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Judgment
The present criminal appeal has been filed by the
appellants under Section 374 (2) of Cr.P.C . against the
judgment dated 05th July, 2011 passed by learned Addl.
Sessions Judge, Didwana, District Nagaur (for brevity,
hereinafter referred to as ''trial court'') in Session Case
No.14/2010 whereby the appellants were convicted for
the offences under Sections 302 / 34, 323 / 34, 341, 509
and 498A of IPC and following sentence was imposed
against them:
302/34 of IPC : Life Imprisonment and a fine of Rs.1000/- each, in default of payment of fine, to further undergo two months additional imprisonment.
323/34 of IPC : One Year''s Simple Imprisonment and a fine of Rs.200/- each, in default of payment of fine, to further undergo fifteen days simple imprisonment.
341 of IPC : One month''s simple imprisonment.
509 of IPC : Six months'' simple imprisonment.
498A of IPC : Three years'' rigorous imprisonment with a fine of Rs.500/- each, in default of payment of fine, to further undergo three months'' simple imprisonment.
Succinctly stated, the facts of the case are that
statements (Ex.P/3-''Parcha-Bayan'') of injured, namely,
Smt. Radha Devi, were recorded by Bhanwar Singh, Head
Constable of Police Station- Ladnu, at P.B.M. Hospital,
Bikaner on 25.03.2010, in which Smt. Radha Devi stated
that she got married with Askaran S/o Nathu Ram, 24
years back and having one daughter and two sons from
the said wedlock. In the family of her in-laws, there are
four brothers including her husband and out of four
brothers, two brothers along with their family members
are residing with her. As per allegations of Smt. Radha
Devi, on 24.03.2010 at about 05-06.00 PM, when she
came back at her house in the evening, her brother-in-
law, namely, Nemichand used abusive language and
inflicted injuries on her head by a sharp weapon and
pushed her forcibly in a room where her mother-in-law
came and poured kerosene upon her and set her at fire by
throwing a matchstick. After litting fire, both, Nemichand
and mother-in-law, namely, Smt. Mangi Devi, ran away
from the place of occurrence. Upon hearing the hue and
cry, her sister-in-law, Kamla Devi, came there and poured
water for rescue.
Upon the aforesaid ''Parcha-Bayan'' (Ex.P/3), on
26.03.2000 an F.I.R. No.57/2010 was registered at Police
Station Ladnu, District Nagaur, against the accused
appellants and investigation was commenced.
During investigation, statements of deceased, Smt.
Radha Devi, were recorded under Section 164 Cr.P.C. by
learned Magistrate (Ms. Purnima Gaur, PW.11), who was
working on the post of Addl. Civil Judge (Jr. Division)-
cum-Judicial Magistrate No.3, Bikaner, after obtaining
certificate from the doctor, in which almost similar
allegations were levelled by Smt. Radha Devi, as stated in
her ''Parcha-Bayan'' (Ex.P/3).
After arrest of the accused appellants, upon
completion of investigation, charge sheet was filed against
the appellants under Section 306, 498A, 323, 324 and
509 of IPC in the court of learned Judl. Magistrate, First
Class, Ladnu from where the case was committed to the
court of Addl. Sessions Judge, Didwana, District Nagaur
for trial.
The learned trial court while taking into
consideration the directions issued vide order dated
07.08.2010 by this Court in S.B. Criminal Misc. Bail
Petition No.4249/2010, framed charges against the
accused appellants for the offences u/s 302 and in the
alternative u/s 302/34, 498A, 323, in the alternative u/s
323/34 of IPC and commenced the trial.
In the trial, statements of 15 prosecution witnesses
were recorded and 15 documents were also exhibited
from the prosecution side to prove the case against the
appellants.
After recording prosecution evidence, statements of
the accused appellants were recorded u/s 313 Cr.P.C ., in
which they denied all the allegations levelled by the
prosecution witnesses against them and said that all the
allegations are false. It is specifically said that Smt. Radha
Devi was not assaulted by them, more so, deceased, Smt.
Radha Devi was of stubborn attitude and she herself lit
fire and falsely implicated them in the alleged crime. It is
also stated that accused appellant, Mangi Devi, tried to
rescue her but due to her nature, she (Smt. Radha Devi)
falsely implicated them with the alleged crime.
In defence, 3 witnesses viz. DW.1 Chananaram,
DW.2 Poonamchand and DW.3 Magharam were produced
before the court and statements of Askaran (husband of
the deceased) recorded under Section 161 Cr.P.C. were
exhibited as Ex.D/1 in defence.
The learned trial court after recording the evidence
of both the sides heard final arguments and convicted the
accused appellants for the offences mentioned herein
above and passed sentence vide judgment dated
05.07.2011, which is under challenge in this appeal.
Learned counsel for the appellants vehemently
argued that it is a case in which both the appellants have
been falsely implicated upon false allegations of Radha
Devi, which is evident from the fact that all the material
witnesses including husband of the deceased, Askaran
(PW.2), the witnesses of ''Panchnama'' PW.4, Rampal,
PW.5, Gajraj (son of deceased), PW.6 Deepika (daughter
of deceased) and PW.7 Sanjay (second son of deceased)
turned hostile and did not support the allegation of
deceased, Radha Devi. According to learned counsel for
the appellants, the entire case is based upon dying
declaration in the form of ''Parcha-Bayan'' (Ex.P/3) and
statement (Ex.P/12) of the deceased recorded by the
Judicial Magistrate, Bikaner. However, the learned trial
court has wrongly relied upon both above statements of
the deceased so as to convict the appellant because it has
not been proved by the prosecution that before recording
the statements of the deceased, fitness certificate of
doctor was obtained, therefore, in absence of any reliable
and trustworthy evidence, the findings of learned trial
court to hold accused appellants guilty, deserve to be
quashed. It is settled principle of law that it is the duty of
the police officer to obtain certificate of fitness from the
doctor whether the patients is in a position to speak or
understand the things before recording statement of an
injured. It is also argued that although statement of the
deceased were recorded by Ms. Purnima Gaur (PW.11),
the then Addl. Civil Judge (Jr. Division)-cum-Judicial
Magistrate No.3, Bikaner, upon the certificate of Dr.
Pradeep Gupta declaring the patient (Smt. Radha Devi) to
be fit for giving statements, but said Dr. Pradeep Gupta,
has not been produced as witnesses to prove the
correctness of the facts, therefore, the allegation of
prosecution for committing offence by the appellants, has
not been proved.
Learned counsel for the appellants further submit
that all the family members including husband, daughter,
Kamla Devi, and two sons of the deceased came in the
witness box, however, they turned hostile and did not
support the allegations levelled by the deceased in her
statements, who died after five days of the incident,
therefore, in absence of any corroboration of allegations
by the family members of the deceased, there is no
question to accept the allegation of deceased, therefore,
the instant appeal deserves to be allowed.
It is also argued that initially the prosecution case
was based upon the testimony of witnesses of family
members, whose statements were recorded under Section
161 Cr.P.C., but all the witnesses turned hostile and failed
to prove the prosecution case. More so, all the witnesses
specifically stated before the court that incident of quarrel
took place in between accused appellant, Nemichand and
deceased Smt. Radha Devi, but fire was lit by the
deceased herself, therefore, the findings of the learned
trial court so as to hold the accused appellants guilty for
the alleged offence of murder, deserves to be rejected.
According to appellant even if the entire prosecution
evidence is accepted, then also, the basic ingredient of
murder i.e. motive, is completely absent in the case and,
therefore, the finding of guilt arrived at by the learned
trial court against the appellants for the offence of
murder, deserves to be reversed and accused appellants
are entitled to be acquitted from the charges levelled
against them.
Per contra, learned Public Prosecutor vehemently
opposed the submissions made by the learned counsel for
the appellants and supported the findings of the learned
trial court. It is argued that although family members
including, husband of deceased, namely, Askaran and
children of the deceased, turned hostile ad did not support
the prosecution case, but we cannot lose sight of the fact
that deceased herself gave statements to the
investigating officer as well as to the Magistrate, in which
specific allegations are levelled by her against the
appellants for committing offence of murder. Therefore, it
is obvious that no error has been committed by the trial
court in relying upon the statements of deceased, Smt.
Radha Devi, and holding the appellants guilty for the
offence of murder.
Learned Public Prosecutor further submitted that
upon perusal of statements of hostile witnesses, there is
no dispute that incident of quarrel took place in the house,
which resulted into the death of Smt. Radha Devi,
therefore, when incident is proved by the hostile
witnesses, then, said fact has rightly been taken into
consideration by the trial court for the purpose of
convicting the accused appellants. The learned trial court
has rightly held the accused appellants guilty for the
offences, therefore, same be dismissed because there is
no force in this appeal.
After hearing the arguments of learned counsel for
the parties, we have perused the entire evidence and
findings of the trial court. Admittedly, from the
prosecution side 15 witnesses were produced before the
trial court to prove the prosecution case and out of 15
witnesses, PW.4, Rampal turned hostile and did not
support the prosecution case with regard to preparation of
''Panchnama'' (Ex.P/2), more so, said witness stated before
the court that on the date of incident I was not present at
the place of occurrence but later on, came back from the
marriage and heard that some quarrel took place between
deceased and her brother-in-law, Nemichand, and
deceased, Smt. Radha Devi, herself lit fire on her body
and her behaviour was quarrelsome with the family
members.
The witness PW.2, Askaran, husband of the
deceased gave following statement before the trial court
in the examination-in-chief, which reads as under: -
VERNACULAR MATTER OMITTED
Upon perusal of above statement, it is obvious that
no allegation was made by him for pouring kerosene by
the accused appellant No.2, Mangi Devi, and litting fire
upon deceased.
PW.5, Gajraj, son of deceased, turned hostile and
specifically stated before the Court that the date on which
the incident took place, I was at Delhi. I heard that some
quarrel took place between my mother and my uncle,
Nemichand, and thereafter my mother tried to commit
suicide while litting fire from chimney. It is also stated by
this witness that I met my mother at Govt. Hospital,
Bikaner, where the aforesaid facts were disclosed by her.
PW.6, Deepika, is the daughter of deceased. The said
witness also turned hostile and she stated that on the
date of incident, some quarrel took place between my
mother and my uncle and due to said quarrel, my mother
went inside the room and lit fire and she died after four
days, but I was not present at the place of occurrence.
PW.7, Kamla, is the wife of other brother-in-law of
deceased, namely, Prema Ram, who was present at the
time of occurrence. PW.7, Kamla did not turn hostile. The
said witness categorically stated before the court that, VERNACULAR MATTER OMITTED
PW.8, Sanjay, is second son of deceased, Smt.
Radha Devi. PW.8 turned hostile and stated before the
court that my mother herself lit fire and died but alleged
that some quarrel took place between my mother and
uncle, Nemichand.
Upon perusal of above statements of the prosecution
witnesses, it is established that some quarrel took place in
between deceased, Smt. Radha Devi and accused
appellant No.1, Nemichand, and incident of burning took
place thereafter. During treatment at Govt. Hospital,
Bikaner, Smt. Radha Devi, expired on 28.03.2010. There
is another set of evidence, which is in the form of dying
declaration of Smt. Radha Devi. The FIR was registered
upon ''Parcha-Bayan'' (Ex.P/3) of deceased, Smt. Radha
Devi, recorded by PW.9, Bhanwarlal, Head Constable at
P.B.M. Hospital, Bikaner. In the ''Parcha-Bayan'', specific
allegation was levelled by deceased, Smt. Radha Devi,
that on 24.03.2010 at about 5-06.00 PM when I came
back after taking some firewood, at that time, my
brother-in-law, Nemichand, used abusive language and
inflicted injury by knife ("Nqjk") upon my head and he
pushed me in the room and all of sudden my mother-in-
law, came there having a kerosene tin with her, and
poured kerosene upon my body and lit fire by matchstick,
so also Nemichand caught hold me.
In the ''Parcha-Bayan'', further said that at the time
of incident, wife of my other brother-in-law, Smt. Kamla,
came on the spot and she with a view to extinguish the
fire, poured water and thereafter my husband, Askaran
came back from his work place and firstly took me at
Govt. Hospital, Ladnu for treatment, from where doctor
referred me to Government Hospital, Bikaner for further
treatment.
Upon perusal of Ex.P/3 it is revealed that before
recording the statement, no fitness certificate was
obtained by the Head Constable in the burn unit of P.B.M.
Hospital, Bikaner, where Smt. Radha Devi was admitted
at Bed No.7. A specific question was put to Bhanwarlal,
Head Constable (PW.9) whether any fitness certificate was
obtained from the doctor declaring Smt. Radha Devi to be
fit to give statement. The said witness PW.9- Bhanwarlal,
gave reply that before recording the statements of Smt.
Radha Devi, I gave written letter to the doctor, but I do
not know the name of doctor but after obtaining his
opinion, I recorded the statement of Smt. Radha Devi, the
deceased. Although said witness specifically stated that
one letter was given by me to the doctor in the Hospital
for ascertaining the fitness of Smt. Radha Devi, but said
certificate or opinion of the doctor has not been placed on
record as evidence.
During investigation, statement of Smt. Radha Dev
(deceased) were recorded by the Magistrate, Ms. Purnima
Gaur, the then Addl. Civil Judge (Jr. Division)-cum-Judicial
Magistrate, Bikaner on 25.03.2010 before recording
statement fitness certificate of the doctor was obtained,
which is evident from the statement of Ms. Purnima Gaur
(PW.11) itself. The said certificate was given by Dr.
Pradeep Gupta in the Hospital at 01.20 PM but Dr.
Pradeep Gupta not appeared as witness. Upon perusal of
dying-declaration of deceased, it is revealed that she has
reiterated the allegations of pouring kerosene upon her by
Smt. Mangi Devi (mother-in-law of deceased), so also,
specifically alleged that she lit fire upon her clothes.
It is true that Dr. Pradeep Gupta, has not been
examined before the trial court to prove the fact of
issuance of fitness certificate by him, but Ms. Purnima
Gaur, the then Judicial Magistrate, Bikaner, appeared
before the court as PW.11 and specifically said that
statement of Smt. Radha Devi W/o Sh. Askaran, were
recorded by her when she was admitted in burn unit at
Bed No.7 in P.B.M. Hospital, Bikaner and before recording
her statement I obtained fitness certificate from the
doctor, which is recorded on the top of the statements
(Ex.P/12).
It is true that there are two types of evidence. One
set of evidence is of the family members including the
husband of the deceased, sister-in-law of deceased
("nsojkuh") Smt. Kamla (PW.7), both these witnesses did
not turn hostile and specifically stated that they were
informed by the deceased that although quarrel took place
in between her (deceased) and Nemichand (appellant
No.1) an that Nemichand inflicted injury upon her body
but both the witnesses said that deceased Smt. Radga
Devi, herself poured kerosene upon her and lit fire.
The second set of evidence is the statements of the
deceased herself, firstly recorded by the Head Constable,
Bhanwarlal and secondly recorded by the Ms. Purnima
Gaur, the then Magistrate as PW.11. In these statements,
allegations are levelled by the deceased against both
appellants, Nemichand and Smt. Mangi Devi and it has
been alleged that accused Nemichand, quarreled with her
and inflicted injury by knife on the head and another
allegation is levelled against Smt. Mangi Devi, mother-in-
law for pouring kerosene upon her.
After thorough consideration of both sets of evidence
available on record, we are of the opinion that the
testimony of deceased recorded by the Head Constable,
Bhanwarlal (PW.9) and the then Magistrate, Ms. Purnima
Gaur (PW.11) cannot be disbelieved, but at the same
time, this Court cannot lose sight of the fact that there is
no evidence of ''motive'', more so, it emerges from both
the sets of evidence that some quarrel took place all of
sudden when deceased reached in the house in the
evening and incident of quarrel and fire took place all of
sudden, so also Smt. Kamla (PW.7) immediately made
efforts and rescued from fire. Therefore, when there is no
specific allegation against accused appellant, Nemichand,
of pouring kerosene and litting fire and there is no
evidence of ''motive'' on record, therefore, we are of the
opinion that conviction of the accused appellant,
Nemichand, for the offence u/s 302 of IPC is not
sustainable in law. But, this Court cannot accept the
argument that involvement of Nemichand is false.
With regard to participation of Smt. Mangi Devi, in
pouring kerosene upon the body of deceased and litting
fire, we have examined the entire evidence, more
particularly, the site plan (Ex.P/7), in which there is no
mentioning about the recovery of any kerosene tin, the
said site plan was prepared in the presence of PW.7 Smt.
Kamla, Shantilal (PW.3) and Gajraj (PW.5). Some articles
pieces of ''Lehanga'', one blanket and one chimney in
broken condition were handed over by the husband of
deceased to the police and at the time of taking the said
articles in possession by the S.H.O., P.S. Ladnu, smell of
kerosene was coming out from the clothes. Meaning
thereby, the prosecution has proved the fact that on the
date of incident, injuries were inflicted by Nemichand and
some incident of burning took place in the house.
We have also perused the statement of the doctor,
PW.15, Dr. Sanjeev Puri, who conducted who performed
the postmortem, and gave report Ex.P/15. As per opiiion
of the doctor, the cause of death was shock due to burn
ante-mortem as mentioned, was sufficient to cause death
in ordinary course of nature.
We have perused the statement of Investigating
Officer, Girdhari Singh, who conducted the investigation
initially and statement of PW.12, S.H.O. Dharamveer Janu
(PW.14), who conducted further investigation and
statements of Mr. Rajendra Beniwal (PW.13) who filed
charge sheet against the accused appellants for the
offences under Sections 306, 498A, 323 of IPC. It is
evident from the record that on the basis of dying-
declaration, charge u/s 302 and in the alternative 302/34
of IPC was framed against accused appellant, Nemichand
and Smt. Mangi Devi.
In the case of Om Pal Singh Vs. State of U.P.
reported in AIR 2011 SC 1562, the Hon''ble Apex Court
held that in absence of certificate of fitness by the doctor
the dying declaration cannot be disbelieved. The
certificate of the doctor is rule of caution. The relevant
discussion made by the Hon''ble Apex Court in the said
case reads as infra: -
"20. This now brings us to the submissions with regard to the dying declaration. Factually, it is to be noticed that the Tehsildar, who recorded the dying declaration appeared as PW-6, he has clearly stated that although no doctor was present in the hospital, he was informed by the pharmacist that Rishipal Singh was in a fit state to make a statement. He, thereafter, isolated the injured Rishipal Singh and recorded his statement. He further stated that he wrote down word by word what Rishipal Singh had stated. The contents of the statement were read to the injured who stated that he understood and accepted the same. Only thereafter, he put his thumb impression on the
statement. It is undoubtedly true that the statement has not been recorded in the question and answer form. It is also correct that at the time when the statement was recorded Rishipal Singh was in a "serious condition".
xxx
In our opinion, the trial court as well as the High Court correctly accepted that the dying declaration was an acceptable piece of evidence. Merely because, it is not in question and answer form would not render the dying declaration unreliable. The absence of a certificate of fitness by the Doctor would not be sufficient to discard the dying declaration. The certification by the doctor is a rule of caution, which has been duly observed by the Tehsildar/Magistrate, Bisauli, who recorded the statement. The statement made by the injured is candid, coherent and consistent. We see no reason to disbelieve the same. We, therefore, see no reason to differ with the conclusions arrived at by the trial court and the High Court with regard to the dying declaration also. We must also notice that PW2 and PW3 have given clear and consistent eye- witness account. They have narrated the previous incident of disharmony between the appellant and the deceased. They have also adverted to the previous attempts by the appellant to harm the deceased. The entire incident of shooting has been graphically described by the two witnesses. The direct testimony of these
two witnesses have been corroborated by the medical evidence and the dying declaration."
It is settled principle of law that dying-declaration
cannot be disbelieved unless and until it is found to be
false on the basis of other reliable evidence, therefore,
this Court is not inclined to accept the arguments of
learned counsel for the appellants to disbelieve the dying
declaration, but at the same time, upon consideration of
entire evidence on record and upon the fact that all of
sudden occurrence took place, we find that the trial court
has committed error in convicting the accused appellant
for the offence under Section 302 / 34 of IPC because there
is no evidence or allegation of motive on record so as to
hold accused appellant guilty for offence under Section
302 / 34 of IPC.
Consequently, the instant appeal filed by the
appellants, is partly allowed, the finding of guilt recorded
by the trial court for the offence u/s 302/34 of IPC against
the appellant No.1, Nemichand, is not sustainable in law
because as per evidence on record, in spur of moment, all
of sudden occurrence took place without any motive to
commit the offence of ''murder'' by the accused appellant
No.1, Nemichand, therefore, the conviction and sentence
of the accused appellant No.1, Nemichand to the extent
for the offence u/s 302/34 of IPC, is hereby quashed but
conviction and sentence for other offences is hereby
maintained.
Similarly, the conviction of accused appellant No.2,
Smt. Mangi Devi, for the offence u/s 302/34 IPC, is
hereby altered to offence u/s 304 Part I of IPC and the
sentence of life imprisonment is hereby reduced to ten
years'' rigorous imprisonment but the conviction and
sentence of other offences is hereby maintained.