Rajasthan High Court - Jodhpur
Dhanna Lal vs State on 19 February, 2019
Author: Vinit Kumar Mathur
Bench: Sandeep Mehta, Vinit Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D. B. Criminal Appeal No. 633/2015
Dhanna Lal s/o Shri Unkar, by caste Dholi, Resident of Village
Sadas, P.S. Banera, District Bhilwara
(Presently lodged in Central Jail, Ajmer)
----Appellant
Versus
State of Rajasthan
----Respondent
For Appellant : Mr. R.K. Charan
For Respondent : Mr. Vishnu Kachchawaha, P.P.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR Judgment Per Hon'ble Mr. Vinit Kumar Mathur, J.
19/02/2019 The present criminal appeal has been preferred by the accused-appellant against the judgment and order of conviction dated 05.06.2015 passed by the learned Additional Sessions Judge (Women Atrocities Cases), Bhilwara in Sessions Case No. 39/2012 whereby the accused-appellant was convicted for the offence under Section 302 of I.P.C. and sentenced to undergo imprisonment for life with fine of Rs. 5,000/- and in default of payment of fine to further undergo six months additional simple imprisonment.
The prosecution story as revealed in the dying declaration of Smt. Kanku (Ex.P/18) recorded by Ramratan, A.S.I., Police Station Banera (P.W. 19) while she was undergoing treatment in the (2 of 10) [CRLA-633/2015] Female Burn Ward of Mahatma Gandhi Hospital, Bhilwara is that she was married to the accused Dhanna Lal for last about 15 years. From the wedlock, she had one son and three daughters. The elder daughter Chanda was 14 years of age and younger to her was Vimla, 12 years of age. Her daughter Jasoda and son Bablu were twins. Her maternal home was at Dhudhala and the name of her mother was Smt. Harku. She was having one brother, namely, Narayan. On 30.01.2012 at around 7.00 P.M., she was preparing the bed. Her husband Dhanna Lal abused and poured kerosene upon her from a jerrycan. While she was trying to escape, he ignited fire with a matchstick resulting her clothes catching fire. Because of the burn injuries, she became unconscious. She was not aware who called the ambulance and took her to the hospital. Her husband quarrelled with her as she used to talk on mobile.
On this parcha bayan, a formal F.I.R. No. 12/2012 was registered at Police Station Banera, District Bhilwara for the offences under Sections 307 & 323 of I.P.C. against the accused- appellant. During the course of investigation, the victim Smt. Kanku died and therefore, the police added Section 302 of I.P.C. in the matter and arrested the accused-appellant on 01.02.2012.
After conclusion of investigation, the police filed charge- sheet against the accused-appellant for the offence under Section 302 of I.P.C.
Learned trial court framed, read over and explained the charge for the offence under Section 302 of I.P.C. to the accused- appellant, who pleaded not guilty and sought trial.
During the trial, the prosecution examined as many as 20 witnesses and exhibited 24 documents in support of its case.
(3 of 10) [CRLA-633/2015] The accused-appellant was examined under Section 313 of Cr.P.C. and he was confronted with the evidence adduced against him during the course of trial, which he denied and stated that he has been falsely implicated in the case because of enmity. He has not committed any crime and is innocent. The accused-appellant got examined D.W. 1 - Dr. Vinod Kumar Jeengar and D.W. 2 - Chanda in his defence.
Learned trial Court, after hearing the arguments from both the sides, convicted and sentenced the accused-appellant as above vide judgment dated 05.06.2015. Hence this appeal.
We have heard the arguments advanced by learned counsel for the accused-appellant and the learned Public Prosecutor and have carefully and threadbare perused the entire evidence available on record.
Learned counsel Mr. Charan has fervently submitted that dying declaration (Ex.P/18) is not reliable and worth credence. He submits that there is no certificate of fitness by the duty doctor to the effect that the victim Smt. Kanku was in a fit state to make the statement. The prosecution has miserably failed to prove the reliability of the dying declaration (Ex.P/18) as there are too many contradictions in the statements of P.W. 19 - Ramratan and P.W. 20 - Dr. Ghanshyam. He, therefore, submits that it would not be safe to rely upon the dying declaration of Smt. Kanku (Ex.P/18) for convicting the accused-appellant for the offence alleged in the case.
Mr. Charan, learned counsel took us in detail through the statements of P.W. 19 - Ramratan and P.W. 20 - Dr. Ghanshyam. He submits that in the cross-examination of P.W. 19 - Ramratan, it has come on record that he was not aware about the doctor who (4 of 10) [CRLA-633/2015] treated Smt. Kanku. He did not obtain any certificate of fitness from the Medical Jurist. There is some overwriting in Ex.P/18. He did not verify before recording the statement of Smt. Kanku that she was in a fit mental and physical state to give such statement. He did not collect the bed head ticket of Smt. Kanku. He was not aware as to when Kanku was admitted in the hospital. Mr. Charan, learned counsel, therefore, contends that in the wake of the statement of P.W. 19 - Ramratan, it can be inferred that dying declaration of Smt. Kanku (Ex.P/18) was not properly recorded and the possibility of manipulation in the same cannot be ruled out.
Mr. Charan, learned counsel further took us to the cross- examination of P.W. 20 - Dr. Ghanshyam wherein he stated that he has written 'certified' above his signatures in the dying declaration of Smt. Kanku (Ex.P/18). Except having written 'certified', he has not given in writing about physical and mental fitness of Smt. Kanku. He did not summon the treating doctor while the statement was being recorded. He did not ask Smt. Kanku whether she was literate or not. Mr. Charan, learned counsel, therefore, contends that the dying declaration of Smt. Kanku (Ex.P/18) is not worth reliance and therefore, the same is required to be discarded.
He further contends that there is no motive for the accused- appellant to kill his wife Smt. Kanku. Mr. Charan, learned counsel further submits that because of sudden and grave provocation as there was a heated altercation between the husband and wife in connection with her talking excessively on mobile phone and the accused-appellant lost his control on the spur of the moment and the present incident happened. He, therefore, prays that there (5 of 10) [CRLA-633/2015] was no intention on the part of the accused-appellant to kill Smt. Kanku and therefore, the conviction of the accused-appellant may be converted from one under Section 302 of I.P.C. to under Section 304 Part - I of I.P.C.
Per contra, learned Public Prosecutor while supporting the judgment of conviction dated 05.06.2015 contended that the dying declaration of Smt. Kanku (Ex.P/18) is clear and specific. The same can be relied without hesitation because P.W. 20 - Dr. Ghanshyam has certified Ex.P/18 i.e. dying declaration of Smt. Kanku, which shows that the same does not suffer from any infirmity and has been recorded while the deceased Smt. Kanku was conscious and in a fit mental and physical state. He further submits that D.W. 1 - Dr. Vinod Kumar Jeengar, who was examined in defence, stated that when Smt. Kanku was admitted in the burn ward of their unit on 30.01.2012, she was having 82- 85% burn injuries. He treated her by administering medicines and injections. At the time of admission, Smt. Kanku was able to sit, she was fully conscious and was talking. She passed away on 03.02.2012. Therefore, there is no reason to disbelieve the dying declaration of Smt. Kanku (Ex.P/18) as the defence witness D.W. 1
- Dr. Vinod Kumar Jeengar too has fully corroborated and affirmed the fact that Smt. Kanku was conscious and in a position to make the statement. He, therefore, submits that the dying declaration of Smt. Kanku (Ex.P/18) is fully corroborated from the medical evidence. Since as per and the postmortem report (Ex.P/15) wherein the cause of death is shown as septicemia as a result of ante mortem burn injuries, which are sufficient to cause death in ordinary course of nature, the learned trial court has rightly convicted the accused-appellant for the offence alleged vide (6 of 10) [CRLA-633/2015] judgment dated 05.06.2015. He, therefore, prays that no interference is warranted in the judgment dated 05.06.2015.
We have considered the submissions made at the bar and minutely gone through the record of the learned trial court as well as judgment dated 05.06.2015 impugned herein.
The dying declaration of Smt. Kanku (Ex.P/18) clearly and specifically shows that it was none other than the accused- appellant who ignited the fire by matchstick after pouring kerosene over her person at their residence. The statement does not suffer from any infirmity and there is no reason for us to discard the same merely because there are certain omissions and minor contradictions in the cross-examination of P.W. 19 - Ramratan and P.W. 20 - Dr. Ghanshyam. The credibility of the dying declaration of the deceased Smt. Kanku (Ex.P/18) will not be adversely affected by these minor and trivial discrepancies.
We also note that the dying declaration of Smt. Kanku (Ex.P/18) has been certified under the signature of P.W. 20 - Dr. Ghanshyam which goes to show that Smt. Kanku was conscious and in a fit condition to give statement. As per the statement of P.W. 19 - Ramratan, on getting information from Ajaykant, S.H.O. Police Station Banera (P.W. 18), he went to the M.G.H. Hospital, Bhilwara and recorded the dying declaration of the victim Smt. Kanku in the presence of the doctor. He further stated that Smt. Kanku affixed her thumb impression on the same which was verified by the doctor i.e. P.W. 20 - Dr. Ghanshyam.
As stated by D.W. 1 - Dr. Vinod Kumar Jeengar, Smt. Kanku was conscious and talking which fully corroborates the fact that Smt. Kanku was in a fit mental and physical condition to give such statement. The fact that Smt. Kanku was mentally conscious and (7 of 10) [CRLA-633/2015] physically fit on the corresponding day as stated by D.W. 1 - Dr. Vinod Kumar Jeengar who was produced in the witness box by the defence, clinches the issue that there is no infirmity or doubt in the dying declaration of the deceased Smt. Kanku (Ex.P/18) recorded by P.W. 19 - Ramratan. Therefore, in our opinion, the same is worth reliance and credence in the case. The dying declaration (Ex.P/18) is getting complete corroboration from the medical evidence in the shape of statements of P.W. 20 - Dr. Ghanshyam and D.W. 1 - Dr. Vinod Kumar Jeengar and the postmortem report (Ex.P/15). We may also observe that there is no material on record to show any rivalry between the accused- appellant and P.W. 19 - Ramratan and P.W. 20 - Dr. Ghanshyam to falsely implicate him by manipulating the statement of Smt. Kanku. Hence, the findings arrived at by the learned trial court for convicting the accused-appellant in the case on the basis of dying declaration (Ex.P/18) is found correct and is upheld in view of the detailed discussion made by us.
The argument of the learned counsel for the accused- appellant that there was no motive for the accused-appellant to kill his wife Smt. Kanku is noted to be rejected as he was annoyed because his wife Smt. Kanku was talking on mobile and therefore, after pouring kerosene, he ignited the fire resulting into her death.
Similarly, the argument of the learned counsel for the accused-appellant for converting the conviction from one under Section 302 of I.P.C. to under Section 304 Part - I of I.P.C. merely because there was a fight between the husband and wife in connection with Smt. Kanku talking on mobile is not convincing and the same is rejected. The fact that accused-appellant poured kerosene over the body of his wife Smt. Kanku and ignited fire (8 of 10) [CRLA-633/2015] clearly shows that burn injuries were caused with the vile intention to kill her. In common parlance, it is unimaginable for a person to pour kerosene and ignite the fire to another if there is no intention to cause fatal injuries.
Our observations are supported by the judgment rendered by the Hon'ble Supreme Court in the case of Satish Ambanna Bansode V. State of Maharashtra reported in AIR 2009 SC 1626 wherein it has been held as under;
"12. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction on the same without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.
This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Paniben v. State of Gujarat (1992(2) SCC 474) (SCC pp.480-81, paras 18-19)
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [See:
Munnu Raja v. State of M.P.(1976 (3) SCC
104)]
(9 of 10) [CRLA-633/2015]
(ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See:
State of U.P. v. Ram Sagar Yadav (1985(1) SCC 552) and Ramawati Devi v. State of Bihar 1983(1) SCC 211))
(iii) The court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. [See: K. Ramachandra Reddy v. Public Prosecutor(1976 (3) SCC 618)])
(iv) Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. [See: Rasheed Beg v. State of M.P.(1974(4) SCC 264)]
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. [See: Kake Singh v. State of M.P.(1981 Supp. SCC 25)]
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. [See: Ram Manorath v. State of U.P.(1981(2) SCC 654]
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu [1980 Supp. SCC455)]
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. [See: Surajdeo Ojha v.
State of Bihar (1980 Supp.SCC 769)]
(ix) Normally, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. [See: Nanhau Ram v. State of M.P. (1988 Supp. SCC 152)]
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [See: State of U.P. v. Madan Mohan (1989 (3) SCC 390)] (10 of 10) [CRLA-633/2015]
(xi) Where there are more than one statements in the nature of dying declaration, the one first in point of time must be preferred. Of course, if the plurality of the dying declaration could be held to be trustworthy and reliable, it has to be accepted. [See: Mohanlal Gangaram Gehani v. State of Maharashtra (1982 (1) SCC 700)]
13. In the light of the above principles, the acceptability of the alleged dying declaration in the instant case has to be considered. The dying declaration is only a piece of untested evidence and must, like any other evidence, satisfy the court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration. (See Gangotri Singh v. State of U.P.(1993 Supp(1)SCC 327)."
In view of discussion made above, we are of the considered opinion that the judgment dated 05.06.2015 passed by the learned trial court convicting and sentencing the accused- appellant for the offence under Section 302 of I.P.C. deserves to be upheld.
Resultantly, the criminal appeal fails and is dismissed as such. The judgment and order dated 05.06.2015 passed by the learned trial court is upheld. The record of the trial court be returned forthwith.
(VINIT KUMAR MATHUR),J (SANDEEP MEHTA),J 9-Inder/-
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