Rajasthan High Court - Jaipur
Shravan Ram And Ors. vs State Of Rajasthan on 10 May, 2006
Equivalent citations: RLW2006(4)RAJ2847, 2006(4)WLC109
Author: Prem Shanker Asopa
Bench: Prem Shanker Asopa
JUDGMENT Prem Shanker Asopa, J.
1. The instant Appeal has been filed by the accused appellants against the judgment of conviction and sentence passed by Additional Sessions Judge Kishangarh (Ajmer), in Cr. Case No. 26/98 titled as 'State v. Shravan Ram and another' whereby both the accused appellants have been convicted under Section 302 IPC and sentenced for life imprisonment and to pay a fine of Rs. 500/- each, in default to further undergo six months rigorous imprisonment.
2. As per the prosecution story, on the basis of Parcha Bayan Ex. P. 14-A dated 11.9.1998 of Smt. Guddi, (since deceased) an F.I.R. No. 300/98 was registered on the same date i.e. 11.9.1998 at Police Station Madanganj (Ajmer), for offence under Section 307 I.P.C. against an unknown person. In Parchaya Bayan, it was stated that on the date of occurrence i.e. 11.9.98 at about 4-5 a.m. the deceased went out of her house for easing. Suddenly a person wearing white pent and shirt, came to the said place and poured kerosene and set fire by enlightening match stick which inflamed her clothes, as a result of which she fell in the 'Nala'. Thereafter she reached her house and narrated the incident to her family members, who took her to the hospital. In the Parcha Bayan, it was specifically stated by her that she could not recognize the person who set fire. Smt. Guddi died due to 99 per cent burn injuries in the hospital at about 10 a.m. on the same day, therefore, the case was converted into Section 302 IPC.
3. Further the prosecution story is that on 11.9.98, the S.H.O. Police Station, Madanganj, (Ajmer), recorded Parcha Bayan in presence of doctor. The Sub-Divisional Magistrate also inquired the case under Section 176 Cr.P.C. and later on, investigation commenced by the Police. During the course of investigation both the accused appellants were arrested on 12.9.1998. The accused- appellant No. 1 Shravan Ram is the father-in-law of the deceased and the accused appellant No. 2 Pappu Lal is the husband of the deceased.
4. On 23.9.1999 the accused appellants were charged for the offence under Section 302 IPC. The charge was read-over and explained to them. They denied the charge and claimed trial.
5. On behalf of the prosecution, 14 witnesses have been examined, namely PW. 1 Nathu Lal, PW. 2 Kailash, PW. 3 Prem Chand, PW. 4 Smt. Chhoti, PW. 5 Narayan, PW. Ramchandra, PW. 4 Smt. Chhoti, PW. 5 Narayan, PW. Ramchandra, PW. 7 Mahaveer Singh, PW. 8 Ganpat Lal, Pw. 9 Nathu, PW. 10 Roop Narain, PW. 11 Dr. P.C. Patni, PW. 12 Parma Ram, PW. 13 Mohan Lal and PW. 14 Smt. Suraj Devi including parents and neighbours of the deceased and further produced documentary evidence.
6. On 11.12.2000 the accused were examined under Section 313 Cr.P.C. They denied the charge and stated that they were looking after the deceased with love and affection and nothing adverse has been stated against them to the S.H.O. It was further stated that deceased had no complaint against her in-laws. No witness was produced in defence by them.
7. After hearing both the parties and considering the evidence on record, the Additional Sessions Judge, Kishangarh, Ajmer, vide judgment dated 16.2.2001 convicted and sentenced the accused appellants as indicated above on the basis of oral dying declaration made before Prem Chand and circumstantial evidence; that the deceased Smt. Guddi was residing with the accused appellants and was burnt while she went out of her house to ease and custody of accused appellants will not be ceased for the said reason and no explanation of their conduct was given in their statements recorded under Section 313 Cr.P.C. The trial Judge further considered the statement of PW. 3 Prem Chand who has been declared hostile and has stated in Ex. P. 6 i.e. the statement under Section 161 Cr.P.C. before the Police that deceased was raising hue and cry after the burn injury and was abusing accused Shravan Ram, her father-in-law and the another part of the said statement under Section 161 Cr.P.C. that father-in-law be ruined completely and the neighbors were also saying so and the same was considered as dying declaration and not the Parcha Bayan of the deceased.
8. On the basis of the aforesaid dying declaration made before PW. 3 Prern Chand and the circumstantial evidence, in para 11 of his judgment, some of the conclusions have been drawn by the Additional Sessions Judge which are as follow:
(i) That Smt. Guddi, aged 19 years died after two years of her marriage due to 99% burn injuries after pouring kerosene on her enlightening match stick, therefore the death is Homicidal.
(ii) Deceased was in the custody of accused appellants and simply on account of going outside the house where the occurrence took place, custody will not be ceased.
(iii) PW. 1 Nathu Lal, (father), PW. 2 Kailash, (Uncle) and PW. 14 Smt. Suraj Devi, (mother) of the deceased in their statements have deposed that Smt. Guddi was not allowed by the accused appellants to go to her matrimonial home.
(iv) The version of Prern Chand, PW. 3 in his statement under Section 161 Cr.P.C. was considered as dying declaration and not the Parcha Bayan. Reliance was not placed by Additional Sessions Judge on Parcha Bayan of deceased.
(v) That the previous and subsequent conduct of accused appellants was not satisfactorily explained in their statements under Section 313 Cr.P.C. as required under Section 8 of the Evidence Act.
(vi) Since the death was caused in the custody of the accused, therefore, the accused were also responsible for providing the fact of burn which was specifically within their knowledge as required under Section 106 of the Indian Evidence Act and further according to Section 114 of the Indian Evidence Act presumption has to be drawn against accused appellants.
9. Submission of counsel for the accused appellants is that there is no eye-witness and further there is no chain of the circumstantial evidence which connects the accused appellants with crime'. The counsel has also submitted that it is not safe to base the conviction on the statement recorded under Section 161 Cr.P.C. of PW. 3 Prem Chand who has been declared hostile. The counsel has also submitted that in Parcha Bayan, the names of the accused appellants are not mentioned and further the deceased was not able to identify the person who poured the kerosene and set fire.
10. Per contra the submission of Public Prosecutor is that the trial Judge has rightly treated the part statement of PW. 3 Prem Chand given before the Police under Section 161 Cr.P.C. as dying declaration and there is circumstantial evidence to complete the chain and connect the accused appellants with the crime.
11. We have heard counsel for the appellants, Public Prosecutor and gone through the record of the case.
12. There is no eye-witness of the occurrence and the conviction of the present accused appellants is based on oral dying declaration made before PW. 3 Prem Chand and circumstantial evidence, therefore, we have to consider as to whether the oral dying declaration made before PW. 3 Prem Chand inspires confidence and aforesaid circumstances complete the chain and connect the accused appellants with the offence?
(i) Homicidal-death:
13. PW. 11 Dr. P.C. Patni in his statement has deposed that total burn was 99 percent. Post mortem was conducted by members of the board and in their opinion cause of death was hypovolumic shock as a result of ante-mortem burn and the death had occurred within 24 hours. There is no evidence of suicide or accidental fire, therefore, the present case is homicidal.
(ii) Previous and subsequent conduct of the accused:
14. That the witnesses who are the neighbours and have been examined as PW. 4 Smt. Choti and PW. 5 Narayan stated that they have not been the person who ablazed her and have also not stated anything about ill-treatment and quarrel. Further in the Parcha Bayan of deceased also, nothing is said about ill-treatment and quarrel, she not even named the accused appellants and it was categorically stated that she was taken to the hospital by her family members and further the said occurrence took place out side the house. The accused-appellants in their statement under Section 313 Cr.P.C. have stated that they were looking after her well. The Additional Sessions Judge has not correctly appreciated the aforesaid circumstances and further failed to consider the fact that after enterance of deceased in burnt state she was taken to hospital by the family members including the accused appellants. The accused-appellants have satisfactorily explained their previous and subsequent conduct.
(iii) Statements of parents and uncle:
15. The statements of PW. 1 Nathu Lal (father), PW. 2 Kailash (uncle) and PW. 14 Smt. Suraj Devi (mother) regarding demand of money and ill treatment have not been proved by any other independent witness by the prosecution. The aforesaid witnesses have also not stated that Smt. Guddi ever apprehend danger to life from the members of her in-laws. The trial Judge committed error in relying on the said witnesses for attributing motive for murder of Smt. Guddi.
(iv) Two Dying Declaration considered by the Additional Sessions Judge:
16. As per the trial Court, there are three dying declarations; one recorded by ASI Ram Kishan, signed by PW. 13 Mohan Lal in the present of the doctor and the same has been further signed by the deceased, second dying declaration of the same date i.e. 11.9.98, signed by the Sub-Divisional Magistrate but neither the said dying declaration has been exhibited nor the Sub-Divisional Magistrate has been produced in evidence and the third dying declaration has been made by the deceased before PW. 3 Prem Chand, which has been stated by him in his statement under Section 161 Cr.P.C. Thus, there are two dying declarations on record. One dying declaration is the Parcha Rayan of the deceased on the basis of which the case was registered. The said Parcha Bayan has been written by ASI Ram Kishan and signed by the S.H.O. in the hospital in the presence of the doctor as stated herein above, who has also signed the same. In the said Parcha Bayan the deceased has not named any person and it was stated that she could not recognise the person who poured the kerosene and set fire. Smt. Guddi died at about K) a.m. in the hospital. Then the case was converted from Section 307 to 302 IPC and investigation commenced.
17. The dying declaration was recorded by ASI Ramkishan and was signed by the SHO Mohan lal PW. 13 as well as Dr. Anil Kumar Soni and the deceased affixed her thumb impression, which was also sent to the police station for recording FIR. PW. 13 Mohan Lal has stated in his cross-examination that the said dying declaration was recorded by ASI Ramkishan and the doctor has certificate the fact that she was fully conscious and the entire statement was recorded in the presence of the doctor. The said witness has also admitted the thumb impression of Smt. Guddi, signature of the doctor at place 'E' to 'F' and his own signature at place 'G' to 'H' on the said dying declaration. It appears that no time and facility was available with the SHO to make compliance of some part of the Rule for recording the same in a better mode. Ex. P. 14-A, the Parcha-Bayan, was converted into dying declaration and the same is substantially in consonance with Rule 6.22 of the Rajasthan Police Rules, 1965, therefore, there was no reason to discard the same. Para Nos. 25 and 27 of the judgment of the Division Bench of this Court in Smt. Kalawati v. State of Rajasthan reported in 1994 Cr.L.J. 691, are as follows:
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 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 singed by the person making it.
It is an admitted position of the prosecution that when Bhanwar Singh reached 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 Compounder 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.
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.
We have examined the said issue and are of the view that Rule 6.22 of the Rajasthan Police Rules, 1965 has been substantially complied with. The other neighbour witnesses produced by the prosecution viz. PW. 4 Smt. Choti and PW. 5 Narayan, who have seen the deceased in burning state and raising hue and cry, have also not disclosed the cause of death and have not mentioned the names of any of the accused person. Thus, the aforesaid witnesses have also corroborated the dying declaration made by Smt. Guddi. Therefore, Ex. P. 14-A inspires confidence.
18. During the investigation, statement of PW. 3 Prem Chand was recorded under Section 161 Cr.P.C. which is marked as Ex. P. 6, wherein it was stated by him that deceased was raising hue and cry and was abusing her father-in-law who ablazed her. These two dying declarations have been considered by Additional Sessions Judge and reliance has been placed upon the statement of PW. 3 Prem Chand, recorded under Section 161 Cr.P.C. In his statement under Section 161 Cr.P.C. also Prem Chand has not even named accused Pappu Lal, the husband of deceased and at the time of recording statement before the trial Court, he has denied the cause of death and the names of the persons who set-fire, therefore, he was declared hostile and permission was granted to the Public Prosecutor to examine him. The other neighbour witnesses produced by the prosecution viz. PW. 4 Smt. Choti and PW. 5 Narayan, who have seen the deceased in burning state and raising hue and cry, have also not disclosed the cause of death and have not mentioned the names of any of the accused person. Thus, the dying declaration made before Premchand remained uncorroborated and for placing reliance on his statement under Section 161 Cr.P.C. as dying declaration, more care and caution is required. Although corroboration is not essential but it is expedient to have the same, in order to strengthen the evidentiary value of declaration. Independent witnesses may not be available but there should be proper care and caution in the matter of acceptance of such a statement as trustworthy evidence. In Arvind Singh v. State of Bihar while dealing with the case of oral dying declaration, in para 20 it was held as under:
Dying declaration shall have to be dealt with care and caution. Corroboration is not essential but it is expedient to have the same, in order to strengthen the evidentiary value of declaration. Independent witnesses may not be available but there should be proper care and caution in the matter of acceptance of such a statement as trustworthy evidence.
19. In Kishan Lal v. State of Rajasthan , in para No. 17, while considering two dying declarations, wherein one dying declaration made before the Magistrate, the accused and have not been named, the Supreme Court has held that in case there is discrepancy in the depositions of the witnesses given in support of the other dying declaration then the Court should not hesitate to hold that these two dying declarations do not bring home the guilt of the appellant. Para 17 of the said judgment is as follows:
17. 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.
20. In Smt. Kamla v. State of Punjab , it has been held in para 8 that if there are more than one dying declaration they should be consistent particularly in material particulars. The relevant portion of Para No. 8 of the said judgment is 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.
21. In Kunnummal Mohammed and Anr. v. State of Kerala AIR 1963 Kerala 54, it was held by the Kerala High Court that in case of oral dying declaration, the exact words stated by the to the witnesses are of the utter importance and if witnesses improve upon their statements by varying their versions that evidence becomes unreliable.
22. In Pyarelal alias Priva v. State of Madhya Pradesh 1994 Cri. L.J. 958 the Madhya Pradesh High Court has hold that oral dying declaration if remains uncorroborated, then it is unsafe to place reliance on the same.
23. This Court in Smt. Kalawati v. State of Rajasthan (supra), has also summa-rized evidentiary value of dying declaration and examined the issue of inconsistent statements between two dying declarations and has held that reasonable probability of victim being tutored by relatives before giving second dying declaration given to Magistrate in para 22 and 29 which are as follows:
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."
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 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.
24. Here in the instant case there are discrepancies and contradictions in the two dying declarations. One dying declaration in writing was recorded by the S.H.O. in the presence of Medical Officer of the hospital and signed by Smt. Guddi. There is no mention of the names of the accused appellants and she has further stated that she has not been able to recognize the person who set her ablaze. But in the statement of PW. 3 Prem Chand under Section 161 Cr.P.C. he stated that she was abusing her father-in-law only and that the said fact has not been corroborated by any other neighbours who came there on hearing hue and cry namely PW. 4 Smt. Choti and PW. 5 Narayan, like PW. 3 Prem Chand. Further the statement of PW. 3 Prem Chand under Section 161 Cr.P.C. was recorded by the S.H.O., who was investigating a case registered against the unknown person and the said witness subsequently denied the aforesaid oral dying declaration made before him in Court. For the aforesaid reasons, the same suffers from serious infirmity and become suspicious.
25. In view of the aforesaid discrepancies and contradictions, the dying declaration made before Prem Chand does not inspire confidence. We hold the same as not reliable. Dying declaration Ex. P.14-A is more reliable. The trial Court has committed an error in convicting the accused appellants on the basis of said dying declaration made before PW. 3 Prem Chand.
(v) Explanation of conduct in statement under Section 313 Cr.P.C.
26. The accused persons who have not witnessed the occurrence and they came in picture only when the deceased entered in the house in a burning state and was taken to hospital by them. Further in their explanation under Section 313 Cr.P.C. the accused appellants have stated as under:
c;ku eqfYte Jo.k ge xqM~Mh dksa cM+s ykM+ ls j[k jgs Fks] geus mls ugha tyk;k blfy, xqM~Mh us eftLV~zsV o iqfyl esa gekjs f[kykQ ,d kCn Hkh ugha dgkA cfYd ;g dgk fd mls vius llqjkyokyksa ls dksbZ fkdk;r ugha gSA c;ku eqfYte iIiw eSa esjh iRuh xqM~Mh dks cM+s I;kj ls j[krk Fkk] eSaus ;k esjs firk us xqM~Mh dks ugha tyk;k FkkA blfy, xqM~Mh us eftLV~zsV o iqfyl c;ku esa esjs vFkok esjs firk ds fo:) dqN ugha dgkA cfYd ;g fy[kk;k fd mls llqjky okyksa ls dksbZ fkdk;r ;k nq[k ugha gSA On perusal of the aforesaid explanation of the accused appellants, we are satisfied that the accused have explained their conduct.
(vi) Presumption under Section 114 of the Indian Evidence Act:
27. Here in the instant case the occurrence took place out side the house and in the Parcha Bayan the accused have not been named. The learned Additional Sessions Judge has further ignored the important circumstances that the accused came to know about the incident when the deceased entered in the house at about 4-5 a.m. usually when people remain asleep. On seeing Smt. Guddi in a burning state, they have taken her to the hospital. In such circumstances, there was no probability of any special fact relating to death of Smt. Guddi within their knowledge which was withheld by them from the Court. Therefore, the presumption under Section 114 of the Evidence Act has wrongly been drawn by the trial judge.
28. The judgments considered by the trial Court are not applicable in the facts and circumstances of the case. In State of West Bengal v. Mir Mohammad Omar and Ors. Etc. 2000 Cr. L.R. (SC) 681, there was no missing link and the Court has further said that Section 106 of the Evidence Act would be applicable only when the fads are within the special knowledge of the accused persons.
29. After consideration of the evidence on record, we are fully satisfied that dying declaration of Prem Chand is not reliable and none of the above mentioned circumstances connect the accused appellants with the commission of crime.
30. For these reasons we allow the appeal and set aside the conviction and sentence awarded by learned Additional Sessions Judge, Kishangarh District, Ajmer, vide impugned judgment dated February 16, 2001. We acquit the appellants Shravan Ram and Pappu Lal of the charge under Section 302 IPC. The appellants, who are in jail shall be set at liberty forthwith if not required to be detained in any other case.