In this case 2 dying declarations ostensibly given by the deceased wife implicate the husband. The prosecution case is that the husband used to drink and quarrel with the wife and poured kerosene on her and set her ablaze. All the relatives, including relatives of the wife turn hostile and do NOT support the prosecution case. The Hon court appreciates the case in its entirety and acquits the innocent husband !!
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
D.B. Criminal Appeal No. 769 / 2011
Bhagirath S/o Goruram, by caste Nayak,
Resident of Khyali, Tehsil Rajgarh, District Churu.
(At present lodged in Central Jail, Bikaner.) —-Appellant
State of Rajasthan —-Respondent
For Appellant(s) : Mr. S.K. Poonia.
For Respondent(s) : Mr. Vishnu Kachhawaha, PP.
HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON’BLE MR. JUSTICE GOVERDHAN BARDHAR
[Per Hon?ble Mr. G.K. Vyas, J.]
Date of Judgment :: 19th January, 2017
In this criminal appeal filed under Section 374 (2) of Cr.P.C., the accused appellant, Bhagirath, has challenged the judgment dated 29th of Aug., 2011 passed by learned Addl. Sessions Judge, Rajgarh, District Churu (Trial Court) in Session Case No.18/2008, by which the accused appellant, Bhagirath, was convicted for the offences under Sections 498A and 302 of IPC and following sentence was passed against him: –
498A of IPC: Three Years? Simple
Imprisonment along with
fine of Rs.500/-. In
default of payment of
fine, to further undergo
six months? simple
302 of IPC: Life Imprisonment and
fine of Rs.1,000/- and in
default of payment of
fine, to further undergo
one year simple
Briefly stated, the facts of the case are that on 16.05.2008 at 03.50 PM, Assistant Sub-Inspector, Mangilal (PW.12) of Police Station Rajgarh, recorded statement („Parcha-Bayan?) Ex.P/19) of Smt. Suresh Devi, wife of accused appellant, Bhagirath, who was under treatment at Government Hospital, Rajgarh, District Churu. In the „Parcha-Bayan?, it was alleged by Smt. Suresh Devi, that my husband after consuming liquor used to harass me and on the date of incident at about 12-12.30 in the afternoon, when I was sleeping inside the house under “Chhapra” (Shed), my husband poured kerosene upon me and lit fire. On the basis of above „Parcha-Bayan? of Smt. Suresh Devi, F.I.R. No.158/2008 was registered at Police Station- Rajgarh, u/s 498A and 307 of IPC against the appellant, Bhagirath, and investigation commenced.
During investigation, Smt. Suresh Devi, died on 25.05.2008, therefore, offence u/s 302 of IPC was added. After completing the investigation, Challan was filed against the accused appellant for offences u/s 302, 498A of IPC in the court of learned A.C.J.M., Rajgarh, from where the case was committed for trial to the court of Addl. Sessions Judge, Rajgarh, District Churu.
The learned trial court thereafter after providing opportunity of hearing to the accused appellant, framed charges against the accused appellant for offence u/s 302 and 498A of IPC on 12.08.2009, which the appellant denied and prayed for trial.
During trial, statements of 14 prosecution witnesses were recorded and 20 documents were exhibited from the prosecution side in support of its case, including two dying declarations Ex.P/10 and Ex.P/19 of deceased, Smt. Suresh Devi, recorded by the Executive Magistrate, Rajgarh, at 04.15 PM and ASI, Mangilal (PW.12) at 03.50 PM on 16.05.2008 respectively. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
The learned trial court after recording evidence of the prosecution proceeded to record the statements of accused appellant under Section 313 Cr.P.C. in which accused appellant denied the allegations of prosecution.
An opportunity to lead evidence was granted to the accused, therefore, accused appellant examined himself as DW.1 in defence and said that no kerosene was poured by me, the deceased herself committed suicide while pouring kerosene upon her and my son, Mukesh, poured water on her mother to save. It was also stated by the accused that I am not consuming liquor.
The learned trial court after hearing the arguments considered the entire evidence and while relying upon the dying declaration (Ex.P/10 and Ex.P/19) of the deceased, convicted the accused appellant vide judgment dated 29.08.2011 for committing offences u/s 302 and 498A of IPC, which is under challenge in this appeal.
Learned counsel for the accused appellant submitted that out of 14 prosecution witnesses, PW.1, Mamta, 22 years of age (daughter of deceased, PW.2, Mukesh 16 years of age (son of deceased), PW.3, Karni Singh (independent witness who present at the time of incident), PW.4 Ram Kumar (brother of accused appellant), PW.8 Om Prakash (brother of deceased Smt. Suresh Devi), PW.9 Jagdish (nephew of deceased), PW.10 (nephew of deceased), PW.11 Naresh (nephew of deceased), all the relatives turned hostile and did not support the allegations prosecution. Therefore, it is obvious that neither the family members of the accused appellant nor family members of the deceased, supported the prosecution case, however, the learned trial court while relying upon the dying declaration (Ex.P/19) recorded by the ASI, Mangilal at 03.50 PM on 16.08.2008, and another dying declaration (Ex.P./19) recorded by the Executive Magistrate, Rajgarh at 04.15 Pm on 16.05.2008, convicted the accused appellant, but as per argument of the learned counsel for the appellant both these dying declarations cannot be treated as proved because no certificate of the doctor declaring the injured to be fit to give statements was obtained inspite of the fact that doctors were present. Therefore, the finding of guilt recorded by the learned trial court only on the basis of dying declaration, is not sustainable in law.
Learned counsel for the appellant further submitted that as per statements of PW.12, ASI Mangilal, he reached at Govt. Hospital, Rajgarh, after receiving telephonic information and recorded the statement of Smt. Suresh Devi vide Ex.P/19 at 03.50 PM on 16.05.2008, upon which she (deceased, Smt. Suresh Devi), put her thumb impression and made allegations that her husband poured kerosene upon her. It was further stated by her that after consuming liquor he used to beat me, but it is one of the important fact that deceased was under treatment, where her statements were recorded, and doctor was there, who examined the injured Smt. Suresh Devi at 04.00 PM, and gave Injury Report (Ex.P/8). Meaning thereby before examination by the doctor, her statements were recorded and thumb impression was taken, but Dr. Raj Kumar Sarraf (PW.5) categorically stated in his cross- examination that palm, thumb and fingers of Smt. Suresh Devi (deceased) were completely burnt. Therefore, it is highly doubtful that as to how thumb impression were obtained upon the dying declaration (Ex.P/19). It is also argued that the another dying declaration (Ex.P/10), which was recorded by Executive Magistrate, Rajgarh PW.6, Mr. Narendra Kulhari at 04.15 PM. The said dying declaration (Ex.P/10) also bears the thumb impression of Smt. Suresh Devi. The said witness (PW.6) accepted in his statement that at the time of recording the statement of Smt. Suresh Devi, in the Hospital, doctors were present and thumb impression was taken upon the dying declaration, but as per statement of doctor, who examined first, the palm, thumb and fingers of deceased were already burnt, then how it was possible to obtain the thumb impression of the deceased upon Ex.P/19.
In the cross-examination, a specific question was put to the witness, whether any certificate of fitness was obtained by him or not, PW.6, Narendra Kulhari (the then Executive Magistrate, Rajgarh) stated that, “no I did not obtain any fitness certificate from the doctor nor signature of the doctor was obtained on Ex.P/10.
Learned counsel for the appellant thus vehemently argued that there is ample evidence on record that doctors were present at the time of recording the dying declarations Ex.P/10 and Ex.P/19, but no fitness certificat was obtained prior to recording dying declaration. More so, the Executive Magistrate while recording the dying declaration (Ex.P/10) of Smt. Suresh Devi, did not record his own satisfaction that she is in a position to speak or fit to understand. Therefore, the conviction which is solely based upon the dying declaration of the deceased, is not sustainable so as to convict the accused appellant for the alleged crime of murder.
Learned counsel for the appellant further submitted that there is serious doubt about the recording of dying declaration because there is statement of doctor that palm, fingers and thumb of the deceased were completely burnt. Learned counsel for the appellant invited our attention towards Rule 6.22 of Rajasthan Police Rules, 1965, which provides procedure for recording dying declaration and submitted that dying declaration has not been recorded according to procedure provided in Rule 6.22 of the Rules of 1965, therefore, finding of conviction recorded by the trial court is based upon doubtful evidence.
Learned counsel for the appellant invited our attention towards following judgments:
1. Smt. Kamla Vs. State of Punjab reported in (1993) 1 SCC 1
- Kishan Lal Vs. State of Rajasthan reported in (2000) 1 SCC 310
Lella Srinivasa Rao Vs. State of A.P. reported in (2004) 9 SCC 713
Amol Singh Vs. State of M.P., reported in (2008) 5 SCC 468
State of Andhra Pradesh Vs. P. Khaja Hussain reported in (2009) 15 SCC 120
Sharda Vs. State of Rajasthan reported in (2010) 2 SCC 85 7 . S t at e of Rajasthan Vs. Shravan Ram & Anr. (Criminal Appeal No.427/2007, decided on 01.05.2013).
Chhotu Vs. State of Rajasthan reported in 2016 (1) WLN 168 (Raj.)
On the basis of above grounds, it is prayed that the impugned judgment may kindly be quashed and the accused may be acquitted from the charges.
Per contra, learned Public Prosecutor vehemently argued that although all the witnesses including, family members of deceased and the family members of accused, turned hostile and did not support the prosecution case, but the dying declaration of the deceased recorded, firstly by the ASI Mangilal vide Ex.P/19, and by the Executive Magistrate, Rajgarh vide Ex.P/10, cannot be disbelieved because in both the dying declarations, specific allegations were levelled by the deceased against the appellant for pouring kerosene and litting fire upon her. Therefore, no error has been committed by the trial court in relying upon the dying declaration of deceased, Smt. Suresh Kumar Devi, to hold the accused appellant guilty for the offence of murder.
With regard to argument of learned counsel for the accused appellant that while recording the dying declaration provisions as contemplated in Rule 6.22 of the Rajasthan Police Rules, 1965 (Rules of 1965) have not been complied with, it is argued by the learned Public Prosecutor that in this case the dying declaration (Ex.P/10) was recorded by the Executive Magistrate, therefore, it cannot be said that Rule 6.22 of the Rules of 1965, has not been taken in consideration for the purpose of recording the statement of deceased, Smt. Suresh Dehvi. As far as ground taken by the learned counsel for the accused appellant that before recording the statements/dying declaration of Smt. Suresh Devi, fitness certificate was not obtained by the ASI, Mangilal (PW.12) and so also by the Magistrate, it is argued by the learned Public Prosecutor that only satisfaction of the authority recording the dying declaration is to be there. The dying declaration should satisfy all the necessary tests and one of such important test if there are more than one dying declaration, they should be consistent, particularly in the matter particulars. In this case, there is no contradiction in the both the dying declarations, therefore, the ground raised by the learned counsel for the accused appellant that dying declarations were recorded without obtaining fitness certificate is not sustainable in law. It is also pointed out that even though all the witnesses turned hostile, two dying declarations recorded by the independent officials, cannot be ignored and same has rightly been relied upon by the learned trial court while holding him guilty for offence u/s 302 of IPC, as such this appeal may kindly be dismissed and the finding of conviction arrived at by the learned trial court may be upheld. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
After hearing the learned counsel for the parties, we have minutely scanned the entire evidence and find that whole prosecution case is based upon the statements of 14 prosecution witnesses, and out of 14 witnesses, PW.1, Mamta, 22 years of age (daughter of deceased, PW.2, Mukesh 16 years of age (son of deceased), PW.3, Karni Singh (independent witness who present at the time of incident), PW.4 Ram Kumar (brother of accused appellant), PW.8 Om Prakash (brother of deceased Smt. Suresh Devi), PW.9 Jagdish (nephew of deceased), PW.10 (nephew of deceased), PW.11 Naresh (nephew of deceased), all turned hostile and did not support the prosecution case. Furthermore, son and daughter of the deceased and brother of the appellant specifically stated that kerosene was poured by deceased herself, and further stated that accused appellant was not consuming liquor.
Thus it is obvious that inspite of two dying declarations of the deceased recorded by the ASI, Mangilal and the Executive Magistrate, Rajgarh, which have been relied upon by the trial court so as to convict the accused appellant for the alleged crime of murder.
After considering the arguments raised by the learned counsel for the accused appellant to disbelieve the dying declaration, now we are dealing the question as to whether the dying declaration recorded by ASI, Mangilal and Executive Magistrate, Rajgarh, would be sufficient to record finding of conviction against the appellant. To consider the argument, we have perused Rule 6.22 of the Rules of 1965, which reads as infra:
“Dying Declarations – (1 ) A dying declaration shall, whenever possible, be recorded by a Magistrate.
(2) The person making the declaration shall, if possible, be examined by medical officer with a view to ascertaining that he is sufficiently in possession of his reason to make a lucid statement.
(3) If no Magistrate can be obtained, the declaration shall, when a gazetted police officer is not present, be recorded in the presence of two or more reliable witnesses unconnected with the police department and with the parties concerned in the case.
(4) If no such witnesses can be obtained without risk of the injured person dying before his statement can be recorded, it shall be recorded in the presence of two or more police officers.
(5) A dying declaration made to a police officer should, under Section 162, Code of Criminal Procedure, be signed by the person making it.”
Upon the present set of evidence, we find that although the statements/?Parcha-Bayan? Ex.P/19 was recorded by the ASI, Mangilal (PW.12), upon that FIR was registered. The said „Parcha-Bayan? of the injured was recorded at 03.50 PM on 16.05.2008 when Smt. Suresh Devi, was under treatment at Govt. Hospital, Rajgarh. The said dying declaration bears the thumb impression of the deceased, Smt. Suresh Devi. Upon perusal of entire „Parcha-Bayan?, it is obvious that there is no disclosure for taking any fitness certificate of the doctor though statements were recorded in the Govt. Hospital, Rajgarh, and soon after recording the „Parcha-Bayan? at 04.00 PM, Smt. Suresh Devi (deceased) was medically examined by the doctor at 04.00PM and injury report was prepared. In our opinion even though it was necessary to obtain fitness certificate before recording statements („Parcha-Bayan?) but at the same time, we cannot lose sight of the fact that the time and the place where the dying declarations of the deceased were recorded, was the hospital and doctors were very much present in the Hospital. In the statement of the PW.5, Dr. Raj Kumar Sarraf it is categorically stated that palm, both thumbs and fingers were in burnt condition. So also the said witness nowhere stated that deceased disclosed the reason how burn took place or her husband poured kerosene upon her. In the cross- examination a specific question was put to doctor whether you have any knowledge how incident of burn took place, it is replied by him that I don?t know how burn injuries were caused to the deceased.
In our view, if „Parcha-Bayan? was recorded by the ASI, Mangilal, just ten minutes before medical examination of the injured by Dr. Raj Kumar Sarraf (PW.5), then obviously, doctor was to be informed about the reason of burn. As per injury report (Ex.P/8), after examination by the doctor was prepared at 4?O Clock, before ten minutes, the ASI recorded the statement of deceased, for which a specific question was put to doctor whether statement of injured were recorded in his presence, to which he replied that, “;g lgh gS fd ,l s h lp w u k dk dkxt bl i=k- ij ugha gSA ;g lgh gS fd iqfyl }kjk fy;k x;k ipkZ c;kuo dk;kZikyd eft- }kjk fy, x, c;ku ejs h ekStnw xh eas ugha fy, x,A eaS ejht dk bykt djus eas O;Lr FkkA ;g lgh gS fd et:ck dh gFky s h o vx a qfy;k tys gq, FkAs ”
a Bw ]s vx The aforesaid discussion of evidence create serious doubt the fact of recording the „Parcha-Bayan? (Ex.P/19) by the ASI, Mangilal, upon which the FIR was registered against the accused appellant.
We have perused the second statement/dying declaration (Ex.P/10) which is said to be recorded by the Executive Magistrate, Rajgarh. Upon perusal of Ex.P/10, it is abundantly clear that there is no whisper about the fact that any satisfaction was recorded by the Magistrate before recording the statements of the injured with regard to fitness of the injured even to speak and the said statements were recorded at 04.15 PM, just after fifteen minutes before the injured was medically examined by Dr. Raj Kumar Sarraf. It is not in dispute that the said dying declaration (Ex.P/10) was recorded by the Executive Magistrate, Rajgarh, in the Govt. Hospital and upon that there is thumb impression of injured, but no presence of other witness is recorded including doctors, who were present in the hospital, by the Executive Magistrate. Similarly, no satisfaction about fitness and state of mind was recorded by the Executive Magistrate before recording the dying declaration of the deceased.
In the totality of the circumstances and considering the fact that all relatives including in-laws of deceased and maternal side, turned hostile and in both the dying declarations, no fitness certificate was obtained from the doctors who were present in the hospital. Therefore, we are of the view that it is not safe to rely upon the so- called two dying declarations so as to hold the accused appellant guilty for the alleged crime of murder.
We have perused and considered the law laid down by the Hon?ble Apex Court in the judgments cited at bar by the learned counsel for the accused appellant. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
The Hon?ble Apex Court considering the scope of multiple in the case of Smt. Kamla v. State of Punjab (supra) held as under:
“A dying declaration should satisfy all the necessary tests and one such important test is that if there are more than one dying declaration they should be consistent particularly in material particulars.”
In the case of Kishan Lal v. State of Rajasthan, (2000) 1 SCC 310, the Honb?le Apex Court held as under:
“Examining these two dying declarations, we find not only that they gave two conflicting versions but there is inter se discrepancies in the depositions of the witnesses given in support of the other dying declaration dated 6.11.1976. Finally, in the dying declaration before a Magistrate on which possibly more reliance could have been placed the deceased did not name any of the accused. Thus, we have no hesitation to hold that these two dying declarations do not bring home the guilt of the appellant. High Court, therefore, erred in placing reliance on it by erroneously evaluating them.”
In the case of Lella Srinivasa Rao v. State of A.P.
(2004) 9 SCC 713, the Hon?ble Apex had considered the legality and acceptability of two dying declarations.
Noticing the inconsistency between the two dying declarations, and held that it is not safe to act solely on the said declarations to convict the accused persons.
In the case of Amol Singh v. State of Madhya Pradesh (2008) 5 SCC 468, the Hon?ble Apex Court interfered with the order of sentence noticing inconsistencies between the multiple dying declarations. It is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration but the statement should be consistent throughout. However, if some inconsistencies are noticed between one dying declaration and the other, the Court has to examine the nature of the inconsistencies, namely, whether they are material or not and while scrutinising the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances.
In the case of State of Andhra Pradesh v. P. Khaja Hussain, (2009) 15 SCC 120, held that it was not a case where the variation between the two dying declarations was trivial in nature.
In the case of Sharda v. State of Rajasthan (2010) 2 SCC 85, the Hon?ble Apex Court while dealing with three dying declarations and noticing inconsistencies between dying declarations, set aside the sentence ordered by Sessions Judge as well as High Court and held as under:
“Though a dying declaration is entitled and is still recognized by law to be given greater weightage but it has also to be kept in mind that accused had no chance of cross-examination. Such a right of cross- examination is essential for eliciting the truth as an obligation of oath. This is the reason, generally, the court insists that the dying declaration should be such which inspires full confidence of the court of its correctness. The court has to be on guard that such statement of deceased was not as a result of either tutoring, prompting or product of imagination. The court must be further satisfied that deceased was in a Crl.A.No. 699/08 fit state of mind after a clear opportunity to observe and identify the assailants. Once the court is satisfied that the aforesaid requirement and also to the fact that declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration.”
The Constitution Bench of Hon?ble Apex Court in the case of Laxman Vs. State of Maharasthra, reported in AIR 2002 SC 2973 held that absence of certificate of doctor as to fitness of mind of declarant would not render dying declaration not acceptable. What is essentially required is that person who records it, must be satisfied that deceased was in fit state of mind. Certification by doctor is rule of caution. If the voluntary and truthful nature of declaration can be otherwise established, the same can be relied to record the dying declaration. The hyper technical view should not be therefore taken.
So far as facts of present case are concerned, neither the Executive Magistrate, Rajgarh, nor the ASI, Mangilal (PW.12) recorded their own satisfaction while recording the statements/dying declaration of the deceased. Even the doctor, who was present in the Hospital, has not been asked to give fitness certificate declaring the injured to be in a position to give statement.
We have gone through both the dying declarations and considered the fact that all the witnesses of family, including parental family of the deceased, turned hostile and did not corroborate the allegations made by the deceased in the so-called dying declarations against the accused appellant, so also, it is admitted position of the case that inspite of presence of doctors, fitness certificate was not obtained, nor own satisfaction of fitness was recorded by the Executive Magistrate, Rajgarh, and ASI, Mangilal (PW.12) before recording the statements of the deceased. In view of above, whole prosecution case which is solely based upon dying declaration, is doubtful. Therefore, it is a fit case to reverse the finding of conviction arrived by the learned trial court so as to hold accused appellant guilty for the offence of murder. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
Furthermore, there is no corroborative evidence on record to the effect that deceased, Smt. Suresh Devi, was subjected cruelty in connection demand of dowry. Thus, the conviction recorded by the learned trial court holding the accused appellant guilty for offence under Section 498A of IPC, is not sustainable in law.
Consequently, while extending benefit of doubt the instant criminal appeal filed by the accused appellant, Bhagirath is hereby allowed. The impugned judgment dated 29th of Aug., 2011 passed in Session Case No.18/2008 by learned Addl. Sessions Judge, Rajgarh, District Churu, convicting the accused appellant for offences u/s 498A and 302 of IPC is hereby quashed and set aside. The accused appellant be released forthwith, if not required in any other case.
Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellant is directed to forthwith furnish personal bond in the sum of Rs.20,000/- and a surety bond in the like amount, before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against the judgment or for grant of leave, the appellant, on receipt of notice thereof, shall appear before Hon’ble the Supreme Court.
(GOPAL KRISHAN VYAS)J.
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