Rajasthan High Court - Jaipur
Smt. Kalawati vs State Of Rajasthan on 10 September, 1993
Equivalent citations: 1994CRILJ691, 1994(3)WLC224, 1993WLN(UC)485
JUDGMENT R.S. Verma, J.
1. Appellant Kalawati was tried by the learned Addl. Sessions Judge, Nohar for offences under Section 302 and 302/34, I.P.C. Her mother Rookma and sister Kastoori were also tried with her for offences under Section 302 read with Section 34, I.P.C. Smt. Rookma died during course of trial on 25-6-1986. By his judgment dated 21-7-1986, the learned Addl. Sessions Judge acquitted Kastoori of charge under Section 302 read with Section 34, I.P.C. He also acquitted appellant Kalawati of charge under Section 302, I.P.C. but convicted her for offence under Section 302 read with Section 34, I.P.C. He sentenced the appellant with life imprisonment and also to pay a fine of Rs. 250/- and in default thereof, to undergo R.I. for three months. Aggrieved, appellant Kalawati has filed this appeal.
2. In a nutshell, the prosecution story is that Smt. Roshni was resident of Amarpura, P.W.3 Gugan Ram is her father, while P.W.4 Kor Singh is her brother. Smt. Roshni was married some nine years prior to the occurrence with Keshu Ram resident of Karanpura. Accused Smt. Rookma was mother of Keshu Ram, while accused Kastoori and Kalawati are his sisters. Keshu Ram and Smt. Roshni had a peaceful marital life for about three years and Roshni also gave birth to a child. However, Roshni's mother-in-law Rookma and sisters-in-law Kastoori and Kalawati some how did not like her and after having lived for three years in the marital home, she was compelled to leave Karanpura. She eventually went to Amarpura and started residing with her father Gugan Ram and brother Kor Singh.
3. The prosecution story is that Roshni was second wife of Keshu Ram and Keshu Ram had earlier married some other lady, who had died leaving some children. Two daughters of first wife of Keshu Ram were to be married on 9-5-85 at Karanpura. In this connection Roshni came to Karanpura and started living with her husband, mother-in-law and sisters-in-law at their residential house at Karanpura. On 22-6-85 at about 4 a.m. Roshni went from her house to her 'bada' nearby with a view to put cow-dung. She was accompanied with her two sisters-in-law Kastoori and Kalawati. After they had done with the cow-dung, Rookma came there with a tin of Kerosine and poured kerosine on the body of Roshni. Kalawati lit a match stick and put her clothes on fire, with the result that she sustained serious burns.
4. The prosecution story is that Roshni was removed that very day by her husband Keshu Ram to Primary Health Centre, Bhadra. P.W.1 Dr. Mahaveer Prasad was summoned from his house and he reached the Hospital by 6.40 a.m. Dr. Mahaveer Prasad immediately sent a written intimation Ex, P-1 to S.H.O., Police Station, Bhadra to the effect that Roshni had been brought to the Hospital by her relatives. This written intimation Ex. P. 1 was received at Police Station, Bhadra at 7 a.m. Meanwhile, Dr. Mahaveer Prasad. examined Roshni and found that there were extensive burns on 55% of the surface area of the body. The burns were quite severe. The patient was conscious and her pulse was 90 per minute. Respiration was 20 per minute and her B.P. was 100/80. The prosecution story is that on receipt of Ex. P. 1, Assistant Sub-Inspector Bhanwar Singh of Police Station, Bhadra made an entry in the General Diary of the Police Station Ex. P.21 reciting the fact that intimation has been received as aforesaid and he was proceeding to Government Hospital along with Foot Constable Makkhan Lal 267.
5. The prosecution story further is that Bhanwar Singh reached Police Station, Bhadra at about 7.15 a.m. He found Roshni in the Hospital in burnt condition. He found that Roshni was conscious. He, therefore, recorded her statement Ex. P. 7. He read over the statement to Roshni and obtained her thumb impression 'X' on the same.
6. The prosecution story is that the condition of Roshni was serious and, therefore, Bhanwar Singh presented an application Ex. P.8 before P.W.7 Mahesh Singh, Munsif and Judicial Magistrate, Bhadra requesting the learned Magistrate to proceed to Hospital at Bhadra and to record the statement of Smt. Roshni. It appears that this application was presented before the learned Magistrate by the concerned Assistant Public Prosecutor-II. The learned Magistrate received this requisition Ex. P. 8 at about 8.15 a.m. The learned Magistrate recorded an order Ex. P. 3 on the back of requisition Ex. P. 8 and directed Bhanwar Singh to obtain information with regard to facts mentioned in the endorsement. Bhanwar Singh approached Dr. Mahaveer Prasad to do the needful. At about 8.30 a.m., Dr. Mahaveer Prasad is said to have opined that Roshni was fit for giving her statement. Shri Mahesh Singh on receipt of the written opinion of the doctor, proceeded to Primary Health Centre, Bhadra and reached the Primary Health Centre at about 9 a.m. He met Smt. Roshni and recorded her statement Ex. P.4 in presence of Dr. Mahaveer Prasad. He read over statement so recorded to Roshni and she admitted it to be correct. Thereupon thumb impression of Roshni was obtained. A certificate to the effect that statement was recorded in presence of Dr. Mahaveer Prasad was also obtained by the learned Magistrate on Ex. P.4 and this certificate was signed by Dr. Mahaveer Prasad.
7. The prosecution case is that P.W. 6 Gharsi Ram, S.H.O., Police Station, Bhadra reached Primary Health Centre at about 9.10 a.m. Out side the Hospital, Bhanwar Singh met him and informed him that the Magistrate was recording the statement of Smt. Roshni. Bhanwar Singh handed over the statement Ex. P.7 recorded by him to Gharsi Ram and thereafter Gharsi Ram recorded statement of Smt. Roshni under Section 161, Cr.P.C.
8. The prosecution case is that at about 10.30 a.m. condition of Smt. Roshni became critical and Dr. Mahaveer Prasad referred her to Civil Hospital at Hissar. Meanwhile, father and brother of Smt. Roshni viz., Gugan Ram and Kor Singh also reached Primary Health Centre, Bhadra. They took Smt. Roshni to Hissar. Gharsi Ram deputed one constable to accompany them. Gharsi Ram thereafter proceeded to Police Station, Bhadra, where he recorded a formal F.I.R. Ex. P. 10 on the basis of statement Ex. P. 7.
9. The prosecution story is that Gharsi Ram thereafter went to the scene of occurrence and got the same photographed. He inspected the, site and prepared site-plan Ex. P. 11 and its legend Ex. P. 11 A. He raised one bottle and match-box from the scene of occurrence and duly sealed them and prepared memo Ex. P. 12 in this connection.
He also recovered semi-burnt wearing apparel of Roshni and duly sealed them vide Ex. P. 13 and Ex. P. 14.
10. The prosecution story is that Smt. Roshni was admitted at Civil Hospital, Hissar, where she breathed her last on 28-6-85 at 1.45 p.m. The autopsy was conducted by P.W.2 Dr. Krishna Lal and a post-mortem report Ex. P. 5 was prepared in this regard. According to Dr. Krishna Lal, the cause of death of Roshni was toxaemia due to multiple burns on the body.
11. Prior to the post-mortem, the inquest memo Ex. P. 6 was prepared at Hissar by P.W. 8 Bhagwan Das on written requisition Ex. P. 15. Bhagwan Das prepared inquest report Ex. P. 6 along with a site plan.
12. The Investigating Officer recorded statements of certain witnesses and after completion of formalities of investigation, challaned the three accused persons to stand trial for offence under Section 302 read with Section 34, I.P.C. in the Court of Munsif and Judicial Magistrate, Bhadra. The learned Munsif and Judicial Magistrate, Bhadra committed the accused persons to the Court of learned Addl. Sessions Judge, Nohar vide order dated 12-8-1985.
13. The learned trial Judge framed charges against Rookma and Kastoori for offence under Section 302 read with Section-34, I.P.C. He framed charge under Section 302 and alternatively under Section 302/34, I.P.C. against the appellant. All the accused persons pleaded not guilty and claimed trial. As already stated Rookma died during the course of trial.
14. At the trial, the prosecution examined as many as 10 witnesses in support of its case, viz. P.W. 1 Mahaveer Prasad, P.W. 2 Dr. Krishna Lal, P.W. 3 Gugan Ram, P.W. 4 Kor Singh, P.W. 5 Bhanwar Singh, P.W. 6 Gharsi Ram, P.W. 7 Mahesh Singh, P.W. 8 Bhagwan Das, P.W. 9 Om Prakash and P.W. 10 Prithvi Raj. Relevant documentary evidence was also produced.
15. The appellant and co-accused in their statements recorded under Section 313, Cr. P.C. denied their complicity in the crime and stated that Smt. Roshni had burnt herself in their 'bada'. Rookma stated Roshni was brought to their house in a burnt condition by Rajendra and Ram Rakh. To the same effect is the statement of Smt. Kastoori and that of the appellant. It was further stated that Shri chand and Ram Rakh had extinguished the fire in which Roshni had been engulfed. In support of their plea, accused persons examined D.W. 1 Ram Rakh, D.W. 2 Rajendra Singh, D.W. 3 Shrichand and D.W. 4 Birbal.
16. The learned trial Judge did not believe the prosecution case so far as complicity of Kastoori in the crime was concerned. He, however, found it proved that it was the appellant who had put the clothes of Roshni on fire due to which Roshni sustained burns, to which she eventually succumbed. Upon this conclusion he acquitted Kalwati for offence under Section 302, I.P.C. but convicted and sentenced her for offence under Section 302 read with Section 34, I.P.C. as stated above.
17. We have heard the learned Counsel for the parties and have perused the record of the learned trial Judge carefully and meticulously.
18. This is not in dispute before us that Smt. Roshni died on 28-6-1985 due to extensive burns which she had received on 22-6-85 in her 'bada' at village Karanpura. Learned Counsel for the appellant does not challenge this aspect of the prosecution case. On the basis of the testimony of Dr. Mahaveer Prasad, we have no hesitation in arriving at a conclusion that Roshni was brought to Primary Health Centre, Bhadra with extensive burns and she was eventually referred to Civil Hospital, Hissar. There is also no doubt that eventually Roshni succumbed to these injuries as is proved by the testimony of Dr. Krishna Lal.
19. Now, the sole question is whether, the learned Addl. Sessions Judge erred in holding that Smt. Roshni had been burnt in the manner alleged by the prosecution and it was the appellant who had put her clothes to fire.
20. The learned Counsel for the appellant strenuously contends that the prosecution story is unreliable and incredible. It is submitted that in all probability Smt. Roshni had committed suicide by putting herself on fire. The story given by Smt. Roshni before the learned Magistrate Shri Mahesh Singh is a result of tutoring of Roshni by her father Gugan Ram. At his behest, the appellant has been falsely implicated in this case. The learned Counsel for the appellant seriously challenges the truthfulness of the version contained in the alleged dying declarations of Roshni recorded by Bhanwar Singh and Mahesh Singh. He contends that the investigation has been most unfair in this case and the F.I.R. was post investigative one and was recorded after due deliberation.
21. The learned Public Prosecutor opposes the appeal with matched vehemence and contends that in this case there was no opportunity to Gugan Ram to tutor Roshni and the statement of Roshni recorded by Mahesh Singh is quite credible and worthy of reliance and the learned trial Judge did not commit any mistake in acting upon the dying declaration of Roshni recorded by Mahesh Singh. He contends that the conviction and sentence recorded by the learned trial Judge do not call for any interference at the hands of this Court.
22. Here, we may readily state that the case against the appellant rests purely on the alleged dying declarations of Smt. Roshni. There are at least three recorded dying declarations and some oral declarations. One dying declaration in form of statement recorded Under Section 161, Cr. P. C. by Gharsi Ram has not been proved and exhibited. We, therefore, leave the same altogether out of consideration. The learned trial Judge found other recorded dying declarations viz., Ex. P. 7 and Ex. P. 4 to be reliable and trustworthy. Hence, we shall have to consider if the learned trial Judge was right in relying upon the two dying declarations.
23. We would first consider if Ex. P. 7 is a reliable document. It may be stated that according to P.W. 5 Bhanwar Singh he reached Hospital at 7.15 a.m. and recorded statement of Smt. Roshni Ex. P. 7 and obtained thumb impression of Roshni on the same. In cross-examination Bhanwar Singh admitted that when he went to Roshni, Doctor and Nurses were present near Roshni. He states that he had submitted an application Ex. P. 9 to Dr. Mahaveer Prasad regarding the condition of Roshni and thereupon, Mr. Mahaveer Prasad had recorded his opinion on the same. However, Ex. P. 9 was not put to Dr. Mahaveer Prasad and he has not supported the version of ASI Bhanwar Singh on this aspect of the case. Bhanwar Singh has admitted that he did not obtain signatures of the doctor or of the Nurses or of the compounders on Ex. P. 7. This further weakens the prosecution case on this aspect. In cross-examination Bhanwar Singh stated that statement Ex. P. 7 had been recorded at 7.40 a.m. He admitted that he did not send Ex. P. 7 to Police Station, Bhadra immediately. He has explained this by saying that he was busy in procuring presence of the Magistrate for recording statement of Smt. Roshni. The learned Counsel for the appellant submits that the statement of Bhanwar Singh is not worthy of credence. According to prosecution case, Bhanwar Singh was accompanied with Foot Constable Makkhan Lal 267 and Bhanwar Singh could have very conveniently sent Ex. P. 7 to Police Station with Makkhan Lal immediately and promptly for recording an F.I.R. It is submitted that this was riot done and the F.I.R. in this case was recorded at 11 a.m. and this shows that Bhanwar Singh must not have recorded the statement i.e. dying declaration of Roshni as claimed by him at 7.15 a.m. There is a good deal of substance in this contention. Non-obtaining of signatures of Nurses or compounders on Ex. P. 7 renders it a highly unreliable document particularly when it was not promptly sent to P.S. Bhadra, which is situated quite" near the hospital at Bhadra.
24. It is also submitted that the statement was not recorded in accordance with Rule 6.22 of the Rajasthan Police Rules. The learned Public Prosecutor could not refute the aforesaid criticism and urged that there was no reason for Bhanwar Singh to falsely record a dying declaration when the Magistrate had also recorded a dying declaration of Smt. Roshni and hence we should not doubt veracity of Ex. P. 7.
25. We have considered the rival contentions. Rule 6.22 of the Rajasthan Police Rules, 1965 lays down as follows :
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 a 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.
It is an admitted position of the prosecution that when Bhanwar Singh reac hed Hospital, Doctor and Nurses were present by the side of Roshni. By virtue of Sub-rule (3) of Rule 6.22 of the aforesaid Rules, Bhanwar Singh was under an obligation to record dying declaration of Smt. Roshni in presence of two or more reliable persons unconnected with the police department and with the parties concerned in the case. The doctor on duty and the Nurses and Compounders on duty should have been and ought to have been requested to be present when the dying declaration was recorded. In the present case, Mr. Mahaver Prasad does not state that Bhanwar Singh had recorded any dying declaration of Smt. Roshni in his presence.
26. This is true that Bhanwar Singh must have been busy in procuring presence of the Magistrate for recording dying declaration of Smt. Roshni but there is no explanation why Makkhan Lal, Foot Constable 267 was not sent with Ex. P. 7 immediately to the Police Station when he could have been conveniently sent to do so. This shows that Ex. P. 7 might not have been recorded in the manner and at the time, it is claimed to have been recorded by Bhanwar Singh and might have been recorded afterwards. Ex. P. 7, therefore, does not inspire confidence and deserves to he rejected.
27. We may here state that though a dying declaration recorded by a police officer is admissible in evidence Under Section 32 of the Indian Evidence Act, yet it has been considered better to leave such dying declarations out of consideration. The apex Court has deprecated the practice of recording of a dying declaration by a police officer and has observed that the practice of recording of a dying declaration by a police officer during the course of investigation should be discouraged and more reliable methods of recording dying declaration should be resorted to. Kindly see Dalip Singh v. State of Punjab, AIR 1979 SC 1173 : (1979 Cri LJ 700). We may here hasten to add that this is not to suggest that a dying declaration recorded by a police officer cannot at all be acted upon. A police officer may certainly record a dying declaration if there is no time or facility available for recording of the same in a better mode. But, in that case, the police officer must conform to the requirement of the relevant rules and instructions, if any. In the present case, Shri Bhanwar Singh did not at all comply with the provisions of Rule 6.22 of the Police Rules. He altogether disregarded the provisions of these rules. We, therefore, find that Ex. P. 7 is wholly worthless and does not advance the prosecution case at all. We do not propose to place any reliance upon Ex. P. 7 recorded by Bhanwar Singh, which on all counts is a suspicious document.
28. Now, we may consider if dying declaration Ex. P. 4 can be relied upon to sustain the conviction of the appellant. Ex. P. 4 has been recorded by a Judicial Magistrate, First Class viz. Shri Mahesh Singh. Shri Mahesh Singh has deposed that on 22-6-85, he was posted as Munsif and Judicial Magistrate, Bhadra. That day, at about 8 a.m. Shri Bhanwar Singh presented an application. Ex. P. 8 before him. He recorded order Ex. P. 3 on the same asking for information on the following points :
(i) If death of Smt. Roshni was imminent?
(ii) If Smt. Roshni was in a fit condition to give a statement.
He received the necessary information in writing, duly endorsed below Ex. P.3. Dr. Mahaveer Prasad has deposed that endorsement A to B on Ex. P.3 was made by him and he had affixed his signature C D. The testimony of Shri Mahesh Singh is that thereafter he proceeded to P.H.C., Bhadra and recorded the dying declaration of Smt. Roshni in presence of Dr. Mahaveer Prasad. According to him, Smt. Roshni was in a fit condition to give the statement. He recorded her statement in question and answer form and Ex. P. 4 is that statement of Smt. Roshni, recorded in the very language in which she gave the statement. He obtained the thumb impression of Smt. Roshni on Ex. P. 4. He appended his signatures on Ex. P. 4 and also got the same attested by Dr. Mahaveer Prasad, who put his signatures also on Ex. P. 4. He has deposed that he had recorded the statement at about 9.10 a.m. 28.1 The statement of Shri Mahesh Singh has not been shaken in any material particulars and has been corroborated by the statement of Dr. Mahaveer Prasad, whose testimony on the aforesaid salient features of the case has remained unshaken and has stood the test of cross-examination. We, therefore, find that Shri Mahesh Singh did record dying declaration Ex. P. 4 after satisfying himself that Smt. Roshni was in a fit condition to give her statement. We are also satisfied that Ex. P. 4 contains a true and correct account of the statement of Smt. Roshni, as deposed to by her before Shri Mahesh Singh. Learned Counsel for the appellant could not assail this situation before us. We, therefore, hold that Ex. P. 4 is the dying declaration of Smt. Roshni, given by her to Shri Mahesh Singh in presence of Dr. Mahaveer Prasad and contains a true and correct account of the statement made by Smt. Roshni.
29. Now, at this juncture, we may take stock of the legal position regarding use of a dying declaration, which has been properly recorded. A dying declaration can form the basis of conviction provided it passes the test of reliability and is not the result of tutoring. A dying declaration, which has been recorded by a competent Magistrate and in proper form that is to say in the form of question and answer, and, so far as practicable in the words of the maker stands on a much higher pedestal than a dying declaration recorded by a police officer or a dying declaration, which depends upon oral testimony. Their Lordships of the apex Court in Khushal Rao v. State of Bombay, 1958 Cri LJ 106 : AIR 1958 SC 22 : (1958 All LJ 91) after surveying the case law on the subject, laid down the law as follows :
(16) On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) 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, (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that 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; (5) that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.
(17) Hence, in order to pass the test 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.
If, on the other hand, the Court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the Court, in a given case, has come to the conclusion that the particular dying declaration was not free from the infirmities, referred to above or from such other infirmities as may be disclosed in evidence in that case.
30. It will be in light of this legal position stated by the apex Court that we shall have to examine, if the dying declaration Ex. P. 4 passes the test of reliability. In this context, learned Counsel for the appellant has relied upon following circumstances :
(i) There was no particular motive for the appellant to commit the murder.
(ii) If Smt. Roshni would have been burnt in the manner alleged by her, a tin or canister of Kerosene must have been recovered from the scene of occurrence. No such tin or canister was recovered but instead a bottle was recovered.
(iii) Smt. Roshni had occasions to inform numerous people about the manner she received her burns. She got the earliest opportunity, when she was rescued from flames and the fire was extinguished; she had another opportunity to do so when she was removed from the Bada to her house and then to hospital; she had an opportunity to disclose the fact to Dr. Mahaveer Prasad. There is no evidence to show that at any of these stages, she ever complained that she had been put to fire by the appellant.
(iv) There was every probability of Roshni having committed sucide and the probability has not been ruled out beyond shadow of reasonable doubt.
(v) There was opportunity available to interested persons like Gugan Ram etc. to tutor Smt. Roshni and the probability that she must have given the dying declaration due to such tutoring has not been ruled out beyond shadow of reasonable dodoubt.
31. Learned Public Prosecutor has tried to refute these contentions. We shall presently examine the various contentions ad seriatum. First, we will take up the question of motive. A motive plays a crucial role in commission of all crime. 'Motiveless malignity' from which lago of Othello suffered, is always an unusual phenomenon. However, it is not always easy to establish motive, is always locked in the heart of the offender. At times, there may be no seeming motive. However, in such a case, the evidence of crime to fasten the guilt, should be of unimpeachable character and should be of sterling worth. In the present case, Shri Gugan Ram has deposed that about six years prior to his statement, Roshni had sent an errand boy to him, to summon him to Karanpura. At this, he had gone to Karanpura to fetch Roshni. At that time, the appellant and her mother and sister had told the witness that they did not want Roshni to live with them. He has stated that at this, he had taken away Roshni to Amarpura, where she lived for all the past six years. She, however, came to her marital home to attend the marriage of daughters of first wife of Keshu Ram and stayed on, till she was burnt on the fateful day. Now, this statement shows that the appellant, her mother and sister were not happily disposed of towards the deceased, when the deceased earlier stayed at her marital home. Kor Singh P.W.4 has deposed that Roshni stayed for three years at her matrimonial home, but thereafter, she came to Amarpura as her relations with her mother-in-law and sisters-in-law were not happy. To use his own expression ^^jks'kuh 'kknh ds ckn rhu lky rd viuh llqjky es jgh rFkk lklw o uunks ls vucu gksus ds dkj.k gekjs ;gkW vk xbZ Fkh tks ikWp 6 lky jgh A** Now, this evidence at best shows that the relations of the appellant, appellant's mother and sister were not happy with the deceased. To our mind, this evidence does not indicate or establish a sufficient or adequate or strong motive for the appellant to do away with the deceased. Moreover, this is a factor, which has razorsharp twin edges. If it could afford a motive for crime, it could equally furnish a motive for falsely implicating the appellant. We, therefore, leave the matter at that. However, we may point out that no evidence has been adduced to show as to how the three accused including the appellant were disposed of towards the deceased, when the deceased came to have her last stay with her in-laws at Karanpura viz. between 9-5-85 and 22-6-85.
32. Now, in her dying declaration Ex. P4, Roshni has stated that her mother-in-law poured kerosene on her. She has not stated in which container, Smt. Rookma brought the kerosene oil in the 'Bada', which was away from the residential apartment. In her dying declaration Ex. P.7 she stated that her mother-in-law had brought kerosene oil in a canister ^^ihik**. Testimony of Ghadsi Ram shows that he inspected the scene of alleged crime on 22-6-85 itself. He found some charred pieces of wearing apparel and a bottle and a match-box on the spot. The bottle smelled of kerosene. This statement of Ghadsi Ram is supported by Ex. P.11A and Ex. P.12. This would show that no 'tin' or ^^ihik** was found at the spot. Rather a bottle was found at the spot. Ex. P.4 is deficient in this very material particular viz in what sort of container, Smt. Rookma had taken the kerosene to the Bada. In our opinion, the learned Magistrate should have asked Smt. Roshni about the container said to have been used for carrying kerosene to the Bada. This was not done and the deficiency has given rise to the criticism, which we find has some substance and cannot be lightly brushed aside as of no consequence. We find that the aforesaid deficiency in Ex. P.4, read in context of Ex. P.7 and the aforesaid testimony, militate against the basic substratum of the prosecution case that Smt. Rookma had carried kerosene in a tin and had poured kerosene on the clothes of Smt. Roshni before the appellant lit the match stick and set the same to fire.
33. Now, we have to examine if Smt. Roshni had earlier occasions to give the story as recited in Ex. P.4 and if her version about the incident had throughout been consistent. It is unfortunate that the investigating officer Shri Ghadsi Ram did not pay any care and attention to this aspect of the matter. Naturally, somebody would have extinguished the blaze in which Smt. Roshni must have been engulfed and somebody must have taken her to hospital for treatment. Ghadsi Ram. Investigating Officer, in legend to site-plan (Ex. P. 11 A) has described a point 'C" where fire is said to have been extinguished by pouring sand on Smt. Roshni. It does not appear that the Investigating Officer cared to record the statement/s of person/persons, who might have extinguished the fire. This shows a very casual and careless attitude towards investigation of such a serious crime. If the flames of burning wearing apparel of the deceased, would have been extinguished in the manner, suggested by the Investigating Officer, it is but natural that person/persons coming to rescue of Smt. Roshni would have enquired from her as to how she sustained the burns. This would have furnished the earliest and unadulterated version of the incident. By not recording the statement of such person/persons, the Investigating Officer has deprived the Court from finding out, as to what was the earliest version given by Smt. Roshni about the incident. Ex. P.4 is silent on this material aspect of the case and we are left guessing as to what might have been the earliest narration of the episode given by her and to whom. We are, thus, highly handicapped in the matter. The Investigating Officer and the prosecution are guilty of suppressing this vital evidence from the Court.
34. The person or persons who took Smt. Roshni from Karanpura to Badra Hospital have not been examined by the prosecution. Such person/persons, would have naturally enquired from Smt. Roshni as to how she sustained the burns, upon which she would have given out the story about the grim episode. This has again handicapped us in arriving at the truth and the investigation and the prosecution must share the blame equally in the matter for withholding such important evidence from the Court.
35. In chronological sequence, Dr. Mahaveer Prasad comes next in picture. It is he who had sent written intimation Ex. P. 1 to Police Station Bhadra. Ex. P.1 recites that Smt. Roshni had been brought to the hospital by her relatives. Who were these relatives is not known to us because Dr. Mahveer Prasad did not mention the names of the relatives in Ex. P.1. In his statement recorded during the trial, the statement of Dr. Mahaveer Prasad, to say the least, is highly evasive and vacillating for the reasons best known to him. He admitted in his cross-examination that Smt. Roshni had been brought to the Hospital in a jeep by five or six persons, out of whom there were two or three were ladies and the rest were men-folk. He admitted in his cross-examination that he could not definitely state if he had enquired from Smt. Roshni how she got burnt; in his next breath he stated that he must have asked Smt. Roshni about this fact. He further stated that he did not recollect the narration given by Smt. Roshni. He however, categorically admitted that on enquiry Smt. Roshni did not give name of any accused. In the next breath, the doctor changed this version and stated that he did not enquire about the name of the accused. The testimony of Dr. Mahaveer Prasad, thus does not advance the case of the prosecution at all. The conduct of Dr. Mahveer Prasad is strange and passes our comprehension. The statement of Dr. Mahveer Prasad, rather militates against the veracity of the dying declaration, recorded by Shri Mahesh Singh, when he states that Smt. Roshni did not give out name of any accused.
36. This takes us to the consideration of next point viz if relatives of Smt. Roshni had an opportunity of tutoring her. Admittedly, father of Smt. Roshni viz. Shri Gugan Ram was informed of the incident and he along with his son Kor Singh came to Bhadra Hospital and Gugan Ram did meet Smt. Roshni. In this context, it shall have to be examined at what point of time, Gugan Ram reached the Bhadra Hospital and whether he met Smt. Roshni prior to the recording of her statement by Shri Mahesh Singh or after the statement had been recorded.
37. The evidence of Gugan Ram is to the effect that Mani Ram and a son of Budh Ram (name not disclosed) came to him at Amarpura by a jeep at 8.30 a.m. Thereupon, the witness along with Kor Singh, Om Prakash and Shrichand went to the Hospital. He denied that Mani Ram and son of Budh Ram had come to him at 7.30 a.m. He has denied the suggestion that he had reached the hospital at 8 a.m. Kor Singh has made a similar statement. Similar suggestions were put to him and he denied them. He was confronted by his previous statement Ex. D.2 recorded during the course of investigation, wherein he had, in portion A to B, stated that Mani Ram and Budh Ram's son had come to them at 8.00 a.m. He has denied that he made such a statement but the statement has been proved by Ghadsi Ram and it appears that during the course of investigation, the witness had admitted that Mani Ram and Budh Ram's son, had come to Gugan Ram and Kor Singh at 8 a.m. and not at 8.30 a.m. as claimed by Gugan Ram and Kor Singh at the trial. It is interesting to note that neither Gugan Ram nor Kor Singh have disclosed the name of that son of Budh Ram who had come to them to inform about the incident. This son of Budh Ram has not been examined by the prosecution. We may note that D.W. 2 Rajendra Singh is son of Budh Ram and claims that it was he along with Mani Ram, who had gone to inform Gugan Ram of this incident. He has categorically stated that he had reached Amarpura at about 7 a.m. The witness has further deposed that thereafter, this witness along with Gugan Ram, Kor Singh, Om Prakash, Mani Ram and Shrichand reached the hospital at 7.45 a.m. In cross-examination this witness has denied the suggestions that these people had reached the hospital at 8.45 a.m. ¼ikSus ukS½ and maintained that they had reached the hospital at about 8 a.m. Shrichand has also not been examined by the prosecution and has been examined as D.W. 3. He has stated that Gugan Ram, Rajendra, Mani Ram and Kor Singh had come to his house on the fateful day at 7 a.m. and he was informed of the incident by Gugan Ram who told him that Roshni had been burnt. He has deposed that upon this, he went with these people to Bhadra Hospital. He has deposed that Gugan Ram and party reached the Bhadra Hospital at 7.45 a.m. He has denied the suggestion that Mani Ram and others had come to him at 8 a.m. but has maintained that they came to him at 7 a.m.
38. P.W. 5 Bhanwar Singh is silent on the point of time Gugan Ram and Kor Singh reached the hospital. However, Ghadsi Ram has stated in his cross-examination that when he reached the hospital, "Peeharwalas" of Roshni were already present and included Gugan Ram. According to him, he had reached the hospital at 9.10 a.m. Viewed in this perspective, it becomes apparent that Gugan Ram and Kor Singh must have reached the hospital prior to 9.10 a.m. The statement of Gugan Ram that his party reached the hospital at 9.30 a.m. is, thus, unreliable and not acceptable.
39. It appears that Gugan Ram was at pains to make it explicit that he reached hospital at 9.30 a.m. Probably he was conscious of the fact that he must some how demonstrate that he reached the hospital after recording of statement of Smt. Roshni by Shri Mahesh Singh. His anxiety on this score is reflected from his statement in cross-examination, in which he says : ^^eftLVªsV lkgc us esjs lkeus jks'kuh ds dksbZ c;ku ugh fy;s A tks c;ku eftLVªsV us fy;s gaS] og esjs vLirky igqWpus ds ifgys gh fy;s gS& ^^;g xokg us vkt [kqn dgk** This attempt on part of Gugan Ram, on a point which was apparently insignificant, goes to show that he wanted the Court, to believe that there was no change of tutoring by him of Smt. Roshni. We may state that the presence of relatives and friends with a person, who is on death bed, is very natural and from their mere presence, no prudent person would infer that they were present there with a view to tutor the dying person. However, when a laboured attempt is made with a view to show that there was no possibility of tutoring and a wrong time of arrival is given with this end in view the evidence becomes suspect. Hence, we are of the view that Gugan Ram did not make a correct and true statement, when he said that he had reached the hospital at 9.30 a.m. The probability is that he might have reached the hospital prior to the statement of Smt. Roshni was recorded by Shri Mahesh Singh and thus had an opportunity of tutoring Smt. Roshni. Moreover, he had every reason to do so. His daughter Roshni had to remain away from marital home for six long years because the mother-in-law and sisters-in-law of Roshni did not have very cordial relations with the latter and Roshni died shortly she went back to marital home due to severe burns. Thus he had every reason to implicate the appellant and the other co-accused. Thus, we are of the firm view that the prosecution has failed to eliminate the reasonable probability of Smt. Roshni having been tutored, prior to recording of her statement by Shri Mahesh Singh.
40. It is an admitted case of the prosecution that Mani Ram and Budh Ram's son had accompanied Gugan Ram and Kor Singh to the hospital. The witness could have thrown light on this aspect of the matter, but the prosecution withheld them altogether and this raises a suspicion that had these witnesses been examined, they would not have supported the prosecution case that Gugan Ram had reached the hospital after recording of Ex. P.4.
41. Now, we may straightway concede that Gugan Ram could not be expected to own and admit that he had tutored Smt. Roshni prior to recording of her statement Ex. P.4. Suggestions were given to him in this behalf and has denied these suggestions stoutly but the denial of these suggestions does not take us any where and does not rule out reasonable possibility that in fact Smt. Roshni might have been really tutored before her statement Ex. P.4 was recorded.
42. Shri Gugan Ram in his statement as P.W. 3 has deposed that on meeting his daughter Smt. Roshni, he enquired from her as to how she got burnt and upon this she told him that on the small hours of the day, she along with Kalawati and Kistoori had gone to Bada to make dungcakes. They were followed by Smt. Rookma. Rookma had a kerosene tin with her. Rookma poured kerosene on her and Kistoori caught her hand while Kalawati lit a match-stick and set her to fire. He does not tell the Court if he enquired from Roshni as to who had rescued her and as to who had brought her to hospital. Had he really talked to Roshni, it is but natural to expect that he would have enquired about these matters and she might have told him of these vitally important matters. Moreover, the story given by this witness is not in accord with Ex. P.4 wherein Roshni had not ascribed any role to Kastoori like catching of her hands. Likewise, this oral dying declaration is not in accord with recovery of a bottle of kerosene, found on the spot and hence no reliance can be placed upon the same.
43. Learned Public Prosecutor was at pains to urge and urge with vehemence that when the defence had come out with the specific version that Gugan Ram had tutored Smt. Roshni prior to her statement Ex. P.4, the defence was required to establish this version. It is submitted that the defence evidence on this score is artificial and unreliable and had been rejected by the trial Court. Therefore, we must record a finding that Smt. Roshni must not have been tutored at all. In our opinion, the contention of the learned Public Prosecutor betrays ignorance of the basic principle of criminal jurisprudence that the burden of proving the prosecution case squarely rests upon the prosecution; this burden does not shift; it was for the prosecution to establish that there was no opportunity of Smt. Roshni being tutored prior to recording of her statement Ex. P.4. The defence was not bound to establish the prosecution in the manner prosecution had to establish its case, that there was a reasonable probability of Smt. Roshni having been tutored. We, therefore, find that this contention deserves to be noticed only for sake of rejection and we reject the contention as devoid of all merit.
44. We have not encumbered this judgment by discussing all the defence evidence because in agreement with the learned trial Judge, we find that defence evidence is unreliable, discrepant and unnatural, when the defence tries to say that Gugan Ram in presence of a large number of persons tried to tutor Roshni and Keshu Ram and Kastoori were present at that time and they were turned out by Gugan Ram of the room in which Roshni was lying. Tutoring of a person to perjure oneself would not be done in public gaze but would be done in secrecy. Hence, to this extent, the defence evidence is unacceptable.
45. Defence led evidence to show that Roshni was rescued from blazing flames by D.W. 1 Ram Rakh, one Ram Swaroop and by D.W. 2 Rajendra Singh and she told these witnesses that she tried to burn herself as she wanted to die and she repeated this very story to Gugan Ram in presence of Rajendra Singh and Shrichand. The statements of Ram Rakh and Rajendra Singh have not been relied upon by the trial Court. The statement of Ram Rakh has been discarded on the ground that he did not belong to Karanpura and was resident of Sardargarha and hence his prensence was not reliable. The statement of Rajendra Singh has been discarded on the ground that Rajendra Singh speaks of having escorted Roshni to her house and on door being knocked Keshu Ram had opened the door. The learned trial Court on this basis arrived at the conclusion that the appellant and her companions, after setting Roshni ablaze, must have gone back to the house and must have bolted the house from within. Learned Counsel for the appellant submits that this conclusion is based on conjectures and surmises. It is not known how many doors, the house of Keshu Ram had. If it had more than one door, Roshni could have gone out of another door and might have committed suicide. The contention is not altogether devoid of merit. We find that the approach of the learned trial Court in surmising that appellant and her companions must have taken Roshni to the Bada and must have set her ablaze and must have come back and bolted the door from within to feign sleep, was not correct. The testimony of Rajendra Singh on this aspect of the matter could not have been and should not have been rejected on surmises and conjectures.
46. We have already commented upon the conduct of the investigating agency and the prosecution in not examining these witnesses, who had rescued Smt. Roshni, while she was engulfed in flames. That she had been rescued by some persons of locality, is evident from Ex. P. 11A wherein the investigating officer had marked the place, where she is said to have been rescued. According to Rajendra Singh, he was one of those persons, who rescued Smt. Roshni and took her to Keshu Ram's house. Rajendra Singh is son of Budhram who was admittedly sent to Amarpura to inform Gugan Ram about the incident. Rajendra Singh has categorically deposed that in his presence, Roshni had admitted that she wanted to die and hence set herself to fire. Recovery of a bottle of kerosene from the spot and not of a tin strengthens this probability. The other circumstances are that Roshni had been driven away of the marital home, some six years back. Guganram sent her to this marital home, where she was most unwelcome. In these circumstances, out of sheer exasperation, she might have committed suicide and this possibility has not been ruled out beyond shadow of reasonable doubt. At any rate, there is a reasonable doubt about the guilt of the appellant and this doubt has not been altogether dispelled.
47. There is one curious feature of the case, to which we ought to allude to, before concluding the discussion. The principal charge against the appellant was that she set clothes of Roshni ablaze by lighting a match. Thus the principal charge against her was for offence Under Section 302, I.P.C. The learned Judge recorded a firm finding that Smt. Rookma poured kerosene on the person of Smt. Roshni and the appellant set Roshni's clothes ablaze by lighting a match stick. Mst. Roshini sustained severe and extensive burns due to this act of the appellant and eventually Smt. Roshni succumbed to the burn injuries and died. On these findings, appellant could not have been at all acquitted of charge Under Section 302, I.P.C. and could not have been convicted of offence Under Section 302 read with 34, I.P.C. On the findings recorded by the trial Court, it was the direct act of the appellant, which caused the death of Smt. Roshni. Sec. 34 of the I.P.C. creates only a vicarious liability. Learned trial Judge, to our dismay and consternation committed a blunder by acquitting her of charge Under Section 302, I.P.C. and committed another mistake by convicting her of charge Under Section 302 read with Sec. 34 of I.P.C. It appears that he did not properly comprehend the scope of Sec. 34, I.P.C. This section applies when a criminal act is done by several persons, in furtherance of the common intention of all. In such a case, the other offenders are liable for that act in the same manner as the principal offender, as if the act were done by such offenders also. This section does not whittle down or do away, with the liability of the principal offender, committing the principal act and merely provides that all other offenders are also vicariously liable. The learned trial Judge acquitted her of this principal charge but chose to convict her for offence Under Section 302 read with Sec. 34, I.P.C. by a strange quirk of reasoning. In the words of learned trial Judge ^^vc dsoy ek= dykorh 'ks"k jgrh gS A eq- :dek us rsy fNMdk vkSj eq- dykorh us ekfpl ls vkx yxkbZ vr% ;g nksuksa dk la;qDr ÑR; Fkk A vr% vfHk;qDr dykorh dks vdsyh /kkjk 302 Hkk-na-la-
ds vkjksi dk nks"kh ugha Bgjk;k tk ldrk A gekjh jk; esa bldk vijk/k /kkjk 302 lifBr /kkjk 34 Hkk-na-la- ds vijk/k dk gh nks"kh gksuk ik;k tkrk gS A** On this reasoning Smt. Kalawati appellant was acquitted of offence Under Section 302, I.P.C. and this acquittal has become final. The State did not choose to appeal against this acquittal. To our mind the approach of the learned trial Judge was wholly erroneous and cannot be justified in any manner whatsoever. However, on the findings arrived at by us, the appellant could neither be held guilty of offence Under Section 302, I.P.C. nor for offence Under Section 302 read with Section 34, I.P.C.
48. Before we close, we may state that need for periodic in service training of Judicial Officers including officers of the level of Sessions and Additional Sessions Judges cannot but be understood. This aspect of the matter has been emphasised by the apex Court on more than one occasion and the Union Government has already announced the establishment of a National Judicial Academy for comprehensive training of Judicial Officers. However, till this is done, the High Court must devise short term refresher courses for Senior Judicial Officers, preferably to be conducted during October and December breaks and during vacations, so that our senior judicial officers keep themselves abreast of the latest trends and developments, in law and their basic concepts of jurisprudence are periodically, rejuvenated and put in clearer focus and perspective. We, therefore, direct the Registrar of this Court, to propose a suitable scheme of short duration refresher courses for senior judicial officers of the State at the next meeting of the Full Court for approval, so that senior judicial officers are trained and retrained in a phased programme and the justice delivery system of the State is geared to meet the challenges faced by it. We are sure that such refresher courses will strengthen and revamp the judiciary of the State and senior judicial officers will be saved from committing blunders, as noticed earlier.
49. In the result, we accept this appeal, set aside the judgment and conviction and sentence of the appellant for offence Under Section 302 read with Section 34, I.P.C. and acquit her of the said charge. We direct that she shall be released forthwith, if not required in connection with any other case. Fine, if paid, shall be refunded to her.