Kala Ram vs State And Anr on 29 August, 2013

[Cites 10, Cited by 0]

Jammu & Kashmir High Court

Kala Ram vs State And Anr on 29 August, 2013

1. This appeal is by one Kala Ram who has been convicted under sections 498-A and 302 RPC by 1st Additional Sessions Judge, Jammu vide judgment and order dated 30.04.2011. He has been sentenced to rigorous imprisonment for life and fine of Rs. 2000/ under Section 302 RPC and rigorous imprisonment for six months and fine of Rs. 1000/ under Section 498-A RPC.

2. Heard. We have perused the record.

3. On 11.10.2007, Sharda Devi, the wife of the appellant, received severe burn injuries in an incident which took place in their house at village, Marjhali within the jurisdiction of Police Station, Gharota of Jammu district. She was rushed to Government Medical College Hospital, Jammu from where she was shifted to Army Hospital, Satwari Jammu. On 12.10.2007, Head Constable (HC), Kuldeep Kumar, who was deputed from the above said Police station, recorded her statement in the Army Hospital. She stated, briefly, that her husband Kala Ram (Appellant) and his parents, Bikru Ram and Taro Devi had been harassing and beating her for bringing more dowry. Her husband had been insisting that she should bring a Motorcycle for him from her parents. She also stated that on 11.10.2007, her husband after hatching a conspiracy with his parents doused her with petrol and set her ablaze with the intention of causing her death. This statement of the victim was registered as FIR No. 58/2007 under section 307,498-A, 109 RPC and investigation commenced. The victim, who had suffered 90 per cent burn injuries, succumbed to the injuries in the Army hospital on 16. 10. 2007. Investigation was carried 3 out by the SHO. Police Station, Gharota. On completion of the investigation charge sheet under Sections 302, 498-A & 109 RPC was preferred against the appellant (A-1) and his parents, Bikru Ram (A-2) and Taro Dev (A-3) in the Commital Court. After completion of formalities connected with the fact that appellant was an Army personnel, case was committed for trial and came to be assigned to the Court of learned 1st Additional Sessions Judge, Jammu.

4. Learned trial Court after finding prima facie case under sections 302 and 498-A RPC against the appellant (A-1) and under section 498-A against A-2 and A-3, framed charges against them. All of them pleaded not guilty and claimed to be tried. Prosecution thus examined 13 out of the 16 witnesses cited in the charge sheet. The witnesses examined are; Sham Lal (PW-1), Natha Ram (P-2), Sanjay Kumar (P-3), Ravi Kumar (P-4), Yudhvir Singh (P-5), Garu Ram(P-6), Manohar Lal (P-7), HC Harvesh Kumar (P-8), Kunti Devi (P-9), Vinod Singh (P-10), L/Nk Sanjay Kumar (P-13), Sukhdev Singh Patwari (P-14) and Dr. K. K. Thakur (P-15). The statement of the deceased recorded in the hospital on 12. 10. 2007 was relied upon by the persecutions as her dying declaration. Statements 4 of the appellant and A-2 were recorded in terms of Section 342 of the Code of Criminal Procedure (for short the Code) whereas, A-3 has expired during the trial. Accused, however, did not lead any evidence in defence.

5. Learned trial Court, firstly, after considering the evidence as regards the offence under section 498- A RPC, held that prosecution has succeeded in proving charge of cruelty under section 498-A RPC against A-1 (Appellant) but there was no cogent evidence to prove the offence of cruelty against A-

2. Learned Court after considering the evidence as regards the offence under section 302 RPC further held that prosecution has proved its case against appellant (A-1) and therefore, while acquitting A-2, held the appellant guilty, convicted him under sections 320 and 498-A RPC and imposed the sentence as stated above.

6. As regards the offence under section 498-A RPC learned trial Court has relied upon the evidence rendered by PW- 1(father of the deceased) PW 9 (mother of the deceased), PW-6 (brother of the deceased) and PW-7 (cousin of the deceased).

7. While dealing with the charge under section 302 RPC, learned trial Court started with ruling out the possibility of the death of the deceased being suicidal. Learned Court has observed that it was not the case of either party that, despite having strained relations with her husband, the deceased had developed suicidal tendencies. Learned Court also took the view, that having been blessed with motherhood, a caring mother would not commit suicide leaving the future of her minor children under uncertainties. Learned trial Court also took note that it was not the case of either party that deceased Sharda Devi died a natural death. Learned Court, therefore, confined the scope of determination to the issue whether deceased died homicide death at the hands of accused persons or incidental death as suggested by defence. In this context, learned trial Court took note of the explanation given by the appellant in his statement recorded under Section 342 of the Code that the deceased had died in an accidental fire, as she was igniting a stove and had mixed kerosene with petrol, which engulfed her and caused burn injuries leading to her death. This according to the appellant was conveyed to him by PW-3 and PW-4, who are the brother and brothers son of the appellant. Contextually, it is in place to note here 6 that both these witnesses have stated so while deposing as prosecution witnesses.

8. We have carefully analysed the impugned judgment and order. Indisputably, there is no direct evidence to the incident of burning. Learned trial Court, however, seems to have mainly relied upon statement, Ex. PW-KD, of the deceased said to have been recorded by HC Kuldeep Kumar on 12.10.2007 at Army Hospital, Satwari. This statement was registered as the FIR and has been used by the prosecution at trial as dying declaration of the deceased. Besides relying upon the dying declaration, learned trial Court has taken into consideration the conduct of accused and plea of alibi raised by the accused. In addition, learned trail Court has relied upon the disclosure statement of the appellant (accused) leading to recovery of plastic bottle containing few drops of petrol and a match box.

9. As regards the dying declaration, prosecution case, as it reveals from the record, is that immediately after the incident on 11.10.2007 deceased was shifted to Government Medical College, Hospital, Jammu from where she was taken to Army Hospital at Satwari. On the same day one Investigating Head 7 Constable (IHC) from Police Station, Gharota had approached the Chief Medical Officer (CMO) at the Medical College Hospital through a docket for recording her statement but the CMO had endorsed on the docket that she was not fit to give statement at that time. On 12.10.2007, however, HC Kuldeep Kumar visited Army Hospital, Satwari, where Doctor gave his opinion endorsed on the docket that patient was fit for giving her statement. Accordingly, said Kuldeep Kumar recorded her statement and on the basis of this statement, FIR was registered.

10. Mr. J. P. Gandhi, learned counsel for the appellant would say that statement recorded on 12.10.2007 cannot be said to be the dying declaration of the deceased for the reason that it was recorded prior to registration of the FIR. He argued that this statement was aimed at registration of the FIR and was not recorded as a dying declaration. He would say further that even if statement is taken as dying declaration of the deceased, it has not been proved before the trial Court inasmuch as the police official, who recorded the statement, has not been examined as witness. He argued further that the statement cannot be relied upon because neither any Magistrate nor 8 doctor was present at the time of recording of the statement and that the doctor said to have issued the certificate that deceased was fit to give her statement has not been examined. He, therefore, concluded that learned trial Court has fallen into error by relying upon, what he calls, so called dying declaration of the deceased. Mr. Gandhi relied upon Govind Narrain v State of Rajasthan, 1993 SC 2457, pointing out that their Lordships of the Supreme Court have refused reliance on a dying declaration because its scribe constable was not produced before the trial Court as witness.

11. Per contra, Ms. Z. S. Watali, Dy. A.G has supported the impugned judgment and order contending inter alia that prosecution has sufficiently proved the dying declaration by producing independent witness, PW. L/Nk Sanjay Kumar, in whose presence statement was recorded. She also contended that any statement of the deceased relating to the cause of his death can be used as dying declaration, notwithstanding the time of recording of the same and that recording of dying declaration by a Magistrate or certification of fitness by Doctor is not sine qua non for relying upon the same, if reliable.

12. We will first deal with the conviction under section 498-A RPC. As said above, learned trial Court in this regard has relied upon only the evidence rendered by PW- 1(father of the deceased) PW 9 (mother of the deceased), PW-6 (brother of the deceased) and PW-7 (cousin of the deceased). We have perused the depositions of these four witnesses and are persuaded freely to agree with the view taken by the learned trial Court as regards the acceptability and sufficiency of the evidence rendered by them in proof of offence under section 498-A. We find no reason for interfering with the judgement of the learned trial Court to this extent.

13. We now take up conviction under section 302 RPC. While dealing with the dying declaration, Ex. PW-KD, and relying upon it, learned trial Court has referred to deposition of PW L/Nk Sanjay Kumar, whose name figures as a witness to the said declaration. He has stated that deceased Sharda Devi was undergoing treatment in Army Hospital, Satwari. In his presence police was inquiring from the deceased about the occurrence and the deceased had stated that accused Kala Ram has burnt her after dousing her with petrol and that deceased had also stated that her marriage with 10 accused Kala Ram had taken place some five years prior to the occurrence. Learned trial Court has accepted his evidence observing that he was an Army personal and has no animus against the accused and that he appears to have given natural and truthful account of statement given by the deceased before her death. Learned trial Court has also drawn support from the depositions of PWs Natha Ram and his son Sanjay Kumar who, as per the trial Court, have admitted that deceased had told them that she caught fire accidentally. Trial Court has also observed that it cannot be said that deceased had lost power of speech completely. Learned trial Court, nonetheless, has taken note that the doctors, who had made endorsements on the dockets have not been cited as witnesses, there was nothing on record to suggest why from the date of occurrence to date of death, that is, 11.10.2007, 16.10.2007, services of a Magistrate were not requisitioned for recording dying declaration and why the dying declaration was not witnessed by the Doctor attending upon her, who had made certification on 12.10.2007 that she was fit to make statement. Contextually, learned trial Court has condemned the omission on the part of the investigating officer of the case as extreme inefficiency bordering on criminal negligence or for 11 extraneous reasons. Learned trial Court, however, framed propositions, whether dying declaration not recorded by a Magistrate or in presence of doctor cannot be relied upon in order to connect the accused with the commission of offence and whether the court should play in the hands of mischievous investigation officer. Learned trial Court has thereafter referred to lot many judgements of the Supreme Court dealing with various aspects of a dying declaration as a piece of evidenced in a criminal trial. However, what we have noticed and are rather amazed to notice is that learned trial Court has not recorded any finding whether the evidence led by the prosecution was legally sufficient to prove the dying declaration and whether the said dying declaration satisfies all the tests for its admissibility as substantive evidence in support of the charge. We feel it apt to reproduce verbatim the conclusion recorded by the learned trial Court to underline how the important aspect of the case has been dealt with:

Thus, in view of the above, the law on the point can be summarised that the evidence of the witnesses must be read as a whole and the cases are to be considered in totality of the circumstances and while appreciating the evidence of a witness, minor discrepancies on the trivial matters, which do not affect the core of the prosecution case, should not be taken 12 into consideration as they cannot form grounds to reject the evidence as a whole.

14. We cannot resist saying briefly, the conclusion recorded by the learned trial Court is far from the context in which it has been recorded.

15. To use a statement, verbal or written, as dying declaration of a person who is dead and rely upon it as substantive evidence, prosecution must prove the same as a fact. Prosecution has to prove that the declaration was made by the deceased.

Such declaration may have been made verbally to or in presence of some person/persons or may have been reduced into writing when it was made. In Kans Raj v. State of Punjab, AIR 2000 SC 2324, their Lordships of a three-Judge Bench of the Supreme Court have held:

10. Section 32 of the Evidence Act is an exception to the general rule of exclusion to the hearsay evidence and the statements of a person, written or verbal, of relevant facts, after his death are admissible in evidence if they refer to the cause of his death or to any circumstances of the transaction which resulted in his death. To attract the provisions of Section 32, for the purposes of admissibility of the statement of a deceased the prosecution is required to prove that the statement was made by a person who is dead or who cannot be found or whose attendance cannot be procured without an amount of delay or expense or he is incapable of giving evidence and that such statement had been made under any of the circumstances specified in sub-sections (1) to (8) of Section 32 of the Act. ...To 13 make such statement as substantive evidence, the person or the agency relying upon it is under a legal obligation to prove the making of such statement as a fact. If it is in writing, the scribe must be produced in the Court and if it is verbal, it should be proved by examining the person who heard the deceased making the statement. (Emphasis supplied)

16. View expressed by Their Lordships in Kans Raj (supra) has been reiterated with approval by their Lordships recently in Vinay D. Nagar v. State of Rajasthan 2008 AIR SCW 1709.

17. Judicially approved legal evidence for proving a dying declaration is the statement of its scribe.

We may in this regard, besides Kans Rajs case (supra), refer to Govind Narrain and anr. v. State of Rajasthan, AIR 1993 SC 2457. In this case Ex. P-3 was relied upon by the prosecution as a dying declaration of the deceased but their Lordships refused reliance upon the same for the reason that its scribe was not produced at trial. Their Lordships have observed in para 14 of the Judgment as under:

That takes us now to the consideration of the dying declaration alleged to have been reduced into writing, exhibit P-3. The High Court as well as the trial court have disbelieved exhibit P-3 for a variety of reasons. Even if we agree with Mr. Makwana, learned Counsel for the complainant that some of the reasons given by the High Court to discard 14 exhibit P 3 were not sound, we find that no reliance can be placed on the document exhibit P-3 for the simple reason that the scribe of the document, Shri Jagdish Narain, constable, for the reasons best known to the prosecution, was not examined at the trial and the defence therefore, had no opportunity to cross examine him. Mohammed Ali P.W. 4 has failed to explain the cause for non production of Jagdish Narain. We are, therefore, in agreement both, with the trial court and the High Court, that there are sufficient reasons on the record to justify the discarding of the alleged dying declaration contained in exhibit P 3 and we do not place any reliance on the same.

18. Importance of examining scribe of dying declaration at trial is discernible from the observation of their Lordships of the Constitution Bench in Laxman v. State of Maharastra (2002) 6 SCC 710. Their Lordships in this case, while underlining juristic theory regarding acceptability of a dying declaration, have emphasized requirement of great caution to be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. Their Lordships inter alia have emphasized as essential requirement that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. 15

19. The Constitution Bench in that case has also referred to a three-Judge Benh decision of the Supreme Court in Koli Chunilal Savji v State of Gujrat, (1999)9 SCC 432, wherein it was held by Their Lordships that the ultimate test is whether the dying declaration can be held to be truthful one and voluntarily given and it was also held that the officer concerned must find that the declarant was in a fit condition to make the statement in question

20. It is the scribe of the document who through his deposition tested with the yardstick of cross examination can satisfy the court that he had recorded thSSe statement after having been satisfied that the person making the statement was in fit statement of mind to make a voluntary statement. He can explain as to how he was so satisfied.

21. As per the prosecution case, scribe of the dying declaration alleged to have been made by the decease, EX-PW KD, was Head Constable, Kuldeep Raj. This is stated in the opening words of the FIR and the charge sheet. He, however, has not been examined at trial nor cited as witness. Here we may point out that learned trial Court at page 33 of the impugned judgement has made incorrect statement of fact that the dying declaration has 16 been recorded by PW-I, a Head Constable of Police Station, Gharota. PW-I as per the list given in the charge sheet, however, is Sham Lal. Due to prosecutions failure to produce the scribe at trial, it cannot be said that making of the dying declaration by the deceased has been proved.

Rather it is to be held that prosecution has failed to prove the dying declaration allegedly made by the deceased. It is not understandable why the scribe has not been produced or cited as a witness in the case. Investigating Officer of the case, who happens to be the SHO of the Police Station too has not been examined at trial so it remains a mystery why such an important witness of the alleged dying declaration has been kept back.

22. The alleged dying declaration, Ex. PW DK could not have been and cannot be relied upon as evidence in support of the prosecution case for the simple reason that it has not been proved by producing its scribe before the Court.

23. If prosecution in a case proves a dying declaration as a fact by examining its scribe, consideration would shift to its reliability and value as evidence about the cause of the death of its maker. Court, having regard to the prosecution 17 evidence and the principles of caution governing consideration of dying declaration, has to determine whether the dying declaration is truthful and voluntary. It goes without saying that dying declaration is an exception to general rule against hearsay. It is something stated by a person who cannot be brought before the court and the accused against whom the declaration is going to be used as evidence cannot be provided opportunity to cross-examined him. The court has therefore to be guarded to see that the statement was not the result of tutoring or prompting or a figment of imagination. The Court must be satisfied that the deceased was in a fit state of mind at the time of making the declaration. To say precisely the evidence led by the prosecution should be of such nature that the dying declaration inspires full confidence of the court in its truthfulness, correctness and voluntary nature.

24. Judicially evolved principles of caution governing dying declaration have been summed up by Their Lordships in Paniben v. State of Gujarat (1992) 2 SCC 474 as under:

(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.

(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.

(iii) The Court has to scrutinize 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.

(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence.

(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected.

vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.

vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected.

(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.

(ix) Normally the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion.

But whether the eyewitness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail.

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon."

25. Recently, these principles have been reiterated by Their Lordships of the Supreme Court in Vikas and ors. v State of Maharastra, (2008) 2 SCC 516 and even more recently in Sukanti Moharana v State of Orrisa, AIR 2009 SCW 6161.

26. We have, however, considered in particular whether the deceased was in fit state of mind at the time of the recording of the dying declaration, presuming that the same was duly proved by the prosecution, because mental fitness of the deceased is the most important condition for relying upon the dying declaration. Court must be satisfied that the person making the dying declaration was in a fit state of mind at the relevant time. We may state it as a matter of rule that normally the medical opinion would be the best evidence about the mental fitness of the deceased at the time the declaration is made but if from the evidence of the witnesses court is satisfied that the deceased was in fit state of mind to make the declaration, the opinion of the doctor neither need to be insisted upon nor would prevail. This legal position is clearly stated by Their Lordships of the Constitution Bench in Laxmans case (suprs) and earlier referred to in Paniben (Supra).

27. In considering the fitness of the deceased at the time of the recording of Ex. PW KD, evidence rendered by PW-Dr. K. K. Thakur, who had performed autoposy on the dead body of the 20 deceased, cannot be lost sight of. According to him approximately 90 per cent body surface of the deceased had suffered burn injuries. In crossexamination, he says that due to extensive burns over face and nostrils and inflammation of trachea and larynx the deceased was in no position to speak more than few words before her death because ordinarily a person suffering with such burn injuries cannot make a long statement. In this backdrop, it needs to be pointed out that the alleged dying declaration Ex. PW KD spreads over more than a full page. It contains a detailed account of facts including other than what had happened on the day of incident.

28. There is nothing, however, in the deposition of PW-L/Nk. Sanjay Kumar, whom the prosecution has examined as the sole witness to the alleged dying declaration, about the physical condition or mental fitness of the deceased at the time of recording of the statement on 12. 10. 2007. In this regard, learned trial Court seems to have drawn support from the evidence of PWs Natha Ram and Sanjay Kumar but we, having gone through their depositions, feel that it was not possible. These two witnesses, one of them being brother and other brother's son of the appellant, have stated 21 that after the incident the deceased had said that she caught fire accidentally. Learned trial Court has rejected their versions observing that they have stated so in order to help the accused to escape the punishment and we find nothing useful in their depositions as regards the mental fitness of the deceased on 12. 10. 2007. We have a reason in not looking to the depositions of these two witnesses in context of the mental fitness of the deceased to make statement on 12.10.2007. Role of these two witnesses is confined to the time immediately after the incident on 11. 10. 2007. As per their depositions, both of them had together extinguished the fire from the body of the deceased and taken her in a vehicle to Government Medical College Hospital, Jammu. However, according to PW Natha Ram, the statement that deceased caught fire accidentally, was given by the deceased at the place of occurrence whereas, according to PW Sanjay Kumar such statement was given on their way to the hospital in the vehicle. Statement of these two witnesses at the most can be relied upon to the extent of their say that they had extinguished the fire from the body of the deceased and taken her to the hospital and in no case as regards mental and physical fitness of the 22 deceased to make a statement on next day, that is, 12.10.2007.

29. We after a cautious scrutiny of the depositions of all the prosecution witnesses have found no evidence to believe that deceased was mentally fit to make a dying declaration, much less, a detail statement on 12.10. 2007. In absence of such evidence, prosecutions failure to produce the scribe and the Doctor, who issued the fitness certificate on 12.10.2007, assumes importance. These two witnesses could have stated whether the deceased was in fit state of mind to make the statement and it could have been ascertained from the Doctor, having issued fitness certificate, whether the detailed statement of the nature could have been made or not, having regard to the nature and extent of burns suffered by her.

30. When we were going through the depositions of the witnesses, it was pointed out to us that the deceased had stated to her mother PW-Kunti Devi and her brother PW-Garu Ram that she was set ablaze by her husband after dousing her with petrol. Learned Dy. A. G. sought to project that depositions made by these two witnesses show that the deceased was mentally fit to make dying 23 declaration and whatever stated by her to them is to be treated as oral dying declarations of the deceased. Per contra it was submitted by Mr. Gandhi that whatever allegedly stated by the deceased to these two witnesses has not been relied upon by the learned trial Court and rightly so because depositions of these witness are not trustworthy and in no case prove that the deceased was in fit state of mind to have said anything to them. Mr. Gandhi sought to make out from the evidence as to why these two witnesses may not be relied upon.

31. On reading the depositions of PW-Kunti Devi and her husband PW-Sham Lal, it clearly comes out that on the day of occurrence, that is, 10.07.2007 both of them had reached Medical College Hospital together. PW-Sham Lal is explicit in his say that on their reaching at the Hospital, deceased did not respond to their calls. She was admitted in the hospital and was not conscious. He has further stated that he had then gone to the house of the in-laws of the deceased where police had obtained his signatures on some documents. He had returned to the hospital and at that time also the deceased was not conscious. On the other hand, say of PW-Kunti Devi is that deceased had spoken 24 to her in the hospital on that day and stated inter alia that she was burnt by her husband, which, in the backdrop of the say of PW- Sham Lal, cannot be accepted as a true.

32. PW-Garu Ram in chief examination says that he saw the deceased in the Army Hospital on 16.

10. 2007, deceased demanded water from him, he gave her water with a spoon and on his asking, she had stated that deceased had burnt her after dousing with petrol (besides other things). In cross examination he says that during his conversation with deceased a doctor and CMP Havaldar was present there and the Havaldar had written this on a piece of paper. He thus referrers to a statement of the deceased, which was recorded by a CMP Havaldar. Existence of such writing, however, is not comprised in the prosecution evidence. To conclude precisely, depositions of PW. Kunti Devi and PW Garu Ram do not inspire confidence and whatever, alleged to have been stated to them by the deceased cannot be accepted as oral dying declarations of the deceased.

33. For aforementioned reasons, the conclusion we arrive at is that the alleged dying declaration 25 dated 12.10.2007, Ex. PW KD, cannot be relied upon as substantive evidence, firstly, for the reason that it has not been proved and secondly, for the reason that it has not been proved that deceased was in a fit mental condition to make the declaration.

34. Learned trial Court seems to have wriggled out of this draw back in prosecution case by condemning the prosecuting agency and investigating officer but we may point out that condemnation of their cannot be a substitute for legal evidence. Lapses on the part of Investigating Agency or Investigating Officer can be ignored and their benefit to accused refused but nonetheless, there has to sufficient and legal evidence to prove the case.

35. We need not look into the plea of alibi, conduct of the accused and disclosure statement of the accused taken into consideration by the learned trial Court as we are of the view that conviction and sentence of the appellant under Section 302 RPC cannot sustain after the dying declaration is rejected as a piece of evidence. Nonetheless, to say the least, plea of alibi assumes importance only after prosecution has led 26 sufficient evidence to prove involvement of accused. This is discernible from the judgment in Jayantibhai Bhenkarbhai v. State of Gujarat (2002) 8 SCC 165 referred to by the learned trial Court. Their Lordships have observed in para 19 as under:

19The burden of proving commission of offence by the accused so as to fasten the liability of guilt on him remains on the prosecution and would not be lessened by the mere fact that the accused had adopted the defence of alibi. The plea of alibi taken by the accused needs to be considered only when the burden which lies on the prosecution has been discharged satisfactorily. If the prosecution has failed in the discharging its burden of proving the commission of crime by the accused beyond any reasonable doubt, it may not be necessary to go into the question whether the accused has succeeded in proving the defence of alibi. But once the prosecution succeeds in discharging its burden then it is incumbent on the accused taking the plea of alibi to prove it with certainty so as to exclude the possibility of his presence a the place and time of occurrence. An obligation is cast on the Court to weigh in scales the evidence adduced by the prosecution in proving of the guilt of the accused and the evidence adduced by the accused in proving his defence of alibi. If the evidence adduced by the accused is of such a quality and of such a standard that the Court may entertain some reasonable doubt regarding his presence at the place and time of occurrence, the Court would evaluate the prosecution evidence to see if the evidence adduced on behalf of the prosecution leaves any slot available to fit therein the defence of alibi

36. In this case nothing in support of charge under section 302 RPC against the appellant has been found in the prosecution evidence. Though it stands proved that the deceased had been making demand for more dowry and causing harassment to deceased and for that 27 learned trial Court has rightly convicted and sentenced him under section 498-A RPC but there is nothing beyond that. Inasmuch as there is no evidence even to show that the deceased, who was serving in army, was present in his house, the place of occurrence, at the relevant time.

37. For all that has been stated and discussed above, conviction and sentence of the appellant under Section 302 RPC is set aside. However, conviction and sentence under Section 498-A RPC is upheld and the appeal to that extent is dismissed. Having disposed of appeal as above, reference made by the trial Court is answered accordingly.

38. Record of the trial Court be remitted back along with copy of this judgement. Trial Court shall modify execution warrant accordingly.

39. Disposed of along with connected Conf. No. 9/2011.

(Janak Raj Kotwal) (Hasnain Massodi) Judge Judge Jammu:

29.08.2013 Karam 28

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