Rupa Ram And Anr vs State of Rajasthan

Offences,Sentences,Fine,Fine Default sentences

Section 498A IPC,2 years' imprisonment,"Rs.1,000/-",2 Months' S.I.

Section 302/34 IPC,Life Imprisonment,"Rs.10,000/-",6 Month's S.I.

(ii) that the note of warning appended on the document just below the certificate of the doctor is a subsequently inserted interpolation as is visible to,,,

the naked eye;,,,

(iii) that the Judicial Magistrate Deeksha Sood (PW-16) herself did not state in the evidence that she was satisfied regarding the injured being in a fit,,,

condition, mental and physical, to give such statement;",,,

(iv) that the dying declaration has been recorded in pure Hindi language whereas the evidence of material witnesses clearly establishes that Geeta had,,,

no familiarity with Hindi language and used to converse in pure Marwari language; and,,,

(v) that Padmaram (PW-7) admitted in his cross-examination that Geeta was conversant only with Marwari language and had no knowledge of Hindi,,,

and when her statement was recorded by the Magistrate, he and Omprakash were present there. Shri Bora thus urged that the dying declaration",,,

(Ex.P/16) is tainted as the same was recorded in the presence of maternal relatives of the deceased and the possibility of tutoring cannot be ruled out.,,,

He offered same criticism for the Parcha Bayan (Ex.P/12).,,,

In support of his contentions, Shri Bora placed reliance on the following judgments:-",,,

(i) Kashi Vishwanath vs. State of Karnataka, reported in (2013)7 SCC 162; and",,,

(ii) Shrawan Ram & Ors. vs. The State of Rajasthan (D.B. Criminal Appeal No.394/2012) decided on 21.10.2019 and urged that the prosecution,,,

failed to bring home the charges against the appellants beyond all manner of doubt by leading satisfactory evidence and implored the Court that the,,,

appellants deserve to be acquitted by giving them the benefit of doubt.,,,

Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the appellants' counsel. He submitted that",,,

Sunil Charan (PW-14) SHO Police Station Panchu, who recorded the Parcha Bayan (Ex.P/12) and the Judicial Magistrate Deeksha Sood (PW-16),",,,

who recorded the dying declaration of Geeta (Ex.P/16), neither had any animosity with the accused nor did they have any affinity with the",,,

complainant party so as to record the statement of Geeta unfaithfully or to twist or modulate the version given out by her. He urged that merely,,,

because the Medical Officer, who gave the fitness certificate, was not examined, these two statements of the injured cannot be thrown out entirely as",,,

the Police Officer as well as the Judicial Magistrate recorded these statements after being duly satisfied that the injured was in a fit condition to give,,,

such statement. He further urged that Marwari and Hindi languages are almost similar in script and pronunciation and thus, no benefit can be claimed",,,

by the accused by the mere fact that the Parcha Bayan (Ex.P/12) and the dying declaration (Ex.P/16) were recorded in Hindi language. He further,,,

pointed out that the close maternal relatives of the deceased namely Padmaram (PW-7) (Uncle) and Kunni Devi (PW-8) (Mother) have categorically,,,

stated that the husband and his relatives used to harass and humiliate Smt. Geeta on account of demand for dowry and it was for this reason that she,,,

was turned out of the matrimonial home. Geeta's maternal relatives sent her back to the matrimonial home and on the very next morning, the accused",,,

set her on fire because their demands were not met. He thus urged that the impugned Judgment does not warrant any interference by this Court and,,,

the appeal deserves to be dismissed.,,,

We have given our thoughtful consideration to the submissions advanced at bar and have gone through the material available on record.,,,

From an overall appreciation of the material available on record, it is apparent that other than the Parcha Bayan (Ex.P/12) and the dying declaration",,,

(Ex.P/16), there is hardly any evidence on record of the case which can be considered relevant or bearing on the case so as to bring home the",,,

charges against the accused. It is relevant to note here that the Investigating Officer did not find the offence under Section 302 IPC proved against,,,

the appellants and therefore, charge-sheet was filed against them only for the offences under Sections 498A and 306 IPC. The prosecution witnesses",,,

Padmaram (PW-7) uncle of the deceased, and Kunni Devi (PW-8) mother of the deceased, are the only two maternal relatives who stepped up in the",,,

witness box to prove the prosecution theory of harassment meted out to Smt. Geeta by the matrimonial relatives. Both of them stated that the Geeta's,,,

husband, brother-in-law and mother-in-law used to quarrel with her on account of demand for dowry. There is no other allegation whatsoever in the",,,

statements of these witnesses which can impute motive to the accused so as to commit the offence. Both the witnesses were pertinently cross-,,,

examined on the aspect of the allegation of demand for money/dowry, but they could not withstand the cross-examination, as this allegation was",,,

apparently made as a sheer improvement from their previous statements recorded during investigation (Padmaram - Ex.D/1 and Kunni Devi- Ex.D/2).,,,

In his cross-examination, Padmaram (PW-7) was confronted with the following parts of his previous statement recorded during investigation under",,,

Section 161 Cr.P.C. (Ex.D/1):-,,,

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",,,

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6.9.11 7-8 ,,,

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, ",,,

,,,

Padmaram did not allege in this statement that Geeta was harassed or humiliated in her matrimonial home on account of demand for dowry. In portion,,,

'M to N', Padmaram clearly divulged that Geeta's husband, mother-in-law and brother-in-law used to quarrel with her by casting an aspersion that she",,,

was talking to some unknown man on mobile and that being hurt by this imputation, she ended her life by setting herself afire.",,,

Likewise, Kunni Devi (PW-8) also stated to the Investigating Officer in portion 'A to B' of her statement under Section 161 Cr.P.C. (Ex.D/2) that",,,

Geeta was frustrated with the behaviour of her husband, mother-in-law and brother-in-law and ended her life by pouring kerosene and setting herself",,,

on fire. Even Kunni Devi did not state during investigation that any dowry demands were made from the deceased by her matrimonial relatives or that,,,

she was harassed or humiliated on this count.,,,

Considering these shortcomings in the prosecution case, the trial court exonerated the accused from the charge under Section 304B IPC. Thus,",,,

manifestly, there is no evidence on the record of the case to establish motive against the accused for committing the offence. The entire prosecution",,,

case revolves only around the Parcha Bayan (Ex.P/12) and the dying declaration (Ex.P/16). In this regard, it may be stated here that the SHO Sunil",,,

Charan (PW-14) who took down the Parcha Bayan (Ex.P/12) of Geeta, did not record his satisfaction that the burned victim was in a fit condition to",,,

give such a statement. Sunil Charan, when examined on oath as PW-14, did not utter a single word that he satisfied himself regarding the victim being",,,

in a mentally or physically fit condition to give the statement. He stated that on reaching the PBM Hospital at about 12.00 p.m., he took the",,,

permission/opinion of the duty doctor regarding the burn victim Geeta being in a position to give the statement and then the Parcha Bayan (Ex.P/12),,,

was recorded by him. However, no such written permission/opinion was proved/brought on record by the prosecution during the trial. Thus, the",,,

Parcha Bayan (Ex.P/12) is not a reliable document as there is no evidence to satisfy the Court that Smt. Geeta, who had sustained almost 60 per cent",,,

superficial to deep burn lesions all over her body and was semi- conscious when she was brought to the hospital (as per the injury report Ex.P/10),",,,

was in a fit condition to give such statement. Hence, the Parcha Bayan (Ex.P/12) has to be discarded. The dying declaration (Ex.P/16) was proved by",,,

the Judicial Magistrate Deeksha Sood (PW-16). It bears a note 'E to F' (dated 06.09.2011 at 03.45 p.m.) appended by Dr. Krishnaveer Singh,,,

Choudhary, regarding the fit condition of the patient (Geeta) to give the statement. However, Dr. Krishnaveer Singh Choudhary was not examined as",,,

a witness during the trial so as to prove the fitness certificate. The following observations of Hon'ble the Supreme Court in the case of State of,,,

Madhya Pradesh vs. Dal Singh & Ors. reported in (2013)14 SCC 159:-,,,

In Laxman v. State of Maharashtra MANU/SC/0707/2002 : AIR 2002 SC 2973, this Court held, that a dying declaration can either be oral or in",,,

writing, and that any adequate method of communication, whether the use of words, signs or otherwise will suffice, provided that the indication is",,,

positive and definite. There is no requirement of law stating that a dying declaration must necessarily be made before a Magistrate, and when such",,,

statement is recorded by a Magistrate, there is no specified statutory form for such recording. Consequently, the evidentiary value or weight that has",,,

to be attached to such a statement, necessarily depends on the facts and circumstances of each individual case. What is essentially required, is that",,,

the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind, and where the same is proved by the",,,

testimony of the Magistrate, to the extent that the declarant was in fact fit to make the statements, then even without examination by the doctor, the",,,

said declaration can be relied and acted upon, provided that the court ultimately holds the same to be voluntary and definite. Certification by a doctor is",,,

essentially a rule of caution, and therefore, the voluntary and truthful nature of the declaration can also be established otherwise.",,,

In Koli Chunilal Savji v. State of Gujarat MANU/SC/0624/1999 : AIR 1999 SC 3695, this Court held, that the ultimate test is whether a dying",,,

declaration can be held to be truthfully and voluntarily given, and if before recording such dying declaration, the officer concerned has ensured that the",,,

declarant was in fact, in a fit condition to make the statement in question, then if both these aforementioned conditions are satisfactorily met, the",,,

declaration should be relied upon. (See also: Babu Ram and Ors. v. State of Punjab MANU/SC/0229/1998 : AIR 1998 SC 2808).,,,

In Laxmi v. Om Prakash and Ors. MANU/SC/0353/2001 : AIR 2001 SC 2383, this Court held, that if the court finds that the capacity of the",,,

maker of the statement to narrate the facts was impaired, or if the court entertains grave doubts regarding whether the deceased was in a fit physical",,,

and mental state to make such a statement, then the court may, in the absence of corroborating evidence lending assurance to the contents of the",,,

declaration, refuse to act upon it.",,,

...,,,

The law on the issue can be summarised to the effect that law does not provide who can record a dying declaration, nor is there any prescribed",,,

form, format, or procedure for the same. The person who records a dying declaration must be satisfied that the maker is in a fit state of mind and is",,,

capable of making such a statement. Moreover, the requirement of a certificate provided by a Doctor in respect of such state of the deceased, is not",,,

essential in every case...""",,,

The Magistrate Deeksha Sood, did not record her own satisfaction on the dying declation regarding the fit condition of the patient for giving such",,,

statement. Even when examined on oath, the Judicial Magistrate did not utter a single word regarding she being satisfied that the patient was in a fit",,,

condition to give the dying declaration. Thus, the dying declaration (Ex.P/16) cannot be considered to be a reliable document.",,,

It may be stated here that there is another significant shortcoming in the dying declaration (Ex.P/16) which casts a doubt on its reliability. The,,,

prosecution witness Padmaram (PW-7) admitted in his cross-examination that Geeta knew only Marwari Language and had no knowledge of Hindi,,,

Language. Even the Judicial Magistrate Deeksha Sood (PW-16) admitted in her cross- examination that the deceased was speaking in mixed,,,

Marwari- Hindi language but she did not record the Marwari words spoken by the burn victim as she herself (the Magistrate) was not conversant with,,,

the Marwari language. In this background, a doubt is cast upon the reliability of the dying declaration (Ex.P/16) as a proof of the circumstances in",,,

which, Geeta was burnt. Hon'ble the Supreme Court in the case of Kashi Vishwanath (supra), considered this issue and held as below:-",,,

Apart from the contradictions, the credibility of three dying declarations (Ex.P.12, Ex.P.22 and Ex.P.29) is to be doubted. In the first dying",,,

declaration (Ex.P.12) dated 14th January, 2000 the thumb impression of victim has been shown. Whereas in the second dying declaration (Ex.P.22)",,,

taken on the same day, i.e, 14th January, 2000 and the third dying declaration (Ex.P.29) given on the next day, i.e., 15th January, 2000, the victim had",,,

stated that she had not given her signatures since her hand was completely burnt. Dr. Bhimappa (PW-22), who signed the Ex.P.22, in his cross-",,,

examination stated that he was not aware whether Neelamma (deceased) was talking in Telugu. Dr. Dhanjaya Kumar (PW-20), who signed Ex.P.12,",,,

in his cross- examination specifically stated that he can understand Kannada but does not know Telugu language and that Neelamma was talking in,,,

Telugu language. Padmavathi (PW-8), mother of the deceased, in her cross- examination stated that Neelamma (deceased) was not knowing the",,,

correct writing the Telugu. But she was writing some Telugu.,,,

The prosecution has failed to state as to why three dying declarations were recorded in Kannada, if the deceased, Neelamma was talking in",,,

Telugu. It has also not made clear as to who amongst the Tehisldar, PSI or SI or the Doctors who has signed in Ex.P.12, Ex.P.22 and Ex.P.29 had",,,

knowledge of Telugu and translated the same in Kannada for writing dying declarations in those exhibits and that in the bottom of three dying,,,

declarations it has not been mentioned that they were read over in Kannada and explained in Telugu that the deceased understood the contents of the,,,

same. The above mentioned facts create doubt in our mind as to the truthfulness of the contents of the dying declarations as the possibility of she,,,

being influenced by somebody in making the dying declarations cannot be ruled out.""",,,

There are more circumstances that raise a doubt on the truthfulness of the versions as set out in the dying declaration (Ex.P/16) and the Parcha,,,

Bayan (Ex.P/12). Shri Laluram (PW-3), admittedly reached the place of the incident on receiving the information from Ruparam that Geeta had been",,,

burned. He stated even in his examination-in-chief that when he reached the place of occurrence, Geeta was shouting that she was trying to alight the",,,

fireplace during which, she got burnt. Babulal (PW-6), who took Geeta to Nokha Hospital in his vehicle, stated that he asked the injured lady as to",,,

how the incident happened, to which, she stated that an aspersion was cast upon her character by making an imputation that she was talking to",,,

another man and thus, she poured kerosene on her body and then burnt herself. Padmaram (PW-7), uncle of the deceased, and Kunni Devi (PW-8),",,,

mother of the deceased, when examined during investigation, stated in their statements recorded under Section 161 Cr.P.C. (Ex.D/1 and Ex.D/2",,,

respectively) that Geeta had set herself on fire.,,,

In this background, the version as set out in the Parcha Bayan (Ex.P/12) and the dying declaration (Ex.P/16), does not appear to be truthful and",,,

reliable enough so as to convict the appellants solely on the basis thereof. There is no other corroborative evidence on the record of the case to,,,

support these two statements and rather, they are contradicted by the other independent pieces of evidence which we have discussed supra.",,,

These important facts and circumstances extracted from the prosecution evidence, raise a doubt in the mind of this Court as to the truthfulness of",,,

the contents of the Parcha Bayan (Ex.P/12) and the dying declaration (Ex.P/16). The possibility of the deceased having set herself on fire is imminent.,,,

She walked out of the matrimonial home as she was perturbed by the aspersion cast upon her character by the accused persons. Rather than giving,,,

solace to her, she was forced by the maternal relatives to go back to her matrimonial home, and being totally frustrated by this turn of event, she set",,,

herself afire and then implicated the accused for the incident. This conclusion is supported from the facts emerging from the prosecution evidence as,,,

discussed above.,,,

In wake of a threadbare analysis of the prosecution evidence, we are of the firm opinion that the prosecution has failed to lead cogent and",,,

clinching evidence, sufficient to bring home the guilt of the appellants for the offences punishable under Sections 498A and 302 IPC. The exercise of",,,

evaluation of evidence undertaken by the trial court and the conclusions drawn in the impugned Judgment for convicting the appellants herein, are not",,,

based on an apropos appreciation of the evidence available on record. Hence, the impugned Judgment cannot be sustained.",,,

As an upshot of the above discussion, the appeal deserves to be accepted. The impugned Judgment dated 21.02.2017 passed by the learned",,,

Additional Sessions Judge (Women Atrocities Cases), Bikaner in Sessions Case No.59/2013, is hereby quashed and set aside. The appellants are",,,

acquitted of all the charges. They are in custody. They shall be released from prison forthwith if not wanted in any other case.,,,

The appeal is allowed accordingly.,,,

However, keeping in view the provisions of Section 437-A Cr.P.C., each of the appellants is directed to furnish a personal bond in the sum of",,,

Rs.15,000/- and a surety bond in the like amount 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 a Special Leave Petition against the present judgment on receipt of notice thereof, the appellant shall appear before the Supreme",,,

Court.,,,

Record be returned to the trial court forthwith.,,,