Puran Ram @ Kidia Vs. State of Rajasthan - Court Judgment

Excerpt:
- - therefore, accused has committed offence under section 302 as well asunder section 498-a ipc. kamla when she was admitted in hospital on the very same day, she gave her statement before the police in which she has clearly mentioned that while she was preparing tea then all of sudden she received bum injuries. he gave his statement before the police as well as before the judicial magistrate and stated that accused poured kerosene oil on his mother and lit the fire. it is also submitted that doctor who has examined in this case has clearly stated that on the previous day deceased was not in a fit condition for giving statement but on the very next day judicial magistrate recorded the statement of deceased whether she was in conscious condition or not? there is also evidence of child witness who is son of deceased as well as accused and he has no reason to give false statement against his father, therefore, his evidence is also trustworthy and reliance can be placed on his evidence. 21. joint reading of both the evidence as well as the postmortem report it reveals that there is no manner of doubt that deceased died due to bum injuries received by her. a perusal of his evidence as well as ex. 3 raj kumar who is son of the deceasedas well as of the accused. 10 tara singh which was supplied in the chargesheet the same was not produced during trial by the prosecution which was more reliable as it is first in point of time whereas dying declaration recorded by the judicial magistrate, hanumangarh is recorded in subsequent in point of time. we think it unsafe to place reliance on the dying declaration recorded by the judicial magistrate as well as the deposition of the child witness fw. 15. the cumulative effect of the discussion that we have made here in above is that first dying declaration which is first in point of time is more reliable, acceptable and inspire confidence wherein deceased has given the correct account that how she met with unnatural death whereas the second dying declaration which is recorded after two days by the learned judicial magistrate is tutored one, therefore, it does not inspire confidence. 3 raj kumar does not inspire any confidence as reflected from the evidence that he was at his uncle's house (mamma) at the relevant time, therefore, second dying declaration as well as the oral testimony of child witness pw, 3 raj kumar does not help in any manner to connect the accused with the crime beyond any reasonable doubt. we, therefore, disagree with the findings and ultimate conclusion arrived at by the trial court in holding the accused guilty for offence under section 302 ipc and also under section 498-a ipc and sentencing him as above, as it is not based on correct appreciation of-evidence adduced by the prosecution as well as by the defence.a.m. kapadia, j.1. challenge in this appeal, filed under section 374 of the code of criminal procedure ('the code' for short) is to the correctness of the judgment and order dated 6.6.2002 rendered in sessions case no. 139/2001 by the learned additional sessions judge (fast track), hanumangarh by which sole appellant ('accused' for short) has been convicted for commission of the offence punishable under sections 302 and 498-a ipc ('ipc' for short) and sentenced to imprisonment for life and fine of rs. 1,000/- in default of payment of fine to further under go two months imprisonment for offence under section 302 ipc and sentenced to three years simple imprisonment and fine of rs. 500/- and in default of payment of fine to further undergo one month simple imprisonment for offence under section 498-a ipc. it is also ordered that both the sentences shall run concurrently.2. the prosecution case as disclosed from the fir and unfolded during trial is as under:2.1 informant bhagu ram pw. 5, the brother of the deceased kamla lodged a report at police station pilibanga on 18.6.2001 at about 11.15 am wherein it is inter alia alleged that her sister was married with puran ram about 15 years ago. after few years of marriage, puran ram started demanding dowry, therefore, he gave some cash many a times but there was no change in habit of puran ram: puran ram was in habit of drinking and used to beat her sister after consuming liquor. according to him, prior to 4-5 days of the alleged incident, puran ram gave beatings to his sister kamla. at that time, his sister came to -his house and narrated the whole incident and after pacifying the matter, he sent back his sister alongwith his nephew. on the day of incident, at about 10.00 a.m., he received an information that his sister has received bum injuries and it was stated that she was burnt while preparing tea on stove. however, he has doubt that puran ram has burnt her.2.2 on the basis of this information, police registered a case under sections 3.07 and 498-a ipc and during the course of treatment smt. kamla died. police, therefore, added offence of section 302 ipc and started investigation. during the course of investigation, inquest was held on the dead body of the deceased in presence of panch and the dead body was sent for autopsy. police drawn the panchnama of the scene of offence and recorded the statement of prosecution witnesses.2.3 as, sufficient incriminating evidence was found against the accused for commission of the offences punishable under sections 302 and 498-a ipc, investigating agency filed charge sheet against the accused for commission of offence punishable under section 302 and 498-a ipc, in the court of learned magistrate, 1st class, pillibanga.2.4 as the offences under section 302 is exclusively triable by the court of sessions, the learned magistrate, pillibanga, committed the case to the court of addl. sessions judge (fast track), at hanumangarh.2.5 the learned addl. sessions judge, (fast track), hanumangarh to whom the case was made over for trial framed charges against the accused for commission of the offences punishable under sections 302 and 498-a ipc. the charge was read over and explained to the accused. the accused pleaded not guilty to the charge and claimed to be tried. therefore, he was put to trial by the learned trial court in sessions case no. 139/2001.2.6 to prove the culpability of the accused prosecution examined as many as 15 witnesses and also produced the number of documents and relied upon the contents of the same. thereafter statement of accused under section 313 of the code was recorded wherein accused pleaded total denial and stated that a false case has been filed against him. accused has, led evidence, and from the defence side witness dw1 kishan lal was examined and the original complaint was also produced which was forming part of the charge sheet.2.7 on appreciation of evidence, the trial court came to the conclusion that prosecution has established that deceased died unnatural death because of the bum injuries received by her. however, on the basis of dying declaration of the deceased recorded by the judicial magistrate, pillibanga, the trial court has come to the conclusion that accused poured kerosene on her and thereafter set her ablazed. it was also held that there was a demand of dowry, therefore, deceased was subjected to mental and physical cruelty at the hands of accused. therefore, accused has committed offence under section 302 as well asunder section 498-a ipc. on the aforesaid findings, the trial court convicted and sentenced the accused to which the reference made in earlier part of the judgment.3. mr. m.k. garg, learned counsel for the appellant submits that smt. kamla when she was admitted in hospital on the very same day, she gave her statement before the police in which she has clearly mentioned that while she was preparing tea then all of sudden she received bum injuries. this shows that it is an accidental case and a false fir has been registered to just harass the accused. it is also submitted by learned counsel for the appellant that after two days of the incident due to pressure from her brother she again gave her statement before the magistrate in which she stated that accused has poured kerosene oil and lit the fire. it is also emphasised by the learned counsel for the accused appellant that at the time of incident the accused's son who is aged 13-14 years was at his uncle's (mamma) house and he has been made an eye-witness of the case. this witness is a tutored witness. he gave his statement before the police as well as before the judicial magistrate and stated that accused poured kerosene oil on his mother and lit the fire. this statement is recorded after 14 days of the occurrence, and delaying in recording the statement of this witness has not been explained by the prosecution. it is also pointed out by the learned counsel that smt. kamla who has stated before the judicial magistrate that her son i.e. p.w. 3 raj kumar who is made an eye-witness of the occurrence was sleeping in 'bakhal', therefore, version of this eye-witness is not at all corroborated by the dying declaration given by the deceased. all the eye-witnesses have turned hostile and they have not supported the prosecution case. the only evidence is of pw. 3 raj kumar who is a child witness and his statement should be read over cautiously. there are material contradictions, improvements and omissions, therefore, no conviction could be passed on such type of evidence which is contrary to each other. it is also submitted that doctor who has examined in this case has clearly stated that on the previous day deceased was not in a fit condition for giving statement but on the very next day judicial magistrate recorded the statement of deceased whether she was in conscious condition or not? this is very much doubtful.3.1 according to the counsel defence story is established on the statement of dw. 1 kishan lal who has been examined and testified by the investigating agency. however, the learned trial court has hot discussed his statement in the judgment on the aforesaid premises. it is submitted by the learned counsel that the trial court has recorded erroneous findings of conviction without any evidence, therefore, the same deserves to be quashed and set aside by allowing this appeal and thereby acquitting accused by giving him benefit of doubt. he therefore, urged to allow the appeal.4. per contra, learned public prosecutor has supported the impugned judgment and order through out. according to him, there is no illegality or infirmities committed by the trial court in passing the order of sentence and conviction. there is an ample evidence in the nature of dying declaration recorded by the judicial magistrate. there is also evidence of child witness who is son of deceased as well as accused and he has no reason to give false statement against his father, therefore, his evidence is also trustworthy and reliance can be placed on his evidence. on the aforesaid premises according to him, there is no substance in this appeal and, therefore, the appeal being devoid of any merits may be dismissed by confirming the impugned judgment and order. he, therefore, urged to dismiss the appeal.5. this court has considered the submissions advanced by the learned advocates appearing for the parties and perused the impugned judgment and order. this court has undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record, which is read and re-read by the learned advocates of the parties with reference to broad and reasonable probabilities of the case. this court has examined the entire evidence on record for itself independently of the learned judge of the trial court and considered the arguments advanced on behalf of the accused and infirmities pressed, scrupulously with a view to find out as to whether the trial court has rightly recorded the order of conviction and sentence.6. there is no dispute to the fact that deceased kamla died an unnatural death due to bum injuries. to prove that fact prosecution relied upon the oral testimony of pw.6 dr. om prakash suthar, who has treated the patient and pw.13 dr. shailendra mathur, who has conducted the post mortem of the dead body of the deceased. parcha bayan is on record as ex.p.1, whereas postmortem report is on record at ex.p. 21. joint reading of both the evidence as well as the postmortem report it reveals that there is no manner of doubt that deceased died due to bum injuries received by her.7. now in this case, the question calls for our consideration is whether deceased has received injuries as per the statement given by her before the pw. 10 tara singh asi or kerosene oil was poured upon her and she set ablaze by the accused. to prove this fact, prosecution relied upon the two sets of dying declarations i.e. one which was recorded by pw. 10 tara singh asi and another which was recorded by the. judicial magistrate. therefore, as observed earlier, entire case is based on evidence of two sets of dying declarations, which is required to be discussed in extenso.8. before appreciating the evidence of the witnesses, before whom the dying declarations were made by the deceased, it would be relevant to notice the law relating to dying declaration.9. in the case of chacko v. state of kerala reported in : (2004)12scc269 has held that when the genuineness of the dying declaration is doubtful, no reliance can be placed thereon for convicting the accused appellant for offence under section 302 ipc. in the case of panni ben v. state of gujarat : 1992crilj2919 the supreme court has formulated the principle laid down in several judgment of the supreme court governing dying declarations.10. in light of the principle laid down by the hon'ble supreme court in above referred two decisions we may examine the dying declarations recorded in two sets in which one was recorded by the police and another by judicial magistrate independently to ascertain the veracity of each declaration.11. the first declaration is made by the deceased before pw.10 tara singh who is asstt. sub-inspector of police, he has inter alia testified that on 17.6.2001 at night hours, he had gone to pilibanga hospital where deceased kamla was admitted and he has recorded her statement. as per narration given by her before pw. 10 tara singh as1 it was written and then read over to her thereafter the thumb impression of the deceased was also taken on the said statement. the prosecution has not deliberately produced this statement though it was forming part of charge sheet, therefore, defence has produced and examined witness dw. 1 kishan lal in whose presence statement has been recorded by pw.10 tara singh asi. on perusal of ex. d.1 it seems that deceased herself has stated that while she was preparing tea she received burn injuries and on that day at the time of occurrence her husband was not at home and his son was sleeping in bakhal. in the said incident, smt. kamla has received burn injuries and her son poured water on her. unfortunately, the trial court has not considered this document which is first in point of time. despite the fact that it was verified by dr. o.p. suthar pw. 6 who categorically stated in cross that deceased was in a fit condition to give this statement ex. d. 1 and put her thumb impressions.12. now so far as the second dying declaration is concerned, which is recorded by pw. 9 ishwar lal verma, judicial magistrate, who has been examined as prosecution witness. a perusal of his evidence as well as ex. p. 15 it is stated therein that her husband poured kerosene on her. the said dying declaration was recorded after two days which according to us in an improved version and therefore, it has to be held that she was tutored during the course of two days.13. the prosecution relied upon the oral testimony of child witness pw. 3 raj kumar who is son of the deceasedas well as of the accused. he has inter alia testified on the same light as per dying declaration recorded by the judicial magistrate. he is child witness and at the relevant time he was residing at his uncle's house (mamma) and the possibility of presence of this child witness is not proved, therefore, we do not rely upon the oral testimony of this child witness.14. on the overall reappraisal of the evidence of prosecution witnesses, we are of the considered opinion that first dying declaration is recorded by pw. 10 tara singh which was supplied in the chargesheet the same was not produced during trial by the prosecution which was more reliable as it is first in point of time whereas dying declaration recorded by the judicial magistrate, hanumangarh is recorded in subsequent in point of time. we think it unsafe to place reliance on the dying declaration recorded by the judicial magistrate as well as the deposition of the child witness fw. 3 raj kumar. the trial court without considering this aspect has passed the order of conviction, which cannot be formed basis of conviction.15. the cumulative effect of the discussion that we have made here in above is that first dying declaration which is first in point of time is more reliable, acceptable and inspire confidence wherein deceased has given the correct account that how she met with unnatural death whereas the second dying declaration which is recorded after two days by the learned judicial magistrate is tutored one, therefore, it does not inspire confidence. deposition of eye-witness pw. 3 raj kumar does not inspire any confidence as reflected from the evidence that he was at his uncle's house (mamma) at the relevant time, therefore, second dying declaration as well as the oral testimony of child witness pw, 3 raj kumar does not help in any manner to connect the accused with the crime beyond any reasonable doubt. we, therefore, disagree with the findings and ultimate conclusion arrived at by the trial court in holding the accused guilty for offence under section 302 ipc and also under section 498-a ipc and sentencing him as above, as it is not based on correct appreciation of-evidence adduced by the prosecution as well as by the defence. the marriage is said to have been taken place 20 years back and the basic reliance has been placed with regard to cruelty on the basis of dying declaration recorded by magistrate to bring case under section 498-a ipc.16. seen in the above context, impugned judgment and order of sentence deserves to be quashed and set aside by allowing this appeal and thereby acquitting the accused for the offences with which he was charged.17. for the foregoing reasons, this appeal succeeds, and is allowed. the order of conviction and sentence under section 302 and 498-a ipc passed against the appellant-accused is quashed and set aside giving him benefit of doubt. as a consequences thereof, the accused is acquitted of the offences he is convicted and sentenced by judgment and order dt. 6.6.2002 rendered in sessions case no, 139/2001 by the learned addl. sessions judge (fast track), hanumangarh, as the offences are not proved beyond any reasonable doubt, the accused is in jail, he is ordered to be set at liberty forthwith, if lie is not required in connection with any other case.