Rajasthan High Court - Jodhpur
Gautam Chand vs State on 2 April, 2019
Author: Vinit Kumar Mathur
Bench: Sandeep Mehta, Vinit Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR.
D.B. Criminal Appeal No. 1176/2016
Gautam Chand S/o Uda Ram, by caste Khatik, aged 27 years,
Resident of Ward No. 12, Hamirpura, presently resident of
Mahaveer Nagar, Barmer.
(lodged in Central Jail, Jodhpur).
----Appellant
Versus
State of Rajasthan
----Respondent
For Appellant : Mr. Kaushal Sharma.
For Respondent : Mr. Anil Joshi, PP for the State.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR Judgment Per Hon'ble Mr. Vinit Kumar Mathur, J 02/04/2019 The present criminal appeal under Section 374(2) of Cr.P.C. has been preferred by the accused-appellant against the judgment and order of conviction dated 03.09.2016 passed by the learned Additional Sessions Judge No.1, Barmer in Sessions Case No.47/2011 whereby the appellant has been convicted and sentenced as under:-
Offence Sentence Fine In Default
302 IPC Life Rs.5000/- Two months
imprisonment additional simple
imprisonment
498-A IPC Three years Rs1000/- One month
imprisonment additional
simple
imprisonment
The sentences were ordered to run concurrently except for those in default of payment of fine.
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(2 of 12) [CRLA-1176/2016] Brief facts necessary to be noted for disposal of the appeal are that parcha bayan of Smt. Durga (Ex.P/8) was recorded by Kailashandra on 11.06.2011 wherein she stated that for last 3-4 months, she was staying at a rented accommodation in Mahaveer Nagar along with her family comprising of her husband and two kids. She was married for last 6-7 years. Her father-in-law had died but her mother-in-law and brothers-in-law were staying with her in their house. Her husband used to drink a lot but for last 10- 15 days, he did not consume liquor. Her husband used to harass and torture her since their marriage. She never complained to her parents but told about this to her neighbors. On 08.06.2011 at around 8:00 pm, she cooked dinner. While she was putting wheat flour in the kitchen, her husband poured kerosene all over her body and set her afire. She ran out. The fire was doused by her brother-in-law and neighbors by pouring water and covering her by a blanket. Her brother-in-law Manohar (PW.3) and neighbors took her to the Government hospital for treatment. Her husband did not take her to the hospital. In the hospital, her father Bhagwan Das visited her and she narrated the entire incident to him. Her husband cautioned her that she was going to die, therefore, she should give correct statement. He used to harass and torture her for bringing inadequate dowry and pressurized her to bring more ornaments. One gold Teeka given to her by father was also sold by her husband and he was repeatedly demanding Rs.10,000/- for his scrap business. Her husband had physically and mentally tortured her since their marriage and finally he burnt her alive.
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(3 of 12) [CRLA-1176/2016] On this complaint, a formal F.I.R. No.238/2011 (Ex.P/20) was registered at Police Station Kotwali, Barmer for the offences under Sections 498-A, 324 & 307 IPC against the accused-appellant.
After conclusion of investigation, the police filed charge-sheet against the accused-appellant charging him for the offences under Sections 498-A and 302 of I.P.C.
Learned trial court framed, read over and explained the charges for the offences under Section 498-A & 302 IPC to the accused appellant who pleaded not guilty and sought trial.
During the trial, the prosecution examined as many as 19 witnesses and exhibited 23 documents as Ex.P/1 to Ex.P/23.
The accused-appellant was examined under Section 313 of Cr.P.C. and he was confronted with the evidence adduced against him during the course of trial to which he expressed denial and stated that he was a poor person and dealing in scrap recycling business. His wife was keeping fast for Friday and she was to perform 'Ujmana' for the same, therefore, she demanded money from him. Since, he was not in position to give money, she telephoned her father. On the same evening, clothes of Smt. Durga accidentally caught fire and therefore, his brother and neighbors tried to douse the fire and she was taken to the hospital. His father-in-law Bhagwan Das also came to the hospital who reported the matter to the police that Smt. Durga had received burn injuries in an accident. The same fact was also narrated by Smt. Durga to the doctors. Thereafter, she was taken to Jodhpur for treatment. From Jodhpur, the appellant and his family members were asked to go back. Smt. Durga was tutored to give a statement for falsely implicating the appellant. He (Downloaded on 27/06/2019 at 10:08:38 PM) (4 of 12) [CRLA-1176/2016] claimed that he was innocent and had been falsely implicated in the present case.
Learned trial Court, after hearing the arguments of both the sides, convicted and sentenced the accused-appellant for the offences under sections 498-A and 302 IPC vide judgment dated 03.09.2016. Hence this appeal.
We have heard learned counsel for the appellant appearing for the accused-appellant and the learned Public Prosecutor.
Learned counsel for the appellant has vehemently argued that dying declaration and parcha bayan of Smt. Durga were not recorded after taking fitness certificate of the duty doctor because the same do not contain any endorsement of the doctor about mental fitness of Smt. Durga at the time of giving her statement, therefore, they are worthless and unreliable. The counsel further submits that since, the accused-appellant was a poor man, he could not fulfill the demands of his wife for performing 'Ujamana', she got frustrated and poured kerosene oil over herself and lit fire which caused fatal burn injuries resulting into her death. The appellant never demanded any dowry from his in-laws and never used to harass her since their marriage. The entire allegation is based on tutoring having been done by his father-in-law to the deceased Smt. Durga. The counsel has relied upon the judgment of this Court in the case of Salim V/s State of Rajasthan through PP reported in 2018 (2) Cr.L.R. Raj. 852. The counsel submitted that learned trial court erred in convicting the accused appellant for the alleged offences and prayed that the appellant should be acquitted of the charges levelled against him by setting aside the impugned judgment dated 03.09.2016. (Downloaded on 27/06/2019 at 10:08:38 PM)
(5 of 12) [CRLA-1176/2016] Per contra, learned Public Prosecutor has supported the judgment dated 03.09.2016 passed by the learned trial court on the ground that the prosecution had been able to prove the charges leveled against the appellant beyond all reasonable doubt. He argued that parcha bayan of deceased is worth credence and the same also gets fortified from the dying declaration (Ex.P/16) recorded by Shri Jagdish Jyani, Additional Chief Judicial Magistrate (CBI Cases), Jodhpur Metropolitan, Jodhpur. He further submits that the deceased was fit to give statement at the time when her statement was recorded by the police; as an endorsement to this effect (Ex.P/6) was made by the duty doctor stating :
"Patient is responding to verbal stimuli and conscious, oriented so fit for giving statement".
To the same effect, Ex.P/7 was also endorsed by the duty doctor on 10.06.2011 stating therein that the patient was responding to verbal stimuli so was fit for giving statement. Besides this, as per the statement of Jagdish Jyani (PW17), it is clear that the deceased was in fit mental state to give statement which was recorded by him. He further submits that there is no reason to disbelieve the parcha bayan (Ex.P/8) and dying declaration (Ex.P/16) in the present case and therefore, the learned trial court was right in convicting the accused-appellant for the alleged offences vide its judgment dated 03.09.2016 and the same does not warrant any interference by this Court.
We have considered the submissions made at bar and have gone through the record of the learned trial court as well as impugned judgment dated 03.09.2016.
The focal point of consideration in the present case centers around the parcha bayan and dying declaration of deceased Smt. (Downloaded on 27/06/2019 at 10:08:38 PM) (6 of 12) [CRLA-1176/2016] Durga who is wife of the accused-appellant. For better appreciation of the same, it is worthwhile to reproduce the same here under:-
Parcha Bayan (Ex.P/8) "ipkZ c;ku Jhefr nqxkZ }kjk Fkkukf/kdkjh iqfyl Fkkuk dksrokyh ftyk ckM+esj ¼bZ,Dlih&8½ fnukad 11@06@11 ,&4@12 ipkZ c;ku Jhefr nqxkZ ifRu Jh xkSre tkfr [kVhd mez 24 lky fuoklh egkohj uxj ih,l dksrokyh ckM+esj gky tSj bZykt cuZ okMZ ;wfuV lh csM ua- ,e&2 ,e th ,p tks/kiqjA eqfrZc fnukad & 9@6@11 oDr 06%50 ih,e Lfkku ,e th ,e tks/kiqjA us iwNrkN ij C;ku fd;k fd eSa egkohj uxj esa fdjk;s ds edku esa jgrh gwA tgka rhu pkj ekg ls fdjk;s ij ifjokj lfgr jgrh gWwA ifjokj esjs ifr o esjh nks larku gS cM+h yM+dh izsj.kk o yM+ds dk uke lqehr ¼lqfer½ gSA esjs firkth dk uke Hkxoku nkl gSA ge nks cgus gS cMh eS gw o NksVh dk uke lhek gSA HkkbZ nks cMk HkkbZ fd'kksj NksVk jes'k gSA esjh 'kknh fd;s djhc 6&7 lky gqos gSA esjs llqj ugha gS lkl o nsoj blh edku esa jgrs gSA lkl dk uke ikuhth o nsoj euksgj th o egs'k th gSA esjs ifr igys [kqc 'kjkc firs Fks exj vc 10&15 fnuksa lsa 'kjkc ugha firs gSA esjs ifr eq>s gj ckr rax ijslku ekjihV djrs jgrs gS eS 'kknh ls ysdj vkt rd esjs ifr ls rax ijs'kku gwW eSus esjs ihgj okyks dks vkt rd ugha crk;k vMkslh iMkSfl;ksa dks t:j crkrh gwW esjs ifr us 'kknh ls vkt rd rhu pkj edku fdjk;s ds cny fn;s gSA rFkk crk;k fd dy fnukad 8@6@11 dks 'kke djhc vkB cts dh ckr gS fd eSus [kkuk cuk dj twgh eS vkVk j[kus jlksbZ esa x;h rks esjs ifr xkSre us Lvhy dh Hkjuh ls dsjkslhu Fkk tks esjs Åij Åmsy ¼Mky½ fn;k rFkk esjs diM+ksa esa ekphl ls rqyh yxk nh ftlls esa iwjh rjg ty x;h eS tyrh gwbZ ckgj vk;h jksus yxh rc esjk nsoj euksgj th o iMkSlh;ku vk;s esjs Åij ikuh Mky dEcy Mkyh fQj eq>s esjs nsoj o iMkSfl;ku eq>s ljdkjh vLirky ysdj x;s esjs ifr ogka Hkh eq>s bZykt djokus ugha ysdj x;s esjk nwljk nsoj egs'k th ckn esa vLirky vk;s Fks esjs firkth Hkxoku nkl Hkxoku nkl ckMesj vLrirky esjs ikl vk;s rc esjs lkFk ?kfV ?kVuk mijksDr iqjh ckr eSus firkth dks crk;h gSA esjs ifr us tykus ds ckn eq>s dgk fd rw ejus okyh gS C;ku lgh nsukA esjs ifr }kjk 'kknh ls ysdj vkt rd eq>s rax ijs'kku ekjihV djrk jgk eSa brus fnu mlds }kjk fd;s x;s tqYe lgu djrh jgh esjs ifr ;g Hkh dgrs jgrs Fks fd rsjs firkth us ngst ugha fn;k] rw rsjs firk ls vksj jdek ¼xguk½ ysdj vk esjs firkth us ,d lksus dk frdk fn;k Fkk tks esjs ifr us csp fn;k rFkk rax ijs'kku djus yxk fd rsjs firk ls nwljk fr[kk ysdj vk rFkk dHkh ;g Hkh dgrk jgk fd rsjs firk ls 10000 :i;s ysdj vk esjs dckMh dh nqdku ij yxkus gS bl izdkj ek= esjs ifr us eq>s 'kknh ls yxk dj vkt rd ekufld o 'kkjhfjd :i ls rax ijs'kku fd;k rFkk v[khjdkj eq>s tyk Hkh fn;kA lh& esjs ifr bZykt djokus ds fy, tks/kiqj rd Hkh ugha vk;s gSA esjs ifr dh f'ko esa dckMh dh nqdku gSA & Mh mijksDr ipkZ C;ku nqxkZ ds dgs vuqlkj v{kj c v{kj fy[ks x;s rFkk iqu% i<dj lquk;s x;s lqu le> lgh eku vaxq"B fd;kA vkjVhvkbZ nqxkZ ,&,lMh&ch vkbZ@vks ih,l ljnkjiqjk tks/kiqj oDr 7%30 ih,e (Downloaded on 27/06/2019 at 10:08:38 PM) (7 of 12) [CRLA-1176/2016] bZ & iqfyl Fkkuk dksrokyh ckMesj fnukad 11@06@11 oDr 7 ,,e bl le; mDr ipkZ C;ku Jherh nqxkZ ifRu xksre tkfr [kVhd mez 24 lky fuoklh egkohj uxj ckMesj gky tSj bZykt cuZ ;qfuV lh cSM ua- ,e 2 ,e th ,p tks/kiqj ds ykdj Jh jkÅjke ,,lvkbZ ih,l dksrokyh us tks/kiqj ,eth,p vLirky ls ykdj is'k fd;kA etewu fjiksVZ ls ekeyk tqeZ /kkjk 498 ,] 324] 307 vkbZihlh dk odw esa vkuk ik;k tkrk gSA vr% vfHk;ksx la[;k 238 rkjh[k bejkstk tqeZ /kkjk mijksDr es ntZ dj vUos"k.k eu ,l,pvks eukst 'kekZ fu-iq }kjk izkjEHk fd;k x;kA ,QvkbZvkj o ,l vkj fu;ekuqlkj tkjh dh xbZA & ,Q vkbZ & ,lMh& ts th&,l&,p ,l,pvks ih,l dksrokyh ckMesj "
Dying declaration (Ex.P/16) c;ku uke Jh efr nqxkZ iRuh xksre pUn tkfr [kVhd mez 24 o"kZ fuoklh egkohj uxj ckM+esj ftyk ckM+esj gky tSj bykt egkRek xka/kh vLirky tks/kiqj cuZ ;wfuV C, cSM ua- 2 iz'u %& vkidh ;g gkykr dSls gqbZ \ mÙkj %& ijlks 'kke dks vkB cts dh ckr gS fd ckM+esj esa eSa xzhQ jksM+ fLFkr fdjk;s ds edku ij Fkh] eSaus jksVh cuk;h cpk gqvk vkVk Mkyus jlksbZ esa x;h mlh le; esjk ifr xksrepan Hkjuh esa dsjkslhu rsy ysdj vk;k] rsy esjs ij Mky fn;k rFkk fryh ls vkx yxk nhA iz'u %& ml le; ?kj ij vkSj dkSu Fks \ mÙkj %& ml le; esjh lklq ckuhth] nsoj euksgj ?kj ij Fks] NksVs cPps ckgkj [ksy jgs FksA esjs pkj ikap lky dh yM+dh gS rhu lky dk yM+dk gS ?kj ij [ksy jgs Fks cPps le>nkj ugha gSA iz'u %& vkx fdlus cq>kbZ \ esjs nsoj euksgj us ikuh dh eVdh Mkyh rFkk jkyh vksMk dj vkx cq>kbZA iz'u %& ogka vkSj dkSu&dkSu vk;s \ mÙkj %& mlh le; xyh ds ckgkj ds yksx Hkh vk x;s dkSu Fks irk ugha pyk esjs dks T;knk gkSl ugha FkkA iz'u %& vkidh 'kknh dc gqbZ \ mÙkj %& esjh 'kknh vkt ls djhc N% lkr lky igys gqbZ Fkh esjk figj tks/kiqj egkeafnj esa gSA iz'u %& xksre pan us vkx D;ks yxk;h \ mÙkj %& xksrepan dgrk gS fd rsjs eEeh ikik ls iSls ysdj vk og dgrk fd nl gtkj :i;s ysdj vk eSus dgk fd esjs ekrk firk xjhc gS :i;s ugha ns ldrs gSA xksrepan esjh 'kknh gqbZ tc ls gh yM+kbZ djrk gSA xksrepan ckgkjh rkSj ij lh/kk Hkksyk utj vkrk gS ysfdu esjs ls >xM+rk Fkk ge ckM+esj esa fdjk;s jgrs gS rhu pkj edku cnys FksA xksrepan ds dckMh dh nqdku gSA ijlks lqcg >xM+k gqvk Fkk >xM+k dsoy xksrepan us gh fd;k FkkA llqjky esa eq>s esjs vkneh ds vykok vksj dksbZ ijs'kku ugha djrk FkkA esjh dHkh rch;r Bhd ugha jgrh rks og nokbZ Hkh ugha fnykrk FkkA xksrepan esjs lkFk ekjk dwVk djrk Fkk] nwdku ls vkrk rks ykr Bksdrk Fkk 'kjkc ihdj vkrk Fkk vkf[kj esa tyk fn;kA eSus xkSre ds O;ogkj ds ckjs esa eEeh ikik dks dHkh ugha crk;k] eSaus lkspk crkÅ¡xh rks vksj >xM+k gksxk ;g lkspdj lgu djrh jgh gwWA iz'u %& vkidks vksj dqN dguk gS mÙkj %& eq>s vkSj dqN ugha dguk gSA eSa lkr Dyk'k i<h gwW esjs gkFk tys gS gLrk{kj ugha dj ldrh gwWA (Downloaded on 27/06/2019 at 10:08:38 PM) (8 of 12) [CRLA-1176/2016] c;ku xokg et:o dks i<+dj lquk;s rks lgh gksuk ekudj vaxwBk fu'kkuh fd;sA"
A bare reading of the parcha bayan and dying declaration leaves no room of doubt so as to disbelieve the same as the sequence of events narrated therein is absolutely reliable and believable. The appellant being husband of the deceased was residing in the same house and, therefore, his presence in the house where the incident occurred is quite natural and cannot be doubted. The Parcha Bayan of Durga recorded by the police officer is duly endorsed the duty doctor (Ex.P/6) who categorically stated that the patient was fit to give statement so as the duty doctor vide Ex.P/7 had given certificate of fitness, therefore, the statement recorded was absolutely reliable and worth credence in the present case. The fact that the cause of death was burn injuries sustained by the deceased is clearly stated by the medical evidence in the shape of statement of Dr. M.P. Joshi (PW15) who conducted the autopsy of the deceased. He stated that the cause of death is septicemia and toxaemia due to burn injuries. The same is also fortified by the postmortem report wherein the cause of death is shown to be shock due to septicemia and toxemia as a result of extensive burns. The fact that burn injuries were sustained by the deceased after kerosene was poured over her body by the appellant and fire was ignited by him causing burn injuries is clear from her parcha bayan and dying declaration.
PW11 Bhagwan Das who is father of the deceased also stated that when he reached the Hospital, the deceased was almost having 90% burn injuries and thereafter, she was taken to (Downloaded on 27/06/2019 at 10:08:38 PM) (9 of 12) [CRLA-1176/2016] Jodhpur. The deceased narrated entire incident to him which was mentioned by her in the parcha bayan and dying declaration.
There is nothing on record which shows and suggests that the deceased was tutored by the father and other close family members to falsely implicate the appellant. The possibility of tutoring is also ruled out on the ground that in her Parcha Bayan and dying declaration, she had not levelled any allegation against her mother-in-law and brother-in-law, rather it is stated that the brother-in-law tried to douse the fire. Had there been tutoring or case of false implication then entire family members present in the house would have been enroped by her in the statement given by the deceased.
In view of the discussion made above, we have no hesitation in holding that the appellant after pouring kerosene oil had set fire on the body of Smt. Durga when his demand to bring more money and ornaments was not fulfilled by her and her parents. Besides, the dying declaration is absolutely worth credence and reliable as the same was recorded after getting fitness certificate of the doctor on duty.
However, the Hon'ble Supreme Court in the case of AIR 2009 SC 1626- Satish Ambanna Bansode V. State of Maharashtra has held as under;
"12. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to (Downloaded on 27/06/2019 at 10:08:38 PM) (10 of 12) [CRLA-1176/2016] observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction on the same without any further corroboration. 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.
This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Paniben v. State of Gujarat (1992(2) SCC 474) (SCC pp.480-81, paras 18-19)
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [See: Munnu Raja v. State of M.P.(1976 (3) SCC 104)]
(ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See: State of U.P. v. Ram Sagar Yadav (1985(1) SCC 552) and Ramawati Devi v. State of Bihar 1983(1) SCC 211))
(iii) The court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration.
[See: K. Ramachandra Reddy v. Public Prosecutor(1976 (3) SCC 618)])
(iv) Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. [See: Rasheed Beg v. State of M.P. (1974(4) SCC 264)]
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. [See: Kake Singh v. State of M.P.(1981 Supp. SCC 25)]
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.
[See: Ram Manorath v. State of U.P.(1981(2) SCC 654]
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (Seev State of Maharashtra v. Krishnamurti Laxmipati Naidu [1980 Supp. SCC455)]
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. [See: Surajdeo Ojha v. State of Bihar (1980 Supp.SCC 769)]
(ix) Normally, the court in order to satisfy whether the deceased was in a fit mental condition to (Downloaded on 27/06/2019 at 10:08:38 PM) (11 of 12) [CRLA-1176/2016] make the dying declaration looks up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. [See: Nanhau Ram v.
State of M.P.(1988 Supp. SCC 152)]
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [See: State of U.P. v. Madan Mohan (1989 (3) SCC 390)]
(xi) Where there are more than one statements in the nature of dying declaration, the one first in point of time must be preferred. Of course, if the plurality of the dying declaration could be held to be trustworthy and reliable, it has to be accepted. [See: Mohanlal Gangaram Gehani v. State of Maharashtra (1982 (1) SCC 700)]
13. In the light of the above principles, the acceptability of the alleged dying declaration in the instant case has to be considered. The dying declaration is only a piece of untested evidence and must, like any other evidence, satisfy the court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. 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 the basis of conviction, even if there is no corroboration. (See Gangotri Singh v. State of U.P.(1993 Supp(1)SCC 327)." The judgment relied upon by the learned counsel for the appellant has no application in the present case as the facts of that case cited by the appellant are entirely different since in that case the appellant also sustained injuries while he was trying to save the deceased and the incident had taken place at the spur of the moment. In that particular case, the deceased in her parcha bayan admitted that to save her efforts were made by the appellant as well and while doing so, he sustained injuries on his hands and legs. In the present case, the appellant after pouring kerosene upon the deceased, ignited fire on her body and ran away from the spot and fire was doused by the brother of the appellant and neighbors and they took her to the hospital. Therefore, the facts (Downloaded on 27/06/2019 at 10:08:38 PM) (12 of 12) [CRLA-1176/2016] of the present case are totally distinguishable from those prevailing the case law relied upon by the learned counsel for the appellant.
Therefore, in view of discussion made hereinabove, we are of the view that there is no force in the appeal. Consequently, the same is dismissed. The judgment dated 03.09.2016 passed by learned Additional Sessions Judge No.1, Barmer is upheld. Record of the trial court be sent back forthwith.
(VINIT KUMAR MATHUR),J (SANDEEP MEHTA),J 8-Anil Singh/-
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