Judgment:
1. This is an appeal against the conviction and sentence passed by the learned Sessions Judge, Sikar convicting the accused appellant under Section 302 I.P.C. and sentencing him to life imprisonment, and a fine of Rs. 5,000/-, in default of payment of fine, to further undergo one years' rigorous imprisonment.
2. Deceased Smt. Manju w/o Vijai Kumar has died of burns and Mst. Chameli, who is mother-in-law of deceased Manju has been found guilty for murdering her daughter-in-law, by the learned Sessions Judge. Mst. Manju was aged 20 years when this incident took place and was married to Vijai Kumar in February, 1982. Vijai Kumar was employed in the Post-Office. On the day of incident, according to the prosecution, Smt. Chameli sprinkled kerosene oil on Mst. Manju. A cry was raised by Phoolwati (DW/1) who is Jethani (wife of elder brother of the husband of deceased) when she saw Manju lying on the Chabutara after being burnt and accused appellant Smt. Chameli is alleged to have come to the scene along with other persons and a message was sent to Vijai Kumar, husband of the deceased, who was working in the Post-Office. Vijai Kumar, DW/2 went in search of a Doctor In the way he met Makhan, PW 9 and requested him to take his 'Jonga' to bring the doctor. Makhan agreed and Dr. R.L. Dixit, PW 10 came to the site of occurrence immediately and after examining gave her treatment and also sent a note (Ex.P 7) addressed to the SHO, Ramgarh, stating as under:
It is for your information that I attended a serious extensive burnt case (homicidal) on the request of Vijai Kumar. Please come soon and take legal action.
This note was sent through his peon Ajmat Khan (PW 4). This Ex.P 7 was received by the SHO Shiv Shanker, PW 17 at 3.55 p.m. and thereupon, he also reached at the site, where deceased was lying. According to the prosecution, a dying declaration was recorded by Shiv Shanker at 4.10 p.m. which also bears the thumb impression of deceased Manju and initial of Dr. Dixit where in deceased Manju has mentioned that her 'Sasu' named Chameli had sprinkled kerosene oil and she found herself burning. Thereupon, the S.H.O. registered a case under Section 307 I.P.C. and sent the dying declaration to the Police Station, which was received there at 4.15 p.m. and a regular FIR was registered, which is Ex. P 6. The doctor recorded the injury report of Mst. Manju and the time given in the report is 4.30 p.m. Thereafter, Manju was taken to the hospital, where she died and then a case was registered under Section 302 I.P.C.
3. After usual investigation, the police presented a challan in the court of learned Magistrate, who committed the case to the Sessions court and the learned Sessions Judge, Sikar after recording evidence has found the accused appellant guilty of offence under Section 302 I.P.C. and sentenced her as aforesaid. Hence this appeal.
4. Mr. Dhanker, learned Counsel for the appellant has vehemently argued that the conviction is based merely on the declaration, Ex; P/5. There is no eye witness and since the dying declaration suffers from various infirmities, it should be held to be sufficient to hold the accused appellant guilty under Section 302 I.P.C. He has submitted that the dying declaration has been recorded by the Investigating Officer himself, though the doctor was present. He has further submitted that there was no endorsement or attestation by the doctor, nor there is certificate of the doctor that Manju is in fit state of health to give her statement. Ex. P/5 only bears the initials of doctor. He has further submitted that in the token at 'K' to 'L' in Ex. P/5 has been added later as is obvious from a bare look of the document, Ex. P/5 since the spacing in the first 7 lines and spacing between last 4 lines marked 'K.' to 'L' is different and the last 4 lines have been written with very small spacing. The thumb impression of Mst. Manju towards left side of the document and the spacing between the lines throws serious suspicion. He has further submitted that it does not bear the signatures of any of the independent persons, who were admittedly present at that time and, therefore, this suspicious document cannot base the conviction. He has placed reliance on Balak Ram v. State of Rajasthan; Munna Raja v. State of M.P.; and Dalip Singh v. State of Punjab where in, the Supreme Court has observed that although a dying declaration recorded by the Investigating Officer in the course of investigation is admissible under Section 32 of the Evidence Act, but it is better to leave such dying declaration out of consideration unless and until the prosecution satisfies the court as to why it was not recorded by the Magistrate or the Doctor. Since the Investigating Officer 1s interested in the success of the trial, it is prudent that the dying declaration should be recorded by the Magistrate or a doctor as far as possible. He has also placed reliance on the recent decision of the Supreme Court in State of Delhi Administration v. Laxman.
5. Learned Counsel has also drawn our attention to the language of Ex. P 5, where in the dilect of first 8 lines of Ex. P 5 seems to be local, dilect where as in portion 'K' to 'L' dilect seems to be in Khadi Boli. He has further submitted that the evidence of PW 10 Dr. R.L. Dixit should not be relied upon because he has not stated on oath that the police did not record his statement under Section 161 Cr. P.C. whereas PW 15 Shiv Shanker has stated on oath that he recorded the statement of Dr. R.L. Dixit, which has been marked as Ex. D/1. He has further submitted that the evidence of PW 10 should not be relied upon because he is not a very competent or very attentive doctor as has been stated by him that he had torn away the original injury report that he had prepared. The date on Ex. P 9 at the end appears as 5-4-83, though according to him, he had examined Manju on 4-4-1983 at 4.30 p.m. Similarly, in Ex P 10. which is injury report of accused Smt. Chameli, there is over writing and he has instead of 48 hours changed it to 24 hours, that shows that the doctor is not vary particular in making his reports. He has also drawn our attention to Ex. P 11 the ticket made by the doctor for the treatment, on which there is an endorsement for referring patient to the hospital. It also bears the time as 5.40 p.m. written and there is some cutting on the time earlier mentioned, which appears to be 4.15 p.m. He has further submitted that the prosecution witnesses (PW 1 and PW 9) have stated that the doctor himself had gone to call the Investigating Officer, whereas the doctor as well as the S.H.O. and Ajmat, PW 4 have stated that the doctor had sent a note through Ajmat to call the S.H.O. In view of this contradiction, his submission is that the evidence of doctor is not believable in toto. He has further submitted that there is no reason why the evidence of Phoolwati, who was admittedly an eye witness even according to the prosecution case, should not be believed, which gets full corroboration from DW 2 Vijai Kumar, husband of the deceased. He has further submitted that looking to the conduct of the accused persons that accused Vijai Kumar tried to save the life of deceased and also sent a message telephonicaly to the parents of the deceased, shows that they were not guilty. He has further submitted that the permission which the S.H.O. had taken from the doctor for recording the dying declaration and the requisition submitted to him for making the injury report have been suppressed and not produced in the court.
6. On the other hand, learned Public Prosecutor has submitted that it is a case of bride burning. The relations of deceased and accused were not cordial and in the circumstances of the case, there could not be any eye witness to watch the incident and, therefore, the conviction has been properly based on the basis of dying declaration. He has further submitted that the dying declaration is of course recorded in the hand-writing of the I.O., but in the presence of the doctor who has also put his initials on Ex.P 5 and there is no allegation or evidence that either doctor or the I.O. were inimical towards the accused and why they should implicate the accused falsely. The lapses shown by the learned Counsel for the appellant in the statement of doctor about the date etc. are no consequence as they are very natural and the doctor has stated on oath that the dying declaration was recorded in his presence and she was in position to state and give her dying declaration.
7. We have given our thoughtful consideration to the arguments advanced by both the parties and have gone through the entire evidence and other material available on record.
8. In this case there is no eye witness of the incident and the conviction is based entirely and solely on dying declaration, Ex.P. 5. Therefore, we will like to reproduce the dying declaration here under:
c;ku utbZ eqLekr eatq ifRu fot; dqekj dkSe czkge.k mez 20 lky lk-okbZ-ua- 8 jkex<+ lsBku dk c;ku fd;k fd vkt fnukad 4&4&1983 dks FkksM+h nsj igys dh ckr gS eS ekps ij lksbZ gqbZ Fkh A lqrh ij esjs ij feV~Vh dk rsy M+kyk esjs dks pDdj vk;k rks ns[kk fd vkx yx jgh Fkh A feV~Vh dk rsy ,d vkSjr tks /kksrh igus gqbZ Fkh us M+kyk tks esjh lklq Fkh] ftlus dgk jkaM+ ej tk, rks nwljh C;kg rks djR;k A esjh gkFk ls dksu fy[;ks tkx A esjh lklq dk uke pesyh gS A esjk ihj uoyx< gS esjk cki JhdkUr gSA eS lkeyk dejk tks iwoZ >kadrk rjQ bZ'kkjk djds crk;k] es Fkh A ml le; lklq] tsBkuh o eS Fkh A esjk vkneh jkex<+ iksLV vkfQl es dke djrk gS ogkW x;k gqok Fkk A
fu-v- eatq
Admittedly, at the time when this dying declaration was recorded, doctor was present, but the SHO did not ask the doctor to record the statement. The doctor has not even opined on this dying declaration that she was in fit state to give statement, nor there is any other endorsement by the doctor except his initials, date and time. More over the language of portion 'K' to 'L'is altogether different than the earlier portion of the dying declaration. This part is in Hindustani (Khadi Bolt) where as, the earlier statement is in 'Marwari', which is usually spoken by the villagers. This raises a great suspicion about the genesis and authenticity of this dying declaration. A look at the original dying declaration, Ex.P it appears that first 9 lines have got sufficient spacing in between and the last 3 lines have been written after squeezing and the space between the lines is very little when compared to first 9 lines. That also creates lot of doubt about the veracity of this dying declaration. We can see that in the end of dying declaration, there is thumb mark of deceased Manju and therefore.it became necessary to squeeze portion 'K' to 'L'. It is an admitted fact that 7 persons had collected there, but the SHO did not think it proper to take signatures of any of the independent persons, who were admittedly present at the time this was being recorded. As far as possible, the Investigating Officer should always avoid recording of dying declaration particularly when the doctor is present. There is another infirmity in the prosecution case that Dr. R.L. Dixit has stated on oath in the court that the police did not record his statement and Ex.D 1 was never given by him to the police. Where as PW 15 Shiv Shanker, I.O. has stated on oath that he recorded the statement of Dr. R.L. Dixit marked Ex. D 1. That shows that being infirmity in the prosecution case. The prosecution has not produced the original injury report prepared by the doctor, which according to him, he had torn out and Ex P. 9 bears the date at the and as 5-4-83 instead of 4-4-83. Even in the report of accused Smt. Chameli (Ex.P 10), there is overwriting on material portion and the doctor has changed the time from 48 hours to 28 hours. Similarly, there is also a cutting on patient ticket, Ex.P 11 wherein the time has been changed. All this shows that the evidence of Dr. R.L. Dixit is not very reliable as he is not very meticulous and attentive doctor and to base conviction from the evidence of such a witness would not be proper.
9. Looking to the conduct of the husband Vijai Kumar in informing the parents of the deceased and taking immediate steps for the treatment of the deceased, it appears that it was not a case of bride burning. In view of the decision of the Supreme Court in the case of Laxman (supra) which was also a case of bride burning.where in the Supreme Court did not place reliance on the dying declaration we are also inclined not to place reliance on the dying declaration Once dying declaration is excluded there remains nothing in the prosecution case so as to find the accused guilty under Section 302 I.P.C.
10. In the result, we accept this appeal, set-aside the conviction and sentence under Section 302 I.P.C. passed against the appellant Chameli, by the learned Sessions Judge, Sikar. She may be released forthwith, if not required in any other case.