Rajasthan High Court - Jodhpur
State vs Suresh Das on 28 February, 2020
Bench: Sandeep Mehta, Abhay Chaturvedi
(1 of 16) [CRLA-240/1987]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 240/1987
The State of Rajasthan
----Appellant
Versus
Sureshdas son of Mohandas by caste Sant resident of
Denawaton ka Bass, City Police, Jodhpur
----Respondent
For Appellant(s) : Mr. Farzand Ali, G.A.-cum-A.A.G., with
Mr. A.R. Choudhary, P.P.
For Respondent(s) : Mr. Manish Shisodia
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE ABHAY CHATURVEDI
Judgment
Date of pronouncement : 28/02/2020
Judgment reserved on : 23/01/2020
BY THE COURT : PER HON'BLE MEHTA, J.
(1) The instant appeal under Section 378 (iii) and (i) against acquittal has been preferred by the State of Rajasthan for assailing the judgment dated 18.09.1986 passed by the learned Sessions Judge, Jodhpur in Sessions Case No.22/1985, whereby the respondent Sureshdas was acquitted of the charge under Section 302 IPC. (2) The brief facts relevant and essential for disposal of the instant appeal are noted hereinbelow.
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(2 of 16) [CRLA-240/1987] (3) The accused appellant was married to Smt. Indu (the deceased) 5 years before the incident. As per the prosecution case, the accused was in a habit of consuming liquor and used to quarrel with his wife under the effect of liquor. The appellant and the deceased used to stay near the Mama Khejda Ki Gali. The prosecution further alleged that on 09.12.1984, the accused asked his wife to warm up the food, but she replied that the time was inauspicious and thus, she would not do so. On this count, a quarrel took place between the spouses and the accused slapped Smt. Indu a few times. Thereafter, Smt. Indu went to sleep. In the morning, the accused told his grandmother Soni Bai of this incident and again slapped Smt. Indu. She tried to retaliate and slap the accused, on which, he caught hold of her hand and told her to die. As per the prosecution case, the accused again pestered Indu on 10.12.1984 at about 3 to 4 o'clock and exhorted that she should die, on which, Smt. Indu implored the acused to pour kerosene on her body. Upon this, the respondent- accused brought a tin of kerosene, poured the same on the body of Indu and set her to fire. Smt. Indu got badly burnt and raised a hue and cry, on which, the ladies from neighborhood gathered. Indu's sister Pinnu was called and thereafter, she was taken to the Mahatma Gandhi Hospital at about 06.10 p.m. The hospital clerk Shri Narayan Singh gave information to Head Constable Shri Navlaram posted at the Police Station Sadar Kotwali regarding the lady having been admitted to the hospital in (Downloaded on 29/02/2020 at 09:02:54 PM) (3 of 16) [CRLA-240/1987] a burnt condition. Sub-Inspector Kan Singh (P.W.7) immediately reached the hospital and contacted the Medical Officer on duty Dr. Rakesh Kumar (P.W.11). Opinion of the doctor was sought, who gave a certificate that the patient was in fit condition for recording her statement. Thereafter, Sub-Inspector Kan Singh (P.W.7) proceeded to note down the dying declaration of Indu, which was marked as Ex.P/15 during the course of trial. The dying declaration was certified by Dr. Rakesh Kumar (P.W.11). Thumb impressions of Smt. Indu were also taken thereupon. In this statement, Smt. Indu clearly levelled the allegations, which have been narrated as above. Thereafter, the Sub-Inspector Kan Singh proceeded to the Police Station Sadar Kotwali, Jodhpur, where, based on this dying declaration of Indu, FIR No.99/1984 (Ex.P/18) came to be registered for the offence under Section 307 IPC at 8.45 PM. SHO Bhanwar Singh (P.W.9) also recorded the statement (Ex.P/22) of Smt. Indu, in which, allegations identical to those made in the dying declaration Ex.P/15 were made by the lady. The SHO Bhanwar Singh directed the Sub-Inspector Kan Singh to get the dying declaration of Smt. Indu, recorded by a Magistrate. Thereupon, Kan Singh submitted an application before Mr. Yogendra Kumar, Judicial Magistrate No.5, Jodhpur, who reached the hospital and contacted the duty doctor Dr. Ashwini Gupta, who issued a certificate Ex.P/12 that the patient was fit for the statement.
Thereafter, Mr. Yogendra Kumar (P.W.6), Judicial
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(4 of 16) [CRLA-240/1987]
Magistrate recorded the dying declaration (Ex.P/13) of Smt. Indu and got her thumb impression appended thereupon. The treatment of Smt. Indu continued at the hospital. SHO Bhanwar Singh undertook investigation. The burnt clothes and hair of Smt. Indu were seized. Photographs of the place of incident were got snapped by Photographer Shri Anand Prakash. Accused Sureshdas was arrested on 10.12.1984. Statements of the concerned witnesses were recorded under Section 161 CrPC. Smt. Indu passed away on 14.12.1984, whereupon offence under Section 302 IPC was added to the case. The dead body of Smt. Indu was got subjected to postmortem and Panchnama was prepared. Thereafter, the dead body of Smt. Indu was handed over to her father Kanhaiya Lal (D.W.4) for cremation. As per the postmortem report (Ex.P/17) issued by the Medical Board, the deceased had received superficial burns all over her body and as per the testimony of the medical jurist, Dr. Jagdish (P.W.8), the cause of death was opined to be secondary shock and Toxemia resulting from burn injuries. (4) The Investigating Officer concluded investigation and filed a charge-sheet against the accused in the Court of the Judicial Magistrate No.5, Jodhpur for the offence under Section 302 IPC. As the offence was exclusively Sessions triable, the case was committed to the Court of the Sessions Judge, Jodhpur, where the charge was framed (Downloaded on 29/02/2020 at 09:02:54 PM) (5 of 16) [CRLA-240/1987] against the accused for the above offence. The accused pleaded not guilty and claimed trial. The prosecution examined as many as 11 witnesses to prove its case. Upon being confronted with the prosecution allegations in his statement under Section 313 CrPC, the accused admitted that Smt. Indu was his wife and that she died by burning. He claimed that at the time of the incident, he was sitting on the terrace of his house with his grandmother and was talking to Pyarelal, who used to reside opposite to his house. He heard the fervent cries of Indu 'tywa js & e:a js' coming from the ground floor, on which, he rushed down. Before he could reach down, the neighbours had arrived and had doused Indu's fire. He also helped in putting out fire. He arranged for taking Smt. Indu to hospital, by which time, his brother Maheshdas and Indu's sister Pinnu came there. Pinnu and Maheshdas took Indu to the hospital in the taxi and he followed them. As soon as Indu reached the hospital, she lost consciousness. By that point of time, parents of Indu had arrived at the spot.
(5) 6 witnesses were examined in defence. Dr. Vinay Bothra, who had treated Smt. Indu, was summoned and examined as a court witness.
(6) After hearing and appreciating the arguments advanced by the prosecution and the defence and appreciating the (Downloaded on 29/02/2020 at 09:02:54 PM) (6 of 16) [CRLA-240/1987] evidence available on record, the learned trial court proceeded to hold that the only evidence available to the prosecution for proving the charge was in form of the three statements of Smt. Indu, which tantamounted to dying declarations. However, the trial court was of the view that the story set up in the dying declarations was not beyond the pale of doubt and could not be relied upon in absence of independent corroboration. The maternal relatives of the deceased did not support the prosecution case. The trail court held that having received such extensive burns, Smt. Indu would not have been in a fit position to give the three statements in the highly composed manner and the precise language. There were bleak chances of the deceased having been in a physical and mental condition to give such elaborate statements considering the fact that she had received 70% burns. Taking into account the fact elicited in the statement of the court witness Dr. Vinay Bothra that Fortwin and Dexona injections were administered to the deceased, the trial court held that it was not possible that the two initial statements of the deceased (Ex.P/15 and Ex.P/22) on which the prosecution placed implicit reliance for proving its case were not believable. The trial court noticed certain discrepancies in the statements of the witnesses Kan Singh (P.W.7) and Bhanwar Singh (P.W.9). It was held that by the time Mr. Yogendra Kumar, Judicial Magistrate, recorded the statement of Smt. Indu, she must have come out of the drowsiness by effect of Fortwin and (Downloaded on 29/02/2020 at 09:02:54 PM) (7 of 16) [CRLA-240/1987] Dexona injections and as such, her dying declaration (Ex.P/13) was held to be reliable. However, after considering the testimony of the maternal family members of the deceased, namely, Pinnu (sister of the deceased) (P.W.3), Jagdisha @ Laxmi (mother of the deceased) (P.W.5), Kanhaiya lal (father of the deceased) (D.W.4) and the neighbors Amarlal (D.W.1), Sohan Bai @ Soni (grandmother of the accused) (D.W.2) to be reliable, the learned trial court extracted the following lines from the dying declaration (Ex.P/13) of the deceased :
"jkst jkst nk: ihdj esjs dks rax djrk FkkA eSaus lkspk eSa ej tkÅaxh iki dVsxkA"
Considering this version to be convincing, the learned trial court held that the deceased Smt. Indu must have voluntarily set herself to fire and the allegations made by her in the dying declaration (Ex.P/13) that she had been burnt by the accused was not believable. With this conclusion, the learned trail court, proceeded to acquit the accused by giving him the benefit of doubt. Hence this appeal.
(7) Without prejudice to the contention that the trial court was absolutely unjustified in rejecting/discarding the two dying declarations of Smt. Indu recorded by the Police Officer as being unreliable pieces of evidence, the Learned Public Prosecutor vehemently and fervently urged that the entire set of prosecution allegations has been well and (Downloaded on 29/02/2020 at 09:02:54 PM) (8 of 16) [CRLA-240/1987] truly established from the Dying Declaration (Ex.P/13) even if the two dying declarations of Smt. Indu (Ex.P/15 and Ex.P/22) recorded by Sub-Inspector Kan Singh and SHO Bhanwar Singh are excluded from consideration. He urged that the police officers had neither any affinity with the deceased nor were they inimical to the accused and thus, there was no reason as to why they would record false dying declarations of the deceased and implicate the accused in the incident without any reason. Learned Public Prosecutor submitted that the learned trial court lost sight of the fact that the allegations as set out in these two dying declarations are almost identical to what was stated by the deceased in her dying declaration (Ex.P/13), which was recorded by the Judicial Magistrate. Thus, the learned Public Prosecutor urged that there was no justification whatsoever for the trial court to have discarded the two dying declarations recorded by the police officers. He urged that the dying declaration recorded by the Magistrate (Ex.P/13) is convincing and is in itself sufficient and clinching on the aspect of the guilt of the respondent and provides strong material for setting aside the impugned judgment and for convicting the accused appellant of the charge of murdering his wife Smt. Indu. He urged that the findings recorded by the trial court while partially discarding the dying declaration (Ex.P/13) are absolutely conjectural. He submitted that the relatives of the deceased supported the prosecution case during investigation, but they seem to have been (Downloaded on 29/02/2020 at 09:02:54 PM) (9 of 16) [CRLA-240/1987] won over by the accused later on and thus, no credence should be given to their tainted testimony. He urged that the three dying declarations of the deceased are unimpeachable and thus, the finding recorded by the learned trial court in the impugned judgment while acquitting the accused of the charge under Section 302 IPC is absolutely perverse. As per him, it is not a case, wherein, any view other than holding the accused guilty of the charge was possible and thus, he implored the court to set aside the impugned judgment and convict the accused for the charge of murdering his wife Smt. Indu. In support of his contention, learned Public prosecutor relied upon the judgment of Hon'ble Supreme Court in the case of Varikuppal Srinivas Vs. State of A.P. [AIR 2009 SC 1487].
(8) Per contra, Mr. Manish Shisodia, learned counsel representing the respondent acquitted accused vehemently and fervently opposed the submissions advanced by the learned Public Prosecutor. He urged that the view taken by the trial court while discarding the two dying declarations (Ex.P/15 and Ex.P/22) recorded by the police officers is the only logical and rational view of the matter. The deceased and the accused were married over five years ago and other than the normal and trivial family disputes, there was nothing between them which could have impelled the accused to murder his wife. On the (Downloaded on 29/02/2020 at 09:02:54 PM) (10 of 16) [CRLA-240/1987] fateful day, the accused made a simple request to the deceased to warm up food for him, on which, she retorted in negative and thereafter, a trivial quarrel took place between the spouses. This quarrel did not precipitate into any significant event. It seems that the issues were spilled over to the next day, the quarrel again flared up in the afternoon. The accused acting under provocation, slapped the deceased who got severely annoyed and took the rash step of ending her life by setting herself afire. Mr. Shisodia also referred to the above quoted lines as appearing in the dying declaration (Ex.P/13) and urged that it was the deceased herself, who had decided to end her life having been fed up with the matrimonial disputes and that the accused had no part to play in her decision. He further submitted that conduct of the accused immediately after the incident, of which the trial court took note in the impugned judgment, is also indicative of his innocence. In support of his contentions, Mr. Shisodia relied upon the Supreme Court decisions in the cases of Ramesh Babulal Doshi Vs. State of Gujarat [(1996) 9 SCC 225] and Ashok Kumar Vs. State of Rajasthan [AIR 1990 SC 2134] and urged that where two views are possible on the same set of evidence, the court should be slow to interfere in a judgment of acquittal. On these grounds, he implored the court to dismiss the appeal. (Downloaded on 29/02/2020 at 09:02:54 PM)
(11 of 16) [CRLA-240/1987] (9) We have given our thoughtful consideration to the
submissions advanced at bar and gone through the impugned judgment and the record.
(10) As is manifest from the discussion made by the trial court, in the impugned judgment and the record, all maternal relatives of the deceased did not support the prosecution case and rather went overboard in an attempt to support the defence theory and thus, the only evidence available to the prosecution so as to bring home the guilt of the accused is in the form of the dying declarations, which we shall proceed to discuss hereinafter.
(11) For the sake of ready reference, it may be stated here that the Pinnu (sister of the deceased) (P.W.3) and Jagdisha @ Laxmi (mother of the deceased) (P.W.5) where examined as prosecution witnesses completely resiled from their investigational statements and supported the defence theory to the hilt. Kanhaiya lal (father of the deceased) (D.W.4) went one step further. He was examined as defence witness and he even tried to prove a statement purportedly recorded at the instance of the deceased while she was alive. However, we are of the view that the said statement (Ex.D/1) is a totally fabricated document and is not fit to be relied upon. (Downloaded on 29/02/2020 at 09:02:54 PM)
(12 of 16) [CRLA-240/1987] (12) Nonetheless, the fact remains that as the matrimonial relatives of the deceased have consciously chosen to support the defence, and thus, apparently, there is no independent material on record to show the existence of any matrimonial strife between the spouses and which can be considered sufficient to satisfy the court that the deceased was ever harassed or humiliated in the matrimonial home. Having tested the two dying declarations of the deceased (Ex.P/15 and Ex.P/22) recorded by the police officers and having compared the same with the dying declaration (Ex.P/13) recorded by the Judicial Magistrate, which was relied upon by the trial court, we find that the description of the incident as made in these three dying declarations is almost identical. The police officers had no reason to make false recitals in the dying declarations. The trial court held that since these two dying declarations were recorded while the deceased was burnt to the extent of 70%, the same could not be considered reliable. This appears to be a sheer contradiction in the approach of the trial court because the statement (Ex.P/13) of the deceased recorded by the Judicial Magistrate on 10.12.1984 was held to be partly reliable even though there was no change in her medical condition. In this background, we are of the firm opinion that the approach of the trial court in discarding the two dying declaration (Ex.P/15 and Ex.P/22) of the deceased recorded by the police officers was not at all justified. (Downloaded on 29/02/2020 at 09:02:54 PM)
(13 of 16) [CRLA-240/1987] These dying declarations are reliable and cannot be discarded.
(13) Now coming to the aspect as to whether the accused was responsible for setting the deceased ablaze. As has been noted above, the maternal family members of the deceased have gone out of the way to support the defence theory. The Deceased's father, Kanhaiya Lal even went to the extent of getting prepared an affidavit (Ex.D/1) of the deceased, in which, she purportedly resiled from the dying declarations (Ex.P/15 and Ex.P/22) and tried to exonerate the accused. However, we are convinced that this affidavit was not prepared at the instance of the deceased. Despite that, we cannot lose sight of the fact that the document was prepared on 12.12.1984, by which time, the deceased was still alive and only two days' time had lapsed since the incident took place. Thus, it has to be assumed that the maternal relatives of the deceased might have realized by that time that the accused was not responsible for the incident because otherwise, there was no reason for the father of the deceased to have gone to the extent of getting prepared a document for discarding the written statement of his own daughter and exonerating the accused. Thus, we definitely are of the view that a doubt is created on the prosecution case regarding the accused having any motive to murder his own wife. As it is clear from the three dying declarations (Downloaded on 29/02/2020 at 09:02:54 PM) (14 of 16) [CRLA-240/1987] of the deceased, there was a quarrel between the husband and the wife in the night previous to the incident over the issue of warming of food. The appellant seems to have lost his temper and slapped the lady a couple of times. Apparently, when the accused asked his wife deceased Smt. Indu to warm the food for him, it was quite late in the night and the lady might have been miffed at this request. Nonetheless, it cannot be denied that she used rough language while refusing to warm the food and thereafter, the quarrel ensured. If at all the accused was so enraged by this quarrel that he was impelled to kill her, then nothing prevented him from taking this step immediately thereafter. However, as has been admitted in the three dying declarations of the deceased, after this quarrel had taken place, she casually went back to sleep. The quarrel resumed in the morning in the presence of the grandmother of the accused. It seems that at that point of time, the accused again lost his cool and slapped the lady. However, the affairs precipitated and then again flared up in the evening, whereafter, the accused seems to have used harsh words asking the deceased to go and die. The deceased asked him to burn her by kerosene oil. As per the dying declarations, the accused brought the inflammable liquid, poured it on her body and set her ablaze, but the subsequent words spoken by the deceased in her dying declaration that she was of the view that ending her life would end her troubles (jkst jkst nk: ihdj esjs dks rax djrk FkkA (Downloaded on 29/02/2020 at 09:02:54 PM) (15 of 16) [CRLA-240/1987] eSaus lkspk eSa ej tkÅaxh iki dVsxkA ), creates a serious doubt in the mind of the court that the incident has definite undertones of a suicidal attempt by the deceased who was so perturbed by the matrimonial strife and the continued tussle over the previous night incident and thus she seems to have taken the extreme step of ending her life by setting herself ablaze. Thereafter, she seems to have implicated the accused because the rage was still burning in her mind.
(14) In this background, we are of the view that the conclusion drawn by the trial court in its impugned judgment that the deceased set herself ablaze and then implicated the accused in the dying declarations as an act of retaliation cannot be said to be perverse. Law is well-settled that in an appeal against acquittal, interference should only be made if no view other than the guilt of the accused is possible. In this case, we are satisfied that the view taken by the trial court while acquitting the accused is one of the two possible views and cannot be negated totally. Thus, there is no reason for us to interfere in the said view taken by the trial court in this appeal against acquittal. Reference in this regard may be made to the judgments of Hon'ble Supreme Court in the cases of Ramesh Babulal Doshi Vs. State of Gujarat [(1996) 9 SCC 225] and Ashok Kumar Vs. State of Rajasthan [AIR 1990 SC 2134].
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(16 of 16) [CRLA-240/1987] (15) As an upshot of the above discussion, the appeal fails and is hereby dismissed as being devoid of merit.
(ABHAY CHATURVEDI),J (SANDEEP MEHTA),J
1-Pramod/-
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