Rajasthan High Court - Jodhpur
Smt.Kamla vs State on 27 January, 2017
Author: G.K. Vyas
Bench: Gopal Krishan Vyas
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
D.B. Criminal Appeal No. 658 / 2008
Smt. Kamla Wife of Banshi Lal, By caste Kalasuwa Meena,
Resident of Ghatau Falla Nichala, Police Station Dovera,
District Dungarpur.
[Lodged at District Jail, Dungarpur]
----Appellant
Versus
State of Rajasthan
----Respondent
______________________________________________
For Appellant(s) : Mr. G.R. Bhari & Mr. Sanjay Mathur.
For Respondent(s) : Mr. Vishnu Kachhawaha, PP.
______________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE GOVERDHAN BARDHAR
JUDGMENT
[Per Hon'ble Mr. G.K. Vyas, J.] Date of Judgment :: 27th January, 2017.
The instant criminal appeal has been filed under Section 374 (2) Cr.P.C. by the appellant, Smt. Kamla W/o Banshi Lal Meena, against the judgment dated 15th of July, 2008 passed by learned Addl. Sessions Judge (Fast Track), Dungarpur in Session Case No.40/2008 (3/2008) (2 of 14) [CRLA-658/2008] arising out from F.I.R. No.119/2007 of Police Station Dovera, District Dungarpur, whereby the learned trial court convicted the accused appellant for offence under Sections 302 and 459 of IPC and passed following sentence, which reads as infra:
302 of IPC: Life Imprisonment and fine of Rs.5000/- and in default of payment of fine, to further undergo six month‟s simple imprisonment.
459 of IPC: Life Imprisonment and fine of Rs.5000/- and in default of payment of fine, to further undergo six month‟s simple imprisonment. FACTS OF THE CASE:
Complainant, Thanwra (PW.9) submitted an oral complaint at Police Station Dovera, District Dungarpur on 09.12.2007 at 10.30 AM, upon the said complaint, formal F.I.R. No.119/2007 (Ex.P/12) was registered on 09.12.2007 against the accused appellant. As per oral complaint the complainant (father in law of deceased and appellant), he was having five sons and he was living with son Narayan. His son Narayan solemnized „Nata‟ marriage with one Smt. Khatri ten years back, and from the wedlock of „Nata‟ Marriage, two daughters and two sons were born. On 08.12.2007 in the morning, he went out for some work and in his back a quarrel took place at about 01.00 PM in between accused appellant, Smt. Kamla and (3 of 14) [CRLA-658/2008] Smt. Khatri (deceased) W/o Narayan in the said quarrel the appellant, Smt. Kamla, poured kerosene upon Smt. Khatri and lit fire upon her body. Due to said fire, Smt. Khatri received burn injuries and ultimately died. The aforesaid information was given to him by his granddaughter Ms. Aarti (minor daughter of deceased PW.8). During investigation upon prayer made by the investigating officer, statements of Ms. Aarti were recorded u/s 164 Cr.P.C. by the Addl. Civil Judge (Sr. Division)-cum-Addl. Chief Judicial Magistrate, Dungarpur.
In the FIR registered against the appellant under Section 459, 326 and 302 of IPC at Police Station, the investigation was conducted by the S.H.O. and after completion of investigation, police filed charge sheet against the accused appellant, Smt. Kamla, for offence under Sections 459, 326 and 302 of IPC in the court of learned Judicial Magistrate, Dungarpur, from where the case was committed to the court of Sessions Judge, Dungarpur but during trial the case was transferred to the court of Addl. Sessions Judge (FT), Dungarpur, for further trial.
After providing opportunity of hearing, the learned Addl. Sessions Judge (FT) Dungarpur, framed charges against the accused appellant, Smt. Kamla under Sections 459 and 302 of IPC and thereafter recorded the statements of 12 prosecution witnesses and 23 documents were exhibited in support of prosecution case.
(4 of 14) [CRLA-658/2008] The statements of accused appellant, Smt. Kamla, were recorded under Section 313 Cr.P.C., in which she denied all the allegations levelled by the prosecution witnesses and said that, "[kkrjh vius vki ty dj ejh Fkh eq>s ejs s Loljq Fkkojk a k;k gSA"
us >Bw k Ql In defence, accused appellant Smt. Kamla herself appeared as witness (DW.1) and produced her minor son, Ajay (DW.2) to support the explanation furnished by her in the statements recorded under Section 313 of Cr.P.C. which it is stated by her that Smt. Khatri committed suicide while pouring kerosene upon her.
Learned trial court after recording the evidence of both the sides finally heard the arguments and convicted the accused appellant for offence under Sections 459 and 302 of IPC vide judgment dated 15.07.2008, which is under challenge in this appeal.
While challenging the finding of guilt recorded by the trial court, the learned counsel for the appellant submitted that whole prosecution case is based upon doubtful testimony of child witness viz. PW.8, Ms. Aarti, because all other witness except complainant, Thanwra (PW.9) upon whose oral information, FIR was registered, turned hostile and did not support the prosecution case.
It is submitted that during investigation statements of Ms. Aarti (PW.8) were recorded under Section 164 of Cr.P.C. (Ex.P/16) by Magistrate on 22.12.2007, in which the satisfaction with regard to competence of witness to (5 of 14) [CRLA-658/2008] give statements was recorded and while doing so, the statement u/s 164 Cr.P.C. were recorded on oath, whereas in the trial, statements of PW.8- Aarti, were recorded by the learned trial court without recording the same on oath because the child witness (PW.8- Aarti) was not understanding, nor she is literate and did not know the consequence of telling lie. However, the learned trial court proceeded to record her statement as PW.8 without oath.
Learned counsel for the appellant submitted that the complainant, Thanwra (PW.9) gave oral information for registration of FIR, in which it was stated by him that he was not present at the place of occurrence but incident was reported to him by Ms. Aarti, child witness, daughter of deceased that the accused appellant poured kerosene upon my mother and lit fire. The conviction of the accused appellant is solely based upon the testimony of child witness PW.8 Ms. Aarti only but her statement is seriously doubtful because during investigation when her statements were recorded u/s 164 Cr.P.C. by the Magistrate, the magistrate specifically observed that witness is competent to give statement, therefore, I am recording her statements on oath, whereas in the trial, the learned trial court observed that child witness Aarti neither understanding nor she is literate, therefore, I deem it appropriate not to record her statements on oath.
(6 of 14) [CRLA-658/2008] Learned counsel for the appellant, therefore, argued that the conviction based upon the testimony of Ms. Aarti (child witness PW.8) cannot be relied upon because it does not inspire any confidence so as to hold accused appellant guilty, more so, when other witnesses turned hostile and did not support the prosecution case, some of witnesses gave statements that deceased, Khatri herself poured kerosene upon her and lit fire, therefore, it is a case of suicide.
As per learned counsel for the appellant, finding of conviction recorded against the accused appellant is not sustainable because the accused appellant herself appeared before the court as defence witness and categorically stated on oath that before the incident, deceased, Khatri received 4-5 calls of her husband from Ahmedabad, and thereafter she said that I will not talk to anybody, I am in anger. After sometime I was informed by the children of the family that Khatri poured kerosene upon her and lit fire. Therefore, the whole prosecution story is highly doubtful.
While inviting our attention towards the statement of PW.8, Ms. Aarti, it is submitted that said witness in cross- examination specifically said that quarrel was going in between my grandfather Thanwra (complainant) and my elder father Banshi, husband of accused, Smt. Kamla; and my mother said that I do not want to live and want to die. It is also pointed out that in the statements recorded (7 of 14) [CRLA-658/2008] under Section 313 Cr.P.C., accused appellant categorically stated that I am innocent. Deceased Khatri, committed suicide while litting fire and my father-in-law, Thanwra, has indulged me in this false case. Therefore, involvement of appellant is outcome of whole incident of quarrel in between Thanwra (complainant) and Banshi (son of the complainant). In view of above fact, it is argued that the judgment impugned deserves to be quashed and set aside because it is based upon doubtful testimony of PW.8, Ms. Aarti, who was child witness, and her statements were recorded without any oath, therefore, the appeal may kindly be allowed.
Per contra, learned Public Prosecutor submitted that although most of the witnesses of the locality tune hostile and did not support the prosecution case but father-in-law of the deceased (PW.9- Thanwra) categorically proved the fact that oral complaint was given by me to the police on the basis information of incident reported by PW.8 Ms. Aarti, child witness. The witness PW.8- Ms. Aarti made specific allegation in her statement against the accused appellant of pouring kerosene upon her mother Smt. Khatri, and litting fire upon, which resulted into her death. Therefore, there is no question to disbelieve the statement of child witness PW.8 Ms. Aarti.
Learned Public Prosecutor further submitted that there is no question to disbelieve the statement of PW.8, which is subsequently supported by her grandfather, i.e. (8 of 14) [CRLA-658/2008] PW.9 Thanwala, therefore, the instant appeal may kindly be dismissed.
After hearing the learned counsel for the parties, we have minutely scanned the entire evidence in the light of findings recorded by the learned trial court against the appellant for conviction.
Admittedly, the entire case is based upon statements of 12 witnesses, out of which PW.1, Halia, turned hostile and did not support the prosecution case. PW.2 Bhepa, turned hostile and specifically said that I do not know how Smt. khatri died. PW.3, Kaliya, is the Motbir witness, who put his signatures on Ex.P/2- "Panchayatnama", Ex.P/3-Memo of handing over of dead body, and Ex.P/3- memo of collecting soil and half burn clothes from the place of occurrence and Ex.P/6 site plan. He is not the eye witness.
PW.4- Dr. B.P. Verma, is the witness who performed the postmortem, the said witness categorically stated that I was one of the member of the Medical Board, who conducted the postmortem of the deceased in Govt. Hospital, Dungarpur, on 09.12.2007. I was working as Medical Jurist and postmortem report (Ex.P/5) was prepared by the Medical Board, for which requisition (Ex.P/8) was given by the police. It is further said that age of the deceased was 30 years and there was no injury upon her body. The burn injuries were caused upon her prior to her death. In the cross-examination, it is stated (9 of 14) [CRLA-658/2008] by him that, ";g lgh gS fd e`Rrdk ds "kjhj ij ekjihV dh dkb s Z pkVs ugha FkhA ;g lgh gS fd ;fn lkeus okyk i{k e`Rrdk dks tykrk ,oa e`Rrdk mldk fojk/s k djrh rks izfri{k dks pkVs vkuk ,oa tyus ds fu"kku vkuk lHa ko gSA ;g lgh gS fd ,d efgyk] nl w jh efgykdks prs u voLFkk eas tykos ,l s k lHa ko ugha gSA"
PW.5 Kewla, is the witness, to whom incident was reported by the complainant prior to filing the FIR. The said witness specifically stated before the court that no information was given by the complainant, Thanwala, that accused appellant poured kerosene upon the body of deceased and lit fire and turned hostile.
PW.6 Kodar, is the witness, to whom the complainant informed that my daughter-in-law has burnt, therefore, police has came on the spot, please come. The said witness turned hostile because he has denied the fact of information given by complainant, Thanwra for pouring kerosene upon Smt. Khatri by the accused Smt. Kamla.
PW.7 Vaga, is the Motbir witness, before whom Ex.P/5 and Ex.P/6 were prepared by the police and photographs were taken in his presence. He is not the eye witness.
We have perused the statement of PW.8, Ms. Aarti. Admittedly, Ms. Aarti (PW.8) is the daughter of deceased, Smt. Khatri, and during investigation her statements (Ex.P/16) were recorded by the Magistrate u/s 164 Cr.P.C. Before recording statements of Ms. Aarti, u/s 164 Cr.P.C. on 22.12.2007, the learned Magistrate observed (10 of 14) [CRLA-658/2008] as under: -
"lk{kh dh mez dks /;ku eas j[krs gq;s mldks lp ;k >B w c ky s u s d s c k j s es i N w k x;k rks lp cky s us dk dgk rFkk mldks ;gka vkus ds iz;kt s u ds ckjs es iN w k rks c;ku nus s ds fy;s vkus dk dgkA bl izdkj lk{kh dks lp o >Bw dh tkudkjh gkus s ds dkj.k lk{kh dks "kiFk fnykbZ xbZA"
Admittedly, the incident took place on 09.12.2007 but the statement of Ms. Aarti, child witness, were recorded under Section 164 Cr.P.C. on 22.12.2007 after 13 days, that too on oath by the Addl. Civil Judge (Sr. Division)-cum-Judicial Magistrate, Dungarpur, whereas during trial Ms. Aarti was examined as PW.8, the learned trial Judge put eight questions and opined that oath is not required because she does not understand the things and that she is not literate. The following observations were made by the learned trial court before recording the statements of Ms. Aarti PW.8: -
"gekjh jk; eas xokg dks i;kZIr le> ugha gS og i<kbZ Hkh ugha djrh gAS mls lp ,oa >Bw dk QdZ rks ekyew gSA fdUrq >Bw cky s us ds ifj.kke ls og okfdQ ugha gSA vr% mls "kiFk fnykuk ge mfpr ugha ikrs gSA"
Admittedly, in the statements of PW.8 Ms. Aarti, made allegations against the appellant for pouring kerosene upon her mother, Khatri, and litting fire and said in the examination-in-chief that nobody was present at the time of occurrence and the incident was reported by me to my grandfather, Thanwala (PW.9). In the cross- examination, it is stated by the said child witness that, "ejs s (11 of 14) [CRLA-658/2008] nknk Fkkojk rFkk ejs s ckck c"a kh ds chp esa tehu dk >xMk+ pyrk gAS ejs h eka us ;g dgk Fkk fd eq>s ftUnk ugha jguk gS ej tkuk gSA"
Upon consideration of both these statements of PW.8, firstly, recorded under Section 164 Cr.P.C. by the Magistrate on 22.12.2007 and secondly during trial as PW.8, we are of the opinion that testimony of said child witness, is doubtful and does not inspire much confidence, therefore, cannot be relied upon so as to hold accused appellant guilty because there is no corroboration by any other evidence with regard to truthfulness of the statement of PW.8, Ms. Aarti. It is admitted fact that complainant, Thanwala (PW.9) grandfather of PW.8, Ms. Aarti was not present in the house at the time of incident and, furthermore, as per statement of PW.8, a dispute was going in between her elder father (Banshi, husband of accused, Smt. Kamla) and Thanwala, with regard to some land, therefore, this Court cannot lose sight of the fact that witness PW.8 was tutored witness because except her statement there is no other evidence on record to prove the fact that any quarrel took place in between accused appellant and the deceased, upon the place of occurrence.
PW.4, Dr. B.P. Verma, categorically stated that there was no injury upon the body of deceased, nor he said that the incident arises due to quarrel of two ladies, therefore, in our opinion upon doubtful testimony of child witness (PW.8, Ms. Aarti), whose statements were recorded without any oath, the finding of guilt recorded by the trial (12 of 14) [CRLA-658/2008] court cannot be upheld. It is also important fact that the Magistrate who has recorded the statements of Ms. Aarti under Section 164 Cr.P.C. has not been examined before the trial court to prove the fact that Ms. Aarti was in a position to understand the things. The prosecution has purposely left the said witness to be examined and did not produce him before the court, therefore, the statements recorded under Section 164 Cr.P.C. cannot be treated to be proved. Furthermore, the statements of PW.8 recorded during the trial, and relied upon by the trial court, it is specifically observed by the trial Judge that witness is not understanding the facts correctly nor is she literate, therefore, oath is not required to be taken from her. However, it is very strange that trial court relied upon the testimony of this child witness so as to hold accused appellant guilty.
In this case the accused appellant was arrested on 10.12.2007 and since she is in custody. It is also very important to mention here that except clothes of Smt. Khatri, and plastic jeriken were recovered from the house of Smt. Khatri. In the site plan, the house of accused Smt. Kamla is shown at Mark "D" whereas the place where the occurrence place is the house of deceased herself, which is marked as "A" in the site map, therefore, obviously the house of accused appellant is far from the house of deceased. All these facts loudly speak that the entire prosecution case is seriously doubtful, so also, there is no (13 of 14) [CRLA-658/2008] evidence of motive on record to accept the allegations levelled against the accused appellant to commit murder of Smt. Khatri. More so, as per evidence on record, a dispute was going on in between the husband of accused appellant, Banshi Lal, with his father i.e. complainant, Thanwala (PW.9) with regard to some land. The accused appellant herself appeared before the trial court as DW.1 and has categorically stated that there was no dispute in between her and the deceased but relationship of my father-in-law and husband was not good, the prosecution story has been fabricated by her father-in-law, who was not even present at the time of occurrence.
In view of above, we are of the opinion that the findings of conviction recorded by the learned trial court solely on the basis of testimony of child witness PW.8- Ms. Aarti, which has been recorded without any oath, has wrongly been relied upon by the trial court so as to hold accused appellant guilty.
In our opinion, the entire prosecution evidence, which has been relied upon by the trial court, is highly doubtful and the finding is based upon doubtful evidence, therefore, the conviction of the accused appellant, Smt. Kamla, is not sustainable in law and she is entitled for benefit of doubt. Accused appellant, Smt. Kamla is behind the bars since December 2007.
In view of above discussion, the instant criminal appeal is hereby allowed. The judgment impugned dated (14 of 14) [CRLA-658/2008] 15.07.2008 passed by learned Addl. Sessions Judge (Fast Track), Dungarpur in Session Case No.40/2008 (3/2008) convicting and sentencing the accused appellant for offences under Section 302 and 459 of IPC, is hereby quashed and set aside. The accused appellant be released forthwith, if not required in any other case.
Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellant is directed to forthwith furnish personal bond in the sum of Rs.20,000/- and a surety bond in the like amount, before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against the judgment or for grant of leave, the appellant, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court.
(GOVERDHAN BARDHAR)J. (GOPAL KRISHAN VYAS)J. DJ/-