Rajasthan High Court - Jodhpur
Om Prakash And Anr vs State on 21 December, 2021
Bench: Sandeep Mehta, Sameer Jain
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 576/2015
1. Om Prakash S/o Lichhmanram, by caste Kumhar, Resident of
Chak 5 GGR, Police Station Tibbi, District Hanumangarh.
2. Geeta Devi W/o Om Prakash, by caste Kumhar, Resident of
Chak 5 GGR, Police Station Tibbi, District Hanumangarh.
----Appellants
Versus
State of Rajasthan through Public Prosecutor
----Respondent
For Appellant(s) : Mr. Bhoop Singh
Mr. Mohan Lal
For Respondent(s) : Mr. B.R. Bishnoi, AGC
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE SAMEER JAIN
Judgment
Date of pronouncement : 21/12/2021
Judgment reserved on : 01/12/2021
By the Court : PER HON'BLE JAIN, J.
The instant criminal appeal has been filed by the accused- appellants Om Prakash and Geeta Devi under Section 374(2) of Cr.P.C. being aggrieved of the judgment dated 06.06.2015 passed by learned Sessions Judge, Hanumangarh in Sessions Case No.23/2014 whereby they have been convicted for the offences punishable under Section 302 read with Section 34 of IPC sentenced to imprisonment for life and a fine of Rs. 5,000/-, in default of payment of fine to further undergo three months simple imprisonment.
Brief facts of the case are that a Parcha Bayan (Ex. P/2) of Smt. Anju Devi was recorded by the SHO, Police Station Tibbi, (Downloaded on 21/12/2021 at 09:12:54 PM) (2 of 9) [CRLA-576/2015] District Hanumangarh on 20.1.2014, on the basis of which, an F.I.R. being FIR No.29/2014 (Ex.P/3) was registered on 20.01.2014 at the Police Station Tibbi. Anju Devi alleged in the statement that she was married to Purnram about three years back and her father gave sufficient dowry at the time of marriage. A baby boy namely Neeraj was born from the wedlock. After six or seven months of the marriage, her in-laws and husband started harassing her. On 19.01.2014, in the morning she slapped her son namely Neeraj and being enraged with the same, her mother-in- law and father-in-law beat her and then set her ablaze. Upon hearing the commotion, her husband Purnram came there and tried to douse the fire by sand and in that process, he also received burn injuries on his hands. The fire was put out and thereafter, she was taken to the hospital at Hanumangarh in a car from where she was referred for treatment to PBM hospital in Bikaner. On the basis of said Parcha Bayan, the police registered the F.I.R. for the offences punishable under Section 307 read with Section 34 of IPC. During treatment Anju Devi expired and thus, the offence punishable under Section 302 of IPC was added to the case.
After thorough investigation, the police filed a charge-sheet against the accused-appellants for the offences under Section 302 read with Section 34 of IPC.
Thereafter, the case was committed for trial to the Court of Sessions Judge, Hanumangarh (hereinafter referred to as the 'learned trial court').
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(3 of 9) [CRLA-576/2015] Learned trial Court framed charges on 06.06.2014 against the appellants under Section 302 read with Sections 34 of IPC, which were denied and trial was claimed.
The prosecution in support of its case examined as many as 12 witnesses and got exhibited 16 documents.
The statements of the accused were recorded under Section 313 Cr.P.C. on 09.03.2015 wherein they denied the prosecution allegations and also stated that they had been falsely implicated in this case and took a plea of alibi. The appellant No.2 submitted that Smt. Anju had tied up the child Neeraj and was beating him, she had taken Neeraj outside the house to the field and in a fit of rage the deceased had committed suicide.
At the conclusion of the trial, the learned trial Court, vide impugned judgment dated 06.06.2015 found the accused- appellants guilty for the offences under Sections 302 read with Section 34 of IPC and as a consequence, convicted and sentenced them as above. Hence, this appeal.
Learned counsel representing the accused-appellants submitted that the learned trial Court has not appreciated the evidence correctly and seriously erred in placing implicit reliance upon the dying declaration of the deceased as there were material contradictions in the Parcha Bayan (Ex.P/2) and the dying declaration (Ex. P/15). Before recording the statement of the deceased, the requisite certificate of fitness was not obtained. Further, it was submitted that the present case was of suicide and does not fall under Section 302 IPC as Purnram (PW-9) husband of the deceased had rescued her from fire and got injured in the process and took her for treatment. It was only in a fit of rage (Downloaded on 21/12/2021 at 09:12:54 PM) (4 of 9) [CRLA-576/2015] after being flustered by behaviour of her in-laws i.e. accused- appellants that the deceased committed suicide. The testimony of PW-5 Geeta Devi grandmother of deceased and PW-4 Bhura Ram father of deceased affirms the defence theory that suicide was committed by the deceased and it was not a case of murder punishable under Section 302 of IPC. It was further submitted that it is only by the inducement and tutoring of the grandmother Geeta Devi (PW-5) and relative Aatma Ram (PW-6), the deceased modulated the fact that she attmepted to commit suicide to that of being set ablaze by her in-laws. It was also stated by Pradeep Kumar (DW-3) that the appellant No.1 Om Prakash at the relevant point of time was working in M-NREGA scheme. Learned counsel for the appellant has relied upon the judgment of the Hon'ble Supreme Court reported in (2000) 10 SCC 324 (Kalu Ram Vs. State of Rajasthan) in support of his contention. Paras no. 7 and 8 of the said judgment are relevant which are reproduced as below:
"7. But then, what is the nature of the offence proved against him. It is an admitted case 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 (Downloaded on 21/12/2021 at 09:12:54 PM) (5 of 9) [CRLA-576/2015] 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. "
Per contra, learned Public Prosecutor has submitted that under Section 32 of the Evidence Act, 1872, dying declaration constitutes an admissible and relevant piece of evidence, which does not require any corroboration. In the Parcha Bayan (Ex.P/2) and in dying declaration (Ex.P/15) Smt. Anju categorically stated that the accused-appellants set her ablaze and the statements made by the related witnesses contradicting the same are not to be used for discarding the dying declaration which is to be treated as more reliable, overriding admissible evidence. Satya Prakash Soni, A.C.J.M. No.3, Bikaner (PW-12) proved that the dying declaration (Ex. P/15) was recorded faithfully.
It is further submitted that there is no merit in the argument of learned counsel for the appellants that offence under Section 302/34 IPC is not made out and there is no question to accept the prayer of accused-appellants to acquit or alter the offence from Section 302 IPC to Section 304 Part II of IPC.
We have heard learned counsel for the appellants as well as learned Public Prosecutor, perused the impugned judgment passed by the learned trial Court, appreciated the evidence and have also gone through the record of the case.
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(6 of 9) [CRLA-576/2015] In order to re-appreciate the entire material on record, it is relevant to consider the evidence of prosecution witnesses and the documents relied upon by them.
On perusal of Parcha Bayan (Ex. P/2) vis-a-vis dying declaration (Ex.P/15-A) deceased Smt. Anju, a stark and material contradiction is noted. In the dying declaration the deceased categorically stated that her in-laws and husband safeguarded herself from the fire, however, while giving Parcha Bayan (Ex.P/2) she has emphatically stated that her in-laws set her ablaze. In reply to a specific question put to Smt. Anju in the dying declaration, she stated as below :
e`R;q dkfyd dFku fnukad 19-1-14 &&&&&&&&&& &&&&&&&&&& &&&&&&&&&& iz"u %& vkidks fdlus cpk;k \
vkx esjs lkl llqj vkSj ifr us cq>k;k tks feV~Vh Mky dj cq>k;kA In view of the above, it is crystal clear that in the dying declaration, the deceased had stated that an attempt to save her was not only made by her husband but also her in-laws by using the sand. It is also noteworthy to mention here that the fact that Smt. Anju set herself to fire is corroborated by PW-4 Bhura Ram, father of the deceased, who gave evidence to the effect that his daughter Anju poured kerosene on her body and then set herself afire. The dying declaration is also contradicted by the statement of PW-5 Smt. Geeta Devi grand-mother of the deceased, who specifically stated that deceased set herself to fire. PW-9 Purnram husband of the deceased, regarding whom, the deceased specifically stated in both the statements that he (Downloaded on 21/12/2021 at 09:12:54 PM) (7 of 9) [CRLA-576/2015] was innocent and helped her by dousing the fire and providing her treatment, stated that Smt. Anju was a quarrelsome, short tempered and stubborn lady and the allegations levelled by her against the accused-appellants were false and that she had committed suicide by pouring kerosene on her body and setting herself to fire and that his parents were innocent.
It is settled position of law in decisions rendered by the Hon'ble Apex Court Kusa & Ors. Versus State of Orissa [AIR 1980 SC page 559] and State of U.P. Versus Ramsagar Yadav & Ors. [AIR 1985 SC 416] that the dying declaration under Section 32 of the Evidence Act is an admissible piece of evidence and should be relied upon by the Courts until and unless it is clouded by ambiguity, inconsistency or there is reflection of inducement prompted by a third party. The Courts have to be circumspect while implicitly relying upon dying declarations as the deceased cannot be cross-examined nor the dying declaration is recorded on oath.
PW-4 Bhura Ram, father of the deceased, PW-5 Geeta Devi, grand-mother of the deceased, PW-9 Purnram, husband of the deceased and PW-6 Aatama Ram, a close relative of the deceased all specifically stated that the deceased was a short tempered, stubborn and quarrelsome lady and she set herself afire in a fit of rage. Further, being induced and prompted by her grand-mother Smt. Geeta Devi (PW-5) and a closed relative Aatma Ram (PW-6) moulded the Parcha Bayan by implicating the accused-appellants by making allegation of torching her only in order to avoid the allegations of suicide.
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(8 of 9) [CRLA-576/2015] While appreciating the evidence and recording the findings, the learned trial Court has failed to consider that in the present case there is absence of motive on the part of the accused- appellants to harm the victim. It is an admitted case as manifested by the witnesses PW-4 Bhura Ram, PW-5 Geeta Devi, PW-6 Aatma Ram and PW-9 Purnram that Smt. Anju was a short tempered, stubborn and quarrelsome lady and being flustered by the action of her mother-in-law when she scolded her and stopped her from beating her son Neeraj that in a fit of rage she poured kerosene on her body and set herself to fire. The learned trial Court, was totally unjustified in discarding the testimony of witnesses and finding of guilt recorded against the accused-appellant in absence of any motive and also ignoring the statements of the material prosecution witnesses, who in one voice stated that deceased set herself ablaze and it was only on being induced and prompted by PW-5 Geeta Devi and PW-6 Aatmaram that she stated in the Parcha Bayan that accused- appellants set her ablaze by concealing the true story that she herself poured kerosene on her body and lit the fire so as to avoid any action by the police authorities upon her.
The stark contradiction noted above in the Parcha Bayan (Ex.P/2) and the dying declaration (Ex.P/15) regarding the manner in which the fire was doused also brings both the statements under a cloud of doubt and implicit faith cannot be placed thereupon. There is no other evidence to prove the case against the appellants.
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(9 of 9) [CRLA-576/2015]
Accordingly, the instant appeal is allowed. The
order/judgment dated 06.06.2015 passed by learned trial Court is set aside and the accused-appellants are acquitted from the charges levelled against them under Section 302/34 of the IPC.
The accused appellants are in jail. They be released forthwith if not warranted in any other case.
However, keeping in view the provisions of Section 437A Cr.P.C., the accused appellants are directed to furnish a personal bond each in the sum of Rs.25,000/- and a surety bond each in the like amount before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of a Special Leave Petition against the present judgment on receipt of notice thereof, the appellants shall appear before the Hon'ble Supreme Court.
Record be sent back to the trial court forthwith.
(SAMEER JAIN),J (SANDEEP MEHTA),J
5-amit/cpgoyal
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