Rajasthan High Court - Jaipur
Kamlesh Mahawar vs State Of Rajasthan Through Pp on 1 December, 2023
Bench: Pankaj Bhandari, Bhuwan Goyal
[2023:RJ-JP:36182-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 1723/2017
Kamlesh Mahawar S/o Shri Ramji Lal Mahawar, R/o Village
Malwas, Police Station Nangal Rajawatan, District Dausa, Raj., At
Present residing at Santosh Colony, Behind Chokhi Dhani, Shri
Ram Ki Nangal, Police Station, Sanganer Sadar, District Jaipur.
(At Present Confined In Central Jail, Jaipur)
----Appellant
Versus
State Of Rajasthan Through PP
----Respondent
Connected With D.B. Criminal Appeal No. 491/2017 Kamlesh Kumar Mahawar
----Appellant Versus State Of Rajasthan Through PP
----Respondent For Appellant(s) : Mr. Himmat Singh, Adv. in Cr.A. No.1723/2017 None present in Cr.A. No.491/2017 For Respondent(s) : Mr. Javed Choudhary, Addl.G.A. HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE BHUWAN GOYAL Judgment RESERVED ON :: 23/11/2023 PRONOUNCED ON :: 01/12/2023 (Per - Hon'ble Pankaj Bhandari, J.)
1. The accused appellant has preferred two appeals, one through Jail bearing D.B. Criminal Appeal No.491/2017 and one through counsel bearing D.B. Criminal Appeal No.1723/2017. No (Downloaded on 05/12/2023 at 08:51:08 PM) [2023:RJ-JP:36182-DB] (2 of 9) [CRLA-1723/2017] one has put in appearance in D.B. Criminal Appeal No.491/2017, which was a Jail Appeal. Mr. Himmat Singh, Adv. has put in appearance in D.B. Criminal Appeal No.1723/2017.
2. The accused appellant has challenged the judgment and sentence dated 19.01.2017 passed by the Additional Sessions Judge (Women Atrocity Cases) No.2, Jaipur Metro, Jaipur whereby he has been convicted for offence under Sections 498-A and 302 of IPC. For offence under Section 498-A of IPC, he has been sentenced to 3 years rigorous imprisonment and a fine of Rs.2,000/- and in default of payment of fine, to further undergo rigorous imprisonment for 6 months and for offence under Section 302 of IPC, he has been sentenced to life imprisonment and a fine of Rs.10,000/- and in default of payment of fine, to further undergo rigorous imprisonment for 2 years. Both the sentences were directed to run concurrently.
3. Succinctly stated the facts of the case are that on the basis of parchabayan of the deceased (Exhibit-P13), police registered an FIR No.319/2012 (Exhibit-P14) for offence under Sections 498-A and 307 of IPC. After demise of the deceased, offence under Section 302 of IPC was added. It was alleged in the said parchabayan that the accused often gave beating to the deceased after consuming liquor. On the morning of 07.11.2012, accused abused the deceased, gave beating to her and poured kerosene upon her, upon which, she went to the neighbour's house and thereafter, the accused brought her from the said house and set her ablaze. It is also mentioned that after she raised an alarm, the (Downloaded on 05/12/2023 at 08:51:08 PM) [2023:RJ-JP:36182-DB] (3 of 9) [CRLA-1723/2017] neighbourers gathered. She has mentioned that except her husband, no one is responsible. On the basis of the aforesaid FIR, the police conducted investigation and after due investigation, submitted charge-sheet against the accused appellant for offence under Sections 498-A and 302 of IPC. The charges for the aforesaid offences were read over to the accused. The accused denied the charges and sought trial, whereupon statements of PW-1 to PW-17 were recorded and 21 documents were exhibited on behalf of the prosecution. In defence, Exhibit-D2 was exhibited. Statement of accused under Section 313 Cr.P.C. was recorded. After hearing the arguments of the parties, the learned Court below convicted and sentenced the accused appellant as stated above.
4. It is contended by the counsel for the accused appellant that witnesses i.e. Rajendra (PW-7), Prem Sheela (PW-9), Deepak Meena (PW-10), Sonu (PW-11) and Ramdhan (PW-12) have turned hostile. It is also contended that the parchabayan on the basis of which the FIR was lodged was not recorded after obtaining Fitness Certificate from the doctor. Admittedly, the deceased has sustained 95% burns. Whether she was in a fit condition to give statement was to be established before the Court and in absence of a doctor's Certificate, the parchabayan looses its credibility. It is further contended that it was clear defence of the accused appellant that the deceased was cooking food on the stove, and when she tried to fill up the tank of the stove, she caught fire and when the accused tried to save her, he also sustained burn injuries. It is contended that in the dying (Downloaded on 05/12/2023 at 08:51:08 PM) [2023:RJ-JP:36182-DB] (4 of 9) [CRLA-1723/2017] declaration recorded by the learned Magistrate, the deceased has set up a different story. As per the dying declaration, the deceased has stated that she went to the house of neighbour-Bihari and the appellant brought her back and thereafter, he poured oil and put her ablaze.
5. It is also contended that the deceased was tutored by her family members and the conviction could not have been based solely on the dying declaration of the deceased. It is further contended that the conduct of the accused ought to have been seen by the learned Court below. The accused tried to save his wife and immediately rushed her to the hospital. The hands of the accused were also burnt when he tried to save his wife, which fact is established from the evidence on record. Learned Court below has not taken note of the same and has clearly erred in basing the conviction only on the basis of dying declaration.
6. Learned Additional Government Advocate appearing for the State has opposed the appeal and stated that the accused appellant has rightly been convicted by the learned Trial Court.
7. We have considered the submissions made by the learned counsel for the parties and have perused the material on record.
8. Admittedly, present is a case of circumstantial evidence. For bringing home the guilt against the accused, chain of circumstances has to be established. There is no witness, who has seen the accused pouring kerosene upon the deceased. The fact that the accused and his wife were living happily and there was no fighting between them and that while trying to save his wife, (Downloaded on 05/12/2023 at 08:51:08 PM) [2023:RJ-JP:36182-DB] (5 of 9) [CRLA-1723/2017] accused appellant got burn injuries on his hands, ear and face, is established from the statements of Sonu (PW-11) and Ramdhan (PW-12). Rajendra (PW-7), Prem Sheela (PW-9) and Deepak Meena (PW-10) have also deposed that there was no fighting between them. Since all the neighbouring witnesses have turned hostile, the only evidence, which is now available on record is the parchabayan and the dying declaration of the deceased.
9. Rule 6.22 of the Rajasthan Police Rules reads as under:
"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."
10. As far as the parchabayan (Exhibit-P13) is concerned, it was recorded by Shri Suresh Kumar (PW-16), A.S.I. In his cross- examination, he has admitted that he has not obtained any Certificate from the doctor with regard to fitness of the deceased to give statement. He has also admitted that in the parchabayan, (Downloaded on 05/12/2023 at 08:51:08 PM) [2023:RJ-JP:36182-DB] (6 of 9) [CRLA-1723/2017] he has not noted with regard to physical and mental condition of the deceased. He has further admitted that attendants were present there before recording her statement and that the doctor was not present at the time of recording her statement. Thus, the parchabayan looses its credibility for the reasons that there was no Certificate of the doctor that the deceased was in a fit condition to give statement, that it was not recorded by a Gazetted Officer, that it was not recorded in the presence of any reliable witness and that the person who recorded the parchabayan, has not mentioned in the parchabayan with regard to the physical and mental condition of the deceased and that the same was recorded after relatives of the deceased met her and thus, possibility of tutoring the deceased cannot be ruled out. The parchabayan, thus, cannot be considered to be a valid piece of evidence for the purpose of basing the conviction.
11. The next circumstance against the accused appellant is the dying declaration (Exhibit-P15) recorded by the learned Magistrate. In the dying declaration, the deceased has stated that the dispute took place in the morning and the accused started beating her, upon which she went to the neighbour's house. The accused brought her back from the said house, poured kerosene upon her and set her ablaze. The allegation that accused appellant consumed liquor and gave beating to his wife is also not established. Ajay Shrivastava (PW-3) has stated in his statement that there were no injury marks on the body of the deceased. Investigating Officer (PW-14) has also admitted that it was not revealed in the investigation that accused gave beating to the (Downloaded on 05/12/2023 at 08:51:08 PM) [2023:RJ-JP:36182-DB] (7 of 9) [CRLA-1723/2017] deceased after consuming liquor. No medical report regarding accused consuming liquor has been placed on record.
12. With regard to the dying declaration recorded under Section 164 Cr.P.C., Chaman Lal (PW-1) - father of the deceased has admitted that before the statement of the deceased was recorded, they had met the deceased. He has also admitted in his cross- examination that the deceased gave statement as was conveyed to her. Thus, the possibility that the deceased was tutored before her statement was recorded, cannot be ruled out. Learned Trial Court has thus clearly erred in basing the conviction only on the basis of dying declaration. In Irfan @ Naka vs. The State of Uttar Pradesh (Criminal Appeal Nos.825-826 of 2022) decided on 23.08.2023, Apex Court held that great caution must be exercised while placing reliance on dying declarations even as the law attaches a presumption of truthfulness to such statements. It was further held that it is the duty of the Court to decide this question in the facts and surrounding circumstances of the case and be fully convinced of the truthfulness of such declarations.
13. The witnesses Sonu (PW-11) and Ramdhan (PW-12) have stated that the accused appellant tried to save her wife and in doing so, he sustained burn injuries. Parchabayan (Exhibit-P13) and the statement recorded before the learned Magistrate i.e. dying declaration has variance in the sense that in parchabayan, the deceased has stated that kerosene was poured upon her, upon which, she ran to the house of the neighbour and from there the (Downloaded on 05/12/2023 at 08:51:08 PM) [2023:RJ-JP:36182-DB] (8 of 9) [CRLA-1723/2017] appellant brought her back to the house and set her ablaze. However, this is not tallying with the dying declaration wherein she has stated that she went to the house of the neighbour, from where the accused brought her back, poured kerosene upon her and set her ablaze. Since, it is admitted by Chaman Lal (PW-1) that he had told the deceased as to what statement, she had to give, it is clear that the deceased was tutored before her statement was recorded. Further, there is no recovery of matchstick from the crime scene. It is also not established that the recovered can was having kerosene. There is nothing in the crime scene report, which would suggest pouring of kerosene and putting deceased ablaze. Hence, this Court cannot place reliance on both the parchabayan and the dying declaration of the deceased. Criminal Appeal No.1723/2017, therefore, deserves to be and is accordingly, allowed. The judgment and sentence dated 19.01.2017 is quashed and set aside and the accused appellant is acquitted of all the charges levelled against him. He is in jail, he be set at liberty forthwith, if not required in any other case or for any other purpose.
14. 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.
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15. Since D.B. Criminal Appeal No.1723/2017 is allowed on merits, no order is required to be passed in D.B. Criminal Appeal No.491/2017 and the same is accordingly, disposed of. Application for suspension of sentence bearing No.692/2018 filed in D.B. Criminal Appeal No.491/2017 also stands disposed of.
16. A certified copy of this order along with record of the case be sent to the learned Trial Court forthwith.
(BHUWAN GOYAL),J (PANKAJ BHANDARI),J
SUNIL SOLANKI /PS
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