Rajasthan High Court - Jodhpur
Shrawan Ram And Ors vs State on 21 October, 2019
Bench: Sandeep Mehta, Abhay Chaturvedi
HIGH COURT OF JUDICATURE FOR RAJASTHAN
JODHPUR
D.B. Criminal Appeal No.394/2012
1. Shrawan Ram S/o Shri Bhanwar Lal, By Caste Sansi, aged
about 24 years, resident of Kharbara, Distt. Bikaner
2. Bhanwar Lal S/o Kewal Ram By Caste Sansi aged 47 years,
resident of Kharbara, Distt. Bikaner
3. Smt. Rupa Devi W/o Bhanwar Lal By Caste Sansi, aged 42
years, resident of Kharbara, Distt. Bikaner
4. Dhapu Devi W/o Mahendra By Caste Sansi, aged 25 years,
resident of Kharbara, Distt. Bikaner (At present lodged in
jail, Bikaner)
----Appellants
Versus
The State of Rajasthan
----Respondent
For Appellant(s) : Mr. Nishant Bora
For Respondent(s) : Mr. Anil Joshi, PP
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE ABHAY CHATURVEDI
JUDGMENT
BY THE COURT: (PER HON'BLE MEHTA,J.)
Date of Reserve : 18/9/2019 Date of Pronouncement : 21/10/2019
The instant appeal under Section 374(2) Cr.P.C. has been preferred by the appellants herein aggrieved of the judgment dated 31.03.2012 passed by the learned Additional Sessions Judge (Fast Track No.1), Bikaner in Sessions Case No.25/2011 whereby the appellants herein were convicted and sentenced as below:-
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Accused Conviction for Sentences Default
Appellants offence under Sentences
Sections
Shrawan Ram, 302 I.P.C. Life 3 months' S.I.
Bhanwarlal, Imprisonment,
Smt.Rupa Devi with fine of
& Smt. Dhapu Rs.2,000/-
Devi
Brief facts relevant and essential for disposal of the appeal are noted hereinabelow:-
Pooran Singh ASI Chhattargarh, District Bikaner proceeded to record the Parcha Bayan (Ex.P15) of Smt.Chandramukhi at the Burn Unit of PBM Hospital, Bikaner on 07.02.2011 at 1:20 p.m. wherein the lady alleged that she was married to Shrawan Ram (appellant No.1) about 5-6 years ago. Soon after the marriage, she was beaten and was turned out of the matrimonial home on account of demand of dowry. A case was registered in this regard and was pending in the Court concerned. She was at her matrimonial home where a quarrel ensued between her and her in laws owing to the dowry demand. Her mother-in-law, father-in- law, sister-in-law and husband poured kerosene upon her person with an intention of killing her. Her mother-in-law set her to fire due to which, she got severely burnt and became unconscious. On the basis of the Parchya Bayan aforestated, an FIR No.22/2011 (Ex.P/28) came to be registered at the police station Chhattargarh, for the offences under Sections 307, 498-A and 34 IPC. Investigation was assigned to Balraj Singh, SHO, PS (Downloaded on 21/10/2019 at 09:02:56 PM) (3 of 13) [CRLA-394/2012] Chhattargarh, who proceeded to the place of incident, prepared the site inspection plan, seized the incriminating material viz., soil drenched with kerosene, burnt clothes, pieces of skin of the victim, the plastic jerrycan etc. Statements of the concerned witnesses were recorded under Section 161 Cr.P.C. The accused were arrested. The matchbox used to set the victim on fire was recovered in furtherance of the information (Ex.P/34) provided by the accused Rupa Devi under Section 27 of the Indian Evidence Act.
It may be stated here that as Smt.Chandramukhi was alive, Pooran Singh, ASI upon being instructed by the SHO, submitted an application to the CJM, Bikaner for recording the statement of Smt. Chandramukhi. The C.J.M. authorised the Judicial Magistrate, Ist Class, Bikaner Shri Satpal Verma to record the statement of Smt.Chandramukhi who was admitted at Bed No.5 in the PBM Hospital, Bikaner. The Judicial Magistrate proceeded to the hospital and recorded the statement of Smt. Chandramukhi under Section 164 Cr.P.C. (Ex.P12). In this statement, Smt. Chandramukhi alleged that in the previous morning at about 8 o'clock, her husband, mother-in-law, father-in-law and Jethani were present at the matrimonial home. She was also present in the house which is located at the village Kharawas. They quarreled with her on the issue of household work and for demand of dowry. At that time, she was cleaning the house. Her mother-in-law caught hold of her, the father-in-law poured kerosene on her body. Her husband and jethani restrained her. Her mother-in-law set her to fire with a matchstick. She has a three year old daughter whereas her son had passed away. She was married about 6-7 (Downloaded on 21/10/2019 at 09:02:56 PM) (4 of 13) [CRLA-394/2012] years before the incident. To a pertinent question put by the Magistrate, Smt.Chandramukhi replied that previously also, the accused had beaten her up on account of demand of dowry for which a case had been registered and was pending in the Court. Previously also, she had been turned out of the matrimonial home. She gave out names of accused as Rupa Devi mother-in-law, Bhanwar Lal father-in-law and Dhapu Devi jethani. She further alleged that her aunt-in-law tried to save her and that the incident was perpetrated at the instigation of her uncle-in-law Sohan Lal. Smt. Chandramukhi expired on 16.02.2011 while undergoing treatment, whereupon offence under Section 302 IPC was added to the case. After concluding the investigation, the Investigating Officer proceeded to file a charge sheet against the accused persons for the offences under Sections 498-A, 304-B, 302, 498/109, 304-B/109 and 302/109 IPC in the Court of Judicial Magistrate No.3, Bikaner.
As the offences were Sessions triable, the case was committed and transferred to the Court of Additional Sessions Judge (Fast Track) No.1, Bikaner for trial. The trial Court framed charges against the accused for the above offences. They pleaded not guilty and claimed trial. The prosecution examined as many as 12 witnesses and exhibited 36 documents in support of its case.
Upon being questioned under Section 313 Cr.P.C. and when confronted with the circumstances appearing against them in the prosecution evidence, the accused denied the same and claimed to be innocent. Two documents were exhibited but no oral evidence was led in defence. After hearing the arguments of the prosecution and the defence and upon appreciating and evaluating (Downloaded on 21/10/2019 at 09:02:56 PM) (5 of 13) [CRLA-394/2012] the evidence available on record, the learned trial Court proceeded to convict and sentence the accused-appellants in the manner stated above by the impugned judgment. Hence, this appeal.
Shri Nishant Bora, learned counsel representing the appellants vehemently and fervently urged that the entire prosecution case is false and fabricated. Smt.Chandramukhi received the burn injuries accidentally. The parcha bayan as well as the dying declaration are not reliable. There is no evidence on the record to show that Smt.Chandramukhi was fit to give the Parcha Bayan. He referred to the statement of Dr. Ashutosh (P.W.8) who stated in cross examination that Smt.Chandramukhi was not in a position to speak. Thus, as per Shri Bora, the Parcha Bayan as well as the dying declaration deserve to be discarded. He further submitted that the deceased alleged that a case had been previously filed by her against the accused for the harassment on account of dowry demand but no documents pertaining to the said case were filed on record by the prosecution. He further contended that it is inexplicable as to how the deceased came to be at the matrimonial home even though she was embroiled in an ongoing criminal litigation with the accused party. Shri Bora further submitted Smt. Vimla (PW-1), the mother of the deceased; Prakash (PW-2) her father, did not support the prosecution case and were declared hostile. Thus, as per Shri Bora, no corroborative evidence is available on record to support the dying declaration and the Parcha Bayan which deserve to be discarded. Shri Bora further submitted that the material prosecution witnesses admitted that the deceased used to converse in Marwari. Both the Parcha Bayan as well as dying declaration were (Downloaded on 21/10/2019 at 09:02:56 PM) (6 of 13) [CRLA-394/2012] recorded in chaste Hindi language which was not the spoken language of the deceased and hence as per him, both the statements are inadmissible in evidence. To support his contentions that as the deceased was not in a fit mental or physical state, the dying declaration should be discarded, Shri Bora relied upon the Hon'ble Supreme Court decision in the case of Sampat Bapso Kale & Anr. Vs. State of Maharashtra reported in (2019)4 SCC 739 and urged that both the statements of by the deceased are not fit to be accepted and should be discarded and the accused-persons deserve to be acquitted by giving them the benefit of doubt.
Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by Shri Bora. He urged that from the evidence of Smt. Vimla (PW-1), it is clear that the parties entered into a compromise in the dowry case whereafter, Smt.Chandramukhi was sent back to live at the matrimonial home. He drew the court's attention to the evidence of Shri Satpal Verma, the Magistrate who recorded the dying declaration (Ex.P/12) and Shri Pooran Singh (PW-7), the ASI who recorded the Parcha Bayan (Ex.P/15) of the victim as well as the statement of Dr. Sanjeev Puri (PW-9) who issued the fitness certificate. He submitted that the dying declaration (Ex.P/12) was recorded by the Judicial Magistrate after taking a fitness certificate from the duty doctor which was proved by the learned Magistrate as portion 'C' to 'D'. Thus, as per learned Public Prosecutor, the dying declaration which is a clinching piece of evidence establishes the guilt of the accused to the hilt and that the trial Court was perfectly justified in convicting and sentencing the appellants as (Downloaded on 21/10/2019 at 09:02:56 PM) (7 of 13) [CRLA-394/2012] above. On these grounds, he implored the Court to dismiss the appeal and affirm the impugned judgment.
We have given our thoughtful consideration to the arguments advanced at the Bar and have gone through the material available on record.
On a perusal of the entire evidence available on record, it is clear that none of the material prosecution witness including the parents of the deceased i.e. Smt. Vimla (PW-1) and Prakash (PW-
2) gave evidence against the appellants. Smt. Vimla averred in her statement that a case of dowry had been filed by Smt. Chandramukhi which was settled and thereafter, she went back to her matrimonial home. In this background, there is no independent evidence whatsoever on the record to show that Chandramukhi was being harassed or humiliated in the matrimonial home on account of demand of dowry. Chandramukhi was admitted to the PBM Hospital Bikaner in a burnt condition on 6.2.2011. On a perusal of the bedhead ticket (Ex.P/16), it is clear that though it is mentioned therein that the patient was conscious and irritable at the time of admission but her pulse and blood pressure were not recordable. She was burnt to the extent of 98%. On a perusal of the Parcha Bayan (Ex.P/15), it is apparent that the same does not bear any certification of the doctor that the patient was in a fit condition to give such statement. It is mentioned in the Karyawahi Police that the statement was recorded in presence of the duty doctor but no such doctor was examined by the prosecution to establish that the Pacha Bayan was recorded while the victim was in a fit condition to give the statement. Though the prosecution did not prove the complete (Downloaded on 21/10/2019 at 09:02:56 PM) (8 of 13) [CRLA-394/2012] bedhead ticket and only the first page was exhibited during the evidence, we have perused the remaining flaps of the bedhead ticket available in the file and find that the blood pressure and pulse of the patient were not recordable from 7.2.2011 to 11.2.2011. It is not mentioned in any of these bedhead ticket entries from 07.02.2011 to 11.02.2011 that the patient was conscious. For the first time, on 12.2.2011, it is recorded in the ticket that the patient was conscious, oriented and was taking liquids. This situation continued on 13.2.2011, 14.2.2011 and 15.2.2011 as well. However on 16.2.2011, the condition of the patient suddenly deteriorated and she passed away on the same day. There is a certificate of the doctor available on record as per which, on 6.2.2011, the patient was reported to be "not fit" for giving statement. The dying declaration was recorded pursuant to an application (Ex.P/11) whereafter, the learned Judicial Magistrate Shri Satpal Verma was authorised by the Chief Judicial Magistrate to record such statement. The statement (Ex.P/12) bears the endorsement mark C to D purportedly appended by the duty doctor that Smt. Chandramukhi was fit for giving statement. However, it is clear that the statement does not bear any satisfaction of the Magistrate himself that the injured was in a fit condition, either mentally or physically to give such statement. Be that as it may. As the Parcha Bayan (Ex.P15) and dying declaration (Ex.P12) are the only two pieces of evidence on the basis whereof, the conviction of the appellants was recorded by the trial court, the evidence of the witnesses concerned there with needs to be discussed. Pooran Singh (P.W.7) was the A.S.I. who recorded the Parcha Bayan (Ex.P15). He stated that he went to (Downloaded on 21/10/2019 at 09:02:56 PM) (9 of 13) [CRLA-394/2012] the PBM Hospital and recorded the statement (Ex.P15) and got the thumb impressions of Chandramukhi appended thereupon. In cross-examination, the witness admitted that before recording the Parcha Bayan, he took a certificate of the doctor in writing that Smt. Chandramukhi was fit to give a statement. However, neither such certificate/endorsement was proved nor is available on record. The witness further admitted that Smt. Chandramukhi used to speak in Marwari and had no knowledge of Hindi. On a perusal of the Parcha Bayan, it is clear that the same is recorded in chaste Hindi language. Shri Ashutosh (P.W.8) was the Resident Doctor posted at the burn unit of the PBM Hospital. He stated that he gave primary treatment to Smt. Chandramukhi, who was admitted in the burn unit on 6.2.2011. In cross-examination, the witness admitted that Chandramukhi was not in a position to speak. Superficially, this statement has to be considered as having been made regarding the condition of Chandramukhi on 6.2.2011 only. However, as we have noted from the bedhead ticket of Chandramukhi, that even on the subsequent dates till 12.2.2011, neither her pulse no her blood pressure were recordable nor is it mentioned in the bedhead ticket that the patient was conscious.
Be that as it may, Shri Satpal Verma (PW-5) was assigned the duty of recording the dying declaration of Smt. Chandramukhi. He stated in his evidence that he took the endorsement of Dr.Ashutosh regarding Chandramukhi being in fit condition for giving the statement. The Magistrate proved the endorsement as portion C to D on Ex.P12, however, as has already been noted above, the prosecution made no endeavour of getting this endorsement proved during the evidence of Dr.Ashutosh himself. (Downloaded on 21/10/2019 at 09:02:56 PM)
(10 of 13) [CRLA-394/2012] In cross-examination, a pertinent question was put to the learned Magistrate that the endorsement did not convey that the patient was mentally fit to give the statement. The Magistrate also could not clarify whether the injured was speaking in Marwari language. We would like to reiterate that Dr.Ashutosh was not made to prove this endorsement/fitness certificate during his evidence. In view of these facts, we are of the opinion that there is a serious doubt on the aspect as to whether Smt.Chandramukhi was actually in a mental or physically fit condition to give her statement. The Hon'ble Supreme Court, in the case of Sampat Babso Kale (Supra) considered the issue of dying declaration vis-a-vis the condition of the injured therein. In that case also, the injured Sharda was admitted in the hospital with 98% burn injuries. After appreciating the evidence available on record, Hon'ble Supreme Court went on to hold as below:
"13. In our view, though dying declarations stand proved, the issue is whether we can convict the accused only on the basis of these dying declarations. In a case of the present nature where the victim had 98% burns and the doctor has stated from the record that a painkiller was injected at 3.30 a.m. and the dying declaration had been recorded thereafter, there is a serious doubt whether the victim was in a fit state of mind to make the statement. She was suffering from 98% burns. She must have been in great agony and once a sedative had been injected, the possibility of her being in a state of delusion cannot be completely ruled out. It would also be pertinent to mention that the endorsement made by the doctor that the victim was in a fit state of mind to make the statement has been made not before the statement but after the statement was recorded. Normally it should be the other way round.
14. No doubt, a dying declaration is an extremely important piece of evidence and where the Court is satisfied that the dying declaration is truthful, voluntary and not a result (Downloaded on 21/10/2019 at 09:02:56 PM) (11 of 13) [CRLA-394/2012] of any extraneous influence, the Court can convict the accused only on the basis of a dying declaration. We need not refer to the entire law but it would be apposite to refer to the judgment of this Court in the case of Sham Shankar Kankaria v. State of Maharashtra held as follows:
"11. 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 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 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........."
15. In the present case, as we have already held above, there was some doubt as to whether the victim was in a fit state of mind to make the statement. No doubt, the doctor had stated that she was in a fit state of mind but he himself had, in his evidence, admitted that in the case of a victim with 98% burns, the shock may lead to delusion. Furthermore, in our view, the combined effect of the trauma with the administration of painkillers could lead to a case of possible delusion and therefore, there is a need to look for corroborative evidence in the present case."
In that case, the prosecution duly proved the certificate of the doctor regarding the victim being in a fit state of mind to give the statement. Even the Magistrate himself noted this fact in the statement. However, in the present case, the dying (Downloaded on 21/10/2019 at 09:02:56 PM) (12 of 13) [CRLA-394/2012] declaration/Parcha Bayan do not bear any satisfaction of the Magistrate/Police Officer who recorded the same that the victim was in a fit state, mental as well as physical to give such statement and in addition thereto, the prosecution failed to get the fitness certificate proved, during the evidence of the Medical Officer Dr.Ashutosh, PW-8. On the contrary, the doctor categorically stated in cross-examination, that Smt. Chandramukhi was not in a position to speak. Therefore, the credibility of the dying declaration as well as the Parcha Bayan come under a grave cloud of doubt. The law is well settled that benefit of doubt has to go to the accused.
In view of the above discussion, we are not at all convinced that in absence of independent corroborative evidence, the Parcha Bayan (Ex.P/15) and the dying declaration (Ex.P/12) can be acted upon so as to affirm the conviction of the appellants. There is no other evidence on record to bring home the charges against the accused.
As an upshot of the above discussion, the appeal deserves to be and is hereby allowed. The impugned judgment dated 31.03.2012 passed by the learned Additional Sessions Judge (Fast Track No.1), Bikaner in Sessions Case No.25/2011 is hereby quashed and set aside. The accused appellants are acquitted of the charges. They are in jail. They shall be set at liberty forthwith if not wanted in any other case.
However, keeping in view the provisions of Section 437-A CrPC, the accused appellants are directed to furnish a personal bond in the sum of Rs.15,000/- each and a surety bond each in the like amount before the learned trial court, which shall be (Downloaded on 21/10/2019 at 09:02:56 PM) (13 of 13) [CRLA-394/2012] effective for a period of six months to the effect that in the event of filing of a Special Leave Petition against the present judgment on receipt of notice thereof, the appellant shall appear before the Supreme Court.
(ABHAY CHATURVEDI),J (SANDEEP MEHTA),J
/tarun goyal/
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