Rajasthan High Court - Jaipur
Mohd Iqbal vs State Of Rajasthan Through Pp on 29 September, 2023
Bench: Pankaj Bhandari, Bhuwan Goyal
[2023:RJ-JP:22328-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 596/2016
Mohd. Iqbal son of Ali Ahemad, aged about 32 years, resident of
Village Dhampur, Police Station, Dhampur, District Bijnor, Uttar
Pradesh. At present tenant, House of Rashid Bhai, Nagtalai
Kacchi Basti, Police Station Galta Gate, Jaipur.
(At present confined at Central Jail Jaipur.
----Appellant
Versus
State Of Rajasthan Through PP
----Respondent
For Appellant(s) : Mr. Nikhil Sharma, Adv. &
Mr. Utkarsh Shara, Adv. for
Mr. Rajesh Goswami, Adv.
For Respondent(s) : Mr. Javed Choudhary, AGA
HON'BLE MR. JUSTICE PANKAJ BHANDARI
HON'BLE MR. JUSTICE BHUWAN GOYAL
Judgment
RESERVED ON :: 11/09/2023
PRONOUNCED ON :: 29/09/2023
(Per - Hon'ble Pankaj Bhandari, J.)
REPORTABLE
1. The appellant has filed the instant Criminal Appeal aggrieved by the judgment of conviction and order of sentence dated 11.05.2016 passed by the learned Additional Sessions Judge, Women Atrocities Cases, No.1, Jaipur Metropolitan, Jaipur, whereby accused appellant has been convicted and sentenced as hereinunder:-
(i) For the offence under Section 498-A IPC- 3 years rigorous imprisonment and a fine of Rs.20,000/- and in default of payment of fine, to further undergo, 3 months rigorous imprisonment.(Downloaded on 11/11/2023 at 08:25:23 PM)
[2023:RJ-JP:22328-DB] (2 of 22) [CRLA-596/2016]
(ii) For the offence under Section 302 IPC - Life imprisonment and a fine of Rs.50,000/- and in default of payment of fine, to further undergo, 6 months rigorous imprisonment.
Both the sentences were directed to run concurrently.
2. Succinctly stated the facts of the case are that on 13.05.2011, Aedal Prasad (PW-24), S.I., Police Station, Galta Gate, Jaipur (North) recorded a parchabayan (Exhibit-P21) of the victim wherein she has stated that her marriage was solemnized about 8 years back and that since the beginning, she has been subjected to cruelty on account of demand of dowry by her husband and his other family members. She has further stated that on 13.05.2011, her husband poured kerosene on her and set her ablaze, as a result of which, she sustained injuries. On the basis of the said parchabayan, the police registered an FIR bearing No.137/2011 (Exhibit-P22) for the offence under Section 498-A & 307 of IPC against the accused appellant, mother-in-law and sister-in-law of victim. During the course of treatment, the victim died and the charge under Section 302 IPC was added by the Investigating Officer. The police, after due investigation, filed charge-sheet against the accused appellant only under Sections 498-A, 307 & 302 IPC. The learned Trial Court, after committal of the case, framed charges against accused-appellant for offence under Section 498-A & 302 of IPC. The accused-appellant denied the charges and sought trial. Upon which, 26 witnesses were examined and 37 documents were exhibited on behalf of the prosecution. Explanation of the accused-appellant was recorded under Section 313 of Cr.P.C. In defence, 2 witnesses were (Downloaded on 11/11/2023 at 08:25:23 PM) [2023:RJ-JP:22328-DB] (3 of 22) [CRLA-596/2016] produced and 8 documents were exhibited. Learned Trial Court, after hearing the final arguments of both the parties, has convicted and sentenced the accused appellant as stated herein- above, aggrieved by which, the present appeal has been filed before this Court.
3. It is contended by learned counsel appearing for the accused appellant that the deceased was having illicit relationship with her brother-in-law - Mohammad Iqbal (PW-12) and a complaint of which was also made to the Village Panchayat. The Village Panchayat had forbidden Iqbal from visiting the house of the appellant, due to which, the deceased was under depression. It is also contended that family of the deceased had earlier levelled allegations against the accused appellant that he killed the brother of the deceased by black magic. The deceased was also under depression because of the false allegations levelled against the appellant. It is further contended that the provisions of Rule 6.22 of the Rajasthan Police Rules, 1965 have not been followed. The doctor in whose presence parchabayan was recorded, has not been examined by the prosecution. The parchabayan was not recorded in presence of two independent witnesses. It is also contended that parchabayan was recorded by Aedal Prasad, SI (PW-24), who is not a Gazetted Officer.
4. It is contended that at 9:30 am, the doctor had given a Fitness Certificate (Exhibit-P-23), parchabayan was recorded at 9:35 am by the Sub Inspector (SI) and deceased expired at 9:50 am. At the relevant time, Aedal Prasad, SI (PW-24) was present in (Downloaded on 11/11/2023 at 08:25:23 PM) [2023:RJ-JP:22328-DB] (4 of 22) [CRLA-596/2016] the hospital. It is argued that even after having knowledge of the demise of the deceased, an application was moved before the Chief Judicial Magistrate (CJM) to record the statement of the victim. As to why Aedal Prasad, SI (PW-24), sent a letter to the CJM after the demise of the deceased, is not explained by the prosecution. It is also contended that as per the postmortem report and the statement of Dr. Dipali Pathak (PW-5), deceased has sustained 95% burns. It is argued that if the deceased had sustained 95% burns, she could not have been in a position to give a parchabayan so clearly and that too, within few minutes. It is also contended that thumb impression obtained on the parchabayan was clear, which goes to show that the hands of the deceased were not burnt. It is also argued that if a person tries to set herself ablaze, then only the palms of that person are not burnt. In this regard, learned counsel has placed reliance on Nizammudin Versus State of Rajasthan: 2023 (1) Cr.L.R. (Raj.)
400.
5. It is contended that Dr. Dipali Pathak (PW-5) has also admitted in her cross-examination that the possibility that the injuries sustained by the deceased could be caused, if she set herself ablaze, cannot be ruled out. It is also contended that allegation of demand of dowry was not proved before the learned Trial Court and the witnesses i.e. Rahamtulla (PW-20), Mohammad Shameem (PW-21) and Mohammad Nasim (PW-22), have deposed before the Court that there was no allegation with regard to demand of dowry before the Village Panchayat. It is further contended that the marriage of appellant and deceased took place (Downloaded on 11/11/2023 at 08:25:23 PM) [2023:RJ-JP:22328-DB] (5 of 22) [CRLA-596/2016] 8 years ago and 3 children were born out of their wedlock. There was no complaint lodged on earlier occasion with regard to maltreatment of deceased on account of demand of dowry. It is also contended that independent witnesses have deposed with regard to cordial relations between the appellant and the deceased. It is further contended that Jaffar Ali (PW-1), uncle of the deceased and Rehmatulla (PW-2), relative of the deceased, have categorically stated that appellant and deceased had cordial relations. It is also contended that all the neighbours - Nafeesh Ahmad (PW-3), Sabeena (PW-9), Nasreen (PW-10), Kusum (PW-
11), Rasid (PW-13), Haseena Bano (PW-17), Asgari (PW-18) and Mushtaq (PW-19), have deposed that the appellant was having cordial relations with his wife- deceased.
6. It is contended that the learned Trial Court has erred in relying upon the statement of PW-6, a child witness, aged about 6 years and considering him as an 'eye-witness', despite the fact that the child witness has clearly deposed before the Court below that he was on the roof when the incident took place and when he woke up, many persons had assembled at the place of incident, meaning thereby that he was not an eye-witness to the incident and the Court below has clearly erred in treating him as an eye- witness. It is also contended that the appellant was with the police right from 10:00 am till the time he was shown arrested at 6:20 pm vide arrest memo (Exhibit-P-15) and thereafter, the pant is said to have been recovered from him.
(Downloaded on 11/11/2023 at 08:25:23 PM) [2023:RJ-JP:22328-DB] (6 of 22) [CRLA-596/2016]
7. It is argued that the appellant was taking bath when the incident took place and when he heard the cries of his wife, he ran to the spot and hair of his hands got singed, when he tried to pour water on the deceased. It is contended that Dr. B.L. Meena (PW-8) has admitted in his cross-examination that if a person is burnt and someone tries to save the person by pouring water, singeing can be caused by the flames. It is also contended that all the witnesses examined before the Court below have clearly stated that the deceased had committed suicide. No re-examination of these witnesses was done by the learned Public Prosecutor to clarify the matter.
8. It is contended that if the statements as a whole are to be considered, it can be concluded that the deceased had committed suicide and the learned Trial Court had committed an error in convicting the accused appellant solely on the statement of PW-6, a child witness and on the basis of parchabayan. Learned counsel has placed reliance on Sonia @ Sonaram Versus State of Rajasthan through P.P.: 2022 (2) Cr.L.R. (Raj.) 867; Uttam Versus The State of Maharashtra: Criminal Appeal No.485 of 2012; Irfan @ Naka Versus The State of Uttar Pradesh: Criminal Appeal Nos.825-826 of 2022; Nizammudin Versus State of Rajasthan through P.P.: 2023 (1) Cr.L.R. (Raj.) 400 and Pradeep Versus The State of Haryana: 2023 LiveLaw (SC) 501.
9. Per contra, learned Additional Government Advocate appearing for the State has opposed the appeal. It is contended that the learned Trial Court has correctly appreciated the evidence (Downloaded on 11/11/2023 at 08:25:23 PM) [2023:RJ-JP:22328-DB] (7 of 22) [CRLA-596/2016] and has convicted the accused appellant. Mohammad Kaif (PW-6), who happens to be son of the deceased and appellant, has deposed that the appellant had put her mother ablaze. The case was instituted on the parchabayan of the deceased, which was recorded 15 minutes prior to her demise. There was no chance of tutoring the deceased and thus, the judgment of conviction and order of sentence dated 11.05.2016 passed by the learned Trial Court deserves to be upheld.
10. We have considered the contentions raised by learned counsel for the parties and have carefully perused the evidence on record.
11. Before relying upon the testimony of a child witness, the Court has to come to the conclusion that the child witness is not tutored. In Pradeep Versus The State of Haryana (supra), the Apex Court has held that corroboration of the testimony of a child witness is not a rule, but a measure of caution and prudence. A child witness of tender age is easily susceptible to tutoring. However, that by itself is no ground to reject the evidence of a child witness. The Court must make careful scrutiny of the evidence of a child witness. The Court must apply its mind to the question whether there is a possibility of the child witness being tutored. Therefore, scrutiny of the evidence of a child witness is required to be made by the Court with care and caution. In the present case in hand, the child witness is aged about 6 years. He is stated to be the only eye-witness whose testimony has been (Downloaded on 11/11/2023 at 08:25:23 PM) [2023:RJ-JP:22328-DB] (8 of 22) [CRLA-596/2016] relied upon by the learned Trial Court for convicting the accused appellant.
12. PW-6, a child witness, who happens to be son of the deceased and appellant, has deposed that the appellant used to fight with his mother daily and that the appellant has put his mother ablaze. This witness has stated that when the appellant poured kerosene on his mother, at that time his grand-father, grand-mother and other persons were also there. However, in his cross-examination, this witness has admitted that he was sleeping on the roof and when he woke up, he saw the crowd and the police was taking his mother in a vehicle, and when the police came, he came down from the roof. He has also deposed that his father's hands were also burnt. He has also stated that when he came down from the roof, water had already been poured upon her mother and she was covered by a cloth. He has further stated that his father was taking bath at that time. He has also stated that he woke up on his own, as there was a loud noise.
13. From the entire evidence of this witness, what can be inferred is that this witness was sleeping on the roof when the incident took place. Thus, he has not witnessed the incident and when he heard loud noises, he came down from the roof, saw his father taking bath and when he reached the place of occurrence, water had already been poured upon her mother and she was covered by a cloth, meaning thereby that this witness cannot be considered to be an eye-witness of the alleged incident. Thus, learned Trial Court has clearly erred in considering PW-6 as an (Downloaded on 11/11/2023 at 08:25:23 PM) [2023:RJ-JP:22328-DB] (9 of 22) [CRLA-596/2016] eye-witness. All the neighbours, who reached the spot, have deposed that the deceased committed suicide and these witnesses were declared hostile by the prosecution.
14. The other circumstance, which has been considered by the Court below for convicting the accused appellant, is the parchabayan of the deceased. In Sonia @ Sonaram Versus State of Rajasthan through P.P. (supra), the Division Bench of this Court has held that the prosecution is required to prove that the deceased was in a fit mental condition to give statement. In that case, the deceased had sustained 100% burn injuries and there was no possibility of putting thumb impression. The Court disbelieved the parchabayan and acquitted the accused.
15. In Paniben (Smt.) Versus State of Gujarat: 1992 SCC (2) 474, on examining the entire conspectus of the law on the principles governing dying declaration, the Apex Court had concluded that:
"(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. Mannu Raja v. State of M.P., [1976] 2 SCR 764.
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. State of M. P. v. Ram Sagar Yadav, AIR 1985 Sc 416; Ramavati Devi v. State of Bihar, AIR 1983 SC 164.
(iii) This 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 opportunity to observe and identify the assailants and was in a fit state to make the declaration. Ram Chandra Reddy v. Public Prosecutor, AIR 1976 S.C. 1994.
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative (Downloaded on 11/11/2023 at 08:25:23 PM) [2023:RJ-JP:22328-DB] (10 of 22) [CRLA-596/2016] evidence. Rasheed Beg v. Sate of Madhya Pradesh, [1974] 4 S.C.C. 264.
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M. P., AIR 1982 S.C. 1021)
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P. 1981 SCC (Crl.) 531).
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurthi Laxmipati Naidu, AIR 1981 SC 617).
(viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. Surajdeo Oza v. State of Bihar, AIR 1979 SC 1505)
(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram and another v. State, AIR SC 912)
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State U.P. v. Madan Mohan, AIr 1989 S.C. 1519)"
16. In Nizammudin Versus State of Rajasthan through P.P. (supra), this Court found that there was material contradiction in parchabayan and site plan. The parchabayan was recorded in the presence of the brother of the deceased and there was possibility of tutoring. The parchabayan was thus disbelieved by the Court. In the present case in hand, parchabayan was recorded at 9:35 am on 13.05.2011. It is pertinent to note that Rule 6.22 of the Rajasthan Police Rules, 1965 was not followed by Aedal Prasad (PW-24), who is a Sub Inspector. Rule 6.22 of the Rajasthan Police Rules, 1965 reads as under:-
(Downloaded on 11/11/2023 at 08:25:23 PM)
[2023:RJ-JP:22328-DB] (11 of 22) [CRLA-596/2016] "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.
(5) A dying declaration made to a police officer should, under section 162, Code of Criminal Procedure, be signed by the person making it."
17. From bare reading of Rule 6.22 of the Rajasthan Police Rules, 1965, it is clear that a dying declaration shall, whenever possible, be recorded by a Magistrate. If no Magistrate can be obtained, the declaration shall, be recorded by a Gazetted Officer and if a Gazetted officer is not present, it shall be recorded in the presence of two or more independent witnesses. In this case, neither the parchabayan was recorded by a gazetted officer nor there was any independent witnesses to the parchabayan. The parchabayan was recorded by Aedal Prasad, SI (PW-24), who was not a gazetted officer and was not even able to depose as to who was the doctor, who gave the certificate of fitness. It is also pertinent to note that the doctor, who had given the certificate of fitness and who could have been an independent witness to the parchabayan, was not even produced before the Court below. Yet another thing, which (Downloaded on 11/11/2023 at 08:25:23 PM) [2023:RJ-JP:22328-DB] (12 of 22) [CRLA-596/2016] creates suspicion on the parchabayan, is the fact that the same SI
- Aedal Prasad (PW-24) approached the Chief Judicial Magistrate for recording the statement of the deceased by a Magistrate. He has deposed before the Court that he went to the Court for deputing a Magistrate to record the statement of the deceased. The application which he had given before the Chief Judicial Magistrate is Exhibit-D-5 wherein his signatures are marked as A to B. He has also deposed that before he reached to the Magistrate, the deceased had expired. It is important to note that this witness has deposed that he was there in the hospital till the deceased expired at 9:50 am. If the deceased had expired, there was no reason why Aedal Prasad, SI (PW-24) would approach the Chief Judicial Magistrate for deputing a Magistrate to record the dying declaration. This goes to show that the deceased did not give any parchabayan and it was later on concocted.
18. Non-examination of the doctor, who had given the fitness certificate, the parchabayan being recorded by non-gazetted officer, there being no independent witnesses to the dying declaration, the testimony of Aedal Prasad, SI (PW-24) to the effect that he went to the Court for appointment of a Magistrate to record dying declaration after the demise of the deceased casts a shadow of doubt on the prosecution version and the parchabayan itself becomes a suspicious document. The FIR under Section 307 IPC was registered at 10:15 am and till that time, the deceased had already expired, which fact was in the notice of Aedal Prasad, SI (PW-24), then as to why the FIR was registered under Section 307 IPC and not under Section 302 IPC, also creates a doubt on (Downloaded on 11/11/2023 at 08:25:23 PM) [2023:RJ-JP:22328-DB] (13 of 22) [CRLA-596/2016] the veracity of the parchabayan. Further, in the parchabayan, there was no mention that any certificate has been obtained from the doctor with regard to the condition of the deceased to give statement.
19. A perusal of Exhibit-P-23 reveals that certificate was given by the duty doctor to the effect that at present patient is conscious and oriented and can give valid statement. The certificate had time 9:30 am mentioned on it and in the very last line, the doctor has mentioned that patient has expired on 9:50 am on 13.05.2011. It is thus evident that no statement or parchabayan was recorded. It is also evident that fitness certificate was given by the doctor at 09:30 am and the parchabayan was recorded at 09:35 am, thus, recording of the parchabayan that too within 5 minutes after receipt of the certificate is very doubtful as the deceased sustained 95% burns. The other evidence, which has been relied upon by the learned Trial Court is the witness, who had deposed that the deceased has made a dying declaration in her presence. The related witnesses have made up a story of dying declaration, which cannot be relied upon for the very reason that the deceased had sustained 95% burns and the doctor, who had given the certificate with regard to fitness has not been examined.
20. The other side of the story is that the deceased was having relations with one Mohammad Iqbal (PW-12), which was being objected by the present accused appellant and therefore, Village Panchayat was convened and the Panchayat had restrained (Downloaded on 11/11/2023 at 08:25:23 PM) [2023:RJ-JP:22328-DB] (14 of 22) [CRLA-596/2016] Mohammad Iqbal (PW-12) to visit the house of the appellant. In this regard, witnesses i.e. Rahamtulla S/o Tola (PW-2), Nafeesh Ahmad (PW-3), Nasreen (PW-10), Sugra (PW-14), Haseena Bano (PW-17), Asgari (PW-18), Mushtaq (PW-19), Rahamtulla son of Hussain Bux (PW-20), Mohammad Shameem (PW-21) and Mohammad Nasim (PW-22), have stated that there was a dispute between the deceased and the accused-appellant, as brother-in- law of the deceased was visiting their house regularly, for which Panchayat was also convened and the Panchayat had restrained brother-in-law from coming to the house of the appellant. The entire evidence adduced by the prosecution clearly points out towards deceased being under depression as she was not permitted to meet her brother-in-law. She was also under depression after demise of her brother, as allegation of death of her brother was levelled on the appellant and it was alleged that he had done black magic on the brother of the deceased. She was also under depression because a false allegation was made against her husband.
21. So far as allegation of demand of dowry is concerned, the learned Trial Court has come to the conclusion that the witnesses in this regard are not reliable. The marriage of the appellant and the deceased had taken place around 8 years ago and both the husband and wife along with their children were residing together. All the witnesses i.e. residents of the nearby vicinity, have deposed that the deceased had committed suicide. The appellant, who was taking bath, went running to save his wife and he also sustained singeing burn on his hands, which as per the doctor (Downloaded on 11/11/2023 at 08:25:23 PM) [2023:RJ-JP:22328-DB] (15 of 22) [CRLA-596/2016] could be caused while trying to douse the flames. It is also pertinent to note that Kusum (PW-11), Sugra (PW-14), Haseena Bano (PW-17) and Mushtaq (PW-19), have stated that the deceased had committed suicide. Learned Public Prosecutor has not re-examined these witnesses and hence, their testimony to the effect that the deceased had committed suicide cannot be discarded. The witness Mushtaq (PW-19), who has been declared hostile, has stated that he along with his wife were first to reach the place of incident and at that time, appellant was only wearing underwear and he was trying to douse the flames. This witness has also deposed that deceased- Mumtaj was saying that she was under tension and that she has set herself on fire and that there is no fault of appellant.
22. The other evidence, which is important and relevant for the purpose of disposal of this appeal is the evidence of Anoop Singh, Investigating Officer (PW-26). The Investigating Officer has admitted that appellant was trying to pour water and douse the flames. He has also admitted that in the charge-sheet, no conclusion with regard to demand of dowry has been made. Thus, version of the witnesses that the appellant tried to pour water and douse the flames, is also admitted by the Investigating Officer. The evidence of PW-6 - child witness is untrustworthy for the very reason that he was sleeping when the incident took place and so he is not an eye-witness to the incident. The accused appellant was taken in custody at 10:15 am and his arrest has been shown at 6:20 pm. As per the prosecution and the evidence adduced before the Court, the accused was wearing underwear at the time (Downloaded on 11/11/2023 at 08:25:23 PM) [2023:RJ-JP:22328-DB] (16 of 22) [CRLA-596/2016] of alleged incident and as per the doctor, he had sustained singeing burn on his hands while trying to douse the flames. He also banged his head against the wall and sustained injury on his head under grief, as the deceased had put herself on fire. The injuries sustained by the appellant is established by his Injury Report (Exhibit-P7) and the statement of Dr. B.L. Meena (PW-8).
23. From perusal of the photographs of the place of incident (Exhibits-P-24 to P-36), it can be inferred that the incident had taken place in a small room wherein clothes of the family members were also lying. The possibility of kerosene spilling on the clothes of the appellant cannot be ruled out. Thus, the recovery of pant and that too after 8 hours of taking the accused in custody cannot be made a ground for convicting the accused appellant for the alleged offence.
24. The Apex Court in Pavankumar Parasnath Trivari Versus State of Gujarat: (1999) SCC Cr. 354 in Para 8 has observed as under:-
" After giving our careful consideration to the facts and circumstances of the case and the submissions made by learned counsel for the parties, it appears to us that there are some disturbing features in this case of the prosecution, as disclosed in the dying declaration recorded by the learned Magistrate, that she was dragged by the accused inside the house and thereafter threatening to kill her, kerosene was poured on her body and she was set on fire. It has however transpired from the evidence of PW 4 Jilu that there were a number of persons collecting water almost in front of the house of the accused. If the deceased, an able-bodied person was attempted to be forcibly dragged inside the house, it was quite natural that she should shout and raise a (Downloaded on 11/11/2023 at 08:25:23 PM) [2023:RJ-JP:22328-DB] (17 of 22) [CRLA-596/2016] voice of protest, more so, when she was taken inside the house and the door was bolted and she was threatened to be killed. There is no evidence that anybody had heard any shout for help. Even when she was set on fire, nobody heard her screams or any appeal for help. When PW 4 being requested by the accused entered the house and was told by the accused that the deceased was burning, even then she did not hear any scream or shout for help. According to the evidence of PW 4, the deceased silently came out from the room and after sitting in the "wada", she only requested Jilu to bring curd for being applied on her body. Such conduct appears to be quite unusual and does not conform to the case of being forcibly dragged into the house and thereafter being set on fire by pouring kerosene. On the contrary, such a case reasonably justifies a case of committing suicide as contended by the accused. We may also note here that the doctor who held an autopsy has also stated that such burning was also possible if somebody would commit suicide. It may be indicated here that Mr Sushil Kumar, the learned counsel for the appellant has also submitted that both the palms of the deceased were not burnt. Such a fact indicates that she had committed suicide because in that event, the palms were not likely to be affected. In a case of homicidal burning by pouring kerosene on the body by another person, the palms along with the other parts of the body will get burnt. We may also indicate here that the dying declaration of the victim as recorded by the Magistrate run counter to the deposition of PW 4. Though in her dying declaration, the deceased stated specifically that she shouted for help, Jilu (PW 4) deposed that she did not hear any such shout for help. It also appears to us that the mother of the deceased, shortly after the incident, reached the place of the occurrence and when Banraj had left the place, she was there. It is not unlikely that at that point of time, barring the accused, no other person was present along with the deceased. There is evidence that the mother had remained with the deceased all the time and when the dying declaration was recorded by the Magistrate, the mother was also present and she also put a thumb impression on the dying declaration. Her conduct in being a party to a fabricated piece of dying declaration recorded by the police constable which was (Downloaded on 11/11/2023 at 08:25:23 PM) [2023:RJ-JP:22328-DB] (18 of 22) [CRLA-596/2016] rightly discarded by the courts below cannot be overlooked. In the aforesaid circumstances, in our view, there is justification for the trial court to proceed on the footing that reliance should not be placed on the dying declaration. In the aforesaid facts, the view taken by the trial court for giving the benefit of doubt in favour of the appellant cannot be held to be absolutely without any basis and against the weight of evidence adduced in the case. Hence, in our view, there was no occasion to interfere with the order of acquittal passed in favour of the appellant. We, therefore, allow this appeal and set aside the conviction and sentence passed against the appellant. The appellant is in jail. He should be released forthwith, if he is not wanted in connection with any other criminal case."
25. Had this been a case of forcefully pouring kerosene and putting the deceased ablaze, she would have shouted for help and raised an alarm, but that is not the case of the prosecution. Thus, it is evident that the deceased had committed suicide and the accused appellant was falsely roped in by the prosecution. The parchabayan bears the thumb impression of the deceased, which means that her palms were not burnt, as has been held by the Apex Court in Pavankumar Parasnath Trivari Versus State of Gujarat (supra). The present can be a case of suicide. Even Dr. Dipali Pathak (PW-5) has admitted that the possibility that the deceased set herself ablaze cannot be ruled out.
26. From the above, we have come to the conclusion that parchabayan is doubtful for the very reason that the Officer, who had recorded the parchabayan, did not record the same in the presence of any independent witness. The doctor, who had given the fitness certificate, was not produced before the Court and the parchabayan of the injured having 95% burns was recorded within (Downloaded on 11/11/2023 at 08:25:23 PM) [2023:RJ-JP:22328-DB] (19 of 22) [CRLA-596/2016] 5 minutes of giving of the certificate by the doctor. Further, we have also observed that it is strange and beyond comprehension that after recording the parchabayan and after it was known to Aedal Prasad, S.I. (PW-24) that the injured has expired, he approached the Chief Judicial Magistrate for deputing a Magistrate to record the dying declaration of the deceased. Thus, the entire proceedings have been initiated against the accused just to falsely implicate him.
27. The Apex Court in S. Nambi Narayanan Versus Siby Mathews & Ors.: 2018 (10) SCC 804, has awarded compensation on account of malicious investigation. In the case before the Apex Court, the appellant was arrested on allegations of espionage. The CBI, after investigation, submitted report indicating that allegations of espionage were found to be false and accused was discharged. S. Nambi Narayanan had to remain in custody for 50 days. The Apex Court in that case observed that the lackadaisical attitude of the State police to arrest anyone and put him in police custody has made the Appellant to suffer the ignominy. The dignity of a person gets shocked when psycho-pathological treatment is meted out to him. A human being cries for justice when he feels that the insensible act has crucified his self-respect. The Court observed that this warrants grant of compensation under the public law remedy and the Apex Court granted Rs.50 Lakhs as compensation.
28. The Apex Court referred to Sube Singh Versus State of Haryana and Ors.: (2006) 3 SCC 178, where the Apex Court (Downloaded on 11/11/2023 at 08:25:23 PM) [2023:RJ-JP:22328-DB] (20 of 22) [CRLA-596/2016] opined that the award of compensation against the State is an appropriate and effective remedy for redressal of an established infringement of a fundamental right under Article 21, by a public servant. The quantum of compensation will, however, depend upon the facts and circumstances of each case. Award of such compensation (by way of public law remedy) will not come in the way of the aggrieved person claiming additional compensation in a civil court, in the enforcement of the private law remedy in tort, nor come in the way of the criminal court ordering compensation under Section 357 of the Code of Criminal Procedure. In Hardeep Singh Versus State of Madhya Pradesh: (2012) 1 SCC 748, the Court was dealing with the issue of delayed trial and the humiliation faced by the appellant therein. A Division Bench of the High Court in intra-court appeal had granted compensation of Rs.70,000/-. The Apex Court while dealing with the quantum of compensation, highlighted the suffering and humiliation caused to the appellant and enhanced the compensation. In Chandresh Marskole Versus The State of Madhya Pradesh: Criminal Appeal No.1580/2009 decided on 04.05.2022, the High Court awarded Rs.42 Lakhs as compensation to the accused, who had remained in custody for more than 13 years awaiting justice.
29. On perusal of the entire evidence, it is clear that the deceased tried to commit suicide. The present accused appellant, who is husband of the deceased and who was taking bath at the time of incident, ran in underwear and poured water to douse the fire and thereafter, banged his head on the wall under grief, which is the evidence given by all the neighbours, thus, the accused in (Downloaded on 11/11/2023 at 08:25:23 PM) [2023:RJ-JP:22328-DB] (21 of 22) [CRLA-596/2016] fact was a victim, who has lost his wife and who has been made an accused in this case and has remained in custody for a period of more than 12 years and 4 months and who was deprived of the company of his three minor children. The Court cannot lose sight of the wrongful imprisonment, malicious prosecution, the humiliation and the defamation faced by the appellant and prime years i.e. more than 12 years of his life were being squandered in jail. We are of the considered view that he cannot be adequately compensated in terms of money, but at least a message has to go to the society and to persons acquainted with the appellant. The appellant has been acquitted and he has been compensated for his wrongful prosecution and for curtailing of his liberty enshrined under Article 21 of the Constitution of India. We, therefore, while allowing the appeal and setting aside the judgment of conviction and sentence dated 11.05.2016, award Rs.25,00,000/- (Rupees Twenty Five Lakhs Only) as compensation to the appellant. The compensation is to be paid by the State Government within three months of the date of this order. In case, the amount of compensation is not paid within 3 months, appellant would be entitled to interest @ 6% per annum till date of payment. A copy of this order be sent to the Chief Secretary, Government of Rajasthan.
30. Criminal Appeal is accordingly allowed. The appellant be set at liberty forthwith, if not wanted in any other case or for any other purpose. Before parting with the case, we would like to appreciate the efforts put in by Mr. Nikhil Sharma, Advocate, in assisting the Court.
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31. Appellant is directed to furnish personal bond in the sum of Rs.50,000/- and a surety bond in the like amount in accordance with Section 437-A of Cr.P.C. before the Registrar (Judicial) within two weeks from the date of release to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellant on receipt of notice thereof, shall appear before the Hon'ble Apex Court. The bail bond will be effective for a period of six months.
32. Record of the case along with certified copy of this order be sent forthwith to the learned Trial Court.
(BHUWAN GOYAL),J (PANKAJ BHANDARI),J
SUNIL SOLANKI /PS
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