Rajasthan High Court - Jodhpur
State Of Rajasthan vs Narsi Ram And Anr on 4 September, 2024
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2024:RJ-JD:35843-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 350/1996
State Of Rajasthan
----Appellant
Versus
1. Narsi Ram
2. Naresh Kumar
Both sons of Shri Jagan Nath, by caste Brahmin, resident
of Dantor, P.S. Pungal District Bikaner.
----Respondents
For Appellant(s) : Mr.C.S.Ojha, Public Prosecutor
Mr.Pritam Solanki and Mr.K.L.Vishnoi,
for the complainant
For Respondent(s) : Ms.Apeksha Chhangani, Adv
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE MUNNURI LAXMAN
Judgment
Judgment Reserved on : 28.08.2024
Judgment Pronounced on : 04.09.2024
[Per Hon'ble Mr. Justice Munnuri Laxman] :
1) The challenge in the present appeal is to the judgment
of acquittal dated 27.04.1989 passed by the learned Sessions
Judge, Bikaner on the file of Sessions Case No.3/1987, wherein
and whereby the respondents-accused were acquitted of the
charges under Section 498-A and 302 of IPC.
2) The sum and substance of the prosecution case is that
the accused-Narsiram and the deceased-Krishna @ Sushila were
married about 8-9 years prior to the occurrence. Another accused-
[2024:RJ-JD:35843-DB] (2 of 10) [CRLA-350/1996]
Naresh Kumar is brother of the husband of the deceased. At the
time of marriage, a dowry of Rs.30,000/- to 35,000/- was given.
The accused were harassing the deceased demanding additional
dowry and she was drove out of matrimonial home. A Panchayat
was convened in the presence of elders. On the advice of elders,
the deceased was sent back to her matrimonial home. The
incident occurred on 03.09.1986 at the house of the accused in
the day light. The accused allegedly harassing the deceased
physically 2-3 days prior to the incident asking her to meet the
additional demand of Rs.10,000/-. When she expressed her
inability to bring such amount from her parents, the accused
allegedly burned the deceased and she went unconscious. When
she regained consciousness, she found to be admitted in the
P.B.M. Government Hospital, Bikaner.
3) Initially, the A.S.I of the concerned Police Station had
recorded the statement of the deceased on the day of incident
under Exhibit-P/5. On 19.09.1986 at about 7:15 p.m., a report
was lodged with the Police Station Pugal, Distt. Bikaner
complaining about the harassment and burning of the deceased by
the accused. Basing on the above report, an FIR No.78/1986 was
issued under Section 307 of IPC. The deceased died on
24.09.1986. After the death of the deceased the section of the
offence was altered from Section 307 of IPC to Sections 498-A and
302 of IPC.
4) After hearing the prosecution and the accused, the
charges were framed for the offence under Section 498-A and 302
of IPC against the respondents-accused. The accused denied the
[2024:RJ-JD:35843-DB] (3 of 10) [CRLA-350/1996]
charges and the trial went on. The prosecution in support of its
case examined in all 18 witnesses and adduced documents under
Exhibit-P/1 to Exhibit-P/27. Accused were examined under Section
313 Cr.P.C. with regard to incriminating evidence. They denied
such evidence but did not adduce any oral evidence in their
defence. However, they exhibited documents under Exhibit-D/1 to
D/4.
5) The learned trial court after hearing the arguments of the
prosecution and the accused found that no offences were made
out against the accused. Consequently, the accused were
acquitted of the charges under Sections 498-A and 302 of IPC.
Hence, the present appeal at the instance of the State.
6) The learned Public Prosecutor appearing for the State and
learned counsel appearing for the informant contended that the
trial court has not properly appreciated the evidence of PW-1 & 2
and the dying declaration recorded by PW-12 Kamal Kumar Bagdi,
the Judicial Magistrte, under Exhibit-P/10. According to him, going
by the evidence of PW-1 & 2 and the dying declaration, they
clinchingly establish that it is the accused who have subjected the
deceased to harassment for bringing the additional dowry and
when she expressed her inability, she was burned by them. It is
contended that the learned trial court has given more weightage
to the previous dying declaration under Exhibit-P/5 in spite of the
reasons for making such a dying declaration has been clearly
stated by the deceased in Exhibit-P/10. As per Exhibit-P/10, the
deceased gave such a statement before the A.S.I. under Exhibit-P/
5 on account of threat given to her by her husband stating that if
[2024:RJ-JD:35843-DB] (4 of 10) [CRLA-350/1996]
she involved them in the alleged incident, he would shoot her
children as well as her brother. In these circumstances, such
statement was made to A.S.I. under Exhibit-P/5. When such is the
explanation given by the deceasxed, the learned trial court ought
not to have given the weightage to the above dying declaration
made to Police Officer and dying declaration Exhibit-P/5 should be
discarded. There is ample evidence which clinchingly established
the role of the respondents-accused for the offences charged.
Therefore, they prayed to allow the appeal.
7) The learned counsel appearing for the respondents-
accused has contended that earlier, statement was recorded on
03.09.1986, the day on which the incident occurred. The Police
Officers were satisfied with the statement of the deceased under
Exhibit-P/5, wherein she has categorically stated that she caught
fire accidentally when she was cooking the food and she received
burn injuries on account of such accidental fire. The accused
having seen the fire, they tried to put out the fire and they shifted
her to hospital for treatment. By virtue of such statement, the
police found that it was the case of accidental fire and not
homicidal burn injuries.
8) The learned counsel for the respondents-accused also
contended that if really the accused allegedly inflicted the burn
injuries to the deceased, the relatives of the deceased could have
lodged a report immediately after 03.09.1986. They could not
have waited upto 19.09.1986. By efflux of time and on account of
deteriorating the health condition of the deceased, a new story
was concocted by the victim and her family members to involve
[2024:RJ-JD:35843-DB] (5 of 10) [CRLA-350/1996]
the accused. According to him, if really accused intended to kill
the deceased, they could not have shifted the deceased to hospital
for her treatment. It is also contended that PW-1 & 2 have stated
that on their enquiry, the deceased informed that accused inflicted
the burn injuries and when such information if really given by the
deceased, they could not have waited till the health condition of
the deceased was deteriorated. They could have lodged report
immediately after the incident inspite of making statement before
the Police Officer. The belated report is result of creation and the
appellants have nothing to do with the alleged incident.
9) The learned counsel for the respondents-accused also
contended that there were no clear cut incidents of harassment. A
vague and bald statement of harassment and maltreatment of the
deceased was made. In fact, in the earlier statement and even in
her subsequent statement, the deceased never stated a past
history of ill-treatment from the hands of the accused. However,
PW-1 & 2 stated that there was continuous harassment and in
fact, they conducted Panchayat before elders but they did not
name the elders. No efforts were made to examine such person.
In fact, the neighbours were examined and they did not support
the claim set up by PW-1 & 2 with regard to harassment so as to
attract the offence under Section 498-A of IPC.
10) We have heard the learned counsel for the parties and
carefully perused the record of the case.
11) The present appeal is against the acquittal. There is no
doubt that the appellate court has full power to review, re-
appreciate and reconsider the evidence upon which the order of
[2024:RJ-JD:35843-DB] (6 of 10) [CRLA-350/1996]
acquittal is based. The appellate court does not interfere in the
findings of the acquittal if the judgment of acquittal is reasonable
or result of plausible view on the basis of evidence and materials
on record. The appellate court only interfere in a case of findings
which are perverse or shock the conscious of the higher court. If
the view taken by the trial court is also possible from the evidence
on record merely because other view is possible, the appellate
court in the said circumstances cannot justify interference with the
acquittal.
12) The parameters of consideration of appeal has been
succinctly stated by the Apex Court in the case of Chandrappa &
Ors. Vs. State of Karnataka, reported in (2007) 4 SCC 415.
Para 42 of the judgment reads as follows:-
"42. .......(1) An appellate court has full power to
review, reappreciate and reconsider the evidence upon
which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of such
power and an appellate court on the evidence before it
may reach its own conclusion, both on questions of fact
and of law.
(3) Various expressions, such as, "substantial and
compelling reasons", "good and sufficient grounds", "very
strong circumstances", "distorted conclusions", "glaring
mistakes", etc. are not intended to curtail extensive
powers of an appellate court in an appeal against
acquittal. Such phraseologies are more in the nature of
"flourishes of language" to emphasise the reluctance of an
appellate court to interfere with acquittal than to curtail
the power of the court to review the evidence and to
come to its own conclusion.
(4) An appellate court, however, must bear in mind that
in case of acquittal, there is double presumption in favour
of the accused. Firstly, the presumption of innocence is
available to him under the fundamental principle of
criminal jurisprudence that every person shall be
presumed to be innocent unless he is proved guilty by a
competent court of law. Secondly, Secondly, the accused
having secured his acquittal, the presumption of his
[2024:RJ-JD:35843-DB] (7 of 10) [CRLA-350/1996]
innocence is further reinforced, reaffirmed and
strengthened by the trial court.
(5) If two reasonable conclusions are possible on the
basis of the evidence on record, the appellate court
should not disturb the finding of acquittal recorded by the
trial court."
13) The appeal has to be decided in the parameters laid down
by the Apex Court in the above cited judgment. The entire case of
the prosecution rest upon two dying declarations. The first dying
declaration was made on 03.09.1986 to the Police Officer under
Exhibit-P/5. The second dying declaration was recorded on
19.09.1986 and on the same day, Exhibit-P/1 was lodged with the
police basing on which the FIR was issued for the offence under
Section 307 of IPC. In the first dying declaration Exhibit-P/5, the
deceased categorically stated that burn injuries were received
accidentally. In fact, the accused had shifted the deceased to PBM
Government Hospital, Bikaner and the information was given to
the parents of the deceased by the husband of the deceased on
the same day when the deceased was being shifted to
Government Hospital, Bikaner. This means the parents of the
deceased must have reached the hospital either on the same day
or on the next day. Till 19.09.1986, there were no complaint from
the parents of the deceased alleging any role of the accused in
causing the burn injuries. There is no explanation coming from
the informant as to why there was such an inordinate delay in
lodging the report. There is a time gap of 16 days in between the
first dying declaration and the second dying declaration.
14) The authenticity of first dying declaration is not disputed.
The same can be found affirmation in the second dying
[2024:RJ-JD:35843-DB] (8 of 10) [CRLA-350/1996]
declaration. However, in the second dying declaration, it is stated
by the deceased that accused have inflicted injuries when she
refused to comply the additional demand of Rs.10,000/- from her
husband. She claimed to have received injuries on hand. However,
the doctor (PW-10 Dr.Shyam Sundar), who examined the
deceased before the death while she was under treatment, did not
support the presence of any such injury on the hand of the
deceased except burn injuries. In the previous statement also, she
did not speak about receipt of any such injury to the hand.
15) The relatives of the deceased reached the hospital either on
the same day or the next day since the information about the
incident was passed on to them on the date of incident itself.
There is a time gap of 16 days in between the first dying
declaration and second dying declaration. If really there was a role
of the respondents-accused in commission of the offence, the
parents of the deceased after knowing the incident from the
deceased, definitely would have lodged a report immediately and
they would not have waited till 19.09.1986. The relatives of the
deceased were with them for all that 16 days and there is scope of
influence and tutoring the deceased. The explanation given by the
deceased for making the first dying declaration was that her
husband allegedly threatened the deceased to shoot her children
and brother. It is not known when such a threatening was given. If
really such a threat was initially given, when her parents reached
to her, she could have immediately informed them about such
threatening and acts of the accused. She could not have waited
upto 19.09.1986. These are the circumstances, which leave great
[2024:RJ-JD:35843-DB] (9 of 10) [CRLA-350/1996]
doubt on the version of the deceased in the second dying
declaration. The reasons given by the learned court below for
disbelieving the second dying declaration is plausible and
convincing in the light of the evidence on record.
16) Further, PW-1 & 2 have stated that there was persistent
harassment of the deceased by the accused demanding additional
dowry. They also claimed that a Panchayat was also held before
the elders. There is no detail of harassment and the names of the
elders were not given nor they have been examined in court. In
fact, the neighbours of the deceased were examined, who in their
statement stated that there were no harassment.
17) Further, in the initial statement and in the subsequent
statement of the deceased, there is no whisper that there is
persistent harassment demanding additional dowry. The only
incriminating found in the second dying declaration is that 2-3
days prior to the incident there has been physical assault and she
received an injury on hand. This claim was not accepted by the
trial court considering the medical evidence available on record.
The medical evidence do not support the receipt of any such injury
on the hand. If this evidence is discarded, absolutely there is no
convincing material to prove the ingredients of offence under
Section 498-A of IPC.
18) As per the decision of the Apex Court in the case of
Chandrappa (cited supra), when there is a plausible view from
the judgment of acquittal which is based on the evidence available
on record, merely because the other view is possible, the
appellant court cannot interfere such a finding of acquittal. As
[2024:RJ-JD:35843-DB] (10 of 10) [CRLA-350/1996]
stated above, we find that plausible and reasonable view was
taken by the trial court in acquitting the respondents-accused for
the offences charged basing on the evidence available on record.
We find no perversity in the judgment of the trial court acquitting
the respondents.
19) Consequently, the criminal appeal being devoid of merit is
hereby dismissed.
(MUNNURI LAXMAN),J (DR. PUSHPENDRA SINGH BHATI),J.
NK/-
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