Rajasthan High Court - Jodhpur
Magha Ram & Anr vs State on 16 February, 2017
Author: G.K. Vyas
Bench: Gopal Krishan Vyas
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
D.B. Criminal Appeal No. 505 / 2006
1. Magha Ram S/o Phoosaram, by caste Meghwal,
2. Smt. Manohari W/o Shri Phoosaram, by caste
Meghwal,
Both residents of Daudsar, Police Station
Jamsar, District: Bikaner
----Appellants
Versus
State of Rajasthan
----Respondent
_______________________________________________
For Appellant(s) : Mr. S.P. Joshi, Amicus Curiae.
For Respondent(s) : Mr. Vishnu Kachhawaha, PP.
_______________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE KAILASH CHANDRA SHARMA
JUDGMENT
[Per Hon'ble Mr. G.K. Vyas, J.] Date of Judgment: 16th February, 2017 In this criminal appeal filed by appellants, Magaram and Smt. Manohari Devi, u/s 374 (2) of Cr.P.C., the judgment dated 15th of May, 2006 passed by learned Additional Sessions Judge (Fast Track) No.1, Bikaner (trial court) in Session Case No.83/2005 is under challenge, (2 of 28) [CRLA-505/2006] whereby the accused appellants were convicted for the offences under sections 304B and 498A of IPC and following sentence was passed against them:
304B of IPC: Life Imprisonment. 498A of IPC: Three Years‟ rigorous imprisonment along with fine of Rs.5000/-, in default of payment of fine, to further undergo six months‟ simple imprisonment.
As per facts of the case, information was received at Police Station Jamsar, District Bikaner, on 31.03.2005 through wireless from control room that one Kanta W/o Magaram, by caste Meghwal, Resident of Daudsar has been admitted in the burn unit at Cabin No.1 at P.B.M. Hospital, Bikaner. Upon receiving the aforesaid information, the S.H.O., Hemant Verma, immediately went to the PBM Hospital, Bikaner and recorded the statements/dying declaration of injured Kanta, which is available on record as Ex./P37. The S.H.O., Police Station Jamsar, before recording the statements of the injured obtained fitness certificate from the doctor and in the presence of Dr. Praveen Gupta, Ramu Ram, Jeevan Khan and Manohari Devi, statement-cum-dying declaration of Smt. Kanta W/o Maga Ram, were recorded in which no allegation was levelled by her against anybody.
On 01.04.2005, the S.H.O., Police Station Jamsar, received information about death of injured Kanta, upon (3 of 28) [CRLA-505/2006] that immediately went to the PBM Hospital, Bikaner and recorded the details of dead body vide Memo (Ex.P/28) and proceedings u/s 174 Cr.P.C. were commenced, the „Panchnama‟ of the dead body was prepared, upon which complainant (brother of deceased) Bishna Ram, and Ilahi Bux, put their signatures. The postmortem of the dead body of deceased was conducted in the hospital and postmortem report (Ex.P/30) was prepared and given to the Investigating Officer. The dead body of the deceased was handed over to Phoola Ram, father-in-law of the deceased on 01.04.2005. In the proceedings initiated u/s 174 of Cr.P.C. on the basis of dying declaration of deceased (Ex.P/37) the necessary inquiry was made at the place of occurrence. The site plan (Ex.P/33) was prepared on 01.04.2005 in the presence of two witnesses, viz. Ilahi Bux and Jeevan Khan. The details of the site was also recorded vide Ex.P/33A, one stove was recovered from the place of occurrence vide Ex.P/34 on 01.04.2005 in the presence of Ilahi Bux and Jeevan Khan. One bottle containing kerosene was also taken in possession on 01.04.2005. Pieces of burned cloths were also taken in possession from the site in the proceedings u/s 174 Cr.P.C.
During the proceedings under Section 174 Cr.P.C., the brother of deceased, Bishna Ram and Chuna Ram, participated and no objection was raised by them with regard to any allegation of demand of dowry or causing (4 of 28) [CRLA-505/2006] death by the appellants but subsequently on 05.04.2005, a typed complaint (Ex.P/31) was filed before the Superintendent of Police, Biknaer, by Bishna Ram Meghwal, brother of deceased Smt. Kanta, in which allegations were levelled against all the family members of in-laws. The Superintendent of Police, Bikaner, directed the S.H.O.. Police Station Jamsar, to register FIR, therefore, FIR No.44/2005 was registered against all the family members on 05.04.2005 at Police Station Jamsar, Bikaner, for offences u/s 304B and 498A of IPC.
In the complaint (Ex.P/31), it was inter-alia, stated by the complainant, Bishna Ram Meghwal (PW.8) that I am by caste Meghwal and resident of Village Udasar, and doing labour work. Marriage of my sisters, namely, Radha and Kanta, was solemnized on 16.11.1998 at Village Daudsar with Nema Ram and Magaram, both sons of Phoosa Ram. In the marriage, sufficient dowry articles were given according to our status. After marriage, my sister, Radha, started living in her in-laws house. But sister Kanta‟s „Muklawa‟ (xkSuk) was done after two years of marriage in the year 2000. As per allegations of the complainant, father-in-in-law, Phoosa Ram, mother-in-law Manohari Devi, brother-in-law, Maglaram, sister-in-law Sua started harassing his sister after „Muklawa‟ (xkSuk); and upon complain made my sister, I and my relatives went to the in-laws of my sister and tried to reason with them and requested them not to quarrel and harass my sisters.
(5 of 28) [CRLA-505/2006] Thereafter, my sister Radha along with her husband left the house and started to live separately in Village Khara. The son and younger sister of the complainant, Kanta, was living with her in-laws, where her husband, father-in-law, mother-in-law, brother-in-law and sister-in-law assaulted my sister and ousted her out from the house and demanded a sum of Rs.25,000/- and a gold chain.
Upon asking, I, my mother, and cousin went to the house of Kanta and requested them that my father is mentally ill, we are poor labourers and thus it is not possible for them to pay Rs.25000/- and a golden chain and made a request to allow Kanta to live with them, but they stated that if you will not manage or fulfill aforesaid demand, then, they will not see the face of my sister. The complainant further stated that on the eve of festival Holi, my sister came at our house and said that if you will not arrange money as demanded by my in-laws, then, they will kill her. On 28.03.2005 I and my mother and uncle, Chuna Ram went to Daudsar, and again requested them and assured that we will arrange money as demanded by them but they gave threatening that if you will not pay money as demanded by us, then you will face consequence whereof.
As per allegations of the complainant on 31.03.2005 at about 11.30 PM, Phoosa Ram, father-in-law of my sister came and informed that Kanta is ill, therefore, she is hospitalized. Upon receiving the said information, (6 of 28) [CRLA-505/2006] complainant and his mother immediately rushed to the hospital where Kanta was admitted in burnt condition. According to complainant, he and his mother made enquiry from the deceased how incident took place, then she informed that my husband, mother-in-law, father-in- law, brother-in-law and sister-in-law gave beatings to her and thereafter poured kerosene and lit fire. On account of burn injuries, Kanta died in the hospital.
After registration of the FIR, the papers of inquiry conducted under Section 174 Cr.P.C. were taken on record in the investigation. The statements-cum-dying declaration of Smt. Kanta (Ex.P/37) was also taken on file for further investigation. The accused appellant, Maga Ram was arrested on 04.07.2005 vide Arrest Memo (Ex.P/38) and accused appellant, Smt. Manohari Devi, was arrested on the same day at 06.00 Pm vide Ex.P/39.
Thereafter statements of other prosecution witnesses were recorded under Section 161 Cr.P.C. and after completion of the investigation, charge sheet was filed against accused appellants for the offences under Sections 498A and 306 of IPC in the court of A.C.J.M. No.2, Bikaner because in the dying declaration (Ex.P/37) recorded by the S.H.O., P.S.- Jamsar, no allegation was levelled by Smt. Kanta (deceased) against any persons, rather it was stated by her that due to accident, her cloths suffered fire and her body was burnt. Upon that although police initiated investigation u/s 174 Cr.P.C. but after five days of the (7 of 28) [CRLA-505/2006] incident, a written complaint (Ex.P/31) was filed by the complainant, Bishna Ram Meghwal, brother of the deceased, upon which FIR was registered and investigation commenced, which resulted in filing of charge sheet u/s 498A and 306 of IPC.
The learned Addl. Chief Judicial Magistrate No.2, Bikaner, committed the case for trial to the Sessions Judge, but the learned Sessions Judge transferred the case for trial to the court of learned Addl. Sessions Judge (FT) No.1, Bikaner.
The learned trial court after providing opportunity of hearing and on the basis of evidence on record, framed charges against the accused appellants for the offences u/s 304B and 498A of IPC, which the accused appellants denied and prayed for trial.
During trial, statements of 14 prosecution witnesses were recorded and 46 documents were exhibited from the prosecution side. After recording the evidence of prosecution witnesses, the statements of accused appellants were recorded u/s 313 Cr.P.C., in which they denied all the allegations levelled against them and said that they have been falsely implicated in this case. In defence, three witnesses were produced viz. DW.1 Hajari, DW.2 Gorkharam, and DW.3 Anaram.
Learned trial court after recording the evidence of prosecution as well as defence, finally heard the arguments of the case and after considering the entire (8 of 28) [CRLA-505/2006] evidence passed the impugned judgment dated 15.05.2006 whereby both the accused appellants were held guilty for offence under Section 304B and 498A of IPC on the ground that the marriage of deceased was solemnized with appellant No.1 Magha Ram, on 16.11.1998 and she died on 31.03.2005 on account of harassment meted out to her within seven years from the date of marriage. In this appeal, the appellants are challenging the validity of judgment on various grounds.
Learned amicus curiae argued that finding of guilt arrived at by the learned trial court against the appellant is contrary to the evidence available on record because as per admitted facts of the case, deceased was taken to hospital by her in-laws including accused appellant, Manohari Devi (mother-in-law of deceased) for treatment, where the doctor of the hospital informed the S.H.O., Police Station Jamsar, and upon receiving information the S.H.O. Police Station- Jamsar, immediately came to the hospital, and recorded the statements of deceased, Smt. Kanta at 07.30 PM on 31.03.2005. Learned amicus curiae submit that before recording the statements of deceased, Kanta, who was admitted in burnt condition in P.B.M. Hospital, Biakner, fitness certificate (Ex.D/6) was obtained from the doctor in which it was certified that injured is conscious to give statement.
After obtaining fitness certificate, the S.H.O., Police Station Jamsar, recorded the statement-cum-dying (9 of 28) [CRLA-505/2006] declaration (Ex.P/37) of Smt. Kanta, in the presence of Jeevan Khan, Ramu Ram, Manohari Devi in which following statement was given by deceased Smt. Kanta, which reads as under:-
"bl le; Jherh dkra k W/o e?kkjke e?s koky mez 25 o'kZ R/o nkmnlj PS tkelj chdkujs us nfj;k¶r ij c;ku fn;s fd ejs h "kknh 9 o'kZ iow Z e?kkjke ds lkFk gqbZ FkhA rc ls eSa vius lljq ky eas gh jg jgh gawA vkt fnu eas djhc 2& 2½ cts dh ckr gkxs hA eSa vius lljq ky nkmnlj eas vius dejs eas feV~Vh ds ry s ls pyus okys LVkso ij pk; cukbZ o pk; cukdj viuh lkl eukgs jh nos h dks vkokt nh o pk; ,d rjQ j[kdj LVkos dks mij rkd eas j[k jgh Fkh cPpk ejs k djhc <kbZ lky dk gSAa ejs s ikl Fkk vkSj ?kj ij dkbs Z ugha FkkA ejs k ifr ml le; [kk<s [kkns us rkykc ij x;k gv q k Fkk lkl ejs h ekeh lkl ds ikl xbZ gqbZ FkhA eaS LVkos mij j[kdj cq>kus okyh Fkh rHkh LVkos mij j[krs le; gkFk ls NVw dj ejs s mij fxjkA fxjrs le; <Ddu [kqyus ls ejs s mij rys Hkh fxjk o uhps fxjr& s 2 ijw s LVkos us vkx idM+ yh os ejs s diMk+ s us Hkh vkx idM+ yh eSa dwdus yxh rks xkoa okys vk;s o ikuh xjs k rks vkx cq> xbZA fQj e> q s vLirky yd s j vk;s ejs s ekeh lljq xkfs oUnjke xkMh+ djds yk;k FkkA bleas ejs h gh ykijokgh gS tks eSua s tyrk LVkos fcuk <xa ls j[ks gq, ?kVq ukas ij [kMs+ gkds j j[kus dh dkfs "k"k dhA bl eas vkSj fdlh dk dkbs Z nk's k ugha gSA"
In pursuance of the aforesaid dying-declaration, the witness Hemant Verma, S.H.O., Police Station Jamsar, (PW.13) commenced the proceedings under Section 174 Cr.P.C. because as per statements of deceased, Kanta, accidently occurrence of burn took place. It is also argued that after recording the statement of deceased, Smt. Kanta, when she died, postmortem was conducted in P.B.M. Hospital, Biakner. In the postmortem report (10 of 28) [CRLA-505/2006] (Ex.P/30), no injuries except burn injury were found on the person of deceased.
Inquiry under Section 174 Cr.P.C. was conducted in the presence of PW.8 complainant, Bishna Ram Meghwal, brother of the deceased, which is evident from the fact that upon all the recovery memos and documents of inquiry proceedings, it bears the signatures of Bishna Ram Meghwal. The dead body of the deceased was also handed over to father-in-law, Phoosa Ram vide Ex.P/40 at that time, no complaint was made by any of the family members of the deceased, either parents or the brother but all of sudden after five days, a complaint was filed on 05.04.2005 by the complainant, Bishna Ram (PW.8) in which allegations were levelled for cruelty, demand of dowry and committing murder by all the family members of in-laws including the appellants. The entire prosecution case is based upon testimony of witness PW.3 Chuna Ram (uncle of deceased), Laxman Ram (uncle of deceased), PW.8 Bishna Ram Meghwal (brother of the deceased), PW.9 Phooli (mother of deceased), PW.10 Radha (sister of deceased), married with the brother of appellant No.1 and PW.12 Ramuram (uncle of the accused appellant, Maga Ram). It is argued that all these witnesses are close relatives of the deceased and belong to one family. There is no corroboration by the independent witness for the allegations made by prosecution witness but the learned trial court while relying upon the testimonies of close (11 of 28) [CRLA-505/2006] relatives and interested witnesses held the accused appellants guilty and ignored the statement-cum-dying declaration of the deceased Kanta (Ex.P/37) recorded by the S.H.O., Police Station Jamsar, Bikaner, after obtaining fitness certificate from the doctor concerned. In the dying- declaration, Smt. Kamta stated accidently fire took place to her cloths but learned trial court relied upon the testimony of close relatives of the deceased for demand of dowry and gave a finding that death was caused within seven years, therefore, on the basis of presumption, accused appellants are guilty for the offences under Section 304B of IPC. The aforesaid finding is totally perverse and far from the truth.
Learned amicus curiae invited our attention towards recent judgments of Hon‟ble Supreme Court in the case of State of Gujarat Vs. Jarajibhi Punjabhai Varu reported in AIR 2016 SC 3218 and Pankaj Vs. State of Rajasthan reported in AIR 2016 SC 4150, and recent judgment of Hon‟ble Apex Court in the case of Baijnath & Ors. Vs. State of Madhya Pradesh, reported in 2017 (1) SCC 101 and submitted that almost identical situation was in existence in the case of Baijnath (supra), in which the Hon‟ble Apex Court held that dying declaration recorded by the police in the presence of doctor after obtaining fitness certificate, cannot be disbelieved. Therefore, he prays that finding of guilt recorded by the learned trial court against the accused appellants deserve (12 of 28) [CRLA-505/2006] to be quashed and the accused appellants are entitled to be acquitted from the charges levelled against them.
Per contra, learned Public Prosecutor submitted that it is a case in which deceased, Kanta died in the in-laws‟ house. She was admitted at PBM Hospital, Bikaner, in burnt condition. The marriage of Kanta and her sister, namely, Radha, was solemnized on 16.11.1998 and as per evidence on record gifts and other articles were given at the time of marriage to the husband and in-laws of Kanta. Both the sister, namely, Radha and Kanta were married with Nanuram and Magha Ram (accused appellant No.1), but „Muklawa‟ (xkSuk) of Smt. Kanta took place in the year 2000 because she was minor at the time of marriage on 16.11.1998. According to prosecution case, father-in-law, mother-in-law, namely, Manohari Devi, brother-in-law, sister-in-law and other members constantly harassed, Smt. Kanta, therefore, at sometime relatives were called for negotiation. The other daughter, Radha, left the house due to quarrel and live separately at village Khara but Kanta was residing in the house of in-laws.
As per arguments of Public Prosecutor there is ample evidence on record to prove the demand of Rs.25,000/- and a golden chain, the in-laws were repeatedly making demand but it was not possible for the father and mother of the deceased, Kanta to pay Rs.25,000/- for purchasing camel cart and since the demand of dowry was not fulfilled by the parents of deceased, she was subject to cruelty and (13 of 28) [CRLA-505/2006] consequently was murdered by pouring kerosene upon her.
Learned Public Prosecutor submitted that although there is dying declaring on record, but said dying declaration has rightly been ignored because it was recorded in the presence of members of in-laws and as soon as brother of deceased, Bhishna Ram, and mother of deceased came to the hospital, and made enquiry from deceased Kanta as to how occurrence took place, it was informed by Kanta that her in-laws including husband and mother-in-law poured kerosene upon her and lit fire.
Learned Public Prosecutor vehemently submitted that there is no question to disbelieve the oral evidence of the prosecution because two sisters of the complainants viz. Radha and Kanta were married with two real brothers, therefore, it is beyond imagination that family of the deceased will make false allegation knowingly well that their other daughter Radha is already married with the brother of accused appellant. The crux of argument of learned Public Prosecutor is that the prosecution has proved its case beyond reasonable doubt on the basis of trustworthy evidence, therefore, for the offence u/s 304B IPC, presumption has rightly been drawn by the trial court against the accused appellants as Kanta died within seven years of marriage, therefore, it is a case in which due to demand of dowry and cruelty being committed by the in- laws, Kanta set at fire, which resulted into her death. The (14 of 28) [CRLA-505/2006] conviction of the accused appellants for the offence u/s 304B and 498A of IPC does not require any interference, more so, it is a case in which the learned trial court has properly appreciated the evidentiary value of oral as well as documentary evidence, cane on record. He, therefore, prayed that this appeal may be dismissed.
After hearing the learned amicus curiae for the appellants and Public Prosecutor, we have perused the entire evidence, and considered the judgment cited at Bar by the learned amicus curiae.
It is true that most of the witnesses of the prosecution including the author of FIR viz. PW.8 Bishna Ram, real brother of deceased, PW.6 Laxman Ram (uncle of the deceased) gave statement in the court that there was demand of Rs.25,000/- by the in-laws for purchasing a camel cart and golden chain. The marriage of deceased, Kanta, and another sister, Radha, was solemnized on 16.11.1998, but „Muklawa‟ (xkSuk) of deceased Kanta was done after two years of marriage as she was minor at the time of marriage.
As per prosecution case, first of all upon receiving information through wireless from Control Room, Bikaner, PW.13, namely, Hemant Verma (S.H.O., Police Station Jamsar) immediately went to PBM Hospital, Bikaner and recorded the statement/dying-declaration (Ex.P/37) of injured, Kanta, after obtaining requisite fitness certificate from the doctor. The statements of Smt. Kanta were (15 of 28) [CRLA-505/2006] recorded in the presence of Dr. Praveen Gupta, Ramuram, Jeevan Khan and Manohari Devi.
PW.13 Hemant Verma, S.H.O., Police Station Jamsar, District Bikaner, categorically stated that statements of injured, Smt. Kanta W/o Magha Ram were recorded by me after obtaining fitness certificate from the doctor. In the cross-examination, PW.13 Hemant Verma, categorically stated that, "dkUrk ds c;ku yu s s ls igys eSua s MkWDVj ls lfVZfQdVs ys fy;k FkkA ejs k izfrons u izn"kZ Mh&6 ftl ij , ls ch ejs s gLrk{kj gAS lh ls Mh MkWDVj lkgc ds gLrk{kj gSA eSus izn"kZ ih&37 c;ku dkUrk ds crk, vqulkj gh fy, Fks vkSj ekSrfcjku ds gLrk{kj dkUrk ds c;ku yus s ds ckn gh djok, FkAs ".
After recording the aforesaid statements of Smt. Kanta, in the presence of complainant Bishna Ram Meghwal (PW.8) brother of deceased, enquiry was conducted under Section 174 Cr.P.C. and the postmortem was conducted in the presence of brother, Bishna Ram. Upon all the documents prepared in the inquiry u/s 174 Cr.PC. PW.13 Hemant Verma, bears the signatures of the complainant, who is real brother of the deceased but no objection was raised by him nor any allegation was made and after postmortem, the dead body of the deceased was handed over to father-in-law of the deceased, Phoosa Ram vide Ex.P/40 on 01.04.2005. In the cremation also, the complainant party has participated but all of sudden on 05.04.2005, after five days of the incident, the complainant, PW.8 Bishna Ram, submitted a typed complaint before the Superintendent of Police, Bikaner, in (16 of 28) [CRLA-505/2006] which allegations were levelled for cruelty, demand of dowry and causing death of Smt. Kanta by her husband, Magha Ram, mother-in-law Smt. Manohari Devi, father-in- law, Phoosa Ram, brother-in-law Mangla Ram and sister- in-law, Sua. However, after investigation, the police filed charge sheet against accused appellants, Magha Ram (husband of deceased) and Smt. Manohari Devi (mother- in-law of deceased) only.
Learned trial court while relying upon the statements of PW.3, Chuna Ram (uncle of deceased), PW.6 Laxman Ram (uncle of deceased), PW.8 Bishna Ram (brother of deceased), who remained present in the entire proceedings, PW.9 Smt. Phooli (mother of deceased) and PW.10 Radha (sister of deceased) gave finding the accused appellants are guilty for offences under Section 304-B of IPC and completely ignored the statements of PW.12 Ramu Ram, who had gone to the place of incident soon after the occurrence and recorded the dying declaration.
We have considered the arguments advanced by the learned amicus curiae that the trial court has committed a serious error while ignoring the dying declaration (Ex.P/37) of Smt. Kanta, recorded by PW.13 Hemant Verma, S.H.O., Police Station Jamsar, in the presence of doctor. Admittedly, soon after the occurrence, when wireless message was received by the S.H.O., Police Station Jamsar, he (PW.13- Hemant Verma) went to (17 of 28) [CRLA-505/2006] hospital and recorded the statements of deceased after obtaining fitness certificate from the doctor. In our opinion, there is no reason to disbelieve the dying declaration of Smt. Kanta, recorded by the S.H.O., because there is no contrary evidence on record to disbelieve the statement of Smt. Kanta recorded by the S.H.O., Police Station Jamsar. The Hon‟ble Apex Court in the case of State of Gujarat Vs. Jarajibhi Punjabhai Varu (supra) held that there is no reason to disbelieve the dying declaration recorded by the S.H.O. after obtaining fitness certificate from the doctor. The following adjudication was made by the Hon‟ble Apex Court in the aforesaid judgment.
"10. The courts below have to be extremely careful when they deal with a dying declaration as the maker thereof is not available for the cross-examination which poses a great difficulty to the accused person. A mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous. The court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration. In the case on hand, there are two sets of evidence, one is the statement/declaration made before the police officer and the Executive Magistrate and the other is the oral dying (18 of 28) [CRLA-505/2006] declaration made by the deceased before her father who was examined as PW-1. On a careful scrutiny of the materials on record, it cannot be said that there were contradictions in the statements made before the police officer and the Executive Magistrate as to the role of the respondent herein in the commission of the offence and in such circumstances, one set of evidence which is more consistent and reliable, which in the present case being one in favour of the respondent herein, requires to be accepted and conviction could not be placed on the sole testimony of PW-1. A number of times the relatives influence the investigating agency and bring about a dying declaration. The dying declarations recorded by th e investigating agencies have to be very scrupulously examined and the court must remain alive to all the attendant circumstances at the time when the dying declaration comes into being. In case of more than one dying declaration, the intrinsic contradictions in those dying declarations are extremely important. It cannot be that a dying declaration which supports the prosecution alone can be accepted while the other innocent dying declarations have to be rejected. Such a trend will be extremely dangerous. However, the courts below are fully entitled to act on the dying declarations an d make them the basis of conviction, where the dying declarations pass all the above tests.
11. The court has to weigh al l the attendant circumstances an d come to the independent finding whether the dying declaration was properly recorded and whether it was voluntary and truthful. Once the court is (19 of 28) [CRLA-505/2006] convinced that the dying declaration is so recorded, it may be acted upon and can be made a basis of conviction. The courts must bear in mind that each criminal trial is an individual aspect. It may differ from the other trials in some or the other respect and, therefore, a mechanical approach to the la w of dying declaration has to be shunned.
12. On appreciation of evidence on record, we are of the considered view that the dying declarations of the deceased recorded by the police officer as well as the Executive Magistrate are fully corroborated and there is no inconsistency as regards th e r ole of the respondent herein in the commission of offence. From a perusal of the statement recorded by Bhiku Karsanbhai, P.S.O., the thumb impression of Rekhaben (since deceased) which had been identified by her father-Sri Va l a Jaskubhai Suragbhai as also his cross-examination in which he admitted that police had already come there and he had identified her thumb impression and Mamlatdar had gone inside to record statement, there is no reason as to why Rekhaben would give names of her husband and her in-laws in the alleged statement given to her father. A dying declaration is entitled to great weight. The conviction basing reliance upon the oral dying declaration made to the father of the deceased is not reliable and such a declaration can be a result of afterthought. 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 tutoring, (20 of 28) [CRLA-505/2006] 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 assailants. 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."
It is worthwhile to observe that in this case except close relatives of the deceased, there is no evidence of independent witness to prove the allegation for demand of Rs.25,000/- by the in-laws for purchasing a camel cart and a golden chain. All the witnesses viz. PW.3 Chuna Ram, PW.6 Laxman Ram, PW.8 Bishna Ram, made allegation that in-laws gave beatings to the deceased two months back and made demand of Rs.25,000/- and a golden chain. If incident took place before two month prior to the incident, then obviously a complaint was to be filed at police station or action was to be taken by the complainant party but no action was taken prior to the incident of burn or even after initiation of proceedings u/s 174 Cr.P.C.
The Hon‟ble Apex Court while dealing with identical set of evidence, in an identical case of Baijnath & Ors. Vs. State of Madhya Pradesh reported in 2017 (1) SCC 101, held that mere fact of unnatural death in the (21 of 28) [CRLA-505/2006] matrimonial home within seven years of marriage not sufficient to convict the accused u/s 304B and 498A of IPC. The presumption under Section 113B can be invoked only when prosecution proves beyond doubt that deceased was subjected to cruelty/harassment in connection dowry demand soon before her death. The relevant Para(s) 25 to 33 of judgment in the case of Baijnath & Ors. (supra) reads as infra:
"25. Whereas in the offence of dowry death defined by Section 304B of the Code, the ingredients thereof are:
(i) death of the woman concerned is by any burns or bodily injury or by any cause other than in normal circumstances and
(ii) is within seven years of her marriage and
(iii) that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of the husband for, or in connection with, any demand for dowry.
the offence Under Section 498A of the Code is attracted qua the husband or his relative if she is subjected to cruelty. The explanation to this Section exposits "cruelty" as:
(i) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) or
(ii) harassment of the woman, where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or (22 of 28) [CRLA-505/2006] is on account of failure by her or any person related to her to meet such demand.
26. Patently thus, cruelty or harassment of the lady by her husband or his relative for or in connection with any demand for any property or valuable security as a demand for dowry or in connection therewith is the common constituent of both the offences.
27. The expression "dowry" is ordained to have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. The expression "cruelty", as explained, contains in its expanse, apart from the conduct of the tormentor, the consequences precipitated thereby qua the lady subjected thereto. Be that as it may, cruelty or harassment by the husband or any relative of his for or in connection with any demand of dowry to reiterate is the gravamen of the two offences.
28. Section 113B of the Act enjoins a statutory presumption as to dowry death in the following terms:
113B. Presumption as to dowry death.- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
(23 of 28) [CRLA-505/2006] Explanation.-For the purpose of this section, "dowry death" shall have the same meaning as in Section 304Bof the Indian Penal Code (45 of 1860)
29. Noticeably this presumption as well is founded on the proof of cruelty or harassment of the woman dead for or in connection with any demand for dowry by the person charged with the offence. The presumption as to dowry death thus would get activated only upon the proof of the fact that the deceased lady had been subjected to cruelty or harassment for or in connection with any demand for dowry by the accused and that too in the reasonable contiguity of death. Such a proof is thus the legislatively mandated prerequisite to invoke the otherwise statutorily ordained presumption of commission of the offence of dowry death by the person charged therewith.
30. A conjoint reading of these three provisions, thus predicate the burden of the prosecution to unassailably substantiate the ingredients of the two offences by direct and convincing evidence so as to av ai l the presumption engrafted in Section 113B of the Act against the accused. Proof of cruelty or harassment by the husband or her relative or the person charged is thus the sine qua non to inspirit the statutory presumption, to draw the person charged within the coils thereof. If the prosecution fails to demonstrate by cogent coherent and persuasive evidence to prove such fact, the person accused of either of the above (24 of 28) [CRLA-505/2006] referred offences cannot be held guilty by taking refuge only of the presumption to cover up the shortfall in proof.
31. The legislative primature of relieving the prosecution of the rigour of the proof of the often practically inaccessible recesses of life within the guarded confines of a matrimonial home and of replenishing the consequential void, by according a presumption against the person charged, cannot be overeased to gloss-over and condone its failure to prove credibly, the basic facts enumerated in the Sections involved, lest justice is the casualty.
32. This Court while often dwelling on the scope and purport of Section 304B of the Code and Section 113B of the Act have propounded that the presumption is contingent on the fact that the prosecution first spell out the ingredients of the offence of Section 304B as in Shindo Alias Sawinder Kaur and Anr. v. State of Punjab : (2011) 11 SCC 517 and echoed in Rajeev Kumar v. State of Haryana : (2013) 16 SCC 640. In the latter pronouncement, this Court propounded that one of the essential ingredients of dowry death Under Section 304B of the Code is that the accused must have subjected the woman to cruelty in connection with demand for dowry soon before her death and that this ingredient has to be proved by the prosecution beyond reasonable doubt and only then the Court will presume that the accused has committed the offence of dowry death Under Section 113B of the Act. It referred (25 of 28) [CRLA-505/2006] to with approval, the earlier decision of this Court in K. Prema S. Rao v. Yadla Srinivasa Rao : (2003) 1 SCC 217 to the effect that to attract the provision of Section 304B of the Code, one of the main ingredients of the offence which is required to be established is that "soon before her death" she was subjected to cruelty and harassment "in connection with the demand for dowry".
33. Tested on the judicially adumbrated parameters as above, we are of the unhesitant opinion that the prosecution has failed to prove beyond reasonable doubt, cruelty or harassment to the deceased for or in connection with any demand for dowry as contemplated in either of the two provisions of the Code under which the accused persons had been charged. Noticeably, the alleged demand centers around a motorcycle, which as th e evidence of the prosecution witnesses would evince, admittedly did not surface at the time of finalization of the marriage. PW-5, the mother of the deceased has even conceded that there was no dowry demand at that stage. According to her, when the husband (who is dead) had insisted for a motorcycle thereafter he was assured that he would be provided with the same, finances permitting. Noticeably again, the demand, as sought to be projected by the prosecution, if accepted to be true had lingered for almost two years. Yet admittedly, no complaint was made thereof to anyone, far less the police. Apart from the general allegations in th e same tone ingeminated with parrot like similarity by the prosecution witnesses, the allegation of cruelty (26 of 28) [CRLA-505/2006] and harassment to the deceased is founded on the confidential communications by her to her parents in particular and is not supported by any other quarter."
Upon assessment of evidence in this case, we have no hesitation to hold that prosecution has failed to prove the allegation of cruelty or harassment beyond reasonable doubt. The alleged demand centres around 25,000/- rupees and golden chain, which as per evidence of prosecution witnesses would evince, admittedly did not surface at the time of finalization of marriage. PW.9 Smt. Phooli, mother of deceased had even conceded that there was no dowry demand at that stage but after 7-8 months of „Muklawa‟ (xkSuk) in the year 2000, in-laws of her daughter made demand of Rs.25,000/- to purchase a camel cart and one golden chain and before 12 months of the incident demand was made by the in-laws. Meaning thereby, there is no evidence on record that soon before death there was demand of dowry by the in-laws.
Upon consideration of entire evidence and so also considering the fact that dying declaration (Ex.P/37) was recorded in accordance with law, in which no allegation was levelled by the deceased, Smt. Kanta with regard to any cruelty being committed by her husband or in-laws and it was specifically averred that incident of fire occurred accidently, we are of the opinion that the finding of learned trial court holding the accused appellant guilty for (27 of 28) [CRLA-505/2006] offences under Section 304B and 498A of IPC is not sustainable in law.
It is settled principal of law that when the genesis and the manner of incident is doubtful, then, accused cannot be convicted. In this case, the incident took place on 31.03.2005 and after recording the statements of deceased Smt. Kanta, proceedings u/s 174 Cr.P.C. were commenced by the S.H.O., Police Station Jamsar, in which the complainant, PW.8- Bishna Ram Meghwal, (brother of deceased) as well as other witnesses of in-laws remained present and participated till cremation and after five days of the incident i.e. on 05.04.2005, the complainant (brother of deceased) PW.8- Bishna Ram Meghwal, submitted a complaint before the S.P., Bikaner, in which allegations were levelled for murder against all the family members, upon that complaint the police after investigation filed charge sheet only appellants, namely, Magha Ram and Smt. Manohari Devi. Upon assessment of entire evidence, there is no doubt that learned trial court committed an error while disbelieving the dying declaration (Ex.P/37) of Smt. Kanta, recorded by the police after obtaining fitness certificate from the doctor, therefore, the judgment is not sustainable.
Consequently, the present appeal filed by the appellants is hereby allowed, the judgment impugned dated 15th of May, 2006 passed by learned Additional Sessions Judge (Fast Track) No.1, Bikaner (trial court) in (28 of 28) [CRLA-505/2006] Session Case No.83/2005 is hereby set aside, and the appellants are hereby acquitted from the charges levelled against them. The appellant No.1, Magha Ram, shall be released forthwith, if not required in any other case. The appellant No.2 Smt. Manohari Devi is already on bail, therefore, her bail bonds are discharged.
Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellants are 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 appellants, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court.
(KAILASH CHANDRA SHARMA)J. (GOPAL KRISHAN VYAS)J. DJ/-