Rajasthan High Court - Jodhpur
Anil vs State (2025:Rj-Jd:42426-Db) on 23 September, 2025
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
[2025:RJ-JD:42426-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 798/2016
Anil S/o Chandu Lal Soni, R/o Village/ Post- Baroda, Police
Station- Aspur, District- Dungarpur, Rajasthan.
(At present lodged in Central Jail, Udaipur)
----Appellant
Versus
State of Rajasthan
----Respondent
For Appellant(s) : Ms. Divya Bapna, Amicus Curiae
For Respondent(s) : Mr. Vikram Singh Rajpurohit, PP
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
HON'BLE MR. JUSTICE RAVI CHIRANIA
JUDGMENT
Reserved on:- 08.09.2025 Pronounced on:- 23.09.2025 PER HON'BLE MR. RAVI CHIRANIA,J
1. The appellant- Anil filed the present appeal to challenge the impugned judgment dated 13.07.2016 passed by the Additional Sessions Judge, Dungarpur in Sessions Case No. 12/2014 titled as "State Vs. Anil and Anr." whereby the learned trial court convicted and sentenced the appellant which is as under:-
S. No. Offence U/s Sentence Fine Sentence in
default of
time
01. 302 IPC Life Rs. 10,000/- 3 years RI
Imprisonment
02. 498-A IPC 3 years RI Rs. 1000/- 1 month RI
03. 201 IPC 3 years RI Rs. 1,000 1month RI
In nut shell facts of the case are that a "najai bayan", Exhibit P-1, was made by deceased-Vandana Soni on 01.11.2013 to police in the Government Hospital, whereby she alleged that she was burnt by her husband by throwing kerosene and burning (Uploaded on 23/09/2025 at 12:31:07 PM) (Downloaded on 23/09/2025 at 10:05:51 PM) [2025:RJ-JD:42426-DB] (2 of 23) [CRLA-798/2016] match stick on her which caused fire and she sustained burn injuries. On the said report the police registered FIR No.295/2013 on 01.11.2013, for the offence under Sections 498-A and 307 IPC. During the investigation the deceased-Vandana Soni was admitted in the hospital also, however, she expired on 16.11.2013. The police after conducting the investigation filed the charge-sheet against the appellant-Anil Kumar and his mother Smt. Chandmani (mother-in-law of deceased) for offence under Sections 302 and 498-A IPC. The prosecution in order to prove its case produced 20 witnesses and 29 documents were exhibited in support to prove its case. The statement of the accused was recorded under Section 313 Cr.P.C. The present accused person Anil Kumar in his statement under Section 313 Cr.P.C. stated certain important facts regarding the character of the wife in his defence. After considering the statements of the material witnesses as produced by the prosecution, the post-mortem report, and the dying declaration of the deceased, the learned trial court acquitted Smt. Chandmani (mother-in-law of deceased) of the charges under Section 302, 498-A and 201 IPC, however, convicted the accused-appellant herein for offence under Sections 302, 498-A and 201 IPC by its judgment dated 13.07.2016.
2. This Court by order dated 18.07.2025, appointed Ms. Divya Bapna, as Amicus Curiae to argue the present criminal appeal. The complete paper book was ordered to be provided to the learned counsel. The learned Amicus Curiae, Ms. Divya Bapna, submitted (Uploaded on 23/09/2025 at 12:31:07 PM) (Downloaded on 23/09/2025 at 10:05:51 PM) [2025:RJ-JD:42426-DB] (3 of 23) [CRLA-798/2016] that the accused-appellant filed the present appeal on the following grounds:-
"I. That in the first instance it is submitted that the impugned Judgment dated 13.07.2016 passed by the learned Court below is against the facts and circumstances as well as contrary to law, therefore, the same is liable to be quashed and set aside. II. The the learned Court below convicted the appellant vide impugned Judgment merely on the basis of sole evidence of deceased Smt. Vandana Soni, evidence of the close relatives of the deceased Smt. Vandana Soni, neighbors who had turned hostile had not been properly considered by the learned Court below and had convicted the Appellant which is not sustainable in the eye of law, hence merely on the basis of statement of the deceased Smt. Vandana Soni appellant cannot be convicted on account that the prosecution has failed to prove the alleged occurrence against the appellant. Therefore, the findings of the learned Court below is liable to be quashed and aside. III. That it is relevant to mention here that the deceased Smt. Vandana Soni Was having elicit relationship with someone, as she was got red handed by the appellant while she was talking on mobile with the other person, thereafter, to hide her mistake she acted to pour kerosene on herself and got herself burnt. On earlier occasion also she tried to commit suicide which is apparent from her own statement. Learned Court below has not considered this aspect of the matter and had wrongly convicted the accused appellant.
IV. That immediately after her burning she called up at her brother's house and had not mention the name of the appellant that he burnt her nor she narrated to any neighbor that she was burnt by the appellant, who gathered at the house of appellant immediately after the incident. It is also relevant to mention here that the Police before recording the statement of Smt. Vandana Soni, apprised her that if she would not name her husband, case will be registered against her for committing suicide, therefore, she intentionally named appellant and her mother-in-law Smt. Chandra Mani in her statement, which were treated as dying declaration. This entire aspect of the case has not been properly considered by the learned court below, therefore the conviction of the appellant is liable to set aside.
V. That it is relevant to mention here that the evidence of PW-2, Anil Kumar who specifically states that the deceased Smt. Vandana Soni, talked to her brother from the mobile of one neighbor Divyani @ (Uploaded on 23/09/2025 at 12:31:07 PM) (Downloaded on 23/09/2025 at 10:05:51 PM) [2025:RJ-JD:42426-DB] (4 of 23) [CRLA-798/2016] Sofi, she clearly stated that she her herself burnt her and even PW-3 Shanta also in her cross admit that the deceased Smt. Vandana Soni had informed to her brother that she was burnt herself. There was ample evidence available on record to show the fact that the deceased herself burnt and had wrongly alleged that the appellant had burnt her. This important aspect of the matter has not properly considered by the learned court below, therefore, the conviction of the appellant is liable to be quashed and set aside.
VI. That it is also relevant to mention here that there is a delay in filing the FIR of the occurred incident which took place on 30.10.2013 and the FIR was lodged after two days of the incident i.e. on 01.11.2013, which make it clear that the appellant was falsely implicated in this case, which can be said to be after thought of the deceased, Therefore, the conviction of the appellant is bad in the eye of law. VII. That the deceased Smt. Vandana Soni stated in her statement that the accused appellant had beaten here badly before burning her but there is no such whisper in the Post Mortem report about any beating which clearly depicts that the deceased had falsely implicated the accused appellant in this case. VIII. That no evidence was gathered from the place of incident, no recovery of kerosene oil container or any evidence with effect of burning was found, therefore the conviction of the accused-appellant is bad in the eye of law.
IX. That no prima facie case is made out against the appellant in view of evidence produced and the witnesses of the prosecution but the learned Court below has failed to consider this important aspect of the case and has passed the impugned Judgment while totally ignoring the fact that there are major contradictions in the statement of the deceased and the three brothers and other close relatives, who specifically states that the deceased Smt. Vandana Soni herself burnt her.
X. That the other grounds will be urged at the time of arguments."
3. Learned Amicus Curiae, seriously questioned the judgment passed by the learned trial court and submitted that the material witnesses of the prosecution did not support the prosecution story and further there are serious material contradictions and false exaggeration of the incident by the deceased in the dying declaration dated 31.10.2013. To support her arguments the (Uploaded on 23/09/2025 at 12:31:07 PM) (Downloaded on 23/09/2025 at 10:05:51 PM) [2025:RJ-JD:42426-DB] (5 of 23) [CRLA-798/2016] learned counsel, Ms. Divya Bapna referred to Exhibit P-1, "Najai Bayan" of the deceased-Vandana Soni as given to the ASI Sandeep Shrimal in the hospital around 06:05 p.m. Exhibit P-1 is as under:-
"c;ku utbZ Jhefr oUnuk lksuh ceqdke ,ech gkWLihVy cuZ okMZ csM la[;k 06 okMZ uEcj 33 fnukad 31-10-2013 le;&6%05 ih,e Jhefr oUnuk lksuh ifRu vuhy lksuh mez 30 o"kZ fuoklh cMksnk ih,l vkliqj us njh;k¶r ij c;ku fd;k dh eS nloh d{kk rd i<h fy[kh gwWA vkaxuokMh cMksnk es ukSdjh djrh gwWA esjh mez 30 o"kZ gSA esjh 'kknh gqos 10 o"kZ iwoZ 2004 esa Jh vuhy ls tkrh fjokt ls gqbZA vuhy ds uqRFks ls esjk ,d yMdk y{; mez 8 o"kZ gks nqljh d{kk esa i<rk gSA esjk ifr 'kknh ds ckn ls gh 'kjkc ihdj ges'kk esjs lkFk ekjihV djrk gSA esjs nkghuk iSj ,DlhMsUV gksus ls esjh mez 3 o"kZ Fkh rc tka?k ls dkVdj vksijs'ku fd;k gSA esjk ifr vk,s fnu 'kjkc xkyh xyksp dj esjs ls iSls ekaxrk gS o dgrk gS fd rsjs ihgj ls :i;k ysdj vk ugha rks pyh tk o esjh lkl pUnze.kh esjs ifr dks pMkrh gSA ,oa esjk ifr ekjihV djrk gSA th&fnukad 30@01@13 dks 'kke djhc 7%30 ih,e ij esjs ifr vuhy ,oa lkl us vUnj fdokM cUn dj nqljh ekyh;k dk dejk gS mlds cUn dj nksuksa us ekjihV dh esjk ifr 'kjkc ih;k gwok FkkA mlus esjs mij dsjkslhu Mky fy;k esa diMs cnyus ckFk:e esa tk jgh Fkh dh esjs ifr us fiNs ls esjs ifr ekphl dh rqyh tyk dj esjs mij Mky nh ftlls esus gYyk fd;k fpYykbZ exj fups ls fpVd.kh yxk gksus ls dksbZ ugha vk;kA&,p& esjs iMksfl;ks us nks ?k.Vs ckn VsyhQksu fd;k bl ij esjs figj ls esjk HkkbZ deys'k iq= dUgS;kyky ok iznhi firk dUgS;kyky o esjk pkpk yky cgknwj iq= x.kiryky] fnus'k dqekj iq= x.kiryky] tSu o esjs osokbZ jktsUnz dqekj iq= dqjh pUn fuoklh ekyk vk,s o esjs ifr o lkl dks bykt ds fy, iwNk rks dksbZ rS;kj ugha gqosA o xkyh xyksp djus yxsA esjs ihgj okys eq>s bykt ds fy, vkliqj gksLihVy yk,s ogk ls jsQj djus ij mn;iqj ykdj cuZ okMZ esa bykt ds fy, HkrhZ djk;k gS esjs ihgj ds vykok llqjky ds dksbZ O;fDr ugha vk,A esjk ifr 'kjkch gSA mlus o esjh lkl us eq>s ekjihV dj tyk fn;k gSA"
According the learned Amicus Curiae, as per the complaint, appellant herein used to abuse her and demands money from her and further her mother-in-law also abuses her. Exhibit P-1, according to her, shows that the deceased alleged that while she was going to change her clothes in the bathroom, her husband threw kerosene from the back and thereafter put burning match (Uploaded on 23/09/2025 at 12:31:07 PM) (Downloaded on 23/09/2025 at 10:05:51 PM) [2025:RJ-JD:42426-DB] (6 of 23) [CRLA-798/2016] stick on her. The deceased stated that she shouted but as the room was locked so no one came. Neighbours came after two hours and they informed her relatives. According to learned Amicus Curiae on the basis of "najai bayan" the Exhibit, P-1, FIR No. 295/2013 was registered for offence under Section 498-A, 307 IPC which is completely false as no offence was committed as alleged in the FIR. Learned counsel further submitted that the dying declaration of the deceased was recorded on 31.10.2013 by Judicial Officer, Mr. Dinesh Kumar Gharwal (RJS) in Government Hospital, Udaipur, in the presence of Dr. Jitendra Nagar. According to learned Amicus Curiae, the dying declaration is a hand written document and being important deserves detailed consideration by this Court. The dying declaration, Exhibit P-28, is reproduced as under:-
"iz'u 1- vkidk uke D;k gS \
mRrj % oanuk lksuh
iz'u 2- vkids ifr dk D;k uke gS \
mRrj % vfuy lksuh
iz'u 3- vkidh 'kkfn dc gqbZ \
mRrj % esjh 'kkfn dks djhc 10 lky gks x;s gSA
iz'u 4- vkids fdrus cPps gS] D;k uke gS \
mRrj % esjs ,d yM+dk gS ftldh mez ukS lky gS] mldk
uke y{k gSA
iz'u 5- vkids lkFk dkSu&dkSu jgrs gSa \
mRrj % esjs lkFk esjh lkl vkSj ifr gh jgrs gSaA
iz'u 6- vkids lkFk ;g ?kVuk dSls ?kVh \
mRrj % dy 'kke lkr cts dh ckr gSA esjk cPpk esjs HkkbZ ds
ikl vkliqj esa jgrk gSA esjk ifr cEcbZ jgrk gSA lky esa 2&3 ekg esjs ikl vkrk gSA vkSj 'kjkc ihdj >xM+k djrk jgrk gSA dy Hkh esjk iq= ?kj ij ugha FkkA ?kj ij esjh lkl vkSj eSa vkSj esjk ifr FkkA esjk ifr mlds ekekth ds ?kj ls 'kjkc ihdj vk;k vkSj cktkj esa Hkh >xMk fd;k yksxksa ls >xMk fd;kA ge cM+kSnk esa vius edku esa jgrs gSaA esjk ifr 'kke dks cktkj esa >xM+k djus ds ckn ?kj vk;kA vkSj esjs ls iSls ekaxs vkSj eq>ls >xMk fd;kA eq>s dgk fd rsjs eka&cki ls iSls ysdj vkA eSaus euk fd;k rks eq>s cgqr ekjk] ykrks ls [kwc fiVkbZ dhA gekjs rhu eafty dk edku gSA eq>s ihVrk gqvk lh<+h;ks ls /kDdk nsdj uhps yk;kA fQj ,d [kqys dejs (Uploaded on 23/09/2025 at 12:31:07 PM) (Downloaded on 23/09/2025 at 10:05:51 PM) [2025:RJ-JD:42426-DB] (7 of 23) [CRLA-798/2016] esa ykdj dsjkslhu dk ihik Hkjk gqvk yk;k vkSj esjs mij Mky fn;k vkSj dg jgk Fkk fd tyk nwaxkA eq>s eka cgu dh [kqyh xkfy;ka Hkh nhA esjh lkl esjs ifr ls >xM+k djokrh gSa esjh lkl Hkh eq>ls cgqr >xM+k fd;k ftl ij eSaus tgj [kk;k FkkA dy 'kke esjh lkl us Hkh esjs ifr ds lkFk >xM+k fd;kA dsjksflu Mkyus ds ckn eSa Hkkx dj mij xbZ ,oa fpYykbZ fQj esjs ifr o lkl Hkh ihNs&ihNs vk xbZA vkSj esjs gkFk&iSj /kksus ls igys gh bu nksuks us esjs mij ekfpl dh fryh tykdj Mky nhA vkSj ckgj ls dejk cUn dj fn;kA eSa cgqr fpYykbZ ysdhu esjs tyus ds ckn mu nksuks us ckgj ls dejk [kksykA fQj eqgYys ds yksx nkSM+dj vk;sA esjs ifjokj okys tks ikl esa jgrs gS os lHkh vk x;sA vkx ij esjh lklw o esjs ekekth dh cgq fu'kk vkSj feuk{kh us ikuh Mkyk vkSj cq>k;kA cq>kus okyksa esa deys'k lksuh] eukst] dUgS;kyky th vkfn dbZ yksx FksA vU; yksxksa ds uke vHkh ;kn ugha gSA fQj eq>s edku ls uhps yk;s] fQj ,d tSu dh yM+dh 'kkSQh us esjs HkkbZ dks Hkh Qksu fd;kA fQj nks ?kUVs esa ogha iMh jghA fQj esjk HkkbZ deys'k] iznhi vkfn eq>s xkM+h esa Mkydj vkliqj gkWLihVy esa ys x;s] ogka esjk bZykt djok;k fQj eq>s ;gka mn;iqj yk;sA ;g ?kVuk eSaus ifjokj okyksa dks Hkh crk;h gSA esjk ifr pkdw ysdj cktkj esa yksxksa dks Hkh ekjus tkrk gSA esjk ifr iSls] xgus] vkyekjh vkfn ekaxrk gSA lkjs fnu ;'kjkc ds u'ks esa jgrk gSA esjh lkl pUnzeth esjs ifr dks cgqr HkVdkrh gS vkSj eq>ls >xM+k djokrh gSA esjs dks tykus ds fy;s esjk ifr o lkl ftEesnkj gSA ;s nksuks eq>s cgqr ijs'kku djrs gSA esjs ifr vHkh nks ekg ls vc cM+kSnk gekjs xkao gh jg jgk gSA og dksbZ dke /kU/kk Hkh ugh djrk gSA eq>s Hkh dg ugha crkrk gS vkSj jkstkuk >xM+k djrk gSA igys Hkh esjs ihgj okyks dks eSa >xM+s dh ckrs crkrh Fkh] ysfdu og nksuks le>kus ij Hkh iqu% okfil >xM+k djrs FksA ekurs ugh FksA eq>s bu nksuks us ekjus ds fy;s gh tyk;k gSA eq>s og pkdw Hkh ekjuk pkgrk FkkA bu nksuks dks ltk feyuh pkfg;sA uksV %& xokg ihfM+rk ds cpku i<+dj lquk;s o le>k;s rks ihfM+rk xokg us c;ku lgh gksuk Lohdkj fd;k vkSj vius gLrk{kj fd;sA "
Before referring to the two dying declarations both dated 31.10.2013, the learned Amicus Curiae submitted that certain dates are important and need to be noted by this Court. The relevant dates as pointed out are that first dying declaration "najai bayan" was given to the police, ASI Sandeep Shrimal on 31.10.2013 around 06:05 p.m. and the second dying declaration was recorded by Judicial Officer Dinesh Kumar Gharwal also on 31.10.2013 around 09:15 p.m. There is not much gap between the two dying declarations as recorded on (Uploaded on 23/09/2025 at 12:31:07 PM) (Downloaded on 23/09/2025 at 10:05:51 PM) [2025:RJ-JD:42426-DB] (8 of 23) [CRLA-798/2016] 31.10.2013, however, there is serious improvement and exaggeration in the second dying declaration recorded at 09:15 p.m. The first dying declaration is one page document where as the second one is a detailed one running into almost four pages.
The exaggeration of the false incident in the second one creates doubt about the veracity of facts narrated by the deceased. In the first dying declaration not much facts were stated, however, the way deceased narrated the facts in her second dying declaration recorded just three hours after the first one shows that same was given with the intention to falsely implicate the appellant husband and her mother into the case.
4. The learned Amicus Curiae Ms. Divya Bapna, submitted that the first dying declaration was recorded by the SI Sandeep Shrimal at 06:05 p.m. in the absence of the treating doctor. There is no justification in the record of trial court, of the act of the Investigating Officer, of submitting the application to the Chief Judicial Magistrate, Udaipur for recording the dying declaration of the deceased after he recorded the first (najai bayan) dying declaration at 06:05 p.m. Learned counsel further submitted that on the request of the police the second dying declaration was recorded by Judicial Officer immediately at 09:15 p.m. on 31.10.2013 in the presence of Dr. Jitendra Nagar, the resident doctor. By referring to the second dying declaration, recorded by the Judicial Officer, learned Amicus Curiae submitted that Dr. Jitendra Nagar informed the Judicial Officer by his (Uploaded on 23/09/2025 at 12:31:07 PM) (Downloaded on 23/09/2025 at 10:05:51 PM) [2025:RJ-JD:42426-DB] (9 of 23) [CRLA-798/2016] certificate, that the deceased is in fit state of mind to give her statement. Though the certificate of medical fitness of deceased- Vandana Soni was given by the resident Dr. Jitendra Nagar, however, the Investigating Officer did not record the statement of Dr. Jitendra Nagar or any other doctor who treated the deceased. The Investigating Officer further committed a serious blunder by not recording the statement of the Dr. Jitendra Nagar, who treated the deceased and was present at the time of second dying declaration, under Section 161 Cr.P.C. regarding her condition when she was brought to the hospital and during her treatment in the hospital. In the absence of statement of Dr. Jitendra Nagar there is no evidence in the form of medical opinion on record about the burns as suffered by the deceased, about her medical condition, percentage of burn, treatment given to the deceased immediately and her medical condition to give statement. The serious blunder which the Investigating Officer committed continued even during the trial as the prosecution did not produce the Dr. Jitendra Nagar or any other doctor who treated the deceased in the hospital. By not producing Dr. Jitendra Nagar or any treating doctor for evidence during the trial, the prosecution committed a serious blunder and grave illegality as there was no testimony of any treating doctor to inform the condition of the deceased and the treatment given to her. Though the treating doctor gave certificate regarding the fit mental state of the deceased at the time of (Uploaded on 23/09/2025 at 12:31:07 PM) (Downloaded on 23/09/2025 at 10:05:51 PM) [2025:RJ-JD:42426-DB] (10 of 23) [CRLA-798/2016] second dying declaration as recorded by the Judicial Officer, however, in the absence of statement of the treating doctor, Dr. Jitendra Nagar or any other treating doctor, under Section 161 Cr.P.C. and/or before the learned trial court, regarding the fit mental state, medicine given and their impact and condition, the complete case of the prosecution is seriously doubtful and further even though the Judicial Officer recorded the statement of deceased still same cannot considered to be true and correct testimony of the deceased because the doctor failed to state through his evidence regarding the state of mind of the deceased and what treatment given to her. Therefore, both the dying declarations are seriously doubtful and cannot be the basis for convicting the appellant. To further cement her arguments, regarding the impact of non recording of the statement of the treating doctor on the prosecution case and the consequential benefit of this to the accused, she cited the judgments passed by the Hon'ble Supreme Court in the case of Surjit Vs. State of Punjab passed in Criminal Appeal No. 565/2012 dated 07.12.2023. In which paras 10 and 11 a similar issue came to be examined by Hon'ble Supreme Court which is reproduced as under:-
"10. Now, we come to the dying declaration relied upon by the prosecution which is recorded by Surjit Singh (PW-10). He recorded the alleged dying declaration at 05:30 p.m. on 8th July, 1999. A request was made by him to the doctor attached to the GGS Medical College to certify whether the deceased was fit to make a statement. An endorsement, according to him, was made by Dr. Sudhir Sharma at 04:30 p.m. recording that the patient was fit for making the (Uploaded on 23/09/2025 at 12:31:07 PM) (Downloaded on 23/09/2025 at 10:05:51 PM) [2025:RJ-JD:42426-DB] (11 of 23) [CRLA-798/2016] statement. In the examination-in-chief, Surjit SIngh (PW-10) has not stated that Dr. Sudhir Sharma examined the deceased before giving the fitness certificate. He has stated that Dr. Sudhir Sharma remained present by his side when he recorded the statement of the deceased. What is most relevant is the admission given by Surjit Singh (PW-10) in paragraph 2 of his cross-examination, which reads thus:
"2. It is correct that doctor remained beside Reeta Rani throughout when I recorded her statement. It is correct that I sought the opinion of the doctor regarding the fitness of Reeta Rani throughout her statement but he refused to give this certificate i.e. fitness certificate."
11. thus, even according to Surjit Singh (PW-
10), the doctor, who gave certificate at 04:30 p.m, declined to give a certificate that when the statement of the deceased was being recorded, she was fit to give a statement. There is nothing brought on record to show that Dr. Sudhir Sharma examined the deceased before giving certificate of fitness at 04:30 p.m. What is most crucial is that Dr. Sudhir Sharma has not been examined as a prosecution witness. In view of the what is admitted by Surjit Singh (PW-10) in paragraph 2 in his cross-
examination, which we have quoted above, an adverse inference will have to be drawn against the prosecution for not examining the said doctor. Therefore, for the aforesaid reasons, the dying declaration allegedly recorded by Surjit Singh (PW-
10) will have to be discarded. Then the other dying declaration recorded by an independent doctor, namely Dr. Manvir Gupta (PW-13), holds the field." A perusal of the above paras of the judgment passed by Hon'ble Supreme Court in the case of Surjit (supra) would show that though the doctor gave the oral certificate, however, declined to give the certificate regarding the fit medical state of the deceased to give statement and he was not produced in evidence by prosecution and therefore, the dying declaration was not considered reliable and on account of that Hon'ble Supreme held that prosecution failed to prove its case beyond the reasonable doubt and accordingly the accused was acquitted. In reference to the above judgment (Uploaded on 23/09/2025 at 12:31:07 PM) (Downloaded on 23/09/2025 at 10:05:51 PM) [2025:RJ-JD:42426-DB] (12 of 23) [CRLA-798/2016] learned Amicus Curiae submitted that in the present case also doctor was not produced in evidence by prosecution so an adverse interference goes against the prosecution.
5. The learned Amicus Curiae further submitted judgment dated 13.06.2025 passed by Coordinate Bench of this Court, in a DB Criminal Appeal No. 859/2013 titled as Jakir Hussain Vs. State of Rajasthan, in which Court examined similar issue as involved in the present case. Para 9.1, 9.2 and 10 of the judgment are reproduced as under:-
"9.1. Moreover, this Court observes that a certificate of fitness was issued by Dr. Ramveer Singh, who was not examined during the trial, and his qualification or competence to issue such a certificate remains unsubstantiated on record, and this Court is mindful of the Judgment of Hon'ble Supreme Court in the case of Surjit Singh vs. State of Punjab (Criminal Appeal No. 565/2012 decided on 07.12.2023), wherein it was held as hereunder:"There is nothing brought on record to show that Dr. Sudhir Sharma examined the deceased before giving certificate of fitness at 4:30 p.m. What is most crucial is that Dr. Sudhir Sharma has not been examined as a prosecution witness. In view of the what is admitted by Surjit Singh (PW-
10) in paragraph 2 in his cross-examination, which we have quoted above, an adverse inference will have to be drawn against the prosecution for not examining the said doctor. Therefore, for the aforesaid reasons, the dying declaration allegedly recorded by Surjit Singh (PW-10) will have to be discarded."9.2. Thus, this Court finds that, in light of the principles laid down by the Hon'ble Apex Court, the failure of the prosecution to examine Dr. Ramveer Singh, who issued the certificate of fitness, warrants drawing an adverse inference against the prosecution because P.W. 9 has testified that he was the doctor who treated the deceased. Accordingly, this Court is of the considered view that the evidentiary value of the dying declaration stands substantially weakened.
10.This Court also observes that Dr. Kamal Kant (P.W.9), who treated the deceased, admitted that the deceased was administered analgesics to manage pain. Given that the deceased had over (Uploaded on 23/09/2025 at 12:31:07 PM) (Downloaded on 23/09/2025 at 10:05:51 PM) [2025:RJ-JD:42426-DB] (13 of 23) [CRLA-798/2016] 90% burns and was under sedative medication, serious doubt is cast on her mental and physical fitness to make a cogent and voluntary dying declaration. In such cases, the Hon'ble Apex Court, in Sampat Babso Kale vs. State of Maharashtra[(2019) 4 SCC 739], has laid down that conviction solely based on a dying declaration must be cautiously scrutinized, especially where the deceased had suffered severe burns and was under
sedative medication."
In the concluding paras of Jakir Hussain (supra) the Coordinate Bench in para 14 observed as under:-
"14.In view of the cumulative infirmities in the prosecution's case, including the doubtful evidentiary value of the Parcha Bayan and dying declaration, absence of medical corroboration, failure to establish motive, hostile witnesses, and lack of proof of cruelty or dowry demand, this Court is of the considered opinion that the conviction of the accused-appellant cannot be sustained."
6. The learned Amicus Curiae further cited the judgment passed by Nagpur Bench of Bombay High Court passed in Criminal Appeal No. 482/2016 in Pravin Vs. State of Maharashtra decided on 07.01.2020 in which again similar controversy, as involved in the present case was examined. The relevant para 9 of the judgment is reproduced as under:-
"Moreover, evidence of PW-2 Prakash Ghormade further doubts the case of prosecution of deceased Neha making any statemetn when he ahs admitted to have not verified whether she was provided any medical treatment before recording her statement. Considering the fact that deceased Neha had sustained hundred per cent burn injuries at about 6:00 p.m. on the day of incident and since it has come on record that she was admitted in the Hospital at Amravati at around 9:00 p.m. after transporting her in auto-rickshaw, it cannot be said that on her admitting in the Hospital, she was not administered any medicine. In fact, having considered percentage of burns sustained by deceased Neha, possibility of administering medicines to her is more. In the circumstances, it was necessary for the PW.2 Prakash Ghormade, Naib Tahsildar to ascertain from the (Uploaded on 23/09/2025 at 12:31:07 PM) (Downloaded on 23/09/2025 at 10:05:51 PM) [2025:RJ-JD:42426-DB] (14 of 23) [CRLA-798/2016] Medical Officer, if Neha was administered any pain- killers or sedatives, etc. for reducing her pain. This aspect assumes importance in view of specific submission on behalf of appellant of prosecution's failure to examine Medical Officer, who is said to have given his endorsement on Exhibit 16 about physical condition of deceased Neha before and after recording her dying declaration."
The learned Amicus Curiae submitted that in the case of Praveen (supra) the person who recorded the dying declaration failed to verify from the treaty Doctor as to whether the deceased was administered pain killers or sedatives for reducing her pain as in that case also the deceased suffered the burn injuries. In the absence of evidence of the treating doctor there was nothing on record to ascertain the correct physical condition of the deceased at the time of statement. In the present case while recording the second dying declaration on 31.10.2013, Exhibit P-28, Judicial Officer in his statement, recorded as PW-20, specifically stated in cross-examination "eSaus MkWDVj ls ;g ugha iwNk fd ejht dks fdrus le; iwoZ nokbZ;ka nh xbZ Fkh vkSj mldk D;k izHkko FkkA ;g lgh gS fd izek.k i= ij MkWDVj ftrsUnz ukxj dh eksgj ij fpfdRlk vf/kdkjh dk vadu gS o cuZ ;wfuV dks fo"ks'kK banzkt ugha gSA" on the basis of the above quoted lines the learned Amicus Curiae submitted that the above judgment rightly applicable to the facts of present case and declares the complete case of the prosecution as false as the dying declaration in such circumstances cannot be relied upon.
7. On the basis of the above judgment learned Amicus Curiae submitted that both the dying declaration, the "najai bayan" and dying declaration, both dated 31.10.2013 cannot be relied upon (Uploaded on 23/09/2025 at 12:31:07 PM) (Downloaded on 23/09/2025 at 10:05:51 PM) [2025:RJ-JD:42426-DB] (15 of 23) [CRLA-798/2016] for convicting the appellant for the alleged offences. The learned Amicus Curiae further submitted that the deceased in both her statement, Exhibit P-1 and Exhibit P-28 levelled the allegation of cruelty, physical assault etc. against the appellant-husband, for same set of allegation, mother-in-law was acquitted by the learned trial court further family members and neighbors of the deceased being the relevant and most important witness of the prosecution failed to support the case. PW-2, despite being the neighbor, did not make any incriminating statement against the appellant. PW-3 Shanta Devi also, the close neighbor, though came on the spot after the incident but did not support the story of the prosecution and further she clearly denied that there was any matrimonial dispute between the deceased, her husband and in-laws. Learned counsel further pointed out PW-4 Kamlesh Kumar, stated that the mother-in-law of the deceased namely Chandramani acquitted by the learned trial court, who was more than 80 years old and due to operation in leg she was unable to move, despite this, the deceased in her statement levelled serious bald allegation against her which were disbelieved and therefore, she was acquitted by the learned trail court. The act of levelling false allegation and implicating Chandramani, who was physical infain due to old age, in the criminal case shows that deceased made false statement in both the statements, therefore, the false implication in the present criminal case by deceased is visible from the statement of this witness PW-4. PW-5, Nisha W/o Kamlesh Kumar (PW-4) also declared hostile by the prosecution as she failed to support the story of prosecution. She also denied the fact (Uploaded on 23/09/2025 at 12:31:07 PM) (Downloaded on 23/09/2025 at 10:05:51 PM) [2025:RJ-JD:42426-DB] (16 of 23) [CRLA-798/2016] that there was any dispute between the husband and wife in the house. The learned Amicus Curiae further submitted that PW-12 and PW-13 (brothers of the deceased), PW-16 Rachna (bhabi of the deceased) were declared hostile and did not support the story of prosecution. The fact that none of the family members of the deceased supported the version as narrated by her in Exhibit P-1 and Exhibit P-28 further goes to prove that there was no physical, mental, cruelty and harassment by the appellant and therefore, the complete dying declaration was nothing but a bundle of false facts and a clear attempt to falsely implicate the appellant husband in the criminal case as she was caught red handed while talking to strangers on mobile. According to learned Amicus Curiae, witnesses No. PWs-4, 5, 6, 7, 10, 11 and 14 were also declared hostile by the prosecution, this leads to definite conclusion that there was no evidence on record to connect the accused-appellant in the present case and false witness were prepared to give evidence to support the story of the prosecution, however, all of them turned hostile during trial. This dismantle the complete story of the prosecution. The learned Amicus Curiae further submitted that for the similar evidence the mother-in-law has already been acquitted by the learned trial court and therefore, for the same set of evidence the appellant could not have been convicted by the learned trial court.
8. The learned Amicus Curiae also pointed out that before recording "najai bayan", Exhibit P-1 the police official did not take any certificate from the treating doctor regarding fit medical condition of the deceased, therefore, the "najai bayan" as (Uploaded on 23/09/2025 at 12:31:07 PM) (Downloaded on 23/09/2025 at 10:05:51 PM) [2025:RJ-JD:42426-DB] (17 of 23) [CRLA-798/2016] recorded by PW-1 on 31.10.2013, is also seriously doubtful. The Learned counsel further submitted that, even after the two statements of the deceased one the "najai bayan", Exhibit P-1 and the dying declaration, Exhibit P-28, both recorded on 31.10.2013, still, the SHO, PW-18, who is the Investigating Officer gave a letter dated 05.11.2013 to medical officer of the hospital where the deceased was under treatment, sought certificate from the treating doctor about fit state of mind of deceased to give statement. On the letter dated 05.11.2013, visible from Exhibit P-25, Dr. Vishnu, wrote that "she is fit for giving the statement" on 05.11.2013 at 04:45 p.m. Though this certificate was taken on 05.11.2013 but as per learned Amicus Curiae, there is no further statement in the form of dying declaration of the deceased on record. When the Judicial Magistrate has already recorded the dying declaration in the hospital, Exhibit P-28, then why SHO by letter dated 05.11.2013, Exhibit P-25, again asked for the fit medical state of the deceased. The complete justification of this letter is missing in the statement of PW-18, the Investigating Officer, as recorded before the learned trial court. Another interesting fact as pointed out by learned Amicus Curiae is that Dr. Vishnu who certified that the deceased is in fit state of mind to give statement was also not produced for evidence by the prosecution which shows that none of the treating doctors were produced in evidence by the prosecution which could prove the injuries, mental and physical condition and other aspects so as to prove the case of the prosecution.
(Uploaded on 23/09/2025 at 12:31:07 PM) (Downloaded on 23/09/2025 at 10:05:51 PM) [2025:RJ-JD:42426-DB] (18 of 23) [CRLA-798/2016] Recording of the statement of treating doctor is a usual and common practice and necessary steps taken by an Investigating Officer while conducting the investigation but in the present case unwanted and unnecessary persons were shown as important witness and their statement were recorded whereas the relevant witness that is the treating doctors were completely ignored and their statements were not recorded either under Section 161 Cr.P.C. or before the learned trial court and therefore, the prosecution failed to prove its case beyond reasonable doubt. Consequently, the judgment passed by learned trial court deserves to be quashed and set aside and appeal filed by the appellant deserves to be allowed.
9. In response, the learned Public Prosecutor Mr. Vikram Singh Rajpurohit, strongly supported the judgment passed by the learned Trial Court which according to him is based on sound reasoning which is further based on the two important statement of the deceased as given on 31.10.2013, the statement of other witnesses including the Investigating Officer. According to learned Public Prosecutor Mr. Vikram Singh Rajpurohit, a person who suffered burn injuries would not make any false statement. He further submitted that acquittal of Chandramani (mother-in-law of the deceased) would not affect the case of the accused-appellant as the mother-in-law was physically unfit to move and more than 80 years of age. The case of the prosecution is based on strong evidence and the learned trial court by considering the evidence in depth passed the reasoned judgment by which the accused was (Uploaded on 23/09/2025 at 12:31:07 PM) (Downloaded on 23/09/2025 at 10:05:51 PM) [2025:RJ-JD:42426-DB] (19 of 23) [CRLA-798/2016] punished. He submitted that the appeal has no merit, therefore, the appeal deserves to be dismissed.
10. This Court heard the learned Amicus Curiae, Ms. Divya Bapna and learned Public Prosecutor, Mr. Vikram Singh Rajpurohit at length. The present case is based on testimony of the deceased Vandana Soni who as per the record of the learned trail court gave two statements one the "najai bayan" at 06:05 p.m. to police official (in the absence of treating doctor) and the second to Judicial Officer, Mr. Dinesh Kumar Garhwal, at 09:15 P.m. both on 31.10.2013. Considering the arguments of the learned Amicus Curiae, this Court noted that the first dying declaration immediately given in the hospital, to the police official, in the absence of treating doctor, is a one page document in which certain allegations were levelled against the accused-appellant and his mother Chandramani (mother-in-law of the deceased), however, just three hours later the deceased exaggerated her allegations against the accused and the mother-in-law. Exaggeration as made by the deceased do not find support from the statement of not only the neighbor but also her own family members i.e. her bothers and bhabhi whose statements were recorded by learned trial court. This Court fails to find any justification or reason, of exaggeration as made by the deceased in her statements, from the statement of all material witnesses including the judgment of learned trial court. The accused- appellant in his statement under section 313 Cr.P.C. stated that as he caught the deceased red handed while talking to a stranger, therefore, a guilt she committed the incident on her own. This (Uploaded on 23/09/2025 at 12:31:07 PM) (Downloaded on 23/09/2025 at 10:05:51 PM) [2025:RJ-JD:42426-DB] (20 of 23) [CRLA-798/2016] Court noted from the statement of witnesses that in the past she consumed poison and tried to kill herself. The conduct of the deceased on the basis of the previous one (of consuming poison) and the present one of burning self shows that she was person of highly sensitive and emotional nature and further the husband and wife were not staying together as the husband was working in Mumbai and used to visit once or twice in the year, therefore, they were not much in contact physically with each other. This Court noted from the statement of the material witnesses including the family members of deceased, shows that the allegation of physical and mental cruelty, demand of dowry etc. are baseless and on the basis of evidence of material witness Chandrmani (mother-in-law of the deceased) was acquitted by the learned trial court and therefore, this Court finds that there is no sufficient evidence on record to prove the charges of 498-A, 201 IPC.
11. An important issue as raised by the learned Amicus Curaie regarding dying declaration is that the dying declaration is an important piece of evidence which must be recorded after due clear caution after taking all necessary steps so as to ensure its truthfulness in the surrounding circumstances. For recording of dying declaration, in a case of burn injuries, the presence of treating doctor at the time of statement with written certificate that victim is in fit medical state to give her statement, is crucial and in the present case, as noted by this Court, in both statements of the deceased, recorded at different intervals on 31.10.2013, the treating doctor was missing (in the first one) and in the case of second one though certificate of (Uploaded on 23/09/2025 at 12:31:07 PM) (Downloaded on 23/09/2025 at 10:05:51 PM) [2025:RJ-JD:42426-DB] (21 of 23) [CRLA-798/2016] fitness was given by the doctor but none of the doctor were produced in evidence by the prosecution. The law is clear in regard to importance of the evidence of treating doctor and therefore, in the absence of the evidence of treating doctor is wells settled, there is no evidence on record to prove that deceased, at the time of both her statements, was in fit medical state and not under influence of the medicines. In the case of burn injuries painkillers and sedatives are given as an initial treatment so as to reduce the pain and keep the victim/patient in sedative stage. The treating doctor failed to inform the fact regarding the treatment as given to the deceased before recording of both the statements. The Judicial Officer, Mr. Dinesh Kumar Gharwal, PW-20 in his cross-examination stated that he did not ask the doctor as to when the medicines were given to the victim and what is the impact of those medicines. He further stated that he did not know as to whether Dr. Jitendra Nagar was expert of burn unit or not. In the absence of any testimony and the impact of those medicines, it cannot be presumed that deceased, having more than 55 per cent burn injuries was not administered any painkillers and sedatives and therefore, this Court finds that both the dying declarations are not reliable piece of evidence because of serious mistake committed by the police official who recorded statement at 06:05 p.m. and the Judicial Officer who recorded the statement at 09:15 p.m. as none of them felt important of the certificate of fitness of victim to be given by treating doctor and further the serious mistake committed by the prosecution of not (Uploaded on 23/09/2025 at 12:31:07 PM) (Downloaded on 23/09/2025 at 10:05:51 PM) [2025:RJ-JD:42426-DB] (22 of 23) [CRLA-798/2016] producing the treating doctors in evidence before the learned Trial Court. The exaggeration, as done by the deceased, as per the statement of all material witnesses did not support her version, therefore, according to the counsel, there is no sufficient evidence against the appellant to record the conviction in the present case.
12. An important witness PW-7 Divyani @ Sofi stated in her statement in examination-in-chief that deceased informed her brother through her mobile phone (phone of PW-7) that she has suffered burn and she did not allegate the appellant. The relevant statement of PW-7 are "Jherh oanuk us esjs ls esjk eksckbZy ekaxk ftlij esus mudks viuk eksckbZy fn;k FkkA mUgksaus esjs eksckbZy ls ckr fd vkSj Qksu ij crk;k fd eSa ty x;h gwa eq>s ;gk ls ys tkvksA mlds vykok vkSj dksbZ ckr ugha gqbZA FkksMh nsj ckn oanuk ds HkkbZ vk x;s vkSj eSa vius ?kj pyh x;hA oanuk fdl dkj.k ls tyh ;g ckr vius HkkbZ dks ugha crk;hA ", though this witness was declared hostile by the prosecution but the testimony of this witness cannot be doubted as she is neither a relative nor an interested witness. On the basis of the serious illegalities committed by the prosecution in recording of both the statements on 31.10.2013, non-production of the doctors who treated the deceased in the hospital for evidence and non-support of the case of the prosecution by not only the family members but also by the neighbors leads to the definite conclusion by this Court that prosecution failed to prove its case beyond the reasonable doubt. The dying declaration of the deceased, after detailed examination by this Court, is not reliable and trustworthy evidence so as to reach to the conclusion of guilt of the appellant. Therefore, the (Uploaded on 23/09/2025 at 12:31:07 PM) (Downloaded on 23/09/2025 at 10:05:51 PM) [2025:RJ-JD:42426-DB] (23 of 23) [CRLA-798/2016] appeal as filed by the appellant has merits and the same deserves to be allowed. Consequently, the impugned judgment as passed by the learned trial court dated 13.07.2016 is quashed and set aside and the appeal filed by the accused-appellant Anil is allowed.
13. The appellant is in jail. He be released if not required to be detained in any other case. The record of the learned trial court be sent back immediately.
14. Keeping in view the provision of Section 437-A Cr.P.C./481 B.N.S.S, accused-appellant is directed to furnish a personal bond in a sum of Rs. 25,000/- and a surety bond of 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 he would be called upon to do so.
15. This Court appreciate the efforts of learned Amicus Curiae Mr. Divya Bapna, a young and energetic lawyer, who provided his valuables assistance to this Court in the present case by supplying brief notes and relevant judgments including strong arguments on each and every factual and legal issue of the case at the time of hearing.
(RAVI CHIRANIA),J (MANOJ KUMAR GARG),J
63-Jatin/-
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