Rajasthan High Court - Jodhpur
State vs Santosh Kumar @ Shanti Lal on 12 November, 2009
Author: Deo Narayan Thanvi
Bench: Deo Narayan Thanvi
[1]
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
--------------------------------------------------------
CRIMINAL APPEAL No. 229 of 1985
STATE
V/S
SANTOSH KUMAR @ SHANTILAL
Date of Judgment : 12.11.2009
HON'BLE SHRI AM KAPADIA,J.
HON'BLE SHRI DEO NARAYAN THANVI,J.
Mr. K.R. BISHNOI, PP
Mr. ASHOK UPADHYAY, for the respondent
JUDGMENT
BY THE COURT (PER HON'BLE MR. A.M. KAPADIA, J.):
1. The instant appeal under Sec. 378 of the Code of Criminal Procedure ('the Code' for short) is directed against the judgment and order dated 18.10.1984 rendered in Sessions Case No.95 of 1983 by which respondent accused Santosh Kumar @ Shantilal came to be acquitted of the offence under Sec. 302 of the Indian Penal Code ('IPC', for short) by giving him the benefit of doubt.
1 [2]
2. The facts leading to this appeal are that complainant Kashi Ram's daughter Manju alias Santosh was married to accused 15 months before the incident and as the accused was not having good relation with his family members, he was living with his wife Manju in the complainant's house situated at outside Bidasar Bari, Bikaner. On 02.09.83, complainant's brother Sohan Lal informed complainant Kashi Ram in the night that his daughter was burnt by accused in the morning at about half past seven O' Clock. Manju cried for help and hearing his shouts Bhanwari w/o Thakur Das Suthar and Pana w/o Moda Ram Nayak rushed to the site of the occurrence. At that time, the main door of the house was closed and the accused was inside, who opened the door only after knocking it again and again and when the door was opened by accused, they found Manju burnt. Manju was taken to hospital where she was declared dead.
3. Complainant reached Bikaner on 03.09.1984 at 5 AM in the morning and submitted report Ex.P/2 with the police at police Station Kot Gate, Bikaner at about 2.30 PM and pursuant to the submission of report FIR case was registered against accused and investigation was put into motion. During the course of investigation, inquest on the dead body of the 2 [3] deceased was held and thereafter the dead body was sent for autopsy. Site plan of the place of occurrence was prepared and the statements of witnesses were recorded, The articles collected from the site were sent for chemical analysis. On receiving the postmortem report and FSL report, sufficient incriminating evidence was found against the accused, therefore, chargesheet for the offence under Sec. 302 was filed against accused in the Court of Munsif & Judicial Magistrate, Bikaner.
4. As the offence under Sec.302 IPC is exclusively triable by the Court of Sessions, the learned Munsif & Judicial Magistrate, Bikaner committed the case to the Court of Sessions, Bikaner.
5. The learned Sessions Judge, Bikaner ('trial Court', for short), to whom the case was made over for trial, framed charge against accused for offence under Sec.302 IPC. The charge was read over and explained to the accused, who pleaded not guilty and claimed to be tried, therefore, he was put to trial.
6. To prove the culpability of the accused, the prosecution has 3 [4] examined in all 15 witnesses and relied upon their oral testimony. The prosecution also proved number of documents and relied upon the contents of the same.
7. After recording of the evidence of the prosecution witnesses was over, the trial Court explained to the accused the circumstances appearing against him and recorded statement of the accused under Sec.313 of the Code. In the further statement, the accused denied the case of the prosecution in toto. Accused in his further statement inter- alia stated that in the vicinity in which he resides neither anyone favoured him in the past nor is there at present to favour him and that initially the story was of accident but after reaching of his father-in-law and mother-in-law a false story of murder was created with the advice of lawyers by inserting new witnesses. He further stated that he and his wife had loved each other but on account of jealousy a false story was presented before the Court. According to him, he is innocent and in order to save his wife he also got burn injuries. The reason for delay in reporting the matter to the police according to him was taken in making a false story. However, he neither led any evidence nor examined any witness to support his defence.
4 [5]
8. At the end of the trial, the trial Court held that the prosecution has failed to establish the charge levelled against accused and the so called dying declaration is not trustworthy and reliable as contradictory versions are stated by the witnesses before whom the so called dying declaration is alleged to be made, therefore, accused deserves benefit of doubt. On the basis of said finding, the trial Court has acquitted the accused of the charge levelled against him by judgment and order dated 18.10.1984, which has given rise to the instant appeal by the State of Rajasthan.
9. In support of the appeal, Mr. K.R. Bishnoi, learned Public Prosecutor, contended that that the trial Court has concluded the case without considering the prosecution evidence on record. It is also highlighted by him that at the time of occurrence the accused and deceased Manju both were all alone in the house. According to the learned Public Prosecution the motive is clear because as per evidence of witnesses accused used to tease and beat his wife Manju for money and dowry and the accused did not submit report of the incidence to the police which also shows the unnatural conduct on the part of the accused. Learned Public 5 [6] Prosecutor further submits that it has also come in evidence that when the neighbours arrived at scene and called the accused to open the door, the accused did not open it and the door was opened only when neighbours threatened him to break the door, which shows the clear intention of the accused to burn his wife deceased Manju. It is also contended by the learned Public Prosecutor that deceased Manju told the witnesses after incident in her oral dying declaration that accused had burnt her, which clearly supports the prosecution story but the learned trial Court has disbelieved the oral dying declaration made by the deceased before the witnesses.
10.On the aforesaid premise, it is submitted by learned Public Prosecution that the impugned judgment and order acquitting the accused deserves to be set aside by allowing this appeal and thereby convicting the accused of the offence with which he was charged for committing murder of his wife by burning her. He, therefore, urged to allow this appeal.
11.Per contra, Mr. Ashok Upadhayay, learned counsel for the accused has supported the impugned judgment and order. 6 [7] According to him, the trial Court has rightly allowed the benefit of doubt to the accused as there are contradictory versions in the dying declarations and the conduct of the accused shows that he tried his best to save his wife and he also received burnt injury while rescuing the deceased, therefore, no interference is required in the impugned judgment and order of acquittal by this Court while exercising appellate jurisdiction under Sec.378 of the Code.
12.We have considered the submissions advanced by Mr. K.R. Bishnoi, learned Public Prosecutor for the appellant State of Rajasthan as well as Mr. Ashok Upadhayay, learned counsel for accused-respondent. We have also perused the impugned judgment and order and the record of the case.
13.So far as homicidal death of deceased Manju is concerned, there is no eye witness to the incident and the case of the prosecution is based on the oral dying declaration made by the deceased before four witnesses PW1 Jogeshwary, PW3 Madhu, PW5 Badhu & PW7 Bhanwari prior to her death and also PW15 Dr. G.S. Randhawa, who initially treated the deceased and has stated that he had recorded in the case paper about the history of the deceased as was stated by 7 [8] PW7 Bhanwari.
14.The law on dying declaration is very clear that if there is no inconsistency in the dying declaration and if it is complete in nature, it can form the basis for conviction but where there are different dying declarations uncorroborated by the other material witnesses then the Court has to scrutinize its credibility for using it against the deceased.
15. It is the case of the prosecution that deceased made oral dying declaration before four witnesses. To prove the case against accused on the basis of dying declaration, the prosecution has firstly relied upon the evidence of PW1 Jogeshwari, who has inter-alia testified that her house is situated outside Bidasar Bari and she knew accused Santosh Kumar present in the court who is also known as Shantilal. She further testified that she knew Manju also who was the daughter of Kashiramji and wife of the accused present in the Court. The witness stated that accused and Manju lived in the house of Kashiramji at Bidasar Bari and her house is situated on the southern side of that house. She firstly said that Manju died on account of burning and then said that Manju was burnt, meaning thereby that she 8 [9] died due to burning. In her cross-examination the witness stated that when she was taking bath, she heard the shoutings "Jala Diya, Jala Diya" only once and not again later on. She stated that the gates of her house and the house of the accused are nearby to each other and she was taking bath inside the bathroom, which is open and has no curtain or gate. She further stated that her statements were taken by the police in the morning and then in the afternoon of 3rd. According to her, In the morning, she was asked only about the incident and then in the afternoon her statements were recorded. The police had come at 10 O' Clock in the morning and then recorded statement at 12 or 12.30 in the afternoon. Thereafter, on 5th also her statements were recorded. She stated that she questioned Manju once, but she did not reply.
16.The prosecution has thereafter relied upon oral testimony of PW3 Madhu, who inter-alia testified that when she reached at the house of Kashiramji, Pana, Bhanwari and Parvati had also reached there and they shouted loudly to open the door and thereafter Shantilal opened the door who was standing near the door wearing underwear only and Manju was behind him. Manju was completely burnt and she was 9 [10] shouting and when she asked Manju about the happening and told her to sit on the table, Manju said that she could not sit and on asking by Bhanwari regarding what happened, she said that she burnt but thereafter the witness added that deceased said that she was burnt by her husband. In her cross examination, witness PW3 has stated that in her presence nobody had asked Shantilal anything nor he told anything to anyone. She stated that she also neither asked Manju as to how and in what manner she burnt nor Manju told her anything so also no one else asked Manju in her presence nor Manju informed.
17.The prosecution thereafter has examined and relied upon witness PW5 Badhu, who is father of the deceased and has inter-alia stated in his examination in chief that his daughter Manju, whose penname was Santosh, was married with Shantilal about two years back and when they were residing in Chokhuti, on the day of Deewali, Shantilal left his daughter near his house breaking her bangles and then in the evening, took away Manju praying that he would not do such things again. He stated that Manju was burnt by Shantilal but first only said that she burnt.
10 [11]
18.The prosecution thereafter has examined PW7 Bhanwari, who has inter-alia stated that after her reaching at the house where Manju and Shatilal were residing, Parvati and Yogeshwari also came and she asked Manju as to what had happened then Manju pointing towards the accused Santosh said that he had burnt her. She further testified that when she reached there, Manju was completely burnt and nude and Manju told her to give water. The witness further stated that Santosh Kumar was wearing underwear and when he was asked to take Manju to hospital, he stated that Burnol be applied and thereafter the people of vicinity brought a taxi and Manju was taken to hospital. The witness also stated that Shantilal had burnt Manju and he had got it written in Ex.D/7 the statement recorded under Sec.161 by the police but why it was not written, she didn't know.
19.On close scrutiny and overall appreciation of evidence of the above four witnesses, it appears that the main witness before whom the so called oral dying declaration was made was PW7 Bhanwari. Her evidence is contradictory with her own statement recorded by the police and on the basis of her statement the other remaining witnesses have stated that the accused burnt the deceased but in the cross examination 11 [12] they have only stated that Manju caught fire. She has not clarified how Manju was burnt.
20.In light of the above, if we examine the testimony of PW15 Dr. G.S. Randhawa, before whom the Manju was taken for treatment, he in his examination in chief has inter-alia stated that on 02.09.1983 he was posted as House Surgeon in the the Ward of Surgical Unit IV. On that day, in the morning at 7.50, Manju W/o Shantilal, aged 16 years, resident of Gangashahar Road, Bikaner was admitted in the Ward. He testified that the history of patient on the Bed Head Ticket Ex. P/31 was written in his handwriting, on which 'G' to 'H', 'S' to 'N' and 'W' to 'H' contains his signatures. He testified that on Ex. P/31, report 'A' to 'B' was not written in his presence and it was not written prior to the entry made on the Bed Head Ticket. He further testified that the Bed Head Ticket is kept at the Bed and it remains in his possession. According to the witness, the report 'A' to 'B' on Ex. P/31 was written after 8.10 or 8.15 in between the period of his going to Operation Theater and coming back before 1.00 PM. He did not know who got written this report as he had gone to the operation theater after sending call to the jurist. He also testified that such type of report on the Bed Head Ticket is 12 [13] generally got written by the Medical Jurist. In his cross examination, this witness has stated that on Ex. P/31 at 'O' to 'P' he had written what was told to him by the aunt accompanying patient and the writings at 'O' to 'P' were written by him in the same manner as were told by the aunt who was called as she was dealing with the matter and it was not written by sitting on the bench in the ward near the bed. On perusal of Ex.P/31 it is seen that the doctor has also stated that there was no smell of kerosene from the dead body of the deceased. The relevant portions 'A' to 'B' and 'O' to 'P' of Ex.P/31 are as under:
"मझ अपन लडक क पत श मत मज क क नन क रव ह क ललर ड क र ज च नह करव न ह" । इसक लसर इल ज ह करव न ह" ।"
Present illness - Patient was synpliousfree 1½ hours back then she had accidentally burns at about 7.00 AM as the patient's aunt said who accompanying the patient.
Apart from this, the site plan also suggests that kerosene was not found from the scene of occurrence. 13 [14]
21.In view of the above, it is clear that PW7 Bhanwari herself has admitted that in her police statement she had not stated that Manju was burnt by the accused, therefore, she has improved her version before the Court in her oral testimony. If the deceased would have been burnt by the accused, PW 7 would have stated so in her police statement as well as before PW15 Dr. G.S. Randhawa as PW7 Bhanwari had taken the deceased for hospital for treatment but that is not so, therefore, it is wrong to conclude that Manju was burnt by the accused. Furthermore, the accused has also received burn injuries while rescuing his wife, which again creates doubt that she was burnt by her husband. Contradictory versions of above four witnesses with regard to burning and of the treating Doctor's observations in Ex.P/31 as referred above leads to the conclusion that story of putting fire on the deceased by her husband is an improved one, creating heavy doubt with regard to the guilt of the accused.
22.In view of the unsatisfactory and contradictory evidence led by the prosecution, according to us, the findings recorded by the trial Court, are absolutely just and proper and in recording the said findings no illegality or infirmity is committed in acquitting the accused of offence of murder. 14 [15] We are in complete agreement with the findings, ultimate conclusion and resultant order of acquittal recorded by the trial Court, as, in our view, no other conclusion is possible except the one reached by the trial Court.
23. This is an acquittal appeal. The principles which would govern and regulate the hearing of appeal by the High Court against an order of acquittal passed by the trial Court have been very succinctly explained by the Supreme Court in the matter of Ajit Savant Majagavi v. State of Karnataka, reported in AIR 1997 3255.
[a] In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers it possesses while hearing an appeal against an order of conviction.
[b] The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and findings in place of the findings recorded by trial court, if the said findings are against the weight of the evidence on record, or in other words, perverse.
[c] Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds not subscribing to the view expressed by the trial court that the accused is entitled to acquittal.
15 [16]
[d] In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial court.
[e] If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted.
[f] The High Court has also to keep in mind that the trial court had the advantage of looking at the demeanour of witnesses and observing their conduct in the court, especially in the witness box.
[g] The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused.
24. In Anokh Singh v. State of Punjab, reported in AIR 1992 SC p.598, Supreme Court has held that in an appeal against acquittal, the High Court should attach greater weight to appreciation of evidence by the trial Court who had the occasion to watch the demeanour of the witnesses.
25.It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible then also appellate 16 [17] Court cannot substitute its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. See: Ramesh Babulal Doshi v. State of Gujarat (1996)9 SCC
225. In the instant case, the learned Public Prosecutor has not been able to point out to us as to how the findings recorded by the trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.
26.On overall appreciation of evidence, this Court is satisfied that there is no infirmity in the reasons assigned by the learned Sessions Judge for acquitting the accused. Suffice to say that the learned Sessions Judge has given cogent and convincing reasons for acquitting the accused and the learned Public Prosecutor has failed to dislodge the reasons given by the learned Sessions Judge and convince this Court to take a view contrary to the one taken by the learned Sessions Judge.
27.Seen in the above context, we do not find any valid reason or justifiable ground to interfere with the impugned judgment 17 [18] and order acquitting the accused of the offence with which he was charged. Therefore, appeal lacks merit and deserves to be dismissed.
28.For the foregoing reasons, appeal fails and accordingly it is dismissed. The judgment and order dated 18.10.1984 rendered in Sessions Case No.95 of 1983 by the Sessions Judge, Bikaner, acquitting the respondent-accused of the offence under Sec. 302 IPC is hereby affirmed and maintained. Accused is on bail, his bail bonds stand cancelled.
(DEO NARAYAN THANVI),J. ( AM KAPADIA ),J.
18