1. The present appeal arises out of judgment of the learned Sessions Judge, Jodhpur in Sessions case No. 122/95 whereby the accused-appellant has been convicted under Sections 302 and 498A, I.P.C. and was sentenced to imprisonment for life under Section 302, I.P.C. and one year's rigorous imprisonment under Section 498A, I.P.C. along with fine of Rs. 1000/-.
2. Being aggrieved by such conviction and sentence, the present appeal has been filed by the appellant.
3. The prosecution started with the recording of Ex.P. 1 statement of the deceased Smt. Suraj by Pooran Singh; S.H.O., Police Station, Pratap Nagar, Jodhpur. This statement was recorded by Pooran Singh at 10 A.M. while Smt. Suraj was undergoing treatment in the Burn Unit of Mahatma Gandhi Hospital, Jodhpur. According to this statement Smt. Suraj had stated before the S.H.O., Police Station, Pratap Nagar, Jodhpur that she is educated up to 8th Class. While she was in the house sitting near the Paniara, her husband poured kerosene on her and lit the match stick. Her mother-in-law and father-in-law are not involved. Her husband has illicit relations with one Pinky. This is the bone of contention in between them. On this score he was annoyed with her. She has also stated that he used to make demands for money for which he used to say that bring it from your mother. She was brought to the hospital by the brother-in-law of her husband. This statement Ex.P.1, after recording, was sent to the Police Station, Pratap Nagar. P.W. 20 Harish Chandra Singh Investigating Officer after receiving this statement at the Police Station recorded a formal first information report which is produced on the record as Ex.P. 15. The investigation started after lodging of the first information report as aforesaid. After completion of the investigation a charge-sheet was presented, the charges were framed against the accused-appellant under Sections 302 and 498A, I.P.C. Accused denied the charges and claimed trial.
4. To establish its case the prosecution examined 20 witnesses. The accused also led his defence and examined Smt. Tara Devi D.W. 1 and Manji D.W. 2 as defence witnesses.
5. The learned Sessions Judge considered the evidence of the prosecution and came to the conclusion that from the statement Ex.P.1 as recorded and proved by Pooran Singh P.W. 17 and P.W. 1 Dr. Nirmala who was present in the hospital, the case of the prosecution is made out. Regarding the other witnesses he found that P.W. 7 to P.W. 12 who could be the witnesses of what happened in between the appellant and the deceased have turned hostile and, therefore, there is no direct evidence available on the record in this respect. From the evidence of mother and father of the deceased examined as P.W. 2 and P.W. 3 respectively it was found that the relations in between the deceased and the appellant were strained and, therefore, relying on the evidence of strained relations and the dying declaration Ex.P. 1 the learned Sessions Judge convicted and sentenced the appellant as aforesaid.
6. Learned Counsel appearing for the appellant has impugned the judgment of the learned Sessions Judge by contending that the only evidence on record is the dying declaration Ex.P.1 recorded by the police. Under the Police Rules a set procedure has been provided for recording of a dying declaration and as and when a dying declaration is to be recorded by the police this procedure is required to be followed. If this procedure is not followed then the courts should not take such dying declarations into consideration. To support his case, the learned Counsel has placed reliance on Smt. Kalawati v. State of Rajasthan 1993 Cri LR (Raj) 798 : 1994 Cri LJ 691, wherein this Court observed as under:
We have considered the rival contentions. Rule 6.22 of the Rajasthan Police Rules, 1965 lays down as follows :
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 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.
If it an admitted position of the prosecution that when Bhanwar Singh reached Hospital, Doctor and Nurses were present by the side of Roshni. By virtue of sub-rule (3) of Rule 6.22 of the aforesaid Rules, Bhanwar Singh was under an obligation to record dying declaration of Smt. Roshni in presence of two or more reliable persons unconnected with the police department and with parties concerned in the case. The Doctor on duty and the Nurses and Compounders on duty should have been and ought to have been requested to be present when the dying declaration was recorded. In the present case, Dr. Mahavir Prasad does not state that Bhanwar Singh had recorded any dying declaration of Smt. Roshni in his presence.
It was further observed as under :
In the present case, Shri Bhanwar Singh did not at all comply with the provisions of Rule 6.22 of the Police Rules. He altogether disregarded the provisions of these rules. We, therefore, find that Ex.P.7 is wholly worthless and does not advance the prosecution case at all. We do not propose to place any reliance upon Ex.P.7 recorded by Bhanwar Singh, which on all counts is a suspicious document.
7. Another aspect of the dying declaration which the learned Counsel for the appellant has emphasised is that before recording this dying declaration the Doctor has not certified that the deceased was in a fit slate of giving her statement. The only endorsement made by the Doctor on the statement Ex.P. 1 is to the effect that the statement has been recorded in her presence. This falls short of the requirement of certification by the Doctor that the deceased was in a fit state to give the statement, In this regard the learned Counsel for the appellant has placed reliance on Pushpa Bai v. The State of Rajasthan 1993 Cri LR (Raj) 729, wherein it was observed as under :-
The certificate about the fit state of mind of the maker of the dying declaration should have been ordinarily of the doctor of the Ward. Mere attestation, as said above, cannot be the certification that the deceased who is said to made dying declaration, was in full senses or possessed of reason to make a lucid statement.
8. Another aspect highlighted by the learned Counsel for the appellant in regard to the dying declaration is that there are variations in the statement of P.W. I Dr. Nirmala and P.W, 17 Pooran Singh about, the existing circumstances which have been detailed by the learned Counsel for the appellant as follows:
1. P.W, 17 Pooran Singh has stated that before he started taking statement the treatment of Smt. Suraj had started. But the Doctor P.W. 1 Dr. Nirmala has not supported his this version. She has stated that the treatment has not been started, only the prescription of the treatment was sent in writing from down stairs,
2. P.W. 17 Pooran Singh has stated that he had asked the questions in Hindi and Smt. Suraj had answered them in Hindi. Doctor P.W. 1 Nirmala had stated that Smt. Suraj was answering the questions in Marwari.
3. According to P.W, 17 Pooran Singh he had taken the statement and P.W. 16 Chunni Lal had scribed them. This was on his dictation that Chunni Lal recorded the statement of Smt. Suraj. He was also accompanied by Constable Ram Kishan. According to P.W, 1 Dr, Nirmala there was only one police official who was taking the statement and there was no second police official available, She has also said that she had not asked the name and post of the police officer who has taken the statement and no such official has informed her about his name and designation.
9. With these contradictions the learned Counsel for the appellant wants to emphasis that variations in the statements of these two witnesses are very material. The police official was positive that the treatment has been started but the doctor says No. The language used in asking the question and the reply thereof is also deposed differently. According to the P.W. 1 Dr. Nirmala the scribe was only one official whereas P.W. 17 Pooran Singh the police officer says that the police officials present, were three in numbers and Pooran Singh P.W. 17 dictated the statement to scribe P.W. 16 Chunni Lal. Thus, in all probability P.W, 1 Dr. Nirmala is not speaking as to what was the truth. P.W. 17 Pooran Singh being a police official cannot be relied upon in regard to the statement recorded by him because he will have all the feelings of supporting the case investigated and supported by him.
10. Learned, Counsel for the appellant then stressed on the strength of the testimony of P.W. 20 Harish Chandra Singh that according to this witness P,W. 17 Pooran Singh indicated him at the time of making the site plan as to where Smt. Suraj had fallen after getting burns. According to this witness this was indicated by Pooran Singh, because soon after the occurrence constable and Pooran Singh arrived at the scene of occurrence and they had taken Smt. Suraj Kanwar. In this back-ground P.W. 20 Harish Chandra Singh says that Pooran Singh indicated the spot of falling of Smt. Suraj Kanwar in the site plan, Learned counsel for the appellant stressed that if this statement, is taken to be correct that Pooran Singh P.W. 17 reached at the scene of occurrence while Smt. Suraj Kanwar was there then the statement of Pooran Singh P.W, 17 has to be read with great care. Pooran Singh has not stated in his statement that he received any information and he reached the scene of occurrence, He in his statement only says that he received ail information from the Mahatma Gandhi Hospital regarding a burn case then he arrived at the hospital,
11. The statements of the Investigating witnesses, namely the Circle Inspector and the S.H.O., Pratap Nagar run contrary to each other on this point. Pooran Singh P.W. 17 has not claimed that he reached at the scene of occurrence. He does not say that he has carried Smt. Suraj to the hospital. Pooran Singh P.W, 17 has not informed the court as to who has informed him on phone. Rather the question has been evaded by saying that he does not remember as to who has informed him about the burn case, P.W, 1 Dr. Nirmala has also not informed the Court as to who has called the police, According to her she is a student of M.S. and she was posted in the Burn Unit, She received a telephone call that the police wants to record the statement of the patient, In these circumstances how Pooran Singh P,W. 17 arrived at the scene of occurrence has not been clearly deposed either by P.W. 1 Dr, Nirmala or P.W. 17 Pooran Singh. If the same is evaluated in the light of the statement of P.W. 20 Harish Chandra Singh then it was Pooran Singh himself who had carried Smt. Suraj to the hospital. Thus the police had in (sic) tried to suppress the initial observations made by it when they reached at the scene of occurrence.
12. Learned counsel for the appellant has further criticised the form of statement Ex P.1, It has not been recorded in question and answer form whereas P. W, 17 Pooran Singh has admitted that he asked the questions and the deceased gave the answers. When questions and answers are made and answered then they have to be recorded in that form according to the judicial decisions.
13. Another aspect high lighted by the learned Counsel for the appellant is that if the deceased was in a fit state of giving her statement then why her statement was not got recorded by a Magistrate is a big question. The prosecution could have excluded every possibility of false implication, had the Magistrate been called to record the statement. Learned counsel has tried to expand the situation by saying that the deceased was burnt to the extent of 95 to 100% and according to the prosecution witnesses themselves she had gone in coma around noon. Perhaps she was not in such a state of condition so as to give a statement. Therefore, the Doctor was not called. This speaks for the absence of a proper certification by P.W. 1 Dr. Nirmala who was not a qualified doctor and only a student of M. S. and thus, has not understood the gravity of her signature on Ex.P.I. She had also not had sufficient experience as to how the dying declaration is to be recorded of a patient who is about to die.
14. Learned counsel for the appellant has further stressed that if Ex.P. 1 is excluded from consideration then there is no other evidence on the record to support the prosecution case. The deceased was a lady of primary sterility. 7 years after the marriage she had not begotten a child. She was suffering from Cancer and these circumstances were enough to give her a feeling of depression, She has been reportedly getting out of the house in her aspirations for finding such refuse which had eluded her in marriage, because she suspected illicit relationship between her husband and one .Pinky. Learned counsel has, therefore, stressed that there was enough psychological background to persuade had to have chosen the extreme step of committing suicide.
15. Her abode was a small hut, not large enough to accommodate husband and wife, While the husband intended to throw kerosene and attempted to lit, she could conveniently avoid and could escape, A small hut is not a place where one can die by an act like the present one as alleged. Under these circumstances, the possibility of suicide cannot be ruled out. The prosecution cannot be said to be successful in establishing the case against the appellant and, therefore, must fail and the accused be acquitted of the charges leveled against him and the sentences recorded against him be set aside-.
16. Learned Public Prosecutor meeting the arguments of the learned Counsel for the appellant emphasized that as to why Dr, Nirmala P.W. 1 would tell incorrectly about the recording of the statement Ex.P.1. If the statement Ex.P.1 is believed then there is nothing wrong in it, P.W. 17 Pooran Singh the police official had no enmity with the accused appellant and why he would falsely implicate him. Merely because the deceased had not begotten a child she cannot commit suicide. The same can be the view regarding her being a patient of Cancer. The defence version has not been accepted by the, learned Sessions Judge and rightfully so. In this background the learned counsel for the State urges that the appeal should be rejected.
17. After hearing the learned Counsel for the parties and perusing the record the foremost question which arises before us is the validity of the dying declaration Ex.P.1. The prosecution has come with a positive case that P.W. If Pooran Singh the questions and P.W. 16 Chunni Lai wrote it as dictated by P.W. 17 Pooran Singh. P.W. 16 Chunni Lal has not proved this statement. He has not said that he wrote the statement Ex.P. 1 .He was examined before P.W. 17 Pooran Singh. If he would have stated in his examination that he was the scribe of the statement Ex.P.1 then the questions could be put to him. In the absence of his statement to the effect that it was he who scribed the statement Ex.P. 1. No questions were put to him and for the first time this fact was brought to the notice of the Court by P.W. 1.
18. Ex.P. 1 was recorded by Chunni Lal, P.W. 15 on his dictation. Thus, the scribe of the statement Ex.P. 1 has not stated that whatever he has scribed was the correct statement of the deceased. In absence of this certification the statement Ex.P. 1 becomes a document subject to doubt because its author has not proved this document.
19. If the above fact is seen in the background that the statement Ex.P.1 has not been recorded in conformity with the Police Rules wherein the formalities required to be observed before recording the statement by the police have not been completed. Thus there is a clear infringement of the Police Rules in regard to the recording of the statement vide Pushpa Bai (supra). As there is no certification by the doctor that the lady was fit to make statement Further no attempt was made to get the statement recorded by a Magistrate
20. This brings us to a situation where the P.W. 17 Pooran Singh, S.H.O., Pratap Nagar states that he had arrived at the Mahatma Gandhi Hospital, Jodhpur after receiving information from someone regarding which he does not state as to who had called him, which is a suspicious circumstance. As and when a police official leaves on duty from a police station his departure is recorded in the Register and instead of avoiding the questions he could have referred to the record and answered this question. But he had chosen to avoid it perhaps for some ulterior objective. P.W. 20 Harish Chandra Singh states that he had gone to the place of occurrence and he was indicated the place of fall of Smt. Suraj Kanwar after burn by Pooran Singh who had carried Smt. Suraj Kanwar. It was Pooran Singh who had indicated the place where Smt. Suraj Kanwar fell after burn. If this part of the statement of P.W. 20 Harish Chandra Singh is taken to be correct then it was Pooran Singh P.W. 17 who took the deceased Smt. Suraj Kanwar from the scene of occurrence to the hospital. Why he has not deposed this fact before the Court is not coming forth. There was no reason why this fact was not clearly deposed by P.W. 16 Chunni Lal and P.W. 17 Pooran Singh. Further P.W. 16 Chunni Lal is silent about it absolutely and P.W. 17 Pooran Singh when he tries to conceal this then there must have been some reasons for it.
21. If the proceedings in the hospital are seen in this background of the incident than the Doctor who would be called when a patient with 95% to 100% burns comes to the hospital would be a responsible doctor and not a student doctor. P.W. 1 Dr. Nirmala is a student doctor. She had not even claimed that she prescribed the treatment. She says that the treatment was prescribed and was sent from down stairs. This makes it clear that some other doctor prescribed it who was senior to her and he was not consulted by this police official before taking the statement of the deceased or was not taken him in confidence. Why is a big question? The student doctor had no training of handling medico legal case. Senior doctor was there in the hospital, who had prescribed the treatment and have also attended the patient. He was the right person to have been taken into confidence by the police official. This lapse is a material lapse which casts a serious doubt about the absence of proper certification of the doctor on the statement. If the available certification is seen in the light of the statement of the Doctor wherein she has stated that there was only one police official who was recording the statement then either she is not telling the truth or the police official i.e. P.W. 17 Pooran Singh is not telling the truth. He has deposed that he was asking the questions from Smt. Suraj and was dictating the statement to Chunni Lal P.W. 16 and Chunni Lal P.W. 16 was writing it. This is not what the doctor states. This makes it clear that either P.W. 1 Dr. Nirmala is not telling the truth when she states that one police official was recording the statement or P.W. 17 Pooran Singh is false that he dictated the statement to P.W. 16 Chunni Lal ASI. Thus, the manner of recording the statement Ex.P.1 too also becomes doubtful.
22. Further the language recorded is not the language of the deceased Smt. Suraj because she was answering the questions in Marwari according to P.W. 1 Dr. Nirmala and according to P.W. 17 Pooran Singh she has empowering the questions in Hindi which one of these the witnesses is to be believed was a big question. In this background the veracity of the statement Ex.P.1 does not stand the test of judicial scrutiny.
23. To be precise the statement was recorded without a proper certificate by the Doctor and was in violation of the Police Rule 6.72. Whether the treatment of the patient started or not is not made out before recording of the statement. The language used was not the language of the dying witness. The scribe of the statement has not proved the statement. The manner of recording is also doubtful. The S.H.O. with held the correct state of affairs as to why he has not deposed that he took the patient to the hospital when the Investigating Officer has stated so. The senior doctor though has prescribed the treatment and present in the hospital has not been taken in confidence by the police before taking the statement of the deceased Ex.P.I. In this background the statement Ex.P. 1 cannot be relied upon to sustain the conviction of the accused appellant.
24. This is shocking to note that P.W. 17 Pooran Singh in his statement has been careless to the extent that as to at what time he received the information, he does not remember. He did not care to give any application in writing to the doctor to record the statement. He also did not care to obtain any written permission before taking the statement. He has also careless is saying that he did not make any effort to get the statement recorded by the Magistrate. While recording the statement he has not recorded it by himself and dictated to one of his subordinates. The manner in which this witness has behaved shows that he lacks professional competence because if the patient was in a critical state then to ensure the prosecution case he was supposed to know the law regarding recording of the dying declarations and could not have recorded the dying declaration in the fashion which is available on the record.
25. When the statement Ex.P.1 is excluded from consideration for the reasons aforesaid, the examination of the defence version becomes redundant because with the exclusion of Ex.P. I, the prosecution losses its only piece of evidence against the appellant. We are not going to the defence version as we do not find that there is any evidence on the record which can sustain the conviction of the appellant under Section 302, I.P.C. and, therefore, we acquit the accused appellant of this charge.
26. The accused has been charged and convicted under Section 498A, I.P.C. Father and mother of the accused have stated that there were strained relationship between the accused and the deceased but the evidence falls short of the definition of cruelty as defined in Section 498A, I.P.C. Thus, the offence under Section 498A, I.P.C. is also not made out against the appellant. The accused appellant is acquitted of the charge under Section 498A, I.P.C. also
27. In the result, both the charges having failed, the conviction is set aside. The appellant cannot be made to serve out any sentence and with the acquittal, the sentences are also set aside. The appeal is allowed. The accused is in custody. With his acquittal he is entitled to be released from the jail. Consequently, he should be released from custody forthwith if he is not required in any other case.