nor deposed during the testimony of PW.5, to the effect that the deceased poured kerosene on her by herself. 9. This Court further observes that when Smt. Wali (deceased), after sustaining burns, was taken to the hospital, and at that time PW.6-Devaram (Police Officer) at Amba Mata Police Station received the information regarding the incident in question, whereupon he reached the said hospital and prepared the Parch Kayami (Ex.P/10) of the deceased on 24.01.1992, as per which, the deposition of the deceased was to the effect that at the relevant time, when she was sleeping, the accused-appellant poured kerosene on the deceased and burnt her. Relevant portion of the said Ex.P/10 is reproduced as hereunder:- ^^------ vr% okMZ bapktZ Jh MkW- f'kopj.k gkml ltZu lkgc ds lkeus okyhckbZ ls nfj;kQr fd;k rks Jherh okyhckbZ us nfj;kQr ij crk;k fd esjh lkSr 'kkafr us eq>s lksrh gqbZ dks ?kklrsy Mkydj ekfpl yxkdj tyk fn;kA ------^^ 10. On a perusal of the testimonies of PW.1-Ambabai (Mother of deceased) and PW.3-Babulal (Brother of the deceased), this Court finds that both the witnesses stated in their testimonies that DW.1-Mangilal (Husband of deceased) has two wives (one was the deceased and another is the accused-appellant), and that the relations between the two wives was not cordial The said witnesses further stated that the deceased told them that the accused-appellant poured the kerosene on the deceased and lit the match. This Court further observes that the testimonies of both the witnesses were suffering from minor contradictions, but the same were not fatal to the prosecution story regarding involvement of the accused-appellant in the crime in question. 11. This Court also observes that the deceased’s Dying Declaration (Ex.P/8) was recorded by the concerned Magistrate (PW.8-O.P. Singh) on 25.01.1992, wherein the deceased stated that at the relevant time, she was sleeping in the same room with her daughter, husband (DW.1-Mangilal) and accused-appellant, and at that time, the accused-appellant poured kerosene on her and lit the match, whereupon she (deceased) raised an alarm, and upon hearing the same, her husband (DW.1) put out the fire by covering her body with blanket. Relevant portion of the said Dying Declaration (Ex.P/8) is reproduced as hereunder:- ^^------ uksV%& Jherh okyhckbZ ,e-th- vLirky mn;iqj ds okMZ ua- 13 esa cSM ua- 22 ij ,MfeV gSaA M~;wVh ij mi- fpfdRld izh f'kopj.k ¼ih-M- 5½ us xokg dks c;ku nsus ds fy, la{ksi crk;k] vr% xokg ds e`R;qdkfyd dFku 2- ,-,e- ij ys[kc) fd, tk jgs gSaA iz- 1& D;k vki c;ku nsuk pkgrh gSa\ m- & th gka] iz- 2& vki dSls tyh\ mRrj %& eSa viuh cPph o lkSr 'kkafr rFkk ifr ekaxhyky ds lfgr lks jgh FkhA esjh lkSr 'kkafr us eq>s ekjus dh xjt ls feV~Vh dk rsy esjs mij Mkydj ekfpl dh frYyh tykdj esjs vkx yxk nhA eSa fpYYkkbZ rks 'kkafr Hkkx xbZ esjs ifr us esjs mij dEcy Mkydj vkx cq>kbZA iz- 3& vki vkSj D;k dguk pkgrh gSa\ mRrj%& eq>s esjk ifr [kpkZ ugha nsrk gS eSa vyx jguk pkgrh gwa] D;ksafd esjh lkSr 'kkafr eq>s ijs'kku djrh gS o esjk ifr eq>s iSlk ugha nsrkA esjh lkSr us eq>s tku ls ekjus ds fy, tyk;kA eSa fpYykbZ rks ekSds ij vkSj yksx vk x,A ---- vkfn vkfnA^^ 11.1. This Court also observes that the aforesaid Dying Declaration was recorded in presence of the PW.5 Dr. Shivcharan, who stated in his testimony that at time of recording of the Dying Declaration the deceased was in a fit state of mind, thus, leaves no room for doubt in regard to the depositions made by the deceased as a dying declaration before the concerned Magistrate (PW-8). 12. This Court further observes that PW.4-Dr. Shivcharan, who stated in his testimony that at time of recording of the Dying Declaration the deceased was in a fit state of mind, thus, leaves no room for doubt in regard to the depositions made by the deceased as a dying declaration before the concerned Magistrate (PW-8). 12. This Court further observes that PW.4-Dr. G.L. Daad conducted the postmortem (Ex.P/5) of the deceased, as per which, a total of 3 injuries were found on the deceased’s body. This Court also observes that the Dying Declaration was recorded by the Magistrate (PW.8) and the same was further corroborated by the Parcha Kayami (Ex.P/10) prepared by PW.6, Bed Ticket (Ex.P/9) prepared by PW.5 as well as the testimonies of PW.5, PW.6, PW.1 and PW.3, who all stated about the fact of pouring of kerosene on the deceased, at the relevant time, by the accused-appellant, while the deceased was sleeping. Therefore, no shadow of doubt could be created on the credibility and veracity of the dying declaration, and the same, when seen in conjunction with the other evidence on record, clearly proves commission of the crime in question by the accused-appellant. 13. Thus, on the basis of above analysis of the documentary and oral evidence produced on record, this Court does not find any illegality or perversity in the impugned conviction, as recorded by the learned Trial Court vide the impugned judgment. The learned Trial Court, before passing the impugned judgment, has gone through the evidence carefully and we have also undertaken the same exercise, and in our opinion, the learned Trial Court has committed no error whatsoever, in coming to the conclusion that the accused-appellant has committed the crime in question 14. Consequently, the present appeal is dismissed, and accordingly, the impugned judgment of conviction and order of sentence dated 02.11.1993 passed by learned Trial Court in Session Case No.142/92 is upheld. 14.1. The accused-appellant is on bail. Her bail bonds are cancelled/forfeited. She is ordered to be taken back into custody, to be sent to the concerned Jail, to serve out the remaining period of the sentence so awarded to her, by the learned Trial Court vide the impugned judgment. 14.2. All pending applications stand disposed of. The record of the learned Trial Court be sent back forthwith. 15. This Court is thankful to Ms. 14.2. All pending applications stand disposed of. The record of the learned Trial Court be sent back forthwith. 15. This Court is thankful to Ms. Swati Shekar, who has rendered his assistance as an Amicus Curiae on behalf of the accused-appellant, in the present adjudication.