Rajasthan High Court - Jodhpur
Jethi Devi vs State on 19 February, 2024
Bench: Pushpendra Singh Bhati, Rajendra Prakash Soni
[2024:RJ-JD:7024-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 213/2015
Smt.Jethi Devi w/o Choutha Ram, r/o Ramdevra, Police Station,
Ramdevra, District Jaisalmer (Rajasthan).
----Appellant
Versus
State of Rajasthan.
----Respondent
For Appellant(s) : Mr. Kalu Ram Bhati
For Respondent(s) : Mr. B.R. Bishnoi, PP.
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI Judgment Reserved on 08/02/2024 Pronounced on 19/02/2024
1. The accused-appellant in this appeal, through Jail, has been convicted and sentenced as below vide judgment of conviction and order of sentence dated 03.12.2014 passed by the learned District and Sessions Judge, Jaisalmer (Raj.), in Session Case No.02/2013:
Offence Sentence Fine 302 IPC Life imprisonment Rs.2,000/-, in default of which, to further undergo 3 month's R.I.
2. Brief facts of the case are that on 25.10.2012, in morning, the accused-appellant, wife of Chautharam Lohar, r/o Ramdevra had a fight with her sister-in-law i.e. Kamla Devi (hereinafter referred to as 'deceased') in relation to some firewood, and in connection therewith, the accused-appellant abused the deceased and threatened to kill her and her children; whereafter, the accused-appellant poured kerosene on Kamla Devi and set the (Downloaded on 21/02/2024 at 08:46:14 PM) [2024:RJ-JD:7024-DB] (2 of 14) [CRLA-213/2015] deceased on fire, due to which the deceased severely burnt. Thereafter, the deceased was referred to the Government Community Health Centre, Pokran and information regarding the incident in question was given to PW-15- Hukam Singh, SHO of Police Station, Ramdevra, and then the dying declaration Exhibit- 15 was recorded by PW-15 and then one more dying declaration Exhibit-24 was also recorded in presence of PW-16-Tilok Chand, Sub-Divisional Magistrate, and thereafter, on the same day the FIR bearing No. 11/12 (Ex.-22) was registered under Section 307 IPC and the site of the incident in question was inspected, during course of which one Iron Tin, Matchbox, and half burnt clothes of the deceased were recovered; also the Naksha Mauka (Ex.-17) was also prepared by the investigating agency. Thereafter, the deceased was referred to the Mahatma Gandhi Hospital, Jodhpur, where she expired on very next day i.e 26.10.2012. 2.1. Thereafter, the body of the deceased was referred for postmortem and during the course of investigation, the statements of the witnesses under Section 161 Cr.P.C. were also recorded and after completing the investigation, charge-sheet under Sections 302 and 447 IPC was filed against the accused- appellant, whereafter, the learned Trial Court framed the charges for the same against the accused-appellant, and the trial commenced accordingly. During the trial on 19.02.2014, Mangilal, son of the deceased and accused-appellant filed a compromise under Section 447 IPC and after due verification thereof, she was discharged, only to the extent of the charge, under Section 447 IPC.
(Downloaded on 21/02/2024 at 08:46:14 PM) [2024:RJ-JD:7024-DB] (3 of 14) [CRLA-213/2015] 2.2. During trial, the statements of total 17 witnesses were recorded and 24 documents were produced in evidence as well as total 3 articles, as evidence, were physically produced by the prosecution. Thereafter, the accused-appellant was examined under Section 313 Cr.P.C. where she denied all the charges and pleaded her innocence on the strength of the testimony of DW-1 and the statement of Mangilal recorded before the police was produced as Exhibit-D/1. and thus, she was made to stand trial. 2.3 Subsequently, after hearing learned counsel for the parties and examining the testimonies of the witnesses and other documentary evidence, the learned Trial Court passed the impugned judgment of conviction and order of sentence, as above.
3. Learned counsel for the accused-appellant submitted that the accused-appellant was convicted solely on the basis of the dying declarations EX-15 and EX-24, and except for such dying declarations, there are no eye-witnesses to the incident, who stated that the accused-appellant was involved in the crime in question.
3.1. Learned counsel further submitted that in the cross examination of PW-6-Dr. Rajkumar Khandelwal, he did not fully support the prosecution story, and even the dying declaration was also not recorded in the presence of the PW-6. Learned counsel also submitted that the statement of the said material witness, clearly makes the genuineness and authenticity of the two dying declarations, as doubtful.
3.2. Learned counsel also submitted that in regard to the offence under Section 447 IPC, the compromise between the accused- (Downloaded on 21/02/2024 at 08:46:14 PM) [2024:RJ-JD:7024-DB] (4 of 14) [CRLA-213/2015] appellant and son of the deceased had already been arrived at and thus, the accused-appellant was discharged of the said offence. 3.3. Learned counsel further submitted that the accused- appellant is behind the bars for last 11 years and as per the nature of the offence, the accused-appellant's conviction under Section 302 IPC deserves to be converted into that under Section 304 IPC, and she may be released accordingly, looking to the period already undergone by her in custody.
3.4. In support of such submissions, learned counsel relied upon the following judgments:-
(a) Prakash @ Gajendra Salvi Vs State of Rajasthan (D.B. Criminal Appeal No. 56/2006, decided on 22.11.2016) passed by the Division Bench of this Hon'ble Court;
(b) Bhoma Ram @ Bhom Singh Vs. State of Rajasthan & Anr.
(S.B. Criminal Revision Petition No. 240/2016, decided on 01.08.2016) passed by the Coordinate Bench of this Hon'ble Court;
(c) Nemichand Regar Vs. State of Rajasthan (D.B. Criminal Appeal No. 638/2011, decided on 10.01.2017), passed by the Division Bench of this Hon'ble Court;
(d) Udai Singh Vs. State of Rajasthan (D.B. Criminal Appeal No. 434/2007, decided on 26.08.2015), passed by the Division Bench of this Hon'ble Court;
4. On the other hand, learned Public Prosecutor, opposed the aforesaid submissions made on behalf of the accused-appellant, while submitting that the accused-appellant was involved in the heinous crime of murder and the Trial Court after duly considering all the aspects of the case and upon properly appreciating the (Downloaded on 21/02/2024 at 08:46:14 PM) [2024:RJ-JD:7024-DB] (5 of 14) [CRLA-213/2015] evidence brought on record before it, convicted and sentenced the accused-appellant as above.
4.1. It was further submitted that the two dying declarations were recorded, one by PW-15- Hukam Singh- SHO of Police Station, Ramdevra and another by PW-16- Trilok Chand, Sub- Division Magistrate, and the same was duly considered by the learned Trial Court, and therefore, the impugned judgment of conviction and order of sentence do not deserve to be interfered with in the present criminal appeal.
5. Heard learned counsel for the parties as well as perused the record of the case alongwith the judgments cited at the Bar.
6. This Court finds that during the course of trial, the learned Trial Court framed the question, whether the accused-appellant on 25.10.2012 poured kerosene on the deceased with an intention to cause her death or not?.
Relevant portion of the said part of the impugned order is reproduced as hereunder:
"vk;k fnukad 25-10-12 dks lqcg ds fdlh le; ekStk jkensojk esa vfHk;qDrk tsBhnsoh us viuh tsBkuh Jherh deyknsoh dh gR;k dkfjr djus ds vk"k; ls ml ij dsjkslhu Mkydj frYyh ls vkx yxk nh ftlls tyus ds dkj.k deyknsoh dh e`R;q gks xbZ ?"
6.1. This Court further finds that the deceased is survived by two sons i.e PW-1-Mangilal and PW-10-Durga Ram, and both the witnesses (sons) did not deposed anything as to who poured the kerosene on the deceased, which means that there was no eye witness to the incident in question, more particularly, as to the criminal culpability in regard to the crime in question. (Downloaded on 21/02/2024 at 08:46:14 PM) [2024:RJ-JD:7024-DB] (6 of 14) [CRLA-213/2015] 6.2. This Court also finds that PW-1 stated that he received the information that his mother (deceased) was burnt, whereupon, he reached home and saw his mother in burnt condition, and the neighbors i.e PW. 7- Mangu Devi, PW.11- Gopal and PW. 13- Ashok kunmar were standing at the place of the incident in question, which verifies the fact the death in question was caused due to severe burn injuries. PW-1 further stated that in the hospital, the Tehsildar recorded the statement of the deceased, wherein he heard that his aunt (accused-appellant-Jethi Devi) set her mother (deceased) on fire. PW-10 also confirmed the testimony of the PW-1.
6.3 This Court further finds that PW.7- Mangu Devi stated that the deceased is her neighbour and she further stated that when she came outside her house, the witness saw that the deceased was on fire, but she was not aware as to how the same occurred. PW-11 stated that he has a shop in front of the deceased's house and saw that the deceased was on fire. The witness further stated he did not see anyone setting the deceased on fire, also did not see the accused-appellant at the place of the incident in question. This Court also observes that the depositions made by PW-13 were almost similar to that of PW-11, and that, the said witness stated that he had not seen anyone putting the deceased on fire. 6.4. This Court also finds that after perusal of the statements of PW-1, PW-10, PW-7, PW-11 and PW-13, it is clear that the deceased died due to burn injuries and none of them knew as to how the incident in question occurred. This Court also observes that PW-14 Dr. Santosh Kumar, who conducted the postmortem of the deceased, stated that her body was burnt to the extent of (Downloaded on 21/02/2024 at 08:46:14 PM) [2024:RJ-JD:7024-DB] (7 of 14) [CRLA-213/2015] 70% and she died because of shock caused from burning due to fire and the postmortem report Ex.P.21 also indicates the same.
7. This Court further finds that the learned Trial Court framed the second question, whether the accused-appellant caused the death of the deceased by setting her on fire?, which is reproduced as hereunder:
"mi;qZDr dss i"pkr~ nwljk egRoiw.kZ iz"u ;g iSnk gksrk gS fd D;k vfHk;qDrk tsBhnsoh us Jherh deyk ds vkx yxkdj mldh e`R;q dkfjr dh gS ?"
7.1. This Court also finds that as per the statements of the aforementioned witnesses it is clear that there was no eye-witness to the incident in question, and none of the witnesses as produced by the prosecution saw the accused-appellant causing death of the deceased, but there are dying declarations EX-15 and EX-24, wherein it was recorded that the accused-appellant caused the death of the deceased.
7.2. This Court further finds that as per the dying declaration Ex- 15 which was recorded by PW-15, the then SHO of the Police Station, Ramdevra, the fight in question happened between the accused-appellant and her sister-in-law (deceased) because of the issue pertaining to some firewood, during the course of which, the accused-appellant abused the deceased and gave the threat of killing the deceased by pouring kerosene and burning her. The said dying declaration (EX-15) is reproduced as hereunder-:
"lh& Jherh deyk nsoh us nfj;kQr ij c;ku fn;k fd dqN tykus dh ydfM;ka iMh Fh tks eSaus ys yh Fkh rc blh ckr dks ysdj vkt rkjh[k 25- 10-12 dks lqcg esjh nsojkuh Jherh tsBh nsoh iRuh pkSFkkjke ykSgkj fuoklh jkensojk us eq>s xkfy;k nsrs gq, >xMk fd;k o eq>s dgk fd rsjs cPpksa dks eSa ekj nwaxh A jkaM rsjs dks dsjkslhu Mkydj ekj nwaxh A bruk cgrs gq, esjs (Downloaded on 21/02/2024 at 08:46:14 PM) [2024:RJ-JD:7024-DB] (8 of 14) [CRLA-213/2015] ij dsjksflu Mkydj eq>s frYyh ls vkx yxk nh A ftlls eSa ty xbZ A tsBh ds vykok esjs lkFk >xMk djus okyk dksbZ ugha Fkk A "
7.3. This Court also finds that as per the dying declaration Ex-24 which was recorded by PW-16, the then Sub-Divisional Magistrate, the fighting with relation to the firewood was going on between the deceased and the accused-appellant, for the last three years, prior to the incident in question, and on the date of incident, while the deceased was going to get a bag to buy milk, the incident in question had happened.
7.4. This Court further finds that both the dying declarations EX- 15 and Ex-24 have minor contradiction, and a perusal of the said dying declarations, clearly indicates that the deceased stated that the fight had happened between her and the accused-appellant, in connection with some firewood, and during the course of such fight, the incident in question had occurred. The said dying declaration (EX-24) is reproduced as hereunder-:
"ikl esa jgus okyh esjh nsjkuh ftldk uke tsBh gS tks lokrkjke dh iRuh gS ?kklysV Mkydj mlus vkx yxk nh A ydfM;ksa ds dkj.k yMkbZ gqbZ Fkh A rhu o'kZ ls yMkbZ py jgh gS A esjs ?kj ds dksbZ "kkfey ugha gS A eSa nw/k ysus nw/k dh FkSyh ysus tk jgh Fkkh A vkx esjs vkt lqcg yxkbZ Fkh A tsBh ds ?kjokyk lxrkjke ugha gS A mldk yMdk Hkh Hkksekjke ekjihV djus esa "kkfey Fkk A "
7.5. This Court also finds that the entire incident had happened because of dispute with regard to firewood and there is no pre- planning regarding murder of the deceased. This Court further observes that the deceased died on the next day i.e. 26.10.2012, and the incident in question had happened on 25.10.2012. (Downloaded on 21/02/2024 at 08:46:14 PM) [2024:RJ-JD:7024-DB] (9 of 14) [CRLA-213/2015] 7.6. This Court further finds that the accused-appellant and the deceased are sister-in-laws and a perusal of the dying declarations as well as statements of the prosecution witnesses and the entire record alongwith the overall facts and circumstances of the case, clearly show that the motive/intention or pre-planning on the part of the accused-appellant is missing, as is evident from the whole sequence of the events and the testimonies of the witnesses, the fight between the accused-appellant and the deceased happened on the issue of firewood, and then suddenly, the incident in question happened. Therefore, the main element of motive/intention as provided in Section 302 IPC on the part of the accused-appellant to cause death of the deceased is clearly absent in the present case.
7.7. This Court also finds that in his statement, PW-6 Dr. Rajkumar Khandelwal stated that at the time of recording of the dying declaration, he was standing 2-3 feet away and he also does not know as to who recorded the statement of the deceased. 7.8. This Court further finds that even a perusal of the statements of PW-1, PW-7, PW-11, and PW-13 makes it clear that none of them saw the accused-appellant, committing the crime in question, and that, both the dying declarations EX-15 and Ex-24 have minor contradictions. A perusal of the said dying declaration clearly indicates that fight in question occurred between the deceased and the accused-appellant with regard to some firewood and during the said fight, the accused-appellant, poured kerosene on her and burnt her. Therefore, it is clear that there was no motive/intention of the accused-appellant to cause death of the deceased.
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8. At this juncture, this Court considers it appropriate to reproduce the relevant portions of the judgment rendered by the Division Bench of this Hon'ble Court in the case of Nemichand Regar (Supra) as hereunder-:
"29. After thorough consideration of both sets of evidence available on record, we are of the opinion that the testimony of deceased recorded by the Head Constable, Bhanwarlal (P.W. 9) and the then Magistrate, Ms. Purnima Gaur (P.W.
11) cannot be disbelieved, but at the same time, this Court cannot lose sight of the fact that there is no evidence of "motive", more so, it emerges from both the sets of evidence that some quarrel took place all of sudden when deceased reached in the house in the evening and incident of quarrel and fire took place all of sudden, so also Smt. Kamla (P.W. 7) immediately made efforts and rescued from fire. Therefore, when there is no specific allegation against accused appellant, Nemichand, of pouring kerosene and lighting fire and there is no evidence of "motive" on record, therefore, we are of the opinion that conviction of the accused appellant, Nemichand, for the offence u/s. 302 of IPC is not sustainable in law. But, this Court cannot accept the argument that involvement of Nemichand is false.
30. With regard to participation of Smt. Mangi Devi, in pouring kerosene upon the body of deceased and lighting fire, we have examined the entire evidence, more particularly, the site plan (Ex. P/7), in which there is no mentioning about the recovery of any kerosene tin, the said site plan was prepared in the presence of P.W. 7 Smt. Kamla, Shantilal (P.W. 3) and Gajraj (P.W. 5). Some articles pieces of "Lehanga", one blanket and one chimney in broken condition were handed over by the husband of deceased to the police and at the time of taking the said articles in possession by the S.H.O., P.S. Ladnu, smell of kerosene was coming out from the clothes. Meaning thereby, the prosecution has proved the fact that on the date of incident, injuries were inflicted by Nemichand and some incident of burning took place in the house.(Downloaded on 21/02/2024 at 08:46:14 PM)
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31. We have also perused the statement of the doctor, P.W. 15, Dr. Sanjeev Puri, who conducted who performed the postmortem, and gave report Ex. P/15. As per opinion of the doctor, the cause of death was shock due to burn ante- mortem as mentioned, was sufficient to cause death in ordinary course of nature.
32. We have perused the statement of Investigating Officer, Girdhari Singh, who conducted the investigation initially and statement of P.W. 12, S.H.O. Dharamveer Janu (P.W. 14), who conducted further investigation and statements of Mr. Rajendra Beniwal (P.W. 13) who filed charge sheet against the accused appellants for the offences under Sections 306, 498A, 323 of IPC. It is evident from the record that on the basis of dying-declaration, charge u/s. 302 and in the alternative 302/34 of IPC was framed against accused appellant, Nemichand and Smt. Mangi Devi.
33. In the case of Om Pal Singh v. State of U.P. reported in AIR 2011 SC 1562, the Hon'ble Apex Court held that in absence of certificate of fitness by the doctor the dying declaration cannot be disbelieved. The certificate of the doctor is rule of caution. The relevant discussion made by the Hon'ble Apex Court in the said case reads as infra:-
"20. This now brings us to the submissions with regard to the dying declaration. Factually, it is to be noticed that the Tehsildar, who recorded the dying declaration appeared as PW-6, he has clearly stated that although no doctor was present in the hospital, he was informed by the pharmacist that Rishipal Singh was in a fit state to make a statement. He, thereafter, isolated the injured Rishipal Singh and recorded his statement. He further stated that he wrote down word by word what Rishipal Singh had stated. The contents of the statement were read to the injured who stated that he understood and accepted the same. Only thereafter, he put his thumb impression on the statement. It is undoubtedly true that the statement has not been recorded in the question and answer form. It is also correct that at the time when the statement was recorded Rishipal Singh was in a "serious condition".(Downloaded on 21/02/2024 at 08:46:14 PM)
[2024:RJ-JD:7024-DB] (12 of 14) [CRLA-213/2015] xxx
22. In our opinion, the trial court as well as the High Court correctly accepted that the dying declaration was an acceptable piece of evidence. Merely because, it is not in question and answer form would not render the dying declaration unreliable. The absence of a certificate of fitness by the Doctor would not be sufficient to discard the dying declaration. The certification by the doctor is a rule of caution, which has been duly observed by the Tehsildar/Magistrate, Bisauli, who recorded the statement. The statement made by the injured is candid, coherent and consistent. We see no reason to disbelieve the same. We, therefore, see no reason to differ with the conclusions arrived at by the trial court and the High Court with regard to the dying declaration also. We must also notice that PW2 and PW3 have given clear and consistent eyewitness account. They have narrated the previous incident of disharmony between the appellant and the deceased. They have also adverted to the previous attempts by the appellant to harm the deceased. The entire incident of shooting has been graphically described by the two witnesses. The direct testimony of these two witnesses have been corroborated by the medical evidence and the dying declaration."
34. It is settled principle of law that dying-declaration cannot be disbelieved unless and until it is found to be false on the basis of other reliable evidence, therefore, this Court is not inclined to accept the arguments of learned counsel for the appellants to disbelieve the dying declaration, but at the same time, upon consideration of entire evidence on record and upon the fact that all of sudden occurrence took place, we find that the trial court has committed error in convicting the accused appellant for the offence under Section 302/34 of IPC because there is no evidence or allegation of motive on record so as to hold accused appellant guilty for offence under Section 302/34 of IPC.
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35. Consequently, the instant appeal filed by the appellants, is partly allowed, the finding of guilt recorded by the trial court for the offence u/s. 302/34 of IPC against the appellant No. 1, Nemichand, is not sustainable in law because as per evidence on record, in spur of moment, all of sudden occurrence took place without any motive to commit the offence of "murder" by the accused appellant No. 1, Nemichand, therefore, the conviction and sentence of the accused appellant No. 1, Nemichand to the extent for the offence u/s. 302/34 of IPC, is hereby quashed but conviction and sentence for other offences is hereby maintained.
36. Similarly, the conviction of accused appellant No. 2, Smt. Mangi Devi, for the offence u/s. 302/34 IPC, is hereby altered to offence u/s. 304 Part I of IPC and the sentence of life imprisonment is hereby reduced to ten years' rigorous imprisonment but the conviction and sentence of other offences is hereby maintained."
9. This Court also finds that as per the entire record and the evidence produced by the prosecution, it is an admitted position that the deceased died due to burns, and one hand, this Court finds that the dying declarations EX-15 and EX-24 as recorded, are not worthy of being discarded, but at the same time, the entire record including all evidences, make it apparently clear that the incident had occurred on count of the sudden fight between the accused-appellant and the deceased, which do not showcase any motive/intention on the part of the accused-appellant to cause death of the deceased, which is the main element/ingredient to make out a case against the accused-appellant for recording conviction under Section 302 IPC. This Court further observes that the accused-appellant has already undergone the custody period of almost 11 years and there is no previous criminal antecedent recorded against the accused-appellant.
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10. Thus, having regard to the overall facts and circumstances of the case and looking into the nature of offence in question and and the above-quoted precedent law as well as all the evidence available on record, the present appeal deserves to be allowed and the same is hereby allowed, and accordingly, conviction of the accused-appellant under Section 302 IPC is hereby altered/converted into an offence under Section 304 Part I of IPC, while holding the accused-appellant guilty under the said provision of law. However, since the accused-appellant had already undergone a custody period of almost 11 years, therefore, her sentence is hereby reduced from life imprisonment to the sentence already undergone by her.
10.1. Appellant is in custody, he be released henceforth, if not required in any other case.
10.2. Keeping in view the provision of Section 437-A Cr.P.C., the accused-appellant is directed to furnish a personal bond in a sum of Rs. 20,000/- and a surety bond in the like amount, before the learned Trial Court, which shall be made effective for a period of six months, to the effect that in the event of filing of Special Leave Petition against this judgment or for grant of leave, the accused- appellant, on receipt of notice thereof, shall appear before the Hon'ble Supreme Court as soon as she would be called upon to do so.
10.2. The record of the learned Trial Court be sent back forthwith. (RAJENDRA PRAKASH SONI),J (DR.PUSHPENDRA SINGH BHATI), J. SKant/-
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