Rajasthan High Court
Kamlesh Mahawar vs State Of Rajasthan Through Pp on 1 December, 2023
Bench: Pankaj Bhandari, Bhuwan Goyal
[2023:RJ-JP:36182-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 1723/2017
Kamlesh Mahawar S/o Shri Ramji Lal Mahawar, R/o Village
Malwas, Police Station Nangal Rajawatan, District Dausa, Raj., At
Present residing at Santosh Colony, Behind Chokhi Dhani, Shri
Ram Ki Nangal, Police Station, Sanganer Sadar, District Jaipur.
(At Present Confined In Central Jail, Jaipur)
----Appellant
Versus
State Of Rajasthan Through PP
----Respondent
Connected With
D.B. Criminal Appeal No. 491/2017
Kamlesh Kumar Mahawar
----Appellant
Versus
State Of Rajasthan Through PP
----Respondent
For Appellant(s) : Mr. Himmat Singh, Adv. in Cr.A.
None present in Cr.A. No.491/2017
For Respondent(s) : Mr. Javed Choudhary, Addl.G.A.
HON'BLE MR. JUSTICE PANKAJ BHANDARI
HON'BLE MR. JUSTICE BHUWAN GOYAL
Judgment
RESERVED ON :: 23/11/2023
PRONOUNCED ON :: 01/12/2023
(Per - Hon'ble Pankaj Bhandari, J.)
1. The accused appellant has preferred two appeals, one
through Jail bearing D.B. Criminal Appeal No.491/2017 and one
through counsel bearing D.B. Criminal Appeal No.1723/2017. No
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one has put in appearance in D.B. Criminal Appeal No.491/2017,
which was a Jail Appeal. Mr. Himmat Singh, Adv. has put in
appearance in D.B. Criminal Appeal No.1723/2017.
2. The accused appellant has challenged the judgment and
sentence dated 19.01.2017 passed by the Additional Sessions
Judge (Women Atrocity Cases) No.2, Jaipur Metro, Jaipur whereby
he has been convicted for offence under Sections 498-A and 302
of IPC. For offence under Section 498-A of IPC, he has been
sentenced to 3 years rigorous imprisonment and a fine of
Rs.2,000/- and in default of payment of fine, to further undergo
rigorous imprisonment for 6 months and for offence under Section
302 of IPC, he has been sentenced to life imprisonment and a fine
of Rs.10,000/- and in default of payment of fine, to further
undergo rigorous imprisonment for 2 years. Both the sentences
were directed to run concurrently.
3. Succinctly stated the facts of the case are that on the basis
of parchabayan of the deceased (Exhibit-P13), police registered an
FIR No.319/2012 (Exhibit-P14) for offence under Sections 498-A
and 307 of IPC. After demise of the deceased, offence under
Section 302 of IPC was added. It was alleged in the said
parchabayan that the accused often gave beating to the deceased
after consuming liquor. On the morning of 07.11.2012, accused
abused the deceased, gave beating to her and poured kerosene
upon her, upon which, she went to the neighbour's house and
thereafter, the accused brought her from the said house and set
her ablaze. It is also mentioned that after she raised an alarm, the
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neighbourers gathered. She has mentioned that except her
husband, no one is responsible. On the basis of the aforesaid FIR,
the police conducted investigation and after due investigation,
submitted charge-sheet against the accused appellant for offence
under Sections 498-A and 302 of IPC. The charges for the
aforesaid offences were read over to the accused. The accused
denied the charges and sought trial, whereupon statements of
PW-1 to PW-17 were recorded and 21 documents were exhibited
on behalf of the prosecution. In defence, Exhibit-D2 was exhibited.
Statement of accused under Section 313 Cr.P.C. was recorded.
After hearing the arguments of the parties, the learned Court
below convicted and sentenced the accused appellant as stated
above.
4. It is contended by the counsel for the accused appellant that
witnesses i.e. Rajendra (PW-7), Prem Sheela (PW-9), Deepak
Meena (PW-10), Sonu (PW-11) and Ramdhan (PW-12) have
turned hostile. It is also contended that the parchabayan on the
basis of which the FIR was lodged was not recorded after
obtaining Fitness Certificate from the doctor. Admittedly, the
deceased has sustained 95% burns. Whether she was in a fit
condition to give statement was to be established before the Court
and in absence of a doctor's Certificate, the parchabayan looses its
credibility. It is further contended that it was clear defence of the
accused appellant that the deceased was cooking food on the
stove, and when she tried to fill up the tank of the stove, she
caught fire and when the accused tried to save her, he also
sustained burn injuries. It is contended that in the dying
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declaration recorded by the learned Magistrate, the deceased has
set up a different story. As per the dying declaration, the deceased
has stated that she went to the house of neighbour-Bihari and the
appellant brought her back and thereafter, he poured oil and put
her ablaze.
5. It is also contended that the deceased was tutored by her
family members and the conviction could not have been based
solely on the dying declaration of the deceased. It is further
contended that the conduct of the accused ought to have been
seen by the learned Court below. The accused tried to save his
wife and immediately rushed her to the hospital. The hands of the
accused were also burnt when he tried to save his wife, which fact
is established from the evidence on record. Learned Court below
has not taken note of the same and has clearly erred in basing the
conviction only on the basis of dying declaration.
6. Learned Additional Government Advocate appearing for the
State has opposed the appeal and stated that the accused
appellant has rightly been convicted by the learned Trial Court.
7. We have considered the submissions made by the learned
counsel for the parties and have perused the material on record.
8. Admittedly, present is a case of circumstantial evidence. For
bringing home the guilt against the accused, chain of
circumstances has to be established. There is no witness, who has
seen the accused pouring kerosene upon the deceased. The fact
that the accused and his wife were living happily and there was no
fighting between them and that while trying to save his wife,
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accused appellant got burn injuries on his hands, ear and face, is
established from the statements of Sonu (PW-11) and Ramdhan
(PW-12). Rajendra (PW-7), Prem Sheela (PW-9) and Deepak
Meena (PW-10) have also deposed that there was no fighting
between them. Since all the neighbouring witnesses have turned
hostile, the only evidence, which is now available on record is the
parchabayan and the dying declaration of the deceased.
9. Rule 6.22 of the Rajasthan Police Rules reads as under:
"6.22 Dying declarations - (1) A dying
declaration shall, whenever possible, be
recorded by a Magistrate.
(2) The person making the declaration shall, if
possible, be examined by a medical officer with
a view to ascertaining that he is sufficiently in
possession of his reason to make a lucid
statement.
(3) If no magistrate can be obtained, the
declaration shall, when a gazetted police officer
is not present, be recorded, it shall be recorded
in the presence of two or more reliable
witnesses unconnected with the police
department and with the parties concerned in
the case.
(4) If no such witnesses can be obtained
without risk of the injured person dying before
his statement can be recorded, it shall be
recorded in the presence of two or more police
officers.
(5) A dying declaration made to a police officer
should, under section 162, Code of Criminal
Procedure, be signed by the person making it."
10. As far as the parchabayan (Exhibit-P13) is concerned, it was
recorded by Shri Suresh Kumar (PW-16), A.S.I. In his cross-
examination, he has admitted that he has not obtained any
Certificate from the doctor with regard to fitness of the deceased
to give statement. He has also admitted that in the parchabayan,
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he has not noted with regard to physical and mental condition of
the deceased. He has further admitted that attendants were
present there before recording her statement and that the doctor
was not present at the time of recording her statement. Thus, the
parchabayan looses its credibility for the reasons that there was
no Certificate of the doctor that the deceased was in a fit condition
to give statement, that it was not recorded by a Gazetted Officer,
that it was not recorded in the presence of any reliable witness
and that the person who recorded the parchabayan, has not
mentioned in the parchabayan with regard to the physical and
mental condition of the deceased and that the same was recorded
after relatives of the deceased met her and thus, possibility of
tutoring the deceased cannot be ruled out. The parchabayan,
thus, cannot be considered to be a valid piece of evidence for the
purpose of basing the conviction.
11. The next circumstance against the accused appellant is the
dying declaration (Exhibit-P15) recorded by the learned
Magistrate. In the dying declaration, the deceased has stated that
the dispute took place in the morning and the accused started
beating her, upon which she went to the neighbour's house. The
accused brought her back from the said house, poured kerosene
upon her and set her ablaze. The allegation that accused appellant
consumed liquor and gave beating to his wife is also not
established. Ajay Shrivastava (PW-3) has stated in his statement
that there were no injury marks on the body of the deceased.
Investigating Officer (PW-14) has also admitted that it was not
revealed in the investigation that accused gave beating to the
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deceased after consuming liquor. No medical report regarding
accused consuming liquor has been placed on record.
12. With regard to the dying declaration recorded under Section
164 Cr.P.C., Chaman Lal (PW-1) - father of the deceased has
admitted that before the statement of the deceased was recorded,
they had met the deceased. He has also admitted in his cross-
examination that the deceased gave statement as was conveyed
to her. Thus, the possibility that the deceased was tutored before
her statement was recorded, cannot be ruled out. Learned Trial
Court has thus clearly erred in basing the conviction only on the
basis of dying declaration. In Irfan @ Naka vs. The State of
Uttar Pradesh (Criminal Appeal Nos.825-826 of 2022)
decided on 23.08.2023, Apex Court held that great caution must
be exercised while placing reliance on dying declarations even as
the law attaches a presumption of truthfulness to such
statements. It was further held that it is the duty of the Court to
decide this question in the facts and surrounding circumstances of
the case and be fully convinced of the truthfulness of such
declarations.
13. The witnesses Sonu (PW-11) and Ramdhan (PW-12) have
stated that the accused appellant tried to save her wife and in
doing so, he sustained burn injuries. Parchabayan (Exhibit-P13)
and the statement recorded before the learned Magistrate i.e.
dying declaration has variance in the sense that in parchabayan,
the deceased has stated that kerosene was poured upon her, upon
which, she ran to the house of the neighbour and from there the
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appellant brought her back to the house and set her ablaze.
However, this is not tallying with the dying declaration wherein she
has stated that she went to the house of the neighbour, from
where the accused brought her back, poured kerosene upon her
and set her ablaze. Since, it is admitted by Chaman Lal (PW-1)
that he had told the deceased as to what statement, she had to
give, it is clear that the deceased was tutored before her
statement was recorded. Further, there is no recovery of
matchstick from the crime scene. It is also not established that
the recovered can was having kerosene. There is nothing in the
crime scene report, which would suggest pouring of kerosene and
putting deceased ablaze. Hence, this Court cannot place reliance
on both the parchabayan and the dying declaration of the
deceased. Criminal Appeal No.1723/2017, therefore, deserves to
be and is accordingly, allowed. The judgment and sentence dated
19.01.2017 is quashed and set aside and the accused appellant is
acquitted of all the charges levelled against him. He is in jail, he
be set at liberty forthwith, if not required in any other case or for
any other purpose.
14. Appellant is directed to furnish personal bond in the sum of
Rs.50,000/- and a surety bond in the like amount in accordance
with Section 437-A of Cr.P.C. before the Registrar (Judicial) within
two weeks from the date of release to the effect that in the event
of filing of Special Leave Petition against this judgment or on grant
of leave, the appellant on receipt of notice thereof, shall appear
before the Hon'ble Apex Court. The bail bond will be effective for a
period of six months.
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15. Since D.B. Criminal Appeal No.1723/2017 is allowed on
merits, no order is required to be passed in D.B. Criminal Appeal
No.491/2017 and the same is accordingly, disposed of. Application
for suspension of sentence bearing No.692/2018 filed in D.B.
Criminal Appeal No.491/2017 also stands disposed of.
16. A certified copy of this order along with record of the case be
sent to the learned Trial Court forthwith.
(BHUWAN GOYAL),J (PANKAJ BHANDARI),J
SUNIL SOLANKI /PS
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