Rajasthan High Court - Jaipur
Mukesh vs State Of Rajasthan Through Pp on 20 July, 2019
Author: Goverdhan Bardhar
Bench: Sabina, Goverdhan Bardhar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No.92/2013
Mukesh son of Shri Madho Singh, by caste
Rajput, aged about 28 years, resident of Pana
Police Station Uchchain, District Bharatpur.
(At present in Central Jail, Bharatpur)
--Petitioner
Versus
The State Of Rajasthan Through P.P.
----Respondent
For : Mr. Biri Singh Sinsinwar
Petitioner(s) Sr. Advocate assisted by
Mr. Rajesh Choudhary
For : Ms. Javed Chaudhary
Respondent(s) learned Public Prosecutor
HON'BLE JUSTICE SABINA HON'BLE MR. JUSTICE GOVERDHAN BARDHAR Judgment Date of Judgment ::: 20.07.2019 Goverdhan Bardhar,J.
Challenge in the instant criminal appeal has been made by the appellant to the judgment of conviction and sentence dated 21.01.2013 passed by the Court of learned Additional District & Sessions Judge No.2, Bayana [for short 'the learned trial Court'] in Sessions Case No. 25/2012, State of Rajasthan Vs. Mukesh, whereby the learned trial Court has convicted and sentenced the appellant as under:- (Downloaded on 01/09/2019 at 08:14:26 PM)
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U/s. 302/120B IPC:
Life imprisonment and fine of
Rs.5,000/-, in default of payment of fine to further undergo three months simple imprisonment.
U/s. 498A IPC:
Three years simple imprisonment and fine of Rs.1,000/-, in default of payment of fine to further undergo one month simple imprisonment.
Both the sentences were ordered to run concurrently.
Facts of the case in nutshell are that Jagdish son of Shodan Singh (PW1), by caste Thakur, aged 50 years, r/o Gopau, Tehsil Kirawali, District Agra (U.P.) submitted a typed report (Ex.P1) on 26.03.2012 to the SHO, Police Station Uchain (Bharatpur) at 02:30 P.M. to the effect that the marriage of his daughter Rinki was solemnized with Mukesh Singh on 02.05.2009 as per Hindu Rites in Village Gopau, District Agra. In the marriage he gave Rs.2,51,000/- in cash, one Hero-Honda Splendar Plus motor-cycle, approx. five 'tola' gold, colour television, fridge, washing machine, double-bed, dressing table, sofa-set, cooler and other domestic articles in dowry. In addition to these articles he gave 500 gm. silver ornaments and clothes to the bride and all his other family members. Since beginning the husband of his daughter Mukesh Singh and mother-in-law and father-in-law of his daughter were dissatisfied with the dowry given in the marriage. These persons demanded Alto Car in dowry from him and his daughter.
Several times these persons used to give
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beatings to his daughter and many times they used to send her at her parents house. Twenty days ago Mukesh came along-with his daughter and told that his demand be fulfilled otherwise be prepared to face dire consequences. On 26.03.2012 at about 5:00 A.M. Mukesh Singh s/o Madho Singh, Madho Singh s/o Girraj Singh, Smt. Malla w/o Madho Singh, Vijay Singh s/o Girraj Singh and Ku. Sudha d/o Madho Singh came in a pre-planned manner with common intention. They all poured kerosene oil on the person of Pinki and set her on fire, resultantly she got 80% burn injuries.
On the basis of aforesaid written report (Ex.P1), FIR No.65/2012 was registered
for the offence under section 498A and 304B IPC.
The police after investigation submitted charge- sheet in the Court of Addl. Judicial Magistrate, Roopwas. The matter was committed to the Court of Sessions for trial.
Learned trial court framed charges against the appellant for the offence under sections 302 and in the alternative under sections 304B and 498A IPC. The appellant denied the charges and claimed trial. The prosecution in support of its case recorded statements of thirty four witnesses and forty one documents were got exhibited. Thereafter, the accused/appellant was examined under Section 313 Cr.P.C. In defence the accused appellant did not produce any evidence. The learned trial court (Downloaded on 01/09/2019 at 08:14:26 PM) (4 of 15) [CRLA-92/2013] after considering the evidence led during the course of trial convicted and sentenced the accused/appellant vide impugned judgment/order dated 21.01.2013. The appellant aggrieved and dissatisfied with the impugned judgment/order of conviction and sentence has preferred the instant criminal appeal.
During the pendency of instant appeal, the appellant filed an application which was registered at no.79/2013, under section 391 Cr.P.C. for taking the documents on record of R.B.M. Hospital, Bharatpur as well as SMS Hospital, Jaipur on record on the ground that Rinki was medically examined at Bharatpur on 26.03.2012 at 10:30 AM and the doctor found dry heat flame. No kerosene oil smell was found on the body of deceased Pinki at the time of examination nor the doctor found any kerosene smell at SMS Hospital, Jaipur, nor the SHO found at the place of incident any sign of kerosene oil. Thus, both the documents are vital for the just decision of the case.
However, on 26.04.2013 the case was listed for consideration of the aforesaid application and the Court ordered that the application (IA No.79/2013) shall be considered at the time of final hearing of the appeal.
On perusal of the record it reveals that despite opportunity given to the appellant to produce his evidence in defence, he opted not to produce any evidence.
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In the application filed by the
appellant under section 391 Cr.P.C. it has been stated that Rinki (now deceased) was immediately taken to the Government RBM Hospital, Bharatpur and was admitted there on 26.03.2012 at 6:15 AM. From RBM Hospital, she was referred to SMS Hospital, Jaipur. She was admitted at SMS Hospital, Jaipur on 26.03.2012 at 3:32 PM. It is mentioned in the medical examination sheet that "alleged history of incident flame burn sustained when patient was cooking and the gas leaked leading to blush of fire". It is also mentioned that his general condition was found poor. Blood pressure and pulses not recordable. Treatment document of RBM Hospital, Bharatpur as well as SMS Hospital, Jaipur are annexed as Annex.1 and 2 to the application.
Learned counsel submitted that both the aforesaid documents have been withheld by the prosecution though it would have been in the knowledge of the prosecution and these documents are vital for just decision of the case in order to reach to just conclusion whether it is kerosene oil burn or cooking gas burn injury.
Learned Public Prosecutor submits that regarding treatment documents of Rinki (now deceased) annexed with the application as Annex.1 and 2, there is no factual dispute and if the documents are taken on record, the prosecution has no objection.
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(6 of 15) [CRLA-92/2013] Learned counsel for the accused-appellant further argued that PW1- Jagdish Singh, father of the complainant, PW2-Vishwanath Pratap Singh, PW3-Bhagwati, PW4-Murari, PW5-Sugar Singh, relative of the complainant, PW6-Padam Singh, cousin of complainant, PW8-Veerpal, independent witness, PW9- Mahendra Singh, neighbourer, PW12- Bhojpal, PW13- Hari Singh, PW14-Nem Singh, PW15- Laxman, PW16-Sonu, PW17-Seema, PW18-Munni, PW19- Shanti, PW20-Raju Singh, PW21-Ramprakash, PW22- Jagan Singh, PW22-Radhey Shyam, PW24- Prem Singh and PW25- Kumher Singh, have not supported the prosecution story and turned hostile. PW-7 Vasudev Singh has not been declared hostile though he did not support the prosecution story. He specifically mentioned that he received a call of Jagdish Singh about 7.30 AM in the morning and he informed about the incident and narrated that on account of the leakage of the cylinder his daughter received injuries. He went to the hospital and tried to talk to her but she could not speak.PW7-Vasudev Singh deposed that Rinki was unconscious. PW29-Dr. R.D.Verma deposed that Rinki was semi-conscious and her condition was not satisfactory. It has also been mentioned in Ex.P.1 that they went inside the hospital and had a talk with the deceased and then Pinki made statement but narration in Ex.P1 was found false by the prosecution and they did not chose to file challan against rest of the accused persons. Thus, it is is clear that dying (Downloaded on 01/09/2019 at 08:14:26 PM) (7 of 15) [CRLA-92/2013] declaration is tutored one. PW-7 has specifically stated that they went in the hospital and had a talk with the deceased and in Ex.P1 also same thing has been mentioned. Except the dying declaration of the deceased Ex.P36, there is no other evidence at all on record to connect the accused appellant with the crime. The dying declaration is not reliable for conviction of the accused appellant. As per the statement of PW-30 Shri Mahesh Punetha, ACJM the endorsement of the dying declaration regarding fitness of the injured was written by Dr. Akhlesh Srivastava. The prosecution did not produce Dr. Akhlesh Srivastava for tendering the evidence regarding the certificate. There is no evidence even to show that the said endorsement was written by the doctor. On the top of Ex.P36 it was mentioned that Smt. Rinki is in a fit condition to give her statement but in Ex.P36 it has not been mentioned that Smt. Rinki was mentally or physically fit to give the statement. Even there is no application on record nor there is any application from the side of ACJM to the doctor in connection with getting a certificate of fitness. Such type of the endorsement has no sanctity in the eyes of law at all. The prosecution neither produced the bed-head ticket of the deceased of the Government Hospital, Bharatpur nor collected the slip of the doctor in connection with the treatment of Smt. Rinki. There is no evidence on (Downloaded on 01/09/2019 at 08:14:26 PM) (8 of 15) [CRLA-92/2013] record to show that she was mentally and physically fit for giving her statement. As per the FIR which is typed one and has been registered on the statement of the deceased Smt. Rinki, appellant Mukesh, Madho Singh, Smt. Malla, Vijay Singh, Kumari Sudha and other persons were responsible for her burn injuries. As per the dying declaration Ex.P.36 her husband, father-in-law and mother-in-law were responsible for the burn injuries. Therefore, there are two version of the deceased: one she gave to the complainant and other which she gave to ACJM. Challan was filed only against the accused appellant. There is no cogent evidence on record to connect the accused appellant with the crime. As per the dying declaration of the deceased the accused appellant poured kerosene oil on her body but neither any smell of kerosene oil was found on her person nor on her clothes. On the other hand dry flame burns were found, which means that no kerosene oil was poured on her person but she had received burn injuries as told by her to the doctor at Jaipur at the time of her admission as gas leakage and resultant fire. Her parents reached Government Hospital, Bharatpur in the morning and remained with her till her death. They got her admitted in the SMS Hospital, Jaipur where they narrated the history of the patient in which factum of dry flame injuries on account of gas leakage when she was cooking, was mentioned. (Downloaded on 01/09/2019 at 08:14:26 PM)
(9 of 15) [CRLA-92/2013] Learned Public Prosecutor appearing for the State opposed the appeal and supported the impugned judgment of conviction and sentence passed by the learned trial court.
The case of the prosecution rests upon dying declaration (Ex.P36) as well as circumstantial evidence.
As far as the dying declaration of the deceased (Ex.P36) is concerned, the same was recorded by PW30-Dr. Mahesh Punetha, ACJM No.4, Bharatpur. Before recording aforesaid dying declaration, Dr. Akhilesh Yadav, posted as Jr. Specialist in Govt. R.B.M. Hospital, Bharatpur, issued the certificate in which it has been mentioned that Smt. Rinki was fit to give her statement. Afterwards, dying declaration (Ex.P36) was recorded by PW30- Dr. Mahesh Punetha, ACJM No.4, Bharatpur. It is stated in the dying declaration that the accused appellant poured kerosene oil upon her and lit fire and due to which she (Smt. Rinki) suffered serious burns.
PW31- Dr. C.S. Meena deposed that on 4.4.2012, he was posted as Medical Jurist in SMS Hospital, Jaipur. On that day, on the request of S.P., Bharatpur, Medical Board was constituted by him in which along-with him Dr. O.P. Malav was one of the member. On that day, he conducted autopsy on the dead body of the deceased Smt. Rinki. This witness deposed that dry heat flame burns were ante-mortem in nature and total burnt (Downloaded on 01/09/2019 at 08:14:26 PM) (10 of 15) [CRLA-92/2013] surface area was 73%. The opinion given by the Members of the Medical Board is that the cause of death of Smt. Rinki is Septicemia shock brought about as a result of secondary infection to the ante-mortem burn mentioned in PMR which is sufficient to cause death in normal course of nature.
The Hon'ble Supreme Court in the case of Atbir vs. Government of NCT of Delhi: (2010) 9 SCC 1, while considering previous judgments in Munnu Raja vs. State of M.P.: (1976) 3 SCC 104, Paras Yadav vs. State of Bihar- (1992) 2 SCC 126, Balbir Singh vs. State of Punjab: (2006) 12 SCC 283, State of Rajaasthan vs. Wakteng-:
(2007) 14 SCC 550: RLW 2007(4) SC 2891, Bijoy Das vs. State of W.B.- (2008) 4 SCC 511, Muthu Kutty vs. State - (2005) 9 SCC 113, Panneerselvan vs. State of T.N.- (2008) 17 SCC 190, culled out the following principles to be kept in view while dealing with a case of dying declaration:
(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the Court.
(ii) The Court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.
(iii) Where the Court is satisfied that the declaration is true and voluntary, it can base (Downloaded on 01/09/2019 at 08:14:26 PM) (11 of 15) [CRLA-92/2013] its conviction without any further corroboration.
(iv) 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.
(v) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be discarded.
(ix) When the eye-witness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it (Downloaded on 01/09/2019 at 08:14:26 PM) (12 of 15) [CRLA-92/2013] basis of conviction, even if there is no corroboration.
A look at the dying declaration Ex.P36 suffered by Smt. Rinki demonstrates that it was recorded on 26.03.2012 at 9:55 A.M. by PW30- Dr. Mahesh Punetha, ACJM No.4, Bharatpur. As per post-morten report Ex.P38, the deceased Smt. Pinki sustained 73 percent burns on her body.
Rule 6.22 of the Rajasthan Police Rules, 1965, provides thus- 6.22. Dying declarations.-(1) A dying declaration shall, whenever possible, be recorded by a Magistrate.
(2) The person making the declaration shall, if possible, be examined by a medical officer with a view to ascertaining that he is sufficiently in possession of his reason to make a lucid statement.
(3) If no magistrate can be obtained, the declaration shall,when a gazetted police officer is not present, be recorded, it shall be recorded in the presence of two or more reliable witnesses unconnected with the police department and with the parties concerned in the case. (4) If no such witnesses can be obtained without risk of the injured person dying before his statement can be recorded, it shall be recorded in the presence of two or more police officers. (Downloaded on 01/09/2019 at 08:14:26 PM)
(13 of 15) [CRLA-92/2013] (5) A dying declaration made to a police officer should, under section 162, Code of Criminal Procedure, be signed by the person making it".
In Muthu Kutty and another vs. State by Inspector of Police, T.N. (2005) 9 SCC 113, wherein their lordships have held that if the person recording the dying declaration is satisfied about the declarant's medical condition, then such declaration will not be considered invalid solely on the ground that the doctor has not certified the condition of the declarant. In this judgment, Hon'ble Supreme Court considered the principles regarding dying declaration and held that it can be sole basis of conviction if it inspires full confidence of the court.
In this matter it is not in dispute that at the time of incident the appellant was present at home. The accused appellant failed to discharge burden lay on him under section 106 of the Indian Evidence Act that on account of the leakage of the gas cylinder, his wife got burn injury, as such it cannot be said that the treatment documents Annex.1 & 2 annexed along- with the application, wherein history of incident is reported flame burn sustained when Rinki was cooking and the gas leaked, leading to blush of fire, support the accused appellant. In the opinion of the doctor, the cause of death was Septicemia shock brought about as a result of secondary infection to the ante-mortem burn. (Downloaded on 01/09/2019 at 08:14:26 PM)
(14 of 15) [CRLA-92/2013] In this regard the prosecution produced the
statement of Smt. Rinki (now deceased) as Ex.P36 recorded by PW30-Dr. Mahesh Punetha, ACJM No.4, Bharatpur.
According to post-mortem report (Ex.P38), burns are ante-morten in nature and total burnt surface area of body is about 73%. The cause of death was Septicemia shock brought about as a result of secondary infection to the ante-mortem burn mentioned in this PMR which is sufficient to cause death in normal course of nature.
In the site-plan (Ex.P2) it is mentioned that on the outer side of bed, on B to C portion, there were black signs (smoke). The room had already been cleaned. Thus, the statement of the Investigating Officer that there was no smell of kerosene oil or no signs found in the room, does not adversely affect the prosecution case.
In view of the law discussed above, there is ample evidence in the present case to hold that Septicemia was the direct consequence of the burn injuries caused to the deceased as the deceased sustained 73% burns.
In the instant case, we are in agreement that 73% extensive burns suffered by the victim were sufficient to cause her death in the ordinary course of nature. Hence, the case is also covered by clause third of Section 300 (Downloaded on 01/09/2019 at 08:14:26 PM) (15 of 15) [CRLA-92/2013] of the Indian Penal Code. Therefore, the offence under Section 302 IPC is clearly made out against the accused appellant.
In the result, the appeal being bereft of any merits, is accordingly dismissed. The conviction and sentence recorded by the learned trial court are confirmed.
(GOVERDHAN BARDHAR) (SABINA),J
Sharma NK
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