Banti @ Laxminarayan And Anr vs State Of Rajasthan Through Pp
2023 Latest Caselaw 1067 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

               D.B. Criminal Appeal No. 202/2016

1.   Banti @ Laxminarayan S/o Shri Chandan Singh resident of
village Honta Police Station Nadbai, District Bharatpur(At present
in Central Jail, Bharatpur)
2.    Smt. Ramdulari wife of Shri Chandan Singh resident of
village Honta Police Station Nadbai, District Bharatpur(At present
in Central Jail, Bharatpur)
                                                                   ----Appellant
                                   Versus
State Of Rajasthan Through Pp
                                                                 ----Respondent

For Appellant(s) : Mr. Harendra Singh Sinsinwar with Mr. Jaswant Singh Rathore For Respondent(s) : Mr. Javed Choudhary, Addl. G.A.

         HON'BLE MR. JUSTICE PANKAJ BHANDARI
         HON'BLE MR. JUSTICE ANIL KUMAR UPMAN

                                    Order

Judgment Reserved on                   ::                       25/01/2023

Judgment Pronounced on                 ::                       01/02/2023

By the Court(Per Hon'ble Mr. Pankaj Bhandari J.)

1. Accused-appellants have preferred this appeal against the

judgment and sentence dated 22.01.2016 passed by learned

Additional District & Sessions Judge(Women Atrocities Cases)

Bharatpur, in Sessions Case No.22/2014 whereby appellant-Bunti

@ Laxminarayan has been convicted for offence under Section 302

IPC and sentenced to undergo life imprisonment and to pay a fine

of Rs.25,000/-, in default for non-payment of fine, to further

undergo one year simple imprisonment and appellant No.2-Smt.

Ramdulari has been convicted for offence under Section 302/34

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IPC and sentenced to undergo life imprisonment and to pay a fine

of Rs.25,000/-, in default for non-payment of fine, to further

undergo one year simple imprisonment.

2. Brief facts of the case are that a written report was lodged

by Bhikkan Singh-maternal uncle of the deceased along with his

brother-in-law-Ramkishore at Police Station Nadbai, District

Bharatpur on 17.02.2014 about the death of Dheeraj-wife of

appellant Bunti. It was mentioned in the FIR that marriage of

deceased with appellant-Bunti took place on 18.11.2011.

Appellant-Bunti, his brother-Ravi and mother-in-law-Ramdulari

used to harass the deceased on account of dowry. There was

demand of Rs.50,000/-. The deceased first turned out of the

house and she was threatened that if she does not fulfill the

demand, she would be burned alive. It was also mentioned in the

report that Kerosene was poured upon the deceased and she was

put ablaze. The police on the basis of above report, registered FIR

No.102/2014 and after due investigation submitted charge-sheet

under Sections 498-A, 302 in alternative Section 304-B of IPC

against appellant-Bunti husband of the deceased and Ramdulari-

mother-in-law of deceased. The Trial Court framed charges against

appellant-Bunti for offence under Section 302 and 498-A IPC and

in alternative offence under Section 304-B of IPC & against

appellant-Ramdulari under Section 302 read with 34 IPC and

Section 498-A of IPC. Accused denied charges and sought trial. On

behalf of the prosecution as many as 17 witnesses were examined

and 30 documents were exhibited. Explanation of the accused was

recorded under Section 313 of Cr.P.C. No evidence was produced

in defence. After hearing both the parties learned Trial Court has

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convicted the appellant vide judgment and sentence dated

22.01.2016, aggrieved by which the present appeal has been

filed.

3. It is contended by counsel for the appellants that Bhikkan

Singh-complainant(PW.1) has not supported the prosecution

version and has been declared hostile. PW.2-brother of the

deceased has also not supported the prosecution version and has

turned hostile. PW.4-Ramrati aunt of deceased, PW.5-Saroj-

mother of deceased, PW.6-Aidel Singh and PW.7-Mahavir

neighbour of deceased have turned hostile. It is also contended

that learned Trial Court has convicted the appellants solely on the

basis of dying declaration(Ex.P-20) recorded by the Magistrate. It

is further contended that appellants have been acquitted for

offence under Section 498-A and 304-B of IPC meaning thereby

that the prosecution has failed to establish that there was any

demand of dowry.

4. Learned Additional Govt. Advocate has opposed the appeal.

It is contended that dying declaration was recorded by a

Magistrate and there is no reason to disbelief the dying declaration

given by the deceased, wherein she has specifically stated that oil

was poured upon her by her husband. Her hands were also held

by her husband and her mother-in-law put her ablaze with candle.

5. We have considered the contentions.

6. As far as the material witnesses are concerned, PW.1-

complainant in this case who is also maternal uncle of the

deceased has clearly stated that there was no demand of dowry

on behalf of the appellants. This witness was declared hostile.

PW.2-Pappu who is brother of the deceased has clearly stated that

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deceased-Dheeraj was happy at her in-laws place and she was

properly kept by her-in-laws. He has also stated that Dheeraj

committed suicide by putting herself ablaze. This witness was also

declared hostile by the prosecution. It is evident that this witness

in his cross-examination has stated that the statement which

deceased-Dheeraj gave was on account of tutoring by them. PW.4-

Ramrati who is aunt of deceased has also stated that Dheeraj

deceased was not harassed by her in laws and that she committed

suicide. In her cross-examination she had clearly stated that when

she reached Jaipur, she talked with the deceased-Dheeraj and

Dheeraj gave the statement as per tutoring done by her family

members. PW.5-Saroj mother of the deceased has also stated that

Dheeraj committed suicide as she was short tempered. She has

also stated that Dheeraj was not harassed by her in laws and

there was no demand of any dowry.

7. PW.7-Mahavir who is residing in the neighbourhood of the

appellants' house has stated that when he reached the house,

Dheeraj came out of the room in burning condition. The witness

put quilt on her body and he has also stated that deceased told

him that she has put herself on fire. This witness was also

declared hostile. In his cross-examination, he has stated that at

the time when deceased came out of the room, the present

appellants were not there and after hearing the hue and cry, they

came to the spot and tried to extinguish the fire. PW.8-Raju who is

also brother of deceased has stated that Dheeraj was kept

properly by her-in-laws. He has also stated that he reached the

hospital before Dheeraj was brought to the hospital at Jaipur. He

(5 of 7) [CRLA-202/2016]

had a talk with the deceased-Dheeraj and she did not level any

allegations against anyone.

8. From the above evidence, it is evident that none of the

witnesses have levelled any allegations with regard to demand of

dowry. None of the witnesses have levelled any allegations with

regard to harassment and all the witnesses on behalf of

complainant have stated that deceased was short tempered and

that she committed suicide. The only evidence which now remains

is the dying declaration recorded before Magistrate. PW.16-

Ramdev Sandhu, the Magistrate who recorded the statement has

stated that he had recorded the dying declaration of the deceased.

As per his statement, the deceased was in a fit condition to

depose before him. He had also obtained a certificate from the

treating doctor regarding her fitness and her cabability to depose

before him. This witness has admitted that relatives of the

deceased were present at the time when he reached the hospital.

However he has stated that when he recorded the statement, the

relatives were asked to leave the place. As to whether the dying

declaration recorded was voluntarily given or she was tutored, is

to be appreciated by the Court. All the relatives of the deceased

including her mother, aunt, brothers and an independent witness-

her neighbour have stated that deceased had committed suicide.

Witnesses have gone to the extent to say that they had asked the

deceased to give the statement against the appellants. There is no

reason why the relatives would turn hostile and depose that

deceased was short tempered and has committed suicide. There is

also no reason as to why they would state before the Court that

on their saying, the deceased had given statement to the

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Magistrate. The dying declaration therefore, loses its importance

and solely on the basis of the dying declaration the accused

cannot be held guilty. More particularly when all the relatives of

the deceased including brothers, aunt & mother have deposed that

deceased had committed suicide and that she was short

tempered.

9. The learned trial Court has erred in convicting the appellants

on the basis of dying declaration which was the solitary evidence

against the appellant for the very reason that from the evidence it

is apparent that the deceased was tutored to depose against the

appellants. From the evidence of the Magistrate, it is evident that

the relatives of the deceased were present before he reached

there for recording the statement under Section 164 Cr.P.C.,

hence, the possibility that she was tutored cannot be ruled out.

More particularly when the witnesses themselves have stated that

the statement was given by the deceased as they had asked her

to depose against the appellants.

10. Consequently, we deem it proper to allow the appeal and set

aside the judgment and sentence dated 22.01.2016 passed by

learned Additional District & Sessions Judge(Women Atrocities

Cases) Bharatpur. The appellants are acquitted from the charges

levelled against them. The appellants be set at liberty forthwith, if

not wanted in any other case or for any other purposes.

11. Appellants are directed to furnish a 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

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of leave, the appellants 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.

                                   (ANIL KUMAR UPMAN),J                                     (PANKAJ BHANDARI),J

                                   HEENA









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