Mohan Ram S/o Jetha Ram vs State of Rajasthan

In this criminal appeal filed under Section 374 (2) Cr.P.C .,

appellants, Mohan Ram, Ratiram @ Ratan Lal and Smt. Surja

Devi, are assailing the judgment dated 01.05.2012 passed by

learned Additional Sessions Judge (FT) No.1, Bikaner, in Session

Case No.100/2008, whereby all the three appellants were

convicted for the offence under Section 302 / 34 of IPC and

sentenced for life imprisonment along with fine of Rs.1000/-, with

default stipulation to further undergo one month''s simple

imprisonment.

As per facts of the case on 04.07.2008, PW.1 Lichhudan,

A.S.I. of Police Station Napasar, recorded ''Parcha-

Bayan''/statement (Ex.P/19) of Smt. Guddi @ Rameti (deceased),

while she was admitted in burn unit of PBM Hospital, Bikaner, in

which Smt. Guddi @ Rameti W/o Hansraj, stated that her

marriage was solemnized with Hansraj S/o Mohan Ram, five years

back and her "Muklawa" took place after two years of marriage. As

per allegations of Smt. Guddi, she was subjected to harassment

by her father-in-law, mother-in-law and husband while doubting

upon her character and assaulted her, therefore, she made a

telephone call to her brother, Rajuram (PW.8) and went to her

maternal home, where she stayed for about eight months but

before twenty days of the incident, her brother-in-law Rati Ram,

came to her house and told that they will not harass her,

therefore, she came back to her in-laws'' house. As per facts, the

deceased was not having any issue and her husband was pursuing

study at Bikaner. The deceased Smt. Guddi stated that on

04.07.2008 her father-in-law, mother-in-law gave beatings to her

and after beatings her mother-in-law brought a jerry cane of

kerosene and Rati Ram, brother-in-law caught hold her and

mother-in-law poured kerosene and lit fire. At that time, when

deceased shouted, one neighbour Pawan Godara came on the spot

and poured water upon her to save from fire and thereafter her in-

laws took her to hospital for treatment.

Upon the aforesaid statement (Ex.P/19), the S.H.O., Police

Station Napasar, registered the F.I.R. No.76/2008 for offence

under Section 307 / 34 and 323 IPC against appellants. During

treatment, Smt. Guddi @ Rameti died on 05.07.2008, therefore,

police added offence u/s 302 of IPC and commenced investigation.

During investigation, statement-cum-dying declaration of

deceased Smt. Guddi @ Rameti was recorded by the Magistrate

(Sh. Sukesh Kumar Jain) vide Ex/P/25, after obtaining fitness

certificate fromf the doctor and after completing investigation, the

S.H.O., Police Station Napasar, filed charge sheet against accused

appellants, Mohan Ram, Rati Ram @ Ratanlal and Smt. Surja

Devi, for offence u/s 302/34 IPC in the court of Judicial

Magistrate, Bikaner, from where the case was committed to

Sessions Court for trial, but later on, case was transferred to the

court of Addl. Sessions Judge (FT) No.1,Bikaner for trial.

In the trial, learned trial court framed charge under Section

302 / 34, and 115 Part-II of IPC against Mohan Ram whereas

framed charge against accused appellants, Rati Ram @ Ratanlal

and Smt. Surja Devi under Section 302 / 34 IPC, which they denied

and prayed for trial.

In the trial, statements of 12 prosecution witnesses were

recorded and 35 documents were exhibited from prosecution side,

thereafter statements of accused appellants were recorded under

Section 313 Cr.P.C. All the three appellants pleaded their

innocence and gave following explanation, which reads as under: -

Accused appellant, Mohan Ram gave following explanation: -

"VERNACULAR MATTER OMITTED"

Accused appellant, Ratiram gave following explanation: -

"VERNACULAR MATTER OMITTED"

Accused appellant, Smt. Surja Devi, gave following explanation:-

"VERNACULAR MATTER OMITTED"

In defence, 9 documents were exhibited and thereafter an

application was filed under Section 216 Cr.P.C. by learned Addl. Public Prosecutor to amend the charge and said application was

accepted vide order dated 27.03.2012 while amending the charge

and charge was framed under Section 302 and in the alternative

under Section 302 / 34 of IPC, which the appellants denied and

prayed for trial.

The learned trial court after recording evidence of both the

sides heard final arguments of the parties and after evaluating the

evidence in the light of arguments convicted the accused

appellants vide its judgment dated 01.05.2012 for commission of

offence under Section 302 / 34 of IPC and passed sentence

mentioned above, the validity whereof is under challenge in this

appeal.

Learned counsel for the appellants submits that the entire

prosecution case is based upon two dying-declarations of

deceased, Smt. Guddi @ Rameti recorded by the ASI, Lichhudan

of Police Station Napasar, as well as by Magistrate. The "Parcha-

Bayan" (Ex.P/19) was recorded by Licchu Dan, ASI of Police

Station Napasar, while Smt. Guddi was hospitalized for treatment

at PBM Hospital, Bikaner on 04.07.2008 at 03.50 PM. Another

dying-declaration of Smt. Guddi was recorded by the Magistrate,

Sh. Sukesh Kumar Jain (PW.9) vide Ex.P/25 at 05.00 PM in the

presence of Dr. O.P. Bishnoi, but in both the statements, contrary

facts were disclosed by the deceased with regard to motive of

occurrence. It is also argued that Dr. O.P. Bishnoi, from whom

fitness certificate was obtained by the Magistrate before recording

statement of Smt. Guddi @ Rameti, not produced in the trial by

the prosecution to support the dying declaration (Ex.P/25)

recorded by the Magistrate.

It is further submitted that soon after occurrence, when

deceased was taken to hospital, she was admitted in burn unit and

before admission, no allegations were levelled by her against the

appellants or any member of the family; and thereafter family

members came in the hospital, thereafter after five hours, at

03.50 PM deceased gave statement to ASI Lichhu Dan (PW.11) of

Police Station Napasar, and made allegation that my mother-in-

law poured kerosene upon me and set her at fire with the help of

brother-in-law and father-in-law of the deceased. It is also argued

that brother of deceased, and deceased herself accepted that Smt.

Guddi was brought to hospital by her in-laws i.e. father and

mother-in-law and brother-in-law; and it is specifically stated that

after hearing her hue and cry, neighbour Pawan Godara, came on

the spot and he doused the fire by pouring water, however, said

witness, Pawan Godara turned hostile and did not support the

prosecution case. Furthermore, it is specifically stated by him that

no allegation was levelled by the deceased Smt. Guddi, when he

reached on the spot on hearing her cries. Therefore, the

prosecution has failed to prove its case beyond reasonable doubt

on the basis of alleged two dying declarations because there is no

eyewitness in this case to prove the prosecution case.

Learned counsel for the appellants further argued that if

incident of burn took place, in which kerosene was used, then

obviously clothes of appellants were required to be taken in

possession so as to prove their presence on the spot, but no

clothes of appellants were even recovered or taken in possession

by the investigating officer so as to connect the accused

appellants with the crime. Learned counsel for the appellants

submitted that soon after the occurrence when deceased was

admitted in the hospital, her brother specifically stated in that

hospital that treatment may be conducted, we have no objection

for that and no allegation was levelled by him against appellants.

The doctor observed in the documents during treatment that

deceased herself accepted that while preparing food, the incident

took place. Therefore, when motive is absent in the case, then

obviously other evidence can be seen so as to connect the

accused appellants with the crime but there is no evidence on

record to prove the involvement of the appellants with the crime

except the dying declaration of the deceased, in which there are

major contradictions and not supporting to each other, and no

independent witness is produced by the prosecution to prove the

dying declaration of the deceased in the trial. Thus the finding of

guilt recorded by the trial court against the appellants deserves to

be quashed.

Learned counsel for the appellants vehemently argued that

entire prosecution case is based upon statements of 12

prosecution witnesses, including PW.1- Parta Ram (father of

deceased), PW.3- Radha (mother of deceased), PW.8- Raju Ram

(brother of deceased) and PW.10 Gopal Ram (cousin brother of

deceased). Admittedly, at the time of alleged incident, all above

relative witnesses were in their village, Kuchor Aathuni, and as per

their statements, the information with regard to occurrence was

received by them when they were in village.

There is no allegation for demand of dowry and the only

allegation is that the in-laws were repeatedly harassing the

deceased as she was not good looking and not doing domestic

works; and on the date of incident, as per statement of Smt.

Guddi, she was harassed by her in-laws while saying that you are

not preparing cake of cow''s dung ("miys"). Although certain

allegations were levelled by these witnesses for harassment and

misbehavior and beating by the appellants to the deceased but

there is no evidence on record to substantiate their allegation with

regard to any harassment meted out to deceased by the

appellants. There is no witness of the locality or documentary

evidence to even prove the allegation of harassment by the

appellants to the deceased. The witnesses categorically stated in

their statements that before pouring kerosene, she was assaulted

by accused appellants, but as per postmortem report and

statement of Dr. P.N. Mathur (PW.5) no sign of injury was found

upon the body of deceased except 40% burn.

Learned counsel for the appellants submits there are two

dying-declarations of the deceased. The "Parcha-Bayan" (Ex.P/19)

of deceased was recorded on 04.07.2008 at 03.50 PM by ASI,

Police Station Napasar when deceased was admitted in burn unit

of PBM Hospital, Bikaner and upon that statement, the deceased

put her thumb impression. Upon that ''Parcha-Bayan'' formal FIR

No.76/2008 under Sections 307, 323 and 34 of IPC was

registered, thereafter the SHO, Police Station Napasar,

commenced investigation. The second statement/dying declaration

(Ex.P/25) of the deceased was recorded by the Magistrate (PW.9-

Sh. Sukesh Kumar Jain). In the top of the said statement, there is

fitness certificate of Dr. O.P. Bishnoi, declaring the patient fit to

give statement. The said dying declaration was recorded at 05.00

PM on 04.07.2008, as per learned counsel for the appellants in

both above statements/dying-declaration (Ex.P/19 and Ex.P/25),

the reason soon before the incident is altogether different. It is

also argued that as per statement of deceased herself recorded by

the ASI on 04.07.2008 she was brought to the hospital by

mother-in-law and brother-in-law, namely, Smt. Surja Devi and

Ratiram @ Ratanlal in a jeep for treatment and all the family

members including appellants were present in the hospital. To

substantiate his argument, learned counsel for the appellants

invited our attention towards the statements of PW.8- Rajuram,

brother of the deceased, in which he has categorically stated that

when he reached in the hospital, at that time, brother-in-law, Rati

Ram, Smt. Surja Devi were sitting near deceased and one Om

Prakash S/o Mohan Ram was bringing medicines for treatment.

The witness Raju Ram (PW.8) specifically stated that in the

hospital, when he reached hospital, deceased informed that her

mother-in-law, Surja Devi, poured kerosene upon her and Ratiram

caught hold and Mohan Ram (father-in-law of deceased) insisted

them to lit fire. But, this fact is totally false because in the bed

head ticket, it is specifically state by the doctor that deceased was

brought by Vikas Lega and Ratiram, and it is nowhere observed in

the admission ticket (Ex.D/3) with regard to allegation of pouring

kerosene by the appellant, Smt. Sujra Devi and liting fire by her

upon insistence made by appellant, Mohanram. It is also argued

that as per admission ticket, brothers of deceased, viz. Raju Ram

and Vikas Lega brought the deceased, in the hospital and

specifically stated that we are aware about the serious condition of

the injured, therefore, treatment may be given to her and they

will be responsible for any loss or gain. Meaning thereby, if at the

time of admission at 10.30 AM, Raju Ram and Vikas Legha

(brothers of deceased) were present in the hospital, then

obviously, incident was to be disclosed by them at the time of

admission itself and the police was to be called immediately for

taking action, however, for the first time, ASI, Police Station

Napaar, came to hospital at 03.50 PM after five hours and

recorded the statements of deceased, in which for the first time

allegations were levelled by her after meeting parents and other

relatives.

According to learned counsel for the appellants, both the

dying-declarations are contrary to each other and there is no

allegation of motive, more so, upon perusing the bed head ticket,

postmortem report and statement of PW.8- Rajuram, brother of

the deceased, it is obvious that a concocted story was cooked up

by the prosecution with the aid of relative witness so as to involve

accused appellants with the crime. The independent witness viz.

PW.4- Pawan Godara, who has named in the statements by the

deceased, appeared before the court, and declared hostile

because he has disclosed correct story. Therefore, it is a case in

which prosecution has failed to prove its case beyond reasonable

doubt even on the basis of dying declaration, which is tutored

statement and thus does not inspire any confidence so as to

convict the accused appellants with the crime.

Learned counsel for the appellants invited our attention

towards following judgments:

Chinnamma Vs. State of Kerala reported in 2004 (2) Crimes (SC) 271

Shayara (Smt.) Vs. State reported in 2017 (1) Cr.L.R. (Raj.)

Paparambaka Rosamma & Ors. Vs. State of A.P. reported in 1999 (4) Crimes 150 (SC)

Sharda Vs. State of Rajasthan reported in 2010 (2) SCC (Cri.) 980

Sharad Birdhichand Sarda Vs. State of Maharashtra reported in AIR 1984 SC 1622

Chinnamma Vs. State of Kerala, reported in 2004 (2) Crimes 271 (SC)

Learned counsel for the appellants relying upon above

judgments submits that there is no eyewitness of the incident and

the entire prosecution story is based upon tutored dying

declaration of the deceased, who was admitted in the hospital

having 40% burn injury, there is major contradiction about the

reason for incident in the "Parcha-Bayan" and dying-declaration of

the deceased, therefore, it is a case in which prosecution has

failed to prove its case beyond reasonable doubt, therefore, the

judgment impugned may kindly be quashed and the accused

appellants may be acquitted from the charge levelled against

them.

Per contra, learned Public Prosecutor vehemently argued

that it is a case in which all the three appellants committed

heinous offence of murder of Smt. Guddi W/o Hansraj, by pouring

kerosene upon her only for the reason that she was not good

looking and not performing domestic works in her in-laws'' house.

While inviting attention towards the statement of PW.1- Parta Ram

(father of the deceased) and PW.3- Radha (mother of the

deceased) it is submitted that after marriage of Smt. Guddi

(deceased) with Hansraj, the behaviour of the appellants with

Smt. Guddi was cruel and quarrelsome, they were regularly

harassing her for various reasons and her husband was not

residing in the village as he was pursuing his studies at Bikaner,

therefore, there is no question to accept the contention of the

appellants that whole prosecution story is concocted.

Learned Public Prosecutor further submitted that there are

two dying-declarations of the deceased recorded by Lichhu Dan,

ASI of Police Station Napsar and by the Magistrate (Sh. Sukesh

Kumar Jain), and in both these statements specific allegations

were levelled by the deceased against her mother-in-law, Smt.

Surja Devi that she poured kerosene upon insistence of appellant,

Mohan Ram, father-in-law and at the time of incident, brother-in-

law of deceased (appellant Ratiram @ Ratanlal) caught hold her,

therefore, it is a case in which deceased herself narrated whole

incident not only before the police but also before the Magistrate

also. Thus, it cannot be said that whole prosecution story is

concocted story. More so, it is a case in which trial court has

rightly relied upon the statement/dying declaration of the

deceased Smt. Guddi, so as to reach the conclusion that

prosecution has proved its case beyond reasonable doubt.

According to learned Public Prosecutor, although

independent witness PW.4- Pawan Godara, turned hostile and did

not support the prosecution case, but there is no reason to

disbelieve the dying declaration of the deceased recorded by ASI-

Lichhu Can (PW.11) and Magistrate (PW.9), Sh. Sukesh Kumar

Jain. The learned trial court has not committed error while relying

upon the dying declarations of the deceased Ex.P/19 and Ex.P/25

as in both these dying declarations specific allegations were

levelled by the deceased against appellants for causing burn

injury, which resulted into her death. Learned Public Prosecutor

further argued that although the doctor who gave the fitness

certificate did not appear during the trial, but it cannot be said

that at the time of recording statements, the deceased was not in

a position to speak. Furthermore, at the time of recording the

statements by the Magistrate (PW.9- Sh. Sukesh Kumar Jain,

asked specific questions to the deceased and those questions were

answered in fit state of mind, which is obvious from the language

used by the Magistrate as per statements of the deceased. It is

submitted that there is no dispute that deceased died due to burn

injuries, therefore, it cannot be said that any error has been

committed by the trial court so as to convict the accused

appellants for the offence of murder of Smt. Guddi @ Rameti.

With regard to argument of the counsel for the appellant that

doctor has not been examined in the court, learned Public

Prosecutor submitted that it cannot be said that trial court was

required to disbelieve the dying-declaration recorded by the

Magistrate. Learned Public Prosecutor in support of his arguments

relied upon two judgments viz. (1) Om Pal Singh Vs. State of U.P.

reported in AIR 2011 SC 1562 and (2) Satish Ambanna Bansode

Vs. State of Maharashtra reported in AIR 2009 SC 1626, and

submitted that there is no force in this appeal and the same may

kindly be dismissed.

After hearing the learned counsel for the parties, we have

considered the arguments of both the sides in the light of

evidence on record and finding of guilty recorded by the learned

trial court. Admittedly, the entire prosecution case is based upon

testimony of 12 prosecution witnesses viz. PW.1- Parta Ram

(father of the deceased), PW.2 Mahesh Kumar, is the

photographer, PW.3 Radha (mother of the deceased), PW.4-

Pawan Kumar (neighbour of the deceased, who reached on the

spot on hearing the hue and cry of the deceased (declared

hostile), PW.5- Dr. P.N. Mathur, who conducted the postmortem

and gave postmortem report (Ex.P/16), PW.6- Mahendra Singh

(Messenger of Police Station Napasar, who sent the articles at

FSL, Jaipur), PW.7- Vijay Pal (Malkhana In-charge, P.S. Napasar),

PW.8- Raju Ram (real brother of the deceased and who was

Motbir witness of seizure of memos, site plan and clothes of

deceased, Smt. Guddi), PW.9- Sukesh Kumar Jain (Judicial

Magistrate, who recorded the statements (Ex.P/25) of the

deceased on 04.07.2008), PW.10- Gopal Ram (cousin brother of

deceased, and Motbir witness of site plan and seizure memo),

PW.11- Lichhu Dan ASI (who recorded "Parcha-Bayan" (Ex.P/19)

of the deceased on 04.07.2008 upon which FIR was registered)

and PW.12- Kishan Singh, SHO, Police Station- Napasar, who had

conducted the entire investigation.

Upon perusal of above list, it is obvious that PW.1- Parta

Ram, PW.3- Radha, PW.8 Raju Ram and PW.10- Gopal Ram are

close relative of deceased and they were not present when the

alleged incident took place in the house of appellants on

04.07.2008. PW.4- Pawan Kumar, who was neighbour and whose

name was disclosed by the deceased in her statements, turned

hostile and did not support the prosecution case. There is no other

evidence of the persons of the locality where the alleged incident

took place. We have also perused the statements of PW.1- Parta

Tam, and PW.3 Radha. In both the statements, father and mother

of the deceased levelled allegations with regard to harassment

and ill-treatment being meted out with their daughter prior to the

incident. However, no evidence is produced by them, either oral or

documentary, to substantiate the allegations levelled by them.

Admittedly, PW.1- Parta Ram stated in his statements that one

point of time my brother, Hetram, Mohanram, Shrawan Sarpanch

and Poona Ram went to the house of appellants to reason with

them and asked them not to harass the deceased and not

comment upon her bad looking but it is very strange that none of

witnesses, named by the PW.1- Parta Ram in his statement

produced before the court to substantiate the allegations levelled

by PW.1 and PW.4- Rajuram. PW.1 Parta Ram, stated before the

court for having information that, " "VERNACULAR MATTER OMITTED"

PW.3- Smt. Radha, in her examination-in-chief stated that, "VERNACULAR MATTER OMITTED"

We have also perused the statement of PW.8- Raju Ram

(brother of deceased), who has categorically stated that, ""VERNACULAR MATTER OMITTED"

Upon perusal of statements of these statements, it is

obvious these witnesses disclosed names of number of persons,

who went to the in-laws'' house as well as to the hospital, but none

of the witnesses produced before the court by the prosecution to

prove the allegation levelled by PW.1- Parta Ram, PW.3-Radha

and PW.8-Rajuram. We have also perused the cross-examination

of PW.1- Parta Ram in which specific questions were put to the

witness, for his improvement from the statements recorded under

Section 161 Cr.P.C. (Ex.D/1). The said witness replied that all the

facts were disclosed by him to the police but why police has not

incorporated those allegations in the statements recorded u/s 161

Cr.P.C ., I do not know.

In view of above, it is obvious that none of the persons

whose names are disclosed in the statements of father, mother

and brother of the deceased, were produced before the court to

support the allegation of harassment and beating levelled by them

against appellants. It is worthwhile to observe that deceased

disclosed in her statements and soon after the incident, neighbour

PW.4- Pawan Kumar, came and doused the fire by pouring water

on the deceased and rescued her, but said witness PW.4- Pawan

Kumar, was decaled hostile because he has not supported the

prosecution case, and said witnesses stated that, "VERNACULAR MATTER OMITTED"

Upon perusal of above statement of PW.4- Pawan Kumar, it

is obvious that as per statement of deceased herself, he was only

independent witness reached on the spot soon after the

occurrence but said witness did not support the prosecution case

and admittedly his presence is not disputed by the deceased

herself in her statements. Upon consideration of entire evidence, it

is obvious that none of the doctor, who admitted the deceased in

the hospital, and gave treatment to the deceased, is produced

before the court to prove the fact that the deceased at the time of

admission in the hospital, whether any allegation was levelled by

the deceased or not. It is also one of the important fact that

doctor who gave fitness certificate before recording the

statements by Magistrate i.e. Dr. O.P. Bishnoi, has not been

produced as prosecution witness to prove the fact that deceased

was fit to give statement. In view of above facts, it is obvious that

independent witnesses, who names were disclosed by PW.1 Parta

Ram, PW.3 Radha and PW.8 Raju Ram, not produced before the

court and the doctor, admitted the deceased at 10.30 AM in the

hospital, not appeared before the court. The witnesses, who

allegedly participated in conciliation proceedings and independent

witnesses of the locality, were not produced before the court to

prove the occurrence. Admittedly, all the relatives were not

present at the time of occurrence in the village and it is also

admitted case that as per statement of deceased, Smt. Guddi,

recorded by ASI that brother-in-law of deceased took the

deceased to the hospital for treatment and Raju Ram specifically

stated in his statement that during treatment, appellant, Smt.

Surja Devi and other family members were present in the hospital

and they were taking care of Smt. Guddi.

We have also perused the statements of mother of deceased

viz. PW.3- Radha, who has categorically stated that after receiving

information, I went to hospital and meet my daughter, Guddi and

I went back to village Kuchore. Meaning thereby, mother of the

deceased is accepting that she left the hospital after ascertaining

reasons for death. In our opinion that how such type of statement

can be accepted by a prudent person because, if daughter is

admitted in the hospital in burnt condition and mother visiting in

the hospital, then how mother can leave the hospital knowingly

well that her daughter is in serious condition. All above facts

loudly speaks that prosecution story is seriously doubtful as there

is no allegation for demand of dowry. The husband of the

deceased was not even present in the house when the incident

took place in the house, nor husband has been made an accused.

With regard to allegation of harassment by her in-laws because

she was not good looking, we are unable to accept such type of

allegation because such comment can be made by the husband, if

his wife is not good looking, and none else. Here in this case,

there is no allegation against the husband of the deceased either

by the deceased or by the other prosecution witnesses. In our

opinion, the entire prosecution evidence is seriously doubtful

because allegations are not supported by any independent witness

even though presence of number of persons was disclosed by the

father, mother and brother of the deceased in their statements

Now we are considering whether the conviction of accused

appellant can be based upon the dying declaration of the deceased

or the dying declaration of the deceased inspires any confidence

or the dying declaration is a tutored statement of the deceased.

To ascertain the correctness of the facts, first of all we have

perused the bed head ticket (Ex.D/3) of PBM Hospital. Admittedly,

deceased was admitted in the hospital at 10.30 AM on 04.07.2008

and as per Ex.D/3, deceased was brought to hospital by Vikas

Lega and Raju Ram, brothers of deceased. In the said bed head

ticket, it is nowhere disclosed by both these brothers, who were

present at the time of admission, as to how incident took place.

More so, the doctor, who admitted the deceased Smt. Guddi, put

a note with regard to reason disclosed by deceased herself at page

number 2 of the bed head ticket. The doctor who admitted the

deceased, specifically records that ''patient admitted in casualty

and said burn at 7 AM in the morning told by patient herself''.

There is no disclosure either by the brothers of the deceased and

deceased herself as to how burn injury occurred. When she was

admitted at 10.30 AM in the morning but subsequently at 03.50

PM, ASI Lichhu Dan recorded ''Parcha-Bayal'' (Ex.P/19) of the

deceased, in which deceased said that, "VERNACULAR MATTER OMITTED"

We have also perused the dying-declaration (Ex.P/25)

recorded by Sh. Sukesh Kumar Jain, Magistrate, in which

deceased Smt. Guddi @ Rameti, specifically replied to question 4

in the following manner:

"VERNACULAR MATTER OMITTED"

Admittedly, the Magistrate recorded the statement of

deceased at 05.00 PM after obtaining fitness certificate of Dr. O.P.

Bishnoi but doctor has not been examined before in the trial to

prove the fact that deceased was in the state of mind to give

statement.

We have considered all the three reasons disclosed by the

deceased, Smt. Guddi, before the doctor at the time of admission

in the hospital, thereafter before the ASI, Lichhu Dan, in the

''Parcha-Bayan'' (Ex.P/19) and dying declaration (Ex.P/25)

recorded by the Magistrate. In the bed head ticket, no reason has

been assigned by the deceased as to how she (deceased)

sustained burn injury, however, the allegation of pouring kerosene

upon the deceased and liting fire was levelled for the first time

when ASI recorded "Parcha-Bayan" vide Ex.P/19 and thereafter in

the dying declaration (Ex.P/25) recorded by the Magistrate. When

deceased Smt. Guddi was admitted in the hospital, her brothers,

Raju Ram and Vikas Lega were present, however, it is nowhere

disclosed by the deceased or her brothers that kerosene was

poured by the mother-in-law of the deceased on the person of

deceased upon insistence by the father-in-law, appellant, Surja

Devi, lit fire while Rati Ram caught hold the deceased. In the

''Parcha-Bayan'' recorded by the ASI, Licchu Dan, at 03.50 PM the

reason for quarrel was altogether different then the reasons

disclosed in Ex.P/25 recorded by the Magistrate. It is also

worthwhile to observe that deceased herself admitted that her

mother-in-law and brother-in-law brought her to the hospital for

treatment and this fact was admitted by the brother of the

deceased PW.8- Raju Ram that he was present in the hospital at

the time of treatment.

In our opinion, if soon after the occurrence when the

deceased was brought to the hospital, it was the duty of the

doctor who admitted her to call police immediately but police was

not called because deceased and her brother PW.8- Raju Ram,

who was present in the hospital but did not disclose any fact

regarding incident but when her father and mother and other

relatives met her, she gave statement to ASI, Lichhu Dan at 03.50

PM and made allegation against the appellants. Before 03.50 PM,

it is nowhere disclosed by the deceased either before the doctor or

Raju Ram, who was present at the time of admission at 10.30 AM

that kerosene was poured by appellant, Smt. Surja and upon

insistence made by Mohan Ram, she lit fire. For the first time, in

the statements recorded by ASI the allegations were levelled by

the deceased having 40% burn injury but the reason for quarrel

was altogether different then the reasons which were disclosed in

the dying declaration Ex.P/25 recorded by the Magistrate.

Upon assessment of entire evidence, we are of the opinion

that the dying declaration of the deceased does not inspire any

confidence, more so, the same is seriously doubtful. We have also

examined the truthfulness of the dying declaration in the light of

entire evidence, in our opinion, none of the independent witness

appeared before the court even has proved the fact of quarrel or

incident on the date of occurrence although as per prosecution

case incident took place in morning, so also, deceased herself said

in her statements that number of persons of the locality came

there including witness Pawan Godara, but none of the persons of

the locality appeared before the court and supported the incident.

Furthermore, the genesis of case arise at 03.00 PM when

statements of the deceased were recorded by after visiting her

father, mother and brother in the hospital, where appellants were

already there in the hospital for treatment of the deceased.

The Hon''ble Apex Court in the case of

Umakant Vs. State of Chattisgarh reported in (2014) 7 SCC 405

considering the relevancy and acceptability of a dying declaration

gave following verdict:

"20. The philosophy of law which signifies the importance of a dying declaration is based on the maxim nemo moriturus praesumitur mentire, which means, "no one at the time of death is presumed to lie and he will not meet his Maker with a lie in his mouth". Though a dying declaration is not recorded in the court in the presence of the accused nor is it put to strict proof of cross-examination by the accused, still it is admitted in evidence against the general rule that hearsay evidence is not admissible in evidence. The dying declaration does not even require any corroboration as long as it inspires confidence in the mind of the court and that it is free from any form of tutoring. At the same time, dying declaration has to be judged and appreciated in the light of surrounding circumstances. The whole point in giving lot of credence and importance to the piece of dying declaration, deviating from the rule of evidence is that such declaration is made by the victim when he/she is on the verge of death.

In spite of all the importance attached and the sanctity given to the piece of dying declaration, the courts have to be very careful while analysing the truthfulness, genuineness of the dying declaration and should come to a proper conclusion that the dying declaration is not a product of prompting or tutoring.

The legal position about the admissibility of a dying declaration is settled by this Court in several judgments. This Court in Atbir v. Govt. (NCT of Delhi ), taking into consideration the earlier judgments of this Court in Paniben v. State of Gujarat and another judgment of this Court in Panneerselvam v. State of T.N . has given certain guidelines while considering a dying declaration:

"(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.

(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.

(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.

(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.

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

(vi) A dying declaration which suffers from infirmity, such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.

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

(viii) Even if it is a brief statement, it is not to be discarded.

(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.

(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration."

In the case of Chinnamma Vs. State of Kerala, reported in

2004 (2) Crimes 271 (SC) following adjudication was made by the

Hon''ble Apex Court in paragraphs 8 and 9, which reads as under:

"8.We will now examine the contents of the second dying declaration Ex. P-10 recorded by the Magistrate on 14.7.1989. It should be noted here that this was a statement recorded about 6 days after the incident in question during which time she was being looked after in the hospital by her father and other relatives. This statement of the deceased was recorded in the presence of the Duty Doctor who had certified her to be conscious and coherent to give a statement. In this statement which is in the form of questions and answers, the deceased told the Magistrate that on last Saturday (8.7.1989), she took food for piglings from the kitchen of her husband''s house, and as soon as she entered the kitchen, she got a beating on the back of her head. That was by her sister-in-law whose name is Chinnamma. She then

fell down and became unconscious. She then states that while she was unconscious, the flames started and there was smell of kerosene. To a question asked by the Magistrate, she states that it was her sister-in- law who beat her therefore, she suspects that her sister-in-law set her body on fire. While answering a question as to who all were attending on her, she said that her father, mother, two brothers, two sisters and her husband were attending on her. In regard to the reason for the attack, she states that there was some talk that she had done some evil magic on her husband, therefore, her husband was not loving his sister (the appellant) after their marriage. A careful consideration of this dying declaration made about 14 days before her death, shows that in this statement she states that when she entered the kitchen, she was struck on the back of her head which she assumes was by her sister-in-law (the appellant). She then states that she became unconscious thereafter and when she regained consciousness, she saw flames and smelt kerosene. She also says that she suspected her sister- in-law of having set her on fire. The motive given for this attack by the appellant in this dying declaration was that the appellant had suspected the deceased of having cast certain evil magic on her husband because of which he stopped loving his sister, the appellant. A comparison of these two dying declarations, in our opinion, shows certain glaring contradictions. In the first dying declaration, we have noticed that there was an incident on the previous day when she desired to go to her mother''s house and got dressed up for the same. Her husband did not allow her to go to her mother''s house. But the next day, when she got dressed again to go to her mother''s house, the appellant came and standing behind her, hit her on the back of her head when she fell on the

floor and she saw the appellant taking kerosene which was kept in the room and pouring on her chest and thereafter she felt the heat and ran outside the house and fell unconscious. The factum of she having seen the appellant taking out the kerosene from the room and pouring the same on her was not spoken to by her in her second dying declaration. This fact has some relevance while appreciating the correctness of the two dying declarations because if really she was conscious and had seen the appellant take the kerosene and pouring the same on her, she would not have forgotten to mention it again in her second dying declaration. Again, while she was certain that it was her sister-in-law (appellant) who poured the kerosene on her and set her on fire as per her first dying declaration; in the second dying declaration, she was not so sure because she says that she only suspected the appellant as having set her on fire. This is because she had earlier stated in that statement, she became unconscious when her sister-in- law had hit her on the head. Even the motives given in the two dying declarations are entirely different. These contradictions, in our opinion, create grave suspicion in our minds whether the injury suffered by the deceased was really because of the act of the appellant or was a figment of the imagination of the deceased. This suspicion of ours becomes all the more stronger if we notice the evidence of PW-11 who treated her in the first instance when she was taken to Kanjirappally hospital. It is seen from the wound certificate Ex. P-11 given by this doctor that when he examined the deceased for the first time at Kanjirappally hospital, she stated that she suffered the injury due to accidental burning while preparing food for the piglings. This very important aspect of the case was rejected by both the courts below on the ground

that the entry made in the wound certificate might not have been a correct entry because the witnesses who took her to the hospital, had stated that she was not in a fit condition to talk. But then we should remember that this is an entry made in a document regularly maintained and the doctor had no reason whatsoever to make an incorrect entry, and no question was asked to this doctor when he was in the witness box as to the correctness of the entry, therefore, due weight should be given to the contents of this wound certificate and the courts below ought not to have rejected the same on the basis of oral evidence given by certain witnesses. It is also very relevant to mention here that the deceased was prevented from going to her mother''s house by her husband on 7.7.1989 and the deceased being adamant in spite of protest from her husband, had decided to go to her mother''s house again on 8.7.1989 which indicates that there may be reasons other than the alleged enmity entertained by the appellant for suffering by the burn injuries which led to her ultimate death. From the material on record, we are also unable to find any strong motive which would have induced the appellant to commit such a heinous crime of burning her sister-in-law to death. The conduct of the appellant in being present with the deceased right through the journey to the hospital also indicates otherwise. There is another important aspect of the case which was not considered by the two courts below properly i.e. it is the case of the deceased that she was beaten on the back of her head with a firewood, consequent to which she fell down and had lost her consciousness. Though during the course of inquest of the dead body, it was noticed that there was a contusion on the head, the doctor who examined the deceased before she died as also the

doctor who conducted the post mortem, did not notice any such injury on the head which indicates that the first part of the attack on the deceased by the appellant could be concocted. At any rate, the prosecution has failed to establish the first part of the attack by the appellant on the head of the deceased. Learned counsel appearing for the State, however, contended that because of the burn injuries, the doctors might not have noticed the head injury caused by the attack with a firewood on the head of the deceased. We have perused the medical report which shows that all the burn injuries suffered by the deceased were below the neck and on the limbs and so far as the head is concerned, there was no burn injury. The absence of any injury at the back of the head of the deceased as also non-recovery of the firewood which was used in the assault on the deceased indicates that the first part of the dying declaration is not true. In this background, the second part of the dying declaration that she fell down and became unconscious also cannot be believed. These discrepancies would indicate that her statement made to the doctor PW-11 that she suffered burn injuries accidentally while cooking becomes more probable. Be that as it may, the abovementioned facts create a doubt in our mind as to the truthfulness of the contents of the dying declaration as also the possibility of she being influenced by her parents in making the dying declaration cannot be ruled out.

Having very carefully perused the material on record, we are unable to come to the conclusion that the prosecution in this case has established its case beyond all reasonable doubt to base a conviction on the appellant. Hence, we are of the opinion that both the courts below have erred in coming to the contra conclusion."

In both these judgments, the Hon''ble Supreme Court held

that at the time of recording conviction on the basis sole dying

declaration, conduct of appellants accompanied victim in the

hospital and fact of contradiction in both the statements should be

considered. The Hon''ble Apex Court specifically observed as to

how evidence of dying declaration should be considered and laid

down guidelines in para 22 of the judgment.

We have considered the evidence of dying declaration of the

deceased, Smt. Guddi, of this case in the light of aforesaid

guidelines. In our opinion, following facts create serious doubt

with regard to allegations made by the deceased, Smt. Guddi in

her contradictory dying declaration/s, which are as follows:

A. None of the independent witness whose names disclosed by

father of the deceased PW.1 Parta Ram, mother of the

deceased, PW.3 Radha and brother of the deceased PW.8-

Raju Ram, and so also, deceased herself, are produced

before the court to prove the allegations of harassment by

the appellants. Further, PW.4- Pawan Kumar, whose name

was disclosed by the deceased in her ''Parcha-Bayan'' and

dying declaration, turned hostile and did not support the

prosecution case. The witness PW.4- Pawan Godara, though

accepted that he came on the spot but specifically denied

that any allegation was made before him by the deceased

against the appellants.

B. There is no independent witness of the locality, more so, all

the proceedings at the place of occurrence were conducted in

the presence of brother of the deceased PW.8- Rajuram and

Vikas Legha. Soon after the occurrence, when deceased was

admitted in the hospital at 10.30 AM, no allegations was

levelled either by the deceased or by her brothers, who were

present in the hospital, and the treatment was provided by

the doctor upon their request, in which no allegation was

levelled either by the deceased or by the brothers of the

deceased.

C. Admittedly, deceased was admitted in the hospital at 10.30

AM on 04.07.2008 but police was not called for the reason

that no allegations were levelled by the deceased or her

brothers before the doctor but after meeting father and

mother, and other family members, when ASI- Lichhu Dan

recorded the ''Parcha-Bayan'' (Ex.P/19) at 03.50 PM on

04.07.2008, allegations were levelled by the deceased and

subsequently in the dying-declaration (Ex.P/25) recorded by

the Judicial Magistrate at 05.00 PM. But, upon perusal of the

both these dying-declarations, the reasons for quarrel

assigned by the deceased in the ''Parcha-Bayan'' (Ex.P/19)

and dying-declaration (Ex.P/25) are altogether different and

there is contradiction in the statements.

D. As per statement of deceased, as well as her parents,

deceased was assaulted many a times, but no material

evidence, oral or documentary, is placed on record to prove

the allegation of beating. In the statements of deceased,

there are allegation of causing injury but in the postmortem

report (Ex.P/16) no injuries except burn injury were found

upon the body of deceased. Dr. P.N. Mathur (PW.5) who

prepared the postmortem report specifically stated before

the court that no injury other than burn injury was found

upon the body of the deceased. Following statement is given

in the cross-examination by the doctor PW.5, Dr. P.N.

Mathur:

"VERNACULAR MATTER OMITTED"

Thus, in view of above, we are of the firm opinion that the

finding of conviction recorded by the learned trial court on the

basis of dying declaration does not inspire any confidence so as to

uphold the finding of guilt recorded by the trial court. A serious

doubt is in existence because no independent evidence is on

record to substantiate the allegation that deceased was subjected

to harassment or cruelty by the appellants, inspite of disclosing

names of viz. Hetram, Mohanram, Shrawan Sarpanch and Poona

Ram, who went to the house of appellants to reason with them,

not produced as witness before the court. The entire case is based

upon testimony of close relatives and sole independent witness

PW.4- Pawan Kumar, turned hostile and did not support the

prosecution story.

We have also considered the judgments relied upon by the

learned Public Prosecutor in the case of Om Pal Singh (supra) and

Satish Ambanna Bansode (supra). It is true that dying declaration

can be accepted even if doctor who gave fitness certificate is not

produced before the court but at the time we cannot lose sight of

the fact that truthfulness of the dying declaration is required to be

seen with other evidence also, which does not exist in this case.

In view of above discussion, we are of the opinion that the

allegations made in the dying declaration are seriously doubtful

because none of fact disclosed by the deceased is corroborated by

other evidence or by the witness, whose name was disclosed by

her in her statements. Thus, the accused appellants are entitled

for benefit of doubt.

Consequently, the instant appeal is hereby allowed. The

judgment impugned dated 01.05.2012 passed by learned

Additional Sessions Judge (FT) No.1, Bikaner, in Session Case

No.100/2008 convicting and sentencing the accused appellants for

the offence u/s 302/34 of IPC, is hereby quashed and set aside

and accused appellants are hereby acquitted from the charge

levelled against them while extending benefit of doubt. The

appellants may be released forthwith if not required in any other

case.

Keeping in view, however, the provisions of Section 437A

Cr.P.C. the accused appellants are directed to forthwith furnish

personal bonds in the sum of Rs.20,000/- and a surety bond in

the like amount each, before the learned trial court, which shall be

effective for a period of six months to the effect that in the event

of filing of Special Leave Petition against the judgment or for grant

of leave, the appellants, on receipt of notice thereof, shall appear

before Hon''ble the Supreme Court.