Om Prakash And Anr vs State
2021 Latest Caselaw 19529 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
                D.B. Criminal Appeal No. 576/2015

1. Om Prakash S/o Lichhmanram, by caste Kumhar, Resident of
Chak 5 GGR, Police Station Tibbi, District Hanumangarh.
2. Geeta Devi W/o Om Prakash, by caste Kumhar, Resident of
Chak 5 GGR, Police Station Tibbi, District Hanumangarh.
                                                                 ----Appellants
                                   Versus
State of Rajasthan through Public Prosecutor
                                                                ----Respondent


For Appellant(s)         :     Mr. Bhoop Singh
                               Mr. Mohan Lal
For Respondent(s)        :     Mr. B.R. Bishnoi, AGC


          HON'BLE MR. JUSTICE SANDEEP MEHTA
            HON'BLE MR. JUSTICE SAMEER JAIN

                                Judgment

Date of pronouncement : 21/12/2021
Judgment reserved on : 01/12/2021
By the Court : PER HON'BLE JAIN, J.

The instant criminal appeal has been filed by the accused-

appellants Om Prakash and Geeta Devi under Section 374(2) of

Cr.P.C. being aggrieved of the judgment dated 06.06.2015 passed

by learned Sessions Judge, Hanumangarh in Sessions Case

No.23/2014 whereby they have been convicted for the offences

punishable under Section 302 read with Section 34 of IPC

sentenced to imprisonment for life and a fine of Rs. 5,000/-, in

default of payment of fine to further undergo three months simple

imprisonment.

Brief facts of the case are that a Parcha Bayan (Ex. P/2) of

Smt. Anju Devi was recorded by the SHO, Police Station Tibbi,

(2 of 9) [CRLA-576/2015]

District Hanumangarh on 20.1.2014, on the basis of which, an

F.I.R. being FIR No.29/2014 (Ex.P/3) was registered on

20.01.2014 at the Police Station Tibbi. Anju Devi alleged in the

statement that she was married to Purnram about three years

back and her father gave sufficient dowry at the time of marriage.

A baby boy namely Neeraj was born from the wedlock. After six or

seven months of the marriage, her in-laws and husband started

harassing her. On 19.01.2014, in the morning she slapped her son

namely Neeraj and being enraged with the same, her mother-in-

law and father-in-law beat her and then set her ablaze. Upon

hearing the commotion, her husband Purnram came there and

tried to douse the fire by sand and in that process, he also

received burn injuries on his hands. The fire was put out and

thereafter, she was taken to the hospital at Hanumangarh in a car

from where she was referred for treatment to PBM hospital in

Bikaner. On the basis of said Parcha Bayan, the police registered

the F.I.R. for the offences punishable under Section 307 read with

Section 34 of IPC. During treatment Anju Devi expired and thus,

the offence punishable under Section 302 of IPC was added to the

case.

After thorough investigation, the police filed a charge-sheet

against the accused-appellants for the offences under Section 302

read with Section 34 of IPC.

Thereafter, the case was committed for trial to the Court of

Sessions Judge, Hanumangarh (hereinafter referred to as the

'learned trial court').

(3 of 9) [CRLA-576/2015]

Learned trial Court framed charges on 06.06.2014 against

the appellants under Section 302 read with Sections 34 of IPC,

which were denied and trial was claimed.

The prosecution in support of its case examined as many as

12 witnesses and got exhibited 16 documents.

The statements of the accused were recorded under Section

313 Cr.P.C. on 09.03.2015 wherein they denied the prosecution

allegations and also stated that they had been falsely implicated in

this case and took a plea of alibi. The appellant No.2 submitted

that Smt. Anju had tied up the child Neeraj and was beating him,

she had taken Neeraj outside the house to the field and in a fit of

rage the deceased had committed suicide.

At the conclusion of the trial, the learned trial Court, vide

impugned judgment dated 06.06.2015 found the accused-

appellants guilty for the offences under Sections 302 read with

Section 34 of IPC and as a consequence, convicted and sentenced

them as above. Hence, this appeal.

Learned counsel representing the accused-appellants

submitted that the learned trial Court has not appreciated the

evidence correctly and seriously erred in placing implicit reliance

upon the dying declaration of the deceased as there were material

contradictions in the Parcha Bayan (Ex.P/2) and the dying

declaration (Ex. P/15). Before recording the statement of the

deceased, the requisite certificate of fitness was not obtained.

Further, it was submitted that the present case was of suicide and

does not fall under Section 302 IPC as Purnram (PW-9) husband of

the deceased had rescued her from fire and got injured in the

process and took her for treatment. It was only in a fit of rage

(4 of 9) [CRLA-576/2015]

after being flustered by behaviour of her in-laws i.e. accused-

appellants that the deceased committed suicide. The testimony of

PW-5 Geeta Devi grandmother of deceased and PW-4 Bhura Ram

father of deceased affirms the defence theory that suicide was

committed by the deceased and it was not a case of murder

punishable under Section 302 of IPC. It was further submitted that

it is only by the inducement and tutoring of the grandmother

Geeta Devi (PW-5) and relative Aatma Ram (PW-6), the deceased

modulated the fact that she attmepted to commit suicide to that

of being set ablaze by her in-laws. It was also stated by Pradeep

Kumar (DW-3) that the appellant No.1 Om Prakash at the relevant

point of time was working in M-NREGA scheme. Learned counsel

for the appellant has relied upon the judgment of the Hon'ble

Supreme Court reported in (2000) 10 SCC 324 (Kalu Ram Vs.

State of Rajasthan) in support of his contention. Paras no. 7 and

8 of the said judgment are relevant which are reproduced as

below:

"7. But then, what is the nature of the offence proved against him. It is an admitted case that appellant was in a highly inebriated stage when he approached the deceased when the demand for sparing her ornaments was made by him. When she refused to oblige he poured kerosene on her and wanted her to lit the match-stick. When she failed to do so he collected the match box and ignited one match-stick but when flames were up he suddenly and frantically poured water to save her from the tongues of flames. This conduct cannot be seen divorced from the totality of the circumstances. Very probably he would not have anticipated that the act done by him would have escalated to such a proportion that she might die. If he had ever intended her to die he would not have alerted his senses to bring water in an effort to rescue her. We are inclined to think that all what the accused thought of was to inflict burns to her and to frighten her but unfortunately the situation slipped out of his control and it went to the fatal extent. He would not have intended to inflict the injuries which she sustained on account of his act. Therefore, we are

(5 of 9) [CRLA-576/2015]

persuaded to bring down the offence from the first degree murder to culpable homicide not amounting to murder.

8. We, therefore, alter the conviction from Section 302, I.P.C. to Section 304, Part II of the I.P.C. Both sides conceded that appellant is continuing in jail. We impose a sentence of rigorous imprisonment for seven years on him. It is for the jail authorities to count whether the period he had already undergone would be sufficient to complete the period of sentence imposed by us and if so, the jail authorities shall release him from jail. Otherwise he will continue in jail until completion of the period of seven years of imprisonment. The appeal is disposed of accordingly. "

Per contra, learned Public Prosecutor has submitted that

under Section 32 of the Evidence Act, 1872, dying declaration

constitutes an admissible and relevant piece of evidence, which

does not require any corroboration. In the Parcha Bayan (Ex.P/2)

and in dying declaration (Ex.P/15) Smt. Anju categorically stated

that the accused-appellants set her ablaze and the statements

made by the related witnesses contradicting the same are not to

be used for discarding the dying declaration which is to be treated

as more reliable, overriding admissible evidence. Satya Prakash

Soni, A.C.J.M. No.3, Bikaner (PW-12) proved that the dying

declaration (Ex. P/15) was recorded faithfully.

It is further submitted that there is no merit in the argument

of learned counsel for the appellants that offence under Section

302/34 IPC is not made out and there is no question to accept the

prayer of accused-appellants to acquit or alter the offence from

Section 302 IPC to Section 304 Part II of IPC.

We have heard learned counsel for the appellants as well as

learned Public Prosecutor, perused the impugned judgment passed

by the learned trial Court, appreciated the evidence and have also

gone through the record of the case.

(6 of 9) [CRLA-576/2015]

In order to re-appreciate the entire material on record, it is

relevant to consider the evidence of prosecution witnesses and the

documents relied upon by them.

On perusal of Parcha Bayan (Ex. P/2) vis-a-vis dying

declaration (Ex.P/15-A) deceased Smt. Anju, a stark and material

contradiction is noted. In the dying declaration the deceased

categorically stated that her in-laws and husband safeguarded

herself from the fire, however, while giving Parcha Bayan (Ex.P/2)

she has emphatically stated that her in-laws set her ablaze. In

reply to a specific question put to Smt. Anju in the dying

declaration, she stated as below :

e`R;q dkfyd dFku     fnukad 19-1-14
&&&&&&&&&&
&&&&&&&&&&
&&&&&&&&&&
iz"u %& vkidks fdlus cpk;k \

vkx esjs lkl llqj vkSj ifr us cq>k;k tks feV~Vh Mky dj cq>k;kA In view of the above, it is crystal clear that in the dying

declaration, the deceased had stated that an attempt to save her

was not only made by her husband but also her in-laws by using

the sand. It is also noteworthy to mention here that the fact

that Smt. Anju set herself to fire is corroborated by PW-4 Bhura

Ram, father of the deceased, who gave evidence to the effect

that his daughter Anju poured kerosene on her body and then

set herself afire. The dying declaration is also contradicted by

the statement of PW-5 Smt. Geeta Devi grand-mother of the

deceased, who specifically stated that deceased set herself to

fire. PW-9 Purnram husband of the deceased, regarding whom,

the deceased specifically stated in both the statements that he

(7 of 9) [CRLA-576/2015]

was innocent and helped her by dousing the fire and providing

her treatment, stated that Smt. Anju was a quarrelsome, short

tempered and stubborn lady and the allegations levelled by her

against the accused-appellants were false and that she had

committed suicide by pouring kerosene on her body and setting

herself to fire and that his parents were innocent.

It is settled position of law in decisions rendered by the

Hon'ble Apex Court Kusa & Ors. Versus State of Orissa [AIR

1980 SC page 559] and State of U.P. Versus Ramsagar

Yadav & Ors. [AIR 1985 SC 416] that the dying declaration

under Section 32 of the Evidence Act is an admissible piece of

evidence and should be relied upon by the Courts until and

unless it is clouded by ambiguity, inconsistency or there is

reflection of inducement prompted by a third party. The Courts

have to be circumspect while implicitly relying upon dying

declarations as the deceased cannot be cross-examined nor the

dying declaration is recorded on oath.

PW-4 Bhura Ram, father of the deceased, PW-5 Geeta

Devi, grand-mother of the deceased, PW-9 Purnram, husband of

the deceased and PW-6 Aatama Ram, a close relative of the

deceased all specifically stated that the deceased was a short

tempered, stubborn and quarrelsome lady and she set herself

afire in a fit of rage. Further, being induced and prompted by her

grand-mother Smt. Geeta Devi (PW-5) and a closed relative

Aatma Ram (PW-6) moulded the Parcha Bayan by implicating

the accused-appellants by making allegation of torching her only

in order to avoid the allegations of suicide.

(8 of 9) [CRLA-576/2015]

While appreciating the evidence and recording the findings,

the learned trial Court has failed to consider that in the present

case there is absence of motive on the part of the accused-

appellants to harm the victim. It is an admitted case as

manifested by the witnesses PW-4 Bhura Ram, PW-5 Geeta Devi,

PW-6 Aatma Ram and PW-9 Purnram that Smt. Anju was a short

tempered, stubborn and quarrelsome lady and being flustered

by the action of her mother-in-law when she scolded her and

stopped her from beating her son Neeraj that in a fit of rage she

poured kerosene on her body and set herself to fire. The

learned trial Court, was totally unjustified in discarding the

testimony of witnesses and finding of guilt recorded against the

accused-appellant in absence of any motive and also ignoring

the statements of the material prosecution witnesses, who in

one voice stated that deceased set herself ablaze and it was only

on being induced and prompted by PW-5 Geeta Devi and PW-6

Aatmaram that she stated in the Parcha Bayan that accused-

appellants set her ablaze by concealing the true story that she

herself poured kerosene on her body and lit the fire so as to

avoid any action by the police authorities upon her.

The stark contradiction noted above in the Parcha Bayan

(Ex.P/2) and the dying declaration (Ex.P/15) regarding the

manner in which the fire was doused also brings both the

statements under a cloud of doubt and implicit faith cannot be

placed thereupon. There is no other evidence to prove the case

against the appellants.

                                                                            (9 of 9)                   [CRLA-576/2015]


                                        Accordingly,    the      instant        appeal        is   allowed.   The

order/judgment dated 06.06.2015 passed by learned trial Court

is set aside and the accused-appellants are acquitted from the

charges levelled against them under Section 302/34 of the IPC.

The accused appellants are in jail. They be released

forthwith if not warranted in any other case.

However, keeping in view the provisions of Section 437A

Cr.P.C., the accused appellants are directed to furnish a personal

bond each in the sum of Rs.25,000/- and a surety bond each 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 appellants shall appear before

the Hon'ble Supreme Court.

Record be sent back to the trial court forthwith.

                                   (SAMEER JAIN),J                                        (SANDEEP MEHTA),J


                                    5-amit/cpgoyal









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