Rajesh Prajapati vs The State Of Jharkhand
2022 Latest Caselaw 4237 Jhar

                Criminal Appeal (D.B.) No. 55 of 2014
    [Against the judgment of conviction dated 18.02.2013 and order
    of sentence dated 19.02.2013 passed by Sri Jai Prakash Narayan
    Pandey, learned A.J.C.-1st-cum-Spl. Judge, C.B.I., Ranchi in
    Sessions Trial No. 529/2010]
                                ...........

1. Rajesh Prajapati, S/o Late Mahesh Prajapati, R/o Village- Khelari Bazar Tand, P.O.- Khelari, P.S.- Macluskiganj, District- Ranchi.

2. Tara Prajapati, S/o Late Etwa Prajapati, R/o Village- Khelari Bazar Tand, P.O.- Khelari, P.S.- Macluskiganj, District-

        Ranchi.                                    ... ... Appellants
                               Versus
     The State of Jharkhand                      ... ... Respondent
                                 ...........
    For the Appellant      : Mr. Pratik Sen, Amicus Curiae
    For the State          : Mr. Ravi Prakash, Spl. P.P.
                              PRESENT

HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE AMBUJ NATH ...........

C.A.V. on 14/07/2022 Pronounced on 18/10/2022

Heard Mr. Pratik Sen, learned Amicus Curiae for the appellants and Mr. Ravi Prakash, learned Spl. P.P. for the State.

2. This appeal is directed against the judgment of conviction dated 18.02.2013 and order of sentence dated 19.02.2013 passed by Sri Jai Prakash Narayan Pandey, learned A.J.C.-1st-cum-Spl. Judge, C.B.I., Ranchi in Sessions Trial No. 529/2010, whereby and whereunder the appellants have been convicted for the offence punishable u/s 304B of the IPC and have been sentenced to undergo R.I. for 14 years.

3. The fardbeyan of Sarita Kumari was recorded on 23.05.2010, in which, she has stated that her marriage was solemnized with Rajesh Prajapati (appellant no.1) about a year back. After marriage there was a demand of dowry and she was also subjected to torture. On. 23.05.2010 at about 5:30 A.M. her husband and her cousin father-in-law (Chachera Sasur) had sprinkled kerosene oil upon her and set her ablaze. She was subsequently admitted to RIMS, Ranchi at about 8:10 A.M.

Based on the aforesaid allegations Macluiskiganj P.S. Case No. 16/2010 was instituted against Rajesh Prajapati and Tara Prajapati (appellant no. 2) for the offence u/s 304B/34

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of the IPC as the informant had died during treatment. On completion of investigation charge-sheet was submitted against both the accused persons and after cognizance was taken the case was committed to the Court of Sessions where it was registered as Sessions Trial Case No. 529/2010. Charge was framed against the accused persons u/s 304B/34 of the IPC initially and later on u/s 302/34 of the IPC which was read over and explained to the accused in Hindi to which they pleaded not guilty and claimed to be tried.

4. In course of trial the prosecution has examined as many as six witnesses in support of its case.

5. P.W.1 (Kishori Prajapati) has deposed that on the date of the incident at about 5:00-5:30 A.M. he was strolling in the ground when he saw smoke coming out from the house of Rajesh and Tara Prajapati. He had seen Sarita Devi burning. Sarita was taken by the accused persons to RIMS, Ranchi for treatment. This witness had come back home. He came to know that after 2-3 days Sarita Devi has died.

In cross-examination, he has deposed that he had never seen any quarrel between Rajesh and his wife. Rajesh had married Sarita without taking any dowry. He has also stated that Tara Prajapati is the uncle of Rajesh Prajapati and he stays in a separate house. Before he had reached the place of occurrence Rajesh had doused the fire by putting a blanket over her. When Sarita was asked as to how she had caught fire she had disclosed that she was not given any money out of the sale proceeds of a land and the entire amount was kept by Rajesh which enraged her and she set herself on fire. He has also stated that the accused persons and the others had taken Sarita to the hospital.

6. P.W.2 (Mohan Prajapati) did not not support the case of the prosecution and was accordingly declared hostile by the prosecution.

7. P.W.3 (Anirudh Prajapati) has stated that the

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incident is of five months back and he was strolling in the ground when he heard that a women has been burnt. When he went to the place of occurrence, he saw Sarita Devi burning at which everyone present covered her with a blanket and the fire was doused. She was sent to RIMS, Ranchi for treatment and after a week she died. He has identified both the accused persons in the dock.

In cross-examination, he has deposed that both the accused have separate kitchen and also stays separate. Rajesh is an orphan and a disabled aunt stays with him. He has further stated that both Rajesh and Sarita had a cordial relationship. There never was any demand made in his presence. Sarita had disclosed that while preparing tea she accidentally caught fire.

8. P.W.4 (Kishori Prajapati) is the father of the deceased. His daughter was married to Rajesh Prajapati on 28.06.2009. She was tortured by her husband and in-laws for not fulfilling the demand of Rs. 50,000/-. On 21.04.2010, she was assaulted and ousted from her matrimonial house and she had taken shelter in the house of Mahesh Chauhan and on receiving information he as well as some other persons had gone to the house of Mahesh Chauhan and thereafter the matter was resolved and she was left at her matrimonial house. On 23.05.2010, Rajesh Prajapati had informed him on mobile that his daughter has sustained burn injuries. His daughter was admitted to RIMS by her husband. When he had reached the Hospital he found his daughter conversing. She had disclosed that she was burnt by her in-laws by pouring kerosene oil upon her. His daughter died on 28.05.2010 at RIMS, Ranchi during treatment. His daughter had given a statement in his presence at RIMS and had given a thumb impression since she was not in a position to write. He has proved his signature in the fardbeyan which has been marked as Exhibit-1. He has also identified his signature in the inquest report which has been marked as Exhibit-2.

In cross-examination, he has deposed that Rs.

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50,000/- was demanded from him after the marriage by his son-in- laws family. It is wrong to say that his daughter was never assaulted. When his daughter had given her statement he and the Police were present. The house of Rajesh Prajapati and Tara Prajapati are adjoining to each other though they have separate kitchen.

9. P.W.5 (Dr. Aman Kumar) was posted as Asst. Professor, Deptt. of Forensic Medicine, RIMS, Ranchi and on 28.05.2010 he had conducted autopsy on the dead body of Sarita Devi and had found the following antemortem injuries:

"Dermo epidermal burn over face, neck, both upper limbs including both palm, fronto lateral portion of chest, fronto lateral part of abdomen, both lower limbs except both foot and back of trunk. The burnt areas are infected at places. The internal organs are congested. There is evidence of recent abortion of two months size of uterus."

The cause of death was opined to be due to burn and its complication. He has proved the postmortem report which has been marked as Exhibit-3.

In cross-examination, he has deposed that there was no external or internal injury in the person of the deceased.

10. P.W.6 (Chandramani Bharti) was posted as Officer- in-Charge, Macluiskiganj Police Station. On 05.06.2010 the fardbeyan was received from Bariatu Police Station. On the basis of the fardbeyan Macluiskiganj P.S. Case No. 16/2010 was instituted. He has identified his writing and signature in the endorsement which has been marked as Exhibit-4. He has identified the handwriting and signature of Thakur Shyam Deo Singh in the fardbeyan which has been marked as Exhibit-4/1. The forwarding in the fardbeyan is also in the handwriting of Thakur Shyam Deo Singh and bears his signature and which has been marked as Exhibit-4/2. The inquest report is also in the handwriting of Thakur Shyam Deo Singh and bears his signature and which has been marked as Exhibit-2/1.

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He had taken over the investigation of the case and had recorded the statement of Kishori Prajapati the father of the informant. He had inspected the place of occurrence which is the house of the accused situated at Bazar Tand. The house consists of three rooms. On the left side there is an open room which doubles up as a kitchen. On the eastern side is the brick and tiled house of Tara Prajapati.

He had recorded the statement of Mohan Prajapati, Kishori Prajapati, Dev Sharan Ram and Anirudh Prajapati. On 14.06.2010, Tara Prajapati was arrested. The accused Rajesh prajapati had surrendered in Court on 11.06.2010. On the orders of the superior authority he had submitted charge-sheet.

The witness Mohan Prajapati had stated before him that both the accused had sprinkled kerosene oil upon his niece and set her ablaze. He has proved the formal First Information Report which has been marked as Exhibit-5.

In cross-examination, he has stated that he had not seized anything from the place of occurrence. Though the houses of the accused are separate but they are adjacent to each other. Both the accused have separate kitchens. He had stated that he had not taken the statement of the Doctor.

11. Sri Thakur Shyam Deo Singh has examined as a Court Witness (C.W.1) and he had deposed that on 23.05.2010 in the morning he had received an information from the Emergency Ward of RIMS that one Sarita Kumari is admitted with burn injuries. Before meeting the patient, he had conversed with the Doctors who had stated that the patient is in a position to speak and he can record her statement. He had thereafter recorded the statement of Sarita. He had read over the statement to Sarita in the presence of her father Kishori Prajapati. Sarita had put her thumb impression upon the said statement. The signature of her father was also taken in presence of this witness. He has proved the forwarding report which has been marked as Exhibit-6.

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In cross-examination, he has deposed that at the time of recording the statement of the victim her father was present but he cannot tell as to whether any other persons were present or not. He had not obtained a written requisition from the Doctor for recording the statement. He had not taken the signature of any senior authority in such statement. The victim was in a conscious state of mind at the time of giving her statement. He has further stated that her thumb was not bandaged though her entire body was bandaged.

12. The statement of both the accused were recorded u/s 313 Cr.P.C. in which they have denied about any involvement in the incident.

13. The defence has examined three witnesses in support of its case.

14. D.W.1 (Rameshwar Ram) has deposed that he knows the family of the accused for almost 40 years. He had not heard about any quarrel between Rajesh Prajapati and his wife. In the morning of the incident, he had gone to the place of occurrence and the victim had disclosed that she had set herself on fire. Rajesh had booked a vehicle and had taken his wife for treatment.

In cross-examination, he has stated that it is wrong to say that both the accused had poured kerosene oil and set the victim ablaze.

15. D.W.2 (Kala Prajapati) has deposed that he does not know as to who was burnt.

16. D.W.3 (Munna Prajapati) has stated that it was the accused persons who had doused the fire. Rajesh and the others had admitted the victim to the Hospital. He has also stated that there was never any quarrel between the husband and wife nor any Panchayati was held.

In cross-examination, he has stated that the relationship between Rajesh and his wife was cordial. The victim had caught fire from the Oven.

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17. Mr. Pratik Sen, learned Amicus Curiae for the appellants has submitted that the only basis for conviction of the appellants is the dying declaration of Sarita Kumari. He has submitted that the evidence of the witnesses reveal that the relationship between the appellant no. 1 and the deceased was cordial. He has also referred to the evidence of P.W.1 who has stated that the informant had disclosed to him that she had set herself on fire since the sale proceeds of a land was kept by the appellant no. 1 himself. So far as the appellant no. 2 is concerned, admittedly he lives separately and has a separate mess and none of the witnesses have stated adversely against him. Mr. Sen, has submitted that all the ingredients constituting an offence u/s 304B of the IPC are absent in the present case. Even as per the evidence of P.W.4 no demand of dowry was made soon before her death. No fitness certificate was obtained from the Doctor as to whether the informant was in a fit and stable mental condition to have narrated the events. He has further submitted that both the appellants have been released on completion of the sentence imposed upon them.

18. Mr. Ravi Prakash, learned Special P.P. for the State has strongly relied upon the dying declaration and the evidence of C.W.1 while submitting that the dying declaration can be made the sole basis of conviction. He has also submitted that the evidence of C.W.1 clearly reveals about the deceased being in a fit mental state to have been able to give such statement.

19. We have considered the rival submissions and have also perused the Lower Court Records.

20. Before we consider the purported dying declaration of the informant we shall first take into consideration the evidence of the witnesses. P.W.1 and P.W.3 have stated that the relationship between the appellant no. 1 and the deceased was cordial. P.W.1 in his cross-examination has deposed that it was the appellant no. 1 who had put a blanket upon the informant and doused the fire. It was the accused persons who had taken her to RIMS, Ranchi

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where she died during treatment.

P.W.4 who is the father of the deceased has however stated about the demand of Rs. 50,000/- made from him. He has also stated that the marriage of his daughter was solemnized with the appellant no. 1 on 28.06.2009 and she was subjected to torture after marriage.

21. The fardbeyan of the informant has been taken to be the dying declaration. In her fardbeyan, she has stated that on 23.05.2010 in the morning both the appellants had sprinkled kerosene oil upon her and set her ablaze. The question before us is whether this dying declaration can form the basis for conviction of the appellants or not. We may in this context refer to the case of "Jayamma & Another versus State of Karnataka" reported in (2021) 6 SCC 213, wherein it has been held as follows:

"14. Before we advert to the actual admissibility and credibility of the dying declaration (Ext. P-5), it will be beneficial to brace ourselves of the case law on the evidentiary value of a dying declaration and the sustenance of conviction solely based thereupon. We may hasten to add that while there is huge wealth of case law, and incredible jurisprudential contribution by this Court on this subject, we are consciously referring to only a few decisions which are closer to the facts of the case in hand. We may briefly notice these judgments. 14.1. In P.V. Radhakrishna v. State of Karnataka, this Court considered the residuary question whether the percentage of burns suffered is a determinative factor to affect the credibility of a dying declaration and the probability of its recording. It was held that there is no hard-and-fast rule of universal application in this regard and much would depend upon the nature of the burns, part of the body affected, impact of burns on the faculties to think and other relevant factor.

14.2. In Chacko v. State of Kerala, this Court declined to accept the prosecution case based on the dying declaration where the deceased was about 70 years old and had suffered 80 per cent burns. It was held that it would be difficult to accept that the injured could make a detailed dying declaration after a lapse of about 8 to 9 hours of the burning,

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giving minute details as to the motive and the manner in which he had suffered the injuries. That was of course a case where there was no certification by the doctor regarding the mental and physical condition of the deceased to make dying declaration. Nevertheless, this Court opined that the manner in which the incident was recorded in the dying declaration created grave doubts to the genuineness of the document. The Court went on to opine that even though the doctor therein had recorded "patient conscious, talking" in the wound certificate, that fact by itself would not further the case of the prosecution as to the condition of the patient making the dying declaration, nor would the oral evidence of the doctor or the investigating officer, made before the court for the first time, in any manner improve the prosecution case.

14.3. In Sham Shankar Kankaria v. State of Maharashtra, it was restated that the dying declaration is only a piece of untested evidence and must like any other evidence satisfy the Court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. Further, relying upon the decision in Paniben v. State of Gujarat wherein this Court (at SCC pp. 480-81, para

18) summed up several previous judgments governing dying declaration, the Court in Sham Shankar Kankaria reiterated: (Sham Shankar Kankaria, SCC pp. 172-73, para 11) "11. ... (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of M.P.);

(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of U.P. v. Ram Sagar Yadav and Ramawati Devi v. State of Bihar.);

(iii) The Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy v. Public Prosecutor.);

(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P.);

(v) Where the deceased was unconscious

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and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P.);

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P.);

(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu.);

(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha v. State of Bihar.);

(ix) Normally the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of M.P.);

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan.);

(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra.)"

15. It goes without saying that when the dying declaration has been recorded in accordance with law, and it gives a cogent and plausible explanation of the occurrence, the Court can rely upon it as the solitary piece of evidence to convict the accused. It is for this reason that Section 32 of the Evidence Act, 1872 is an exception to the general rule against the admissibility of hearsay evidence and its Clause (1) makes the statement of the deceased admissible. Such statement, classified as a "dying declaration" is made by a person as to the cause of his death or as to the injuries which culminated to his death or the circumstances under which injuries were inflicted. A dying declaration is thus admitted in evidence on the premise that the anticipation of brewing death breeds the same human feelings as that of a conscientious and

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guiltless person under oath. It is a statement comprising of last words of a person before his death which are presumed to be truthful, and not infected by any motive or malice. The dying declaration is therefore admissible in evidence on the principle of necessity as there is very little hope of survival of the maker, and if found reliable, it can certainly form the basis for conviction.

16. We may also take note of the decision of this Court in Surinder Kumar. In the said case, the victim was admitted in hospital with burn injuries and her dying declaration was recorded by an Executive Magistrate. This Court, first doubted whether the victim could put a thumb impression on the purported dying declaration when she had suffered 95-97% burn injuries. Thereafter, it was noted that "at the time of recording the statement of the deceased ... no endorsement of the doctor was made about her position to make such statement", and only after the recording of the statement did the doctor state that the patient was conscious while answering the questions, and was "fit to give statement". This Court lastly noticed that before the alleged dying declaration was recorded, the victim in the course of her treatment had been administered Fortwin and Pethidine injections, and therefore she could not have possessed normal alertness. It was hence held that although there is neither a rule of law nor of prudence that the dying declaration cannot be acted upon without corroboration, the Court must nonetheless be satisfied that the dying declaration is true and voluntary, and only then could it be the sole basis for conviction without corroboration.

17. Consistent with the cited principles, this Court refused to uphold the conviction in Sampat Babso Kale v. State of Maharashtra. The dying declaration in that case was made by a victim who had suffered 98% burn injuries, and the statement was recorded after the victim was injected with painkillers. This Court adopted a cautious approach, and opined that there were serious doubts as to whether the victim was in a fit state of mind to make the statement. Given the extent of burn injuries, it was observed that the victim must have been in great agony, and once a sedative had been injected, the possibility of her being in a state of delusion could not be completely ruled out. Further, it was specifically noted that: (SCC p. 744, para 14)

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"14. ... the endorsement made by the doctor that the victim was in a fit state of mind to make the statement has been made not before the statement but after the statement was recorded. Normally it should be the other way around."

22. The principles relating to dying declaration and its admissibility and reliability have been summed up in the case of "Purshottam Chopra & Another versus State (Government of NCT of Delhi)" reported in (2020) 11 SCC 489 in the following manner:

"21.1. A dying declaration could be the sole basis of conviction even without corroboration, if it inspires confidence of the court.

21.2. The court should be satisfied that the declarant was in a fit state of mind at the time of making the statement; and that it was a voluntary statement, which was not the result of tutoring, prompting or imagination.

21.3. Where a dying declaration is suspicious or is suffering from any infirmity such as want of fit state of mind of the declarant or of like nature, it should not be acted upon without corroborative evidence.

21.4. When the eyewitnesses affirm that the deceased was not in a fit and conscious state to make the statement, the medical opinion cannot prevail.

21.5. The law does not provide as to who could record dying declaration nor there is any prescribed format or procedure for the same but the person recording dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making the statement.

21.6. Although presence of a Magistrate is not absolutely necessary for recording of a dying declaration but to ensure authenticity and credibility, it is expected that a Magistrate be requested to record such dying declaration and/or attestation be obtained from other persons present at the time of recording the dying declaration. 21.7. As regards a burns case, the percentage and degree of burns would not, by itself, be decisive of the credibility of dying declaration; and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement.

21.8. If after careful scrutiny, the court finds the statement placed as dying declaration to be

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voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration."

23. Equipped with the aforesaid pronouncements we now venture to consider the admissibility or otherwise of the dying declaration of Sarita Kumari.

24. The dying declaration was recorded by Thakur Shyam Deo Singh who has been examined as C.W.1. He has deposed that after being satisfied by consulting a Doctor that the victim was in a conscious state of mind he had proceeded to record her statement. The said statement was recorded by him in the presence of the father of the victim. In his cross-examination, he has reiterated that the victim was in a conscious state of mind at the time of giving her statement. P.W.4 has stated that when he had reached the Hospital he had seen his daughter conversing. The statement was given by his daughter in his presence as well as in the presence of the Police. The signature of this witness finds place in the fardbeyan. The postmortem report indicates that she had suffered severe burns but as has been held in "Purshottam Chopra" (supra) even when a victim suffers 100% burn injuries the same cannot lead to a conclusion that the victim was incapable to make a statement which could be acted upon as a dying declaration. The conscious state of the mind of the victim is further evident from the testimony of P.W.1 as on being asked she had given the reasons for such incident.

25. On a conspectus, of the evidence on record, we affirm the findings of the learned trial court that the statement of the victim can be treated as a dying declaration as the same was rendered in a conscious and fit state of mind.

26. As regards the charge u/s 304B of the IPC is concerned, it appears that the marriage of the victim was solemnized with the appellant no. 1 on 28.06.2009, and she had died within one year of marriage. P.W.4 has stated about a demand of Rs. 50,000/- made from the side of the accused persons. The

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learned trial court has, therefore, rightly come to a conclusion that the ingredients comprising an offence u/s 304B of the IPC have been fulfilled.

27. In view of the aforesaid discussions, we do not find any reason to interfere in the judgment of conviction dated 18.02.2013 and order of sentence dated 19.02.2013 passed by Sri Jai Prakash Narayan Pandey, learned A.J.C.-1 st-cum-Spl. Judge, C.B.I., Ranchi in Sessions Trial No. 529/2010 and, consequently this appeal is dismissed.

(Rongon Mukhopadhyay, J.)

(Ambuj Nath, J.)

High Court of Jharkhand at Ranchi Dated, the 18th day of October, 2022.

Alok/NAFR