Rajasthan High Court - Jodhpur
Smt.Pramila & Anr vs State on 4 November, 2016
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
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CRIMINAL APPEAL(CRLA) No. 216 of 2011
1. Smt. Pramila W/o Sh. Dilp Shrimali, by caste
Shrimali Brahmin, resident of Patwari Ka
payasa, Rawaton Ka Darwaja, Nathdawara,
District Rajsamand.
[at present women Cell Central Jail, Jodhpur]
2. Dilip Kumar S/o Bhanwar Lal Ji Shrimali, by
caste Shrimali Brahmin, resident of Patwari Ka
Payasa, Rawaton Ka Darwaja, Nathdawara,
District Rajsamand
[at present Central Jail, Udaipur]
V/S
State of Rajasthan
Date of Judgment : 4th Nov., 2016
HON'BLE MR. GOPAL KRISHAN VYAS,J.
HON'BLE MR. GOVERDHAN BARDHAR
Mr. Doongar Singh, for the appellants.
Mr. JPS Choudhary, PP for the State.
JUDGMENT
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BY THE COURT: [per Hon'ble Mr. Justice G.K. Vyas]
The instant cr. appeal has been filed by the appellants Smt. Pramila W/o Dilip Shrimali and Dilip Shrimali S/o Bhanwar Lal against the judgment dated 17.3.2011 passed by the Addl. Sessions Judge, District Nathdawara in Sessions Case no.19/2002 by which the 2 learned trial court convicted both the accused appellants for offence under Section 302 read with Section 120B IPC and passed sentence for life imprisonment alongwith fine of Rs.5,000/- and in default of payment of fine to further undergo six months additional simple imprisonment.
As per the facts of the case, an FIR no.32/2002 was registered on 22.1.2002 by the ASI Dalpat Singh (PW--8) of Police Station Nathdawara on the basis of verbal information (Ex.P/7) given to him by the deceased Sohan Bai on 22.1.2002 at 5.00 pm in the General Hospital, Udaipur. In the verbal information an allegation was made by Smt. Sohan Bai (deceased) that she is childless lady living in her house at Nathdawara, her niece Pramila and her husband Dilip (both appellants) are also residing with her alongwith their three children. According to complainant he niece Pramila and he husband Dilip are having eyes upon her property (house), therefore, with intention to kill her on 18.1.2002 when she was in the kitchen of her home, the accused appellant Pramila lit fire upon her cloths and due to that fire her cloths and body got burn, but Pramila put water upon her body to save but 3 not provided proper treatment for the burn injuries caused to her.
According to the complainant in very difficult condition she left her house and went to the house of his sister Shanta Shrimali (PW--4) at Udaipur, thereafter, she was admitted in the hospital for treatment by his sister.
Upon aforesaid verbal information given by deceased Sohan Bai to the PW--8 Dalpat Singh ASI, FIR no.32/2002 was registered at Police Station Nathdawara.
The Assistant Collector-cum-Executive Magistrate, Udaipur recorded dying declaration (Ex.P/10) of the deceased on 24.1.2002 in which deceased Sohan Bai reiterated her allegation made in the statement before ASI Dalpat Singh on 22.1.2002.
The FIR was registered under Section 307 and 120B IPC. The deceased admitted in the Government Hospital for treatment was discharged after improving her physical condition on 25.1.2002 but later on she died on 31.1.2002. The body of deceased Sohan Bai was taken to the General Hospital, Nathdawara by his real brother Sunder Lal and Kanhaiya Lal where post mortem was conducted by the medical board and board 4 gave its post mortem report (Ex.P/9) on 31.1.2002, the investigating officer obtain postmortem report for further investigation. It is also worthwhile to observe that on 20.1.2002 Dr. Akhilesh Sharma examined Sohan Bai when she went to the hospital and prepared injury report (Ex.P/6).
Both the accused appellants were arrested during investigation and after usual investigation charge-sheet was filed in the Court of Chief Judicial Magistrate, Nathdawara on 16.5.2002 against accused appellant Pramila under Section 302 and 201 IPC and against accused appellant Dilip on 31.7.2002 for the offence under Sections 302, 201, 120B and 176 IPC.
The case was committed to the court of Addl. Sessions Judge, Nathdawara for trial because offence under Section 302 IPC is triable by Sessions Court. The learned Addl. Sessions Judge, Nathdawara framed charge against the accused appellant for offence under Section 302 and 120B IPC and discharged the accused appellants from charge under Section 201 IPC and 176 IPC and commenced trial.
In the trial, statements of 12 prosecution witnesses were recorded, thereafter, statements under Section 313 Cr.P.C. of the accused appellants were 5 recorded by the trial Court. Both the appellants denied allegations levelled against them by the Prosecution witnesses and said that deceased Sohan Bai executed a Will in their favour, therefore, other relatives falsely implicated appellants in the case of alleged offence of murder, because they want to give property of Sohan Bai to Kaveri and her son. In defence statements of three witnesses DW-1 Dinesh Chandra, DW-2 Devi Shanker and DW-3 Tara Shrimali were recorded by the court as defence witness.
The learned trial court after hearing final arguments convicted the accused appellants for offence under Section 302 read with Section 120B IPC vide judgment dated 17.3.2011.
In this appeal filed by the appellants, they are challenging the conviction and sentence passed by the learned Addl. Sessions Judge, Nathdawara vide judgment dated 17.3.2011 for offence under Section 302 read with Section 120B of IPC on various grounds.
Learned counsel Sh. Doongar Singh appearing on behalf of the appellants vehemently argued that conviction recorded by the learned trial court against the appellants for alleged offence is contrary to law as well as facts because the learned trial court has not 6 appreciated the prosecution evidence in the light of checks available on record, and completely over looked vital documentary evidence, which is bedded ticket of the deceased (Ex.D/2) in which the deceased on her admission in the hospital informed to the doctor that she received accidental burns while passing nearby "Sigari" and whilst bye-passing the said document, the learned trial court simply relied upon the statement of deceased given by her after three days of the alleged occurrence, therefore, admittedly, the deceased was under influence of the persons who motivated her against the appellants, as such, the conviction of the appellants is based upon false and concocted story framed by the relatives of the deceased.
Learned counsel for the appellants further submits that learned trial court has mis-directed himself whilst convicting the accused appellants because the reasoning given in the judgment that deceased had already changed her Will in favour of the appellants, therefore, the sisters of deceased had no cause to implicate the appellants, but this finding is totally wrong because there was no reason for the appellants to cause death to the deceased because Will was already executed in their favour.
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According to the learned counsel for the appellants the conviction of the accused appellants is illegal for the simple reason that learned trial court has not convicted either of the appellants for offence under Section 302 IPC simplicitor but has convicted both the appellants for offence of conspiracy to commit murder, therefore, unless there is somebody who commits the offence of murder, the conviction of the conspirator cannot stand, therefore, the judgment impugned deserves to be quashed.
Learned counsel for the appellants further submits that conviction of appellants is illegal on the grounds that deceased died nearly 13 days after the occurrence and the doctor who conducted post mortem of the deceased clearly stated that cause of death of deceased Sohan Bai was result of toxemia which developed in bed sores. It is also submitted that the deceased was discharged from the hospital on 25.1.2002 after that there is no evidence of prosecution as to where she was kept till she passed away, as such, it is submitted that there cannot be any direct link in between the death of the deceased and the alleged burn of her body even if incident is accepted, therefore, it is obvious that prosecution has failed to prove its case beyond 8 reasonable doubt for offence under Section 302 read with Section 120B IPC, therefore, the judgment impugned may kindly be quashed.
Per contra, learned Public Prosecutor vehemently argued that although incident took place on 18.1.2002, but there is ample evidence on record that deceased was admitted to the hospital by her relative PW--4 Smt. Shanta Shrimali and in the hospital her statements were recorded by the PW--8 Dalpat Singh ASI in which specific allegation was levelled by her against accused appellant Pramlia for litting fire, so also, it is stated by her that appellant Dilip Shrimali was watching incident from inside the house. It is also submitted that after registration of the FIR on 24.1.2002 the dying declaration of the deceased Sohan Bai was recorded by the Assistant Collector-cum- Executive Magistrate, Headquarter, Udaipur in which specific allegations were levelled by her for litting fire by the accused appellant Pramila, therefore, it cannot be said that any error has been committed by the learned trial court so as to convict the accused appellants for offence under Section 302 read with Section 120 B IPC.
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Learned Public Prosecutor further argued that PW--8 Dalpat Singh categorically stated before the court that he has recorded statement of deceased Sohan Bai upon which FIR was registered and PW--4 Smt. Shanta Shrimali stated before the court that Sohan Bai was admitted in the hospital by her and said that Sohan Bai deceased was not having any child, therefore, appellant Pramila was having intention to grab her property, therefore, she lit fire upon Sohan Bai and due to the said fire her body was burned and ultimately she died after 13 days.
According to the learned Public Prosecutor prosecution has proved its case beyond reasonable doubt, therefore, no interference is called for in this case.
After hearing learned counsel for the parties, following facts are established in this case, which are as under:-
A. Admittedly, it is not in dispute that deceased Sohan Bai was residing with the accused appellants in the Nai Haveli at Nathdawara and she was owner of the said property. The accused appellant Pramila is niece of deceased Sohan Bai and appellant Dilip is husband of Pramila. 10 B. It is also admitted fact as per dying declaration of Sohan Bai that after litting fire by Pramila she poured water upon her to save Sohan Bai and, thereafter, Sohan Bai went to her room and on next day went Udaipur to the house of her sister Shanta Bai (PW--4).
C. It is also not in dispute that Sohan Bai was admitted to the hospital by PW--4 Shanta Shrimali and his brother which is evident from the document (Ex.D/2) dated 20.1.2002. D. It is also not in dispute that after providing the treatment on 25.1.2002 deceased Sohan Bai was discharged from the hospital and she was allowed to go home.
E. It is not in dispute that on 31.1.2002 Sohan Bai died, therefore, she was taken to the hospital by his brother Sunder Lal and Khayali Lal where post mortem was conducted on 31.1.2002 vide Ex.P/9 in which following cause of death was given by the doctor, which reads as under:
"In the opinion of Medical Board cause of death is shock due to toxemia due to infection of ulcers (Bed sore) within 24 hours of post mortem examination.
It is sufficient to cause death."11
F. As per prosecution case, incident took place on 18.1.2002, but deceased died on 31.1.2002 after 12 days. During this period she was discharged from hospital on 25.1.2002.
G. It is also admitted position of the case that as per Admission Card Ex.D/2A at the time of admission in the hospital on 20.1.2002 it was specifically informed by the nephew of deceased that it is a case of accidental burn occurred at 12.00 pm on 18.1.2002 when injured was in the kitchen at her home.
Upon aforesaid admitted position of the case, we have examined the entire evidence upon which he learned trial court convicted the accused appellants for offence under Section 302 read with Section 120B IPC.
According to the prosecution case, the statement of deceased Sohan Bai was recorded by the Assistant Collector-cum-Executive Magistrate, Headquarter, Udaipur, which is on record as Ex.P/10. The deceased Sohan Bai gave following statement in Ex.P/10, which reads as under:-
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**c;ku Jherh lksguckbZ csokg Jh tsBey Jhekyh egkjk.kk Hkwiky fpfdRlky; mn;iqj mez yxHkx 75 o'kZ okMZ ua- 33 csM ua-7 eSa ukFk}kjk esa jgrh gwAa eSa vdsyh jgrh gwa vkSj viuh Hkrhth dks lkFk esa j[kk gSA Hkrhth dk vkneh vkSj cPps ¼rhu½ Hkh lkFk esa jgrs gSaA eSaus viuh Hkrhth ijehyk ls dgk fd esjh rqe ls vc ugh cusxh vkSj ?k.ks fnu gks x, esjs lkFk jgrs gq, vc rw edku [kkyh djds dgha vkSj tkdj jgksA rqe vkSj rqEgkjk vkneh ls ugha curh vcA mldk vkneh fnfyi cgqr cnek"k gSA eq>s cgqr rax djrk gS vkSj dgrk gS fd rsjk edku ugha NksMx wa+ k pkgs rw jgs ;k ughaA eq>s tokbZ xkyh nsrk gS vkSj dgrk gS rw ej tk rq>s ugha j[krk rw ;gka ls fudy tkrks eSaus dgk dSls fudy tkma edku rks esjk gSA Q. vkids vkx dSls yxh\ esjs vkx ?kk?kjk esa uhps dks vkx esjh Hkrhth ijehyk us yxkbZA "kqØokj dks vkx yxkbZA Q. ?kj ij vkSj dkSu Fkk ml le;\ Ans. mlds nks Nksjs FksA eSa fpYykus yxh rks cksyh gkdk er dj vkSj eq> ij ikuh Mky fn;kA eSa jksus yxhA ckn eSa ix ix ckgj fudy xbZ jlksbZ ls vkSj ikNs vius dejs esa vk xbZA ml fnu eSa vius dejs esa gh jghA nwljs fnu ?kj ds ckgj fudy xbZ vkSj cl esa cSB dj mn;iqj vk xbZA Q. vkidks dksbZ NksM+us vk;k mn;iqj\ Ans. eq>s irk ughaA eSa Qrsgiqjk ls vius cgu "kkark Jhekyh ds ?kj vkbZ fdl rjg vk xbZ mlds ?kj eq>s irk gh ugha pykA cgu us eq>s vLirky esa HkrhZ djk;kA Q. vkidh Hkrhth ijehyk dks vkils dksbZ yksHk gS D;k\ gka og esjk edku gM+iuk pkgrh gSA Q. D;k vkidks feyus vkidh Hkrhth mldk vkneh ;k mlds cPps vkils feyus vLirky vk,\ ugha og ugha vkbZ vkSj u dksbZ vkSj muesa ls vk;kA Q. D;k mls irk gS vki vLirky esa mn;iqj esa gSa\ og ?kqerh jgrh gS vkSj mldk vkneh Hkh ?kqerk jgrk gS mls t:j irk gksxk fd viuh cgu ds ?kj xbZ gksxhA Q. vkids D;k yM+kbZ >xM+k gqvk Fkk ftl fnu vkx mlus yxkbZA ugh dksbZ >xM+k ugha gqvkA mlus vius vkigh esjs vkx yxkbZA Sd/-
R.T.I. of Smt. Sohan Bai"13
Upon perusal of the aforesaid statement it is clear that according to Sohan Bai herself first accused appellant Pramila lit fire and, thereafter, she poured water for rescue, thereafter, the deceased went in her room and on next day, went Udaipur in bus, but no information was given by her with regard to incident to the police.
Upon perusal of aforesaid statement it will reveal that no specific role for causing injury by the accused appellant Dilip to the deceased has been disclosed but in Ex.P/7 which is statement recorded by the ASI under the thumb impression of Sohan Bai one line was written against the accused appellant Dilip that "?kVuk ds le;
fnyhi vUnj ls ns[k jgk FkkA" There is no evidence on record with regard to involvement of accused appellant Dilip in the incident.
We have perused Ex.D/2A which is bedded ticket in which the doctor specifically written that at the time of admission her nephew informed that it is a case of accidental burn occurred at 12.00 pm on 18.1.2002 when she was passing near "Sigari" at her home.
Meaning thereby, there is no evidence on record against accused appellant Dilip upon which he can be 14 convicted for offence under Section 302 read with Section 120B IPC.
Upon assessment of allegation and evidence it is obvious that prosecution has failed to prove its case beyond reasonable doubt against accused appellant Dilip, therefore, conviction recorded against accused Dilip for offence under Section 302 read with Section 120B IPC is not sustainable in law, therefore, deserves to be quashed.
We have considered the case of accused appellant Parmila in the light of the statement made by the deceased in (EX.P/10) recorded by the Assistant Collector-cum-Executive Magistrate, Headquarter, Udaipur in which a specific allegation was levelled by the deceased that Pramila first lit fire upon her cloths and thereafter, poured water and allowed her to go in the room. It is also stated by the deceased that on the date of incident, there was no quarrel in between her and accused appellants, therefore, even if the statements of deceased (Ex.P/10) recorded by the Executive Magistrate is accepted then also no offence under Section 302 read with Section 120B IPC is not made out in view of the judgment rendered by the Hon'ble Supreme Court in the case of Kalu Ram Vs. 15 State of Rajasthan reported in 2000 SCC (Cri) 86, in which upon similar evidence and circumstances, the conviction of the accused was altered from Section 302 to Section 304 Part II IPC. The paras nos.4 to 8 of the said judgment are as follows:
"4. Both the trial Court and the High Court relied on the two dying declarations proved in this case and came to the conclusion that it was appellant who set her on blaze and caused her death. He was, therefore, convicted under Section 302 of the I.P.C.
5. Learned Counsel for the appellant contended that the contents in the dying declaration are contrary to the testimony of all the witnesses who rushed to the scene on hearing the wailings of the dying lady. It is true that all those witnesses have said that the deceased told her that she herself committed the act of lighting the match-stick but all those witnesses were confronted with their earlier version recorded by the Investigating Officer under Section 161 of the CrPC. The version of those witnesses in Court stands discredited by such earlier statements and the two Courts below have rightly declined to place any reliance on the testimony of those witnesses. Out of those witnesses PW-5 Indu was not declared hostile formally. But that does not matter because she too was confronted with her first version recorded by the police and thereby her testimony in Court was contradicted by the prosecution.
6. We find no good reason to discard the two dying declarations given by the deceased regarding the actual occurrence. The Courts below have rightly acted on such dying declarations.
7. But then, what is the nature of the offence proved against him. It is an admitted case 16 that appellant was in a highly inebriated stage when he approached the deceased when the demand for sparing her ornaments was made by him. When she refused to oblige he poured kerosene on her and wanted her to lit the match-stick. When she failed to do so he collected the match box and ignited one match-stick but when flames were up he suddenly and frantically poured water to save her from the tongues of flames. This conduct cannot be seen divorced from the totality of the circumstances. Very probably he would not have anticipated that the act done by him would have escalated to such a proportion that she might die. If he had ever intended her to die he would not have alerted his senses to bring water in an effort to rescue her. We are inclined to think that all what the accused thought of was to inflict burns to her and to frighten her but unfortunately the situation slipped out of his control and it went to the fatal extent. He would not have intended to inflict the injuries which she sustained on account of his act. Therefore, we are persuaded to bring down the offence from the first degree murder to culpable homicide not amounting to murder.
8. We, therefore, alter the conviction from Section 302, I.P.C. to Section 304, Part II of the I.P.C. Both sides conceded that appellant is continuing in jail. We impose a sentence of rigorous imprisonment for seven years on him. It is for the jail authorities to count whether the period he had already undergone would be sufficient to complete the period of sentence imposed by us and if so, the jail authorities shall release him from jail. Otherwise he will continue in jail until completion of the period of seven years of imprisonment. The appeal is disposed of accordingly."
We have considered the finding of learned trial court in the light of aforesaid judgment and evidence 17 on record with regard to conviction recorded against the accused appellant Pramila under Section 302 read with Section 120B IPC. In our opinion, the offence of accused appellant Smt. Pramila cannot travel beyond offence under Section 304 Part II IPC because deceased died after 13 days of the incident. Further, the deceased herself stated in her statement (Ex.P/10) that after litting fire, Parmila herself poured water to save her life. Therefore, obviously, it is a case of culpable homicide not amounting to murder, because as per evidence on record, the allegation of motive is not sustainable in law because for the property in questioni, Will was already executed in favour of the appellant Pramila, niece of deceased. Therefore, we have no hesitation to hold that prosecution has failed to prove motive, as such, the conviction of accused appellant Pramila for offence under Section 302 read with Section 120B IPC is not sustainable in law, but, on the basis of statement (Ex.P/10) of the deceased Sohan Bai the accused appellant Pramila is guilty for offence under Section 304 Part II IPC.
In view of the above discussion, the appeal qua the accused appellant Dilip is allowed, the conviction and sentence for the offence under Section 302 read 18 with Section 120B IPC passed by the learned Addl. Sessions Judge, Nathdawara against accused appellant Dilip vide judgment dated 17.3.2011 in Sessions Case No.19/2002 is hereby quashed and set aside. The conviction and sentence of the accused appellant Pramila for offence under Section 302 read with Section 120B IPC is hereby set aside, but the accused appellant Pramila is guilty for offence under Section 304 Part II IPC. The accused appellant Pramila was arrested in this case on 31.1.2002 and remained in custody upto 8.3.2002, thereafter, she was sent to the judicial custody after Judgment dated 17.3.2011, since then she is serving sentence of life imprisonment passed against her, therefore, while holding accused appellant Pramila guilty for offence under Section 304 Part II IPC, she is punished with the sentence already undergone by her.
Both the appellants may be set at free forthwith if not needed in any other case.
Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellants are directed to forthwith furnish personal bonds in the sum of Rs.20,000/- each and a surety bond in the like amount before the learned trial court, which shall be 19 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.
( GOVERDHAN BARDHAR ),J. ( GOPAL KRISHAN VYAS ),J. cpgoyal/-(ps)