Rajasthan High Court - Jodhpur
State vs Dhula @ Dhuliya @ Dhoolchand on 28 November, 2017
Bench: Gopal Krishan Vyas, Virendra Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Crml Leave To Appeal No. 262 / 2017
State of Rajasthan.
----Appellant
Versus
Dhula @ Dhuliya @ Dhoolchand S/o Ambawaji Gameti, R/o
Aaadphala Upla, P.S. Nai, District Udaipur.
----Respondent
_____________________________________________________
For Appellant(s) : Mr. J.P.S. Choudhary, P.P.
For Respondent(s) : Mr. Khet Singh
Mr. Vikram Singh
_____________________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE DR. JUSTICE VIRENDRA KUMAR MATHUR Judgment / Order 29/11/2017 The instant criminal leave to appeal has been filed by the State of Rajasthan under Section 378(3) & (1) Cr.P.C. against the judgment dated 15.11.2016 passed by the learned Additional Sessions Judge, No.2, Udaipur in Sessions Case No.14/2015, whereby the respondent was acquitted from the charge levelled against him under Section 302 IPC.
As per the facts in the case, on 23.01.2015, at about 7.30 P.M., the S.H.O., P.S. Nai, District Udaipur recorded the statement (Ex.P/1) of Smt. Vardi W/o Heeralal Dangi, when she was admitted in Maharana Bhopal Hospital, Udaipur. The said statement was recorded by S.H.O. Shri Rameshwar Meena in which the injured Smt. Vardi stated that on that day, she was at her father's house where at about 10.00 a.m., her step brother (2 of 6) [CRLLA-262/2017] Dhuliya @ Dhoolchand r/o Aad, came to her house and asked her to go for darshan at the temple of Lord Mahadev. The injured went along with her step brother to the temple Kamli Mahadev. As per complaiant, before 100-150 meters, her step brother took her into bushes to kill and gave severe beatings by legs and hands and due to those injuries, she fell down. Thereafter, her step brother inflicted blows by stone upon her face and other parts of the body and due to those injuries, she became unconscious and after some time when she became conscious on the way, two employees of Forest Department came, to whom the incident was reported by her. The employees of the Forest Department made telephone call for 108 Ambulance and she was taken to the hospital in 108 Ambulance. As per the statement of injured Smt. Vardi recorded in the hospital, she was not going to her in-laws' house and due to enmity, her step brother Dhulia inflicted serious injuries upon her face, head and chin, therefore, she prayed to take action against him.
Upon the aforesaid oral report, formal FIR No.14/2015 (Ex.P/25) was registered at P.S. Nai, District Udaipur on 23.01.2015 and investigation commenced. During pendency of investigation, Smt. Vardi died on 25.01.2015 at 9.00 p.m., therefore, postmortem of the body of deceased was conducted by the Medical Officer Dr. Mohd. Irfan Khan and postmortem report (Ex.P/18) was handed over to the S.H.O. for investigation.
The respondent Dhuliya @ Dhoolchand was arrested by the police and after investigation from him and information taken from him, charge-sheet was filed by the police against the (3 of 6) [CRLLA-262/2017] respondent in the court of Additional Chief Judicial Magistrate, No.3, Udaipur. The learned Magistrate committed the case for trial to the Court of Sessions Judge, Udaipur but the learned Sessions Judge, Udaipur transferred the case for trial to the court of learned Additional Sessions Judge, No.2, Udaipur.
The learned trial court, after framing charge under Section 302 IPC, proceeded to record evidence of prosecution. During trial, statements of 13 prosecution witnesses were recorded and 39 documents were exhibited. After recording the evidence of the prosecution, the learned trial court proceeded to record the statement of respondent under Section 313 Cr.P.C. in which he said that the whole prosecution story is false and it is a case of false allegation. No evidence was produced by him in his defence.
The learned trial court, after recording evidence, finally heard arguments and acquitted the respondent from the charge levelled against him under Section 302 IPC vide judgment dated 15.11.2016 in Sessions Case No.14/2015 (CIS No.1403/2015).
The instant leave to appeal has been filed by the State of Rajasthan on various grounds but the learned Public Prosecutor argued that the findings of the learned trial court for acquittal are against the basic principle of law because the FIR was registered on the basis of parcha bayan (Ex.P/1) of the deceased Smt. Vardi herself in which specific allegations were levelled by her for causing injuries by the respondent. According to the learned Public Prosecutor, there was no reason for the learned trial court to disbelieve the dying declaration of Smt. Vardi, recorded by the (4 of 6) [CRLLA-262/2017] S.H.O., P.S. Nai in Maharan Bhopal Hospital, Udaipur. The learned trial court committed grave error in disbelieving the dying declaration made by the deceased on 23.01.2015 at about 7.30 P.M. Therefore, on this count alone, the leave to appeal may kindly be granted.
The learned Public Prosecutor further submits that although there is no eye-witness of the case but it was the duty of the trial court to assess the entire other evidence properly so as to held the respondent guilty for the offence under Section 302 IPC because there was motive left with the respondent to kill his step- sister because she was not going to the in-laws' house in spite of her marriage. Therefore also, the leave to appeal may kindly be granted.
Per contra, learned counsel appearing on behalf of the respondent submits that the learned trial court has disbelieved the parcha bayan (Ex.P/1) of deceased Smt. Vardi on the ground that the alleged oral statement was recorded by the police in the hospital but no fitness certificate was obtained from the doctor whether she was in a position to speak or to understand and there is no other evidence on record to prove the fact that the deceased was in a position to speak. It is also argued that the witnesses of Forest Department, viz., Lalit Paliwal (PW-5) and Ganesh Lal (PW-
6) turned hostile and did not support the prosecution case. Further, no efforts were made by the S.H.O. for recording the statement of the deceased by a Magistrate knowing well that she was under treatment in Maharana Bhopal Hospital, Udaipur. Therefore, the learned trial court acquitted the respondent while (5 of 6) [CRLLA-262/2017] giving benefit of doubt because for the alleged motive, there is no evidence on record. As per the learned counsel for the respondent, it is not a fit case to grant leave to appeal against the impugned judgment.
After hearing learned counsel for the parties, we have perused the entire evidence so also the fact that the entire prosecution case is based upon the so called parcha bayan (Ex.P/1), which is said to be recorded by the S.H.O., P.S. Nai, District Udaipur in Maharana Bhopal Hospital, Udaipur. The said hospital is a big hospital where number of doctors were there. It is also one of the important fact that the deceased Smt. Vardi was examined by the doctor when she was taken to the hospital and injury report (Ex.P/16) was prepared by the doctor. In the statement of Dr. Irfan Khan (PW-10), it is nowhere stated by him that how the injuries were caused. Moreso, in the cross- examination, it is specifically stated by this witness that, " ojnh us eq>s bl ckjs esa ugha crk;k fd mlds ;g pksVsa fdl dkj.k ls vk;h FkhA esjh e`rdk ls dksbZ ckrphr ugha gqbZ Fkh] vxj gqbZ gksrh rks mldk mYys[k eSa vo"; pksV izfrosnu esa djrk FkkA tc e`rdk pksV izfrosnu cukrs oDr vk;h ml le; thfor Fkh] fdUrq ckr djus dh fLFkfr esa ugha FkhA-"
In our opinion, if deceased Smt. Vardi was not in a position to speak, then how the evidence of dying declaration which is said to be recorded by the S.H.O., P.S. Nai, without any fitness certificate, can be taken into consideration to held the accused guilty. We have also considered the record to ascertain whether trustworthy evidence is on record to prove motive/intention of the respondent for committing such offence, (6 of 6) [CRLLA-262/2017] and find that prosecution has failed to prove its case beyond reasonable doubt on the basis of the so called dying declaration, which is not proved by the prosecution in accordance with law.
In view of the above discussion, it is not a fit case for granting leave to appeal against the impugned judgment. Therefore, the leave to appeal filed by the State of Rajasthan is hereby dismissed.
(DR. VIRENDRA KUMAR MATHUR)J. (GOPAL KRISHAN VYAS)J. /skm/ I.No.66