Rajasthan High Court - Jaipur
Smt. Rukma vs State Of Rajasthan on 11 August, 2000
Equivalent citations: 2001CRILJ596, 2000(3)WLC102, 2001(1)WLN108
ORDER Yamin, J.
1. This is an appeal by Smt. Rukma who has been convicted by learned Additional Sessions Judge, Nagaur camp at Deedwana vide his judgment dated 30.1.1985 for offence u/S. 306 IPC and sentenced to two years' simple imprisonment with a fine of Rs. 500/- and in default to undergo three months' simple imprisonment.
(2). Briefly stated, Smt. Rukma's son was married to deceased Bhagwati. The marriage took place about eight years ago as admitted by Smt. Geeta PW-9 who is the mother of deceased. It is alleged that Smt. Bhagwati committed suicide on 18.7.1984 by burning herself after sprinkling kerosene oil on her body as the accused appellant had abetted the commission of suicide. Smt. Rukma is the mother-in-law of Smt. Bhagwati and used to pester her, abuse her, make allegations about theft, used to allege that she was of bad character and had illicit relations with her father-in-law. On 18.7.1984 Smt. Rukma, appellant quarreled with Bhagwati and abetted her to burn and die. Smt. Bhagwati silently went to a room, sprinkled kerosene oil on herself and burnt. She suffered about 90% burns and was brought to hospital where doctors recorded her dying declaration. On the basis of this dying declaration a case u/S. 306 IPC was registered at police station Ladnu. After investigation Smt. Rukma was challaned. Learned Magistrate having jurisdiction committed the case to the learned Additional Session Judge. Learned Additional Sessions Judge framed charge u/S. 306 IPC against the accused appellant on 6.9.1984. Appellant denied her indictment and claimed trial. Then prosecution examined as many as nine witnesses. Appellant Smt. Rukma was examined under Sec. 313 Cr.P.C. Learned Additional Sessions Judge, after hearing both the parties, convicted and sentenced the accused appellant as stated above.
(3). I have heard the learned counsel for the appellant as well as learned Public Prosecutor.
(4). Learned counsel for the appellant Shri Dungar Singh submitted that since the marriage had taken place eight years before me incident, no presumption u/S 113-A of the Evidence Act would be applicable in this case. He submitted that the case hinges on the dying declaration of the deceased which was recorded by Dr. Phutar Mal Jain PW-6 who had sent a report to the police to call for the Magistrate so that dying declaration of the lady may be recorded, but the police did not take any action in time and consequently dying declaration could not be recorded by a Magistrate instead the doctor himself recorded dying declaration which is not reliable as the same is not corroborated by any other evidence. He also submitted that the neighbours have not supported the story that the appellant used to harass the deceased. He also submitted that when the lady had about 90% burns it was not possible that she would be conscious to the extent of deposing what is written in Ex.P/12, the dying declaration. He also submitted that there is no evidence that deceased was having bad relations with the appellant as the mother of the deceased and her uncle have not deposed anything against the appellant. According to him if the appellant would have pestered or harassed the deceased, she would naturally tell her mother who is PW-9 Smt. Geeta or to her uncle PW-8 Deen Dayal. They have not deposed anything against the accused appellant. He, therefore, submitted that deceased while making dying declaration has falsely implicated the appellant. In the alternative he submitted that if the conviction is maintained, the sentence of two years is excessive in the facts and circumstances of this case and the same be reduced.
(5). On the other hand, learned Public Prosecutor has supported the judgment.
(6). In order to prove offence u/S. 306 IPC the prosecution has to prove that Smt. Bhagwati committed suicide and the appellant abetted it. So far as presumption u/S. 113-A of the Evidence Act is concerned, the prosecution has to prove that Smt. Bhagwati committed suicide within a period of seven years from the date of her marriage, and that she was subjected to cruelty by the appellant. Under this section cruelty shall have the same meaning as in Sec. 498A IPC which means any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any properly or valuable security is on account of failure by her or any person related to her to meet such demand.
(7). Learned Public Prosecutor agreed that there is no positive evidence to the effect that the marriage of Smt. Bhagwati took place within seven years of the occurrence. I find that there is rather negative evidence with regard to it when Smt. Geeta PW-9 who is the mother of deceased admitted on 8.1.1985 that Bhagwati was married to Purshottam about nine years ago. That means that Bhagwati was married in the year 1976. The occurrence took place on 18.7.1984. So the marriage had taken place before seven years and therefore, the presumption of Sec. 113-A of the Evidence Act will not arise in this case.
(8). It is on record that the husband of deceased used to live in Assam and deceased Bhagwati was living with her mother-in-law in the village. Prosecution examined four witnesses who were neighbours. They are PW-1 Smt. Geeta, PW-2 Smt. Sohni, PW-3 Bhanwarlal and PW-4 Jai Chand. All of them turned hostile and have not supported the prosecution case regarding cruelly to the deceased. The most material witness is of course Dr. Phutar Mal Jain PW-6 who stated that Smt. Bhagwati was brought to hospital and that she was in serious condition. He immediately sent information to police station Ladnu requesting that since Bhagwati was serious, arrangement be made for recording her dying declaration. The memo to this effect is fix. P/11 on record. He sent this memo at 8.30 A.M. but since her condition was very precarious he thought it fit to record the dying declaration of Smt. Bhagwati and did not wail till the Magistrate would arrive. According to him after some time Smt. Bhagwati expired. Dr. Bhom Singh PW-7 was also present at the time when statement of Bhagwati was recorded and Ex.P/12 bears his signature. A lady doctor was also present whose name according to the prosecution was Smt. Shakuntala Agarwal. She has not been produced as it was not necessary to multiply the witnesses in whose presence dying declaration was recorded.
(9). The question arises how far the dying declaration is to be relied upon. Shri Dungar Singh submitted that the dying declaration should not be acted upon as the police did not arrange to get Bhagwati examined by a Magistrate and that it was not possible for Smt. Bhagwati to state what is written in Ex. P/12 because she had 90% bums and could not have been in a position to give statement before the doctors. But these arguments are of no help to the appellant. Dr. Phutar Mal Jain PW-6 has stated that though Bhagwati was in a condition of shock and even glucose was being given to her, yet she was in a position to give statement. He stated that none else except doctors was present at the time of recording dying declaration of Smt. Bhagwati, Dr. Bhom Singh PW-7, who was Medical Officer in the Hospital, has also stated that it was he who first saw Smt. Bhagwati and Dr. Phutar Mal Jain, Incharge of Hospital and Dr. Mrs. Agarwal also came. Treatment was immediately stated and statement of Bhagwati was recorded by Dr, Phutar Mal Jain PW-6 and whatever she stated the same was written in Ex.P/12. According to him Bhagwati was in a condition fit to give statement. He stated that he took about an hour to record the statement of Bhagwati. She would some times stop speaking but she never became unconscious while she was giving statement. Dr. Phutar Mal Jain also stated that she was in a fit condition to give statement. There is an endorsement on Ex.P/12 made by Dr. Phutar Mal Jain which stales that when Smt. Bhagwati gave statement she was fully conscious and the statement was read over to her whose thumb impression was obtained. This was all done in presence of Dr. Ranawat and Dr. Smt. Shakuntala Agarwal. It may be stated that only doctors were present at that time and it should be taken to be a statement recorded by Dr. Phutar Mal Jain while Bhagwati was conscious and in a fit condition to give statement. The argument of learned counsel that Bhagwati was not in a fit condition to give statement is not acceptable in the facts and circumstances of this case when both the doctors have stated hat she was in a fit condition to give statement. Secondly the dying declaration itself shows that it is such which could be given by such a person who was in fit condition to speak what is written in Ex.P/12. There is nothing to suggest that the doctors or anybody else was interested in prosecuting the appellant. It was submitted by Shri Dungar Singh that it is not known as to who brought Smt. Bhagwati to the hospital. In my view it hardly matters. PW-7 Dr. Bhom Singh who first examined Smt. Bhagwati was not asked as to who had brought Smt. Bhagwati to the hospital. Dr. Phutar Mal Jain PW-6 does not remember the name of the person who brought Smt. Bhagwati to hospital and it is a very natural conduct of Dr. Phutar Mal Jain.
(10). There is no difference in a dying declaration of homicide or suicide. In Sharad Birdhichand Sarda vs. State of Maharashtra (1), it was observed that it may be important to note that Sec. 32 of the Evidence Act does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide. The dying declaration need not be corroborated by other evidence as held in Khushal Rao vs. State of Bombay (2). Hon'ble Supreme Court held that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated,; each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; a dying declaration. It has been further held in this judgment that in order to pass the lest of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross examination. But once, the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, but from the fact that the court, in a given case, has come to the conclusion that that particular dying declaration was not free from the infirmities. In the case in hand none of the relations of deceased was present, nor anybody was interested in prosecuting appellant, there was no chance of tutoring, therefore, the dying declaration cannot be said to be a result of coaching. There is evidence of both the doctors to prove that declarant was in a fit state of mind to make the statement and made the same freely.
(11). It was further submitted by the learned counsel that though Dr. Phutar Mal Jain informed the police vide Ex. P/4 to arrange for recording dying declaration very soon yet the police did not contact any Magistrate to record dying declaration of Smt. Bhagwati. The doctor informed the Station House Officer, Ladnu at 8.30 A.M. that "an extensive burns case has come just now, please arrange for dying declaration very soon as her condition is very poor". Dr. Phutar Mal Jain has proved this document. PW-5 Abdul Razak stated that Ex.P/11 was received at police station and A.S.I. Bahadar Dan was sent to hospital. Then he himself went to hospital where the doctor had handed over Ex.P/12 to Bahadar Dan who submitted it to the witness and on the basis of which first information report was recorded. By the time this witness reached hospital Smt. Bhagwati had succumbed to her burns. He admitted in the cross examination that Ex.P/12 reached him at 8.45 and he immediately sent Bahadar Dan. By the time Bahadar Dan reached, statement of Bhagwati had been recorded. By the time police arrived at the Hospital statement of Bhagwati had already been recorded and she had succumbed to her burns. This does not make the dying declaration doubtful. In every case it is not necessary that dying declaration should be recorded by a Magistrate alone. It was held in Abdul Majid Abdul Rehman vs. State of Gujarat (3), that where the doctor found that life was ebbing fact in the patient and that there was no time to call the police or a Magistrate, the Doctor is justified, indeed he was duly bound to record the dying declaration of the deceased. He is disinterested witness and the court should not refuse to act on the dying declaration recorded by the doctor. In Suresh vs. Slate of Madhya Pradesh (4), it was held that dying declaration recorded by doctor may be relied on where the doctor has certified that deceased was in her senses. In this case the victim had received serious burn injuries and the doctor who recorded dying declaration stated that when she recorded the dying declaration the patient had started going into coma. The dying declaration was believed to be true. In the same citation it was observed that on such a dying declaration the Sessions Judge and the High Court is justified in placing reliance. In these circumstances when dying declaration is beyond suspicion the same is to be relied upon and the learned Sessions Judge was right in believing it to be true.
(12). Smt. Bhagwati stated in her dying declaration that the appellant was harassing her for last two years and even in the morning of 18th July she started quarreling. The appellant used to abuse and say that Bhagwati was a thief, a bad character and that had illicit relations with her father-in-law. On the fateful day she asked Bhagwati to burn and die. Since Bhagwati was facing the trauma of cruelly for last two years, she committed suicide and thus it is proved that the appellant abetted her to commit suicide. There is no force in this argument that uncle Deen Dayal PW-8 and the mother Geeta PW-9 of the deceased have not staled that Bhagwati was being harassed by her mother-in-law as both of them have turned hostile to the prosecution. Thus I am of the view that dying declaration of Bhagwati is the truthful version and is to be believed which proves beyond doubt that the appellant harassed Smt. Bhagwati and abetted her to commit suicide. The finding of guilt of the appellant cannot be interfered with in this case.
(13). So far as sentence is concerned, learned counsel Shri Dungar Singh submitted that the appellant is 66 years old lady and the period already undergone may be sufficient. I find from the record that she has remained in police and judicial custody only for four days which cannot be said to be sufficient in this case.
(14). The occurrence look place 16 years ago and Smt. Rukma is now a 66 years old lady. Therefore, the sentence should be reduced to a period of nine months. Sentence of fine should be maintained.
(15). Consequently, the appeal is partly allowed. Conviction of accused appellant Smt. Rukma u/S. 306 IPC is maintained but sentence of jail of two years is altered to nine months. Sentence of fine is maintained. Bail bonds of Smt. Rukma are cancelled. Learned Additional Sessions Judge is directed to take Smt. Rukma in custody and send her to jail to undergo remaining pan of sentence.