Rajasthan High Court - Jodhpur
Arjun Singh And Ors vs State on 10 September, 2024
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2024:RJ-JD:36424-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 429/2017
1. Arjun Singh S/o Madan Singh, B/c Rajput, Resident of 6-
B-201, K.K Colony, Indira Colony, P.S. Kudi Bhagtasani
Housingh Board, Jodhpur
2. Saroj @ Guddi W/o Arjun Singh, B/c Rajput, Resident of
6-B-201, K.K Colony, Indira Colony, P.S. Kudi Bhagtasani
Housingh Board, Jodhpur
3. Mangal Singh @ Mukesh S/o Madan Singh, B/c Rajput,
Resident of 6-B-201, K.K Colony, Indira Colony, P.S. Kudi
Bhagtasani Housingh Board, Jodhpur
4. Madan Singh S/o Mang Singh, B/c Rajput, Resident of 6-
B-201, K.K Colony, Indira Colony, P.s. Kudi Bhagtasani
Housingh Board, Jodhpur.
(Appellants Lodged In Central Jail, Jodhpur)
----Appellants
Versus
State Of Rajasthan
----Respondent
For Appellant(s) : Mr.Ranjeet Joshi, Adv.
Mr.Kapil Bissa, Adv.
Mr.Vishwajeet Joshi, Adv.
Mr.Rajat Chhaparwal, Adv.
For Respondent(s) : Mr.Deepak Choudhary, GA-cum-AAG
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE MUNNURI LAXMAN
Judgment
Judgment Reserved on : 29.08.2024
Judgment Pronounced on : 10.09.2024
[Per Hon'ble Mr. Justice Munnuri Laxman] :
1) The challenge in the present appeal is to the judgment of
conviction dated 20.03.2017 passed by the learned Additional
[2024:RJ-JD:36424-DB] (2 of 14) [CRLA-429/2017]
Sessions Judge (Women Atrocities Cases), Jodhpur Metropolitan
on the file of Sessions Case No.150/2013 (N.C.V. No.886/2014),
wherein and whereby the appellants-accused were convicted for
the offences punishable under Sections 498-A and 302/34 of IPC
and sentenced as under:-
Offences Sentence Fine
302/34 IPC Life imprisonment Rs.10,000/-, in default
thereof to further
undergo 1 month's
additional imprisonment
498-A IPC 3 years' simple Rs.2000/-, in default
imprisonment thereof to further
undergo 10 days'
additional imprisonment
2) The case of the prosecution is that on 15.05.2013, PW-1
Smt. Sanu Kanwar, the mother of the deceased-Poonam lodged a
report stating that the marriage between Mangal Singh and the
deceased were performed on 02.01.2007 as per the Hindu rituals
and customs. Out of the said wedlock, a female child, namely,
Ranu was born, who is now 4 years of old. At the time of
marriage, gold, silver, clothes, utensils and other household items
were given as per their financial capacity. After 3 years of
marriage, the in-laws started harassing the deceased to bring
money from parents. Two to three times, the compromise talks
were held. The husband was a drunkard. He used to beat the
deceased. All the accused used to harass her demanding
additional dowry. Two days prior to the incident, she was
physically assaulted. On 15.05.2013, accused-Madan Singh,
father-in-law of the deceased called and informed that the
[2024:RJ-JD:36424-DB] (3 of 14) [CRLA-429/2017]
deceased received burn injuries and they were shifting the
deceased to MGH Hospital, Jodhpur. When she reached the
hospital, she found that her daughter was lying on bed with burn
injuries. On enquiry with her daughter, she informed that her co-
sister, Guddi i.e. wife of accused-Arjun Singh who is younger
brother of Mangal Singh, caught hold her hands, father-in-law
poured kerosene and lit the fire. At that time, her brother-in-law
was watching her standing at the gate outside the room. While her
husband was shouting again and again. He saw the deceased
getting burned by his father and sister in law and later he also lit
fire on her foot. Basing on the above report, an FIR was lodged
against the accused for offences under Sections 498-A, 307, 324
of IPC.
3) The A.S.I. of the concerned police station rushed to the
hospital and he recorded the statement under Exhibit-P/41 on the
same day at about 10:10 p.m. During the course of investigation,
the statements of Smt. Sanu Kanwar, mother of the deceased
(PW-1), Jeevraj Singh, maternal uncle (PW-3) and Gopal Singh,
father of the deceased (PW-9) were recorded. The Investigating
Officer also recorded the statement of the deceased under Exhibit-
P/37. On the same day, PW-17, the Additional Chief Judicial
Magistrate recorded the dying declaration of the deceased under
Exhibit-P/19. After investigation, charge-sheet was filed.
4) The final investigation reveals that there was constant
harassment to the deceased from all the accused demanding her
to bring additional dowry, two days prior to the incident, there was
physical assault on her by husband, father-in-law and sister-in-
law. On 15.05.2013 at about 6:30 pm, the deceased was in her
[2024:RJ-JD:36424-DB] (4 of 14) [CRLA-429/2017]
room. The co-sister Guddi and her husband Arjun Singh caught
hold her hands, father-in-law Madan Singh poured kerosene and
husband Mangal Singh lit the fire. The unknown neighbours
rescued the deceased and shifted her to the hospital. While
undergoing treatment, she succumbed to burn injuries on
24.05.2023.
5) The trial court on the basis of above allegations framed
the charges for the offence under Section 498-A, 304-B IPC in
alternate 302 read with Section 34 of IPC. The prosecution in
support of its case examined as many as 19 witnesses and
adduced 42 documents. Accused were examined under Section
313 Cr.P.C. and they denied the incriminating evidence. However,
they did not produce any defence evidence.
6) The trial court after appreciation of contentions and
evidence available on record came to the conclusion that the
appellants-accused were not guilty of charge for offence under
Section 304-B of IPC and therefore, they were acquitted of the
said offence. However, the trial court convicted the appellants-
accused for the offences punishable under Section 498-A as well
as 302/34 of IPC and accordingly, they were sentenced to the
terms as indicated herein-above. Hence, this appeal.
7) The contention of the learned counsel appearing for the
appellants-accused is that the conviction was based on multiple
dying declarations without there being any corroboration.
According to him, the dying declarations suffer from material
inconsistencies and when such material inconsistencies exist from
two dying declarations, the court should have insisted for
corroboration, which was not done. It is also contended that the
[2024:RJ-JD:36424-DB] (5 of 14) [CRLA-429/2017]
injuries referred in the postmortem report demonstrate that it is
not a case of homicidal burn injuries. The nature of injuries and
the places where there are no injuries, clearly shows that they are
of self-inflicted nature.
8) The learned counsel further contended that initial dying
declaration, which was recorded by the A.S.I. clearly
demonstrates that there was no role attributed to the husband
except that he was a silent spectator and the roles were attributed
only to father-in-law and co-sister Guddi i.e. Arjun Singh's wife.
According to the said dying declaration, Guddi caught hold her
hands and father-in-law poured kerosene and lit fire. The second
dying declaration was recorded by PW-14 Ramdeo, the
Investigating Officer, u/sec. 161 Cr.P.C. as under Exhibit-P/37,
wherein Arjun Singh was not named and it was also stated that on
making hue and cry, neighbours came to rescue her and put out a
fire. On advice of neighbours, the husband, father-in-law and co-
sister have shifted her to hospital. Whereas, in the dying
declaration recorded by Magistrate under Exhibit-P/19 and P/37, a
specific role has been attributed for each of the accused by
changing her earlier version. In these dying declarations, it is
stated that Arjun Singh and his wife Gudi caught hold her hands,
father-in-law poured kerosene, and her husband lit fire. It is also
contended by learned counsel that Exhibit-P/1 refers that husband
also lit the fire on the foot after watching the deceased getting
burned by his father, brother and sister-in-law. According to him,
these inconsistencies creates a great doubt over all the dying
declarations. There is no truthfulness in the statement of the
deceased.
[2024:RJ-JD:36424-DB] (6 of 14) [CRLA-429/2017]
9) It is also contended that the deceased claimed that two
days prior to the incident, her husband, father-in-law and co-sister
subjected her to harassment demanding additional dowry and in
this regard, she claimed to have approach the local police, but to
substantiate such a claim, the police did neither produce any such
report lodged by the victim, nor any police officer was examined,
which falsifies the plea set up by her in the dying declarations.
10) It is also contended that father, mother and uncle of the
deceased have not supported the fact of harassment of the
deceased for dowry. Therefore, the credibility of the deceased's
claim that she was subjected to harassment by all the in-laws
demanding additional dowry has no legs to stand. The statement
of the deceased clearly demonstrates that for the last one year,
she was in the rented premises and for her stay, a room was
constructed and 6 months prior to the incident, she was shifted to
that room along with her husband and these circumstances clearly
demonstrates that there are improbability of any maltreatment
from the in-law's side. In fact, they tried to provide the best
facility to the deceased as she wanted. Therefore, the trial court
has committed error in placing reliance on multiple dying
declarations, which suffer from inconsistencies in truthfulness and
unsupported by any further corroborating material evidence from
the family members and the neighbours. Therefore, the conviction
of the appellants for the above charge is required to be set aside.
11) The learned Government Advocate-cum-AAG has
contended that the previous dying declaration recorded by the
police officer has to be discarded since they suffer from lack of
certification from the doctors to show the fitness of the declarant
[2024:RJ-JD:36424-DB] (7 of 14) [CRLA-429/2017]
and more credibility has to be given to the dying declaration
recorded by the Magistrate. The court below has rightly relied
upon the dying declaration recorded by the Magistrate under
Exhibits-P/19 and P/39 and rightly convicted the accused for the
offences charged.
12) It is also his contention that merely because the parents
of the deceased and other neighbours have not supported the
case of the prosecution, when there is a dying declaration from
the Magistrate which proves to be genuine, true, voluntary and
consistent, the same cannot be discarded. The trial court has
rightly relied upon such dying declaration and rightly convicted the
accused for the offences charged. Such a conviction does not
require any interference.
13) We have heard the learned counsel for the appellants as
well as learned Government Counsel-cum-AAG extensively and
carefully perused the material available on record.
14) In the present case, the postmortem report clearly
demonstrates that the deceased suffered burn injuries. On
account of septicemia, which is resulted from burn injuries, the
deceased succumbed to the injuries. This means it has been
proved that the deceased death is not normal. It is on account of
burn injuries received by the deceased. Now, the question is
whether such burn injuries are result of homicidal act or self
inflicted.
15) The evidence on record clearly demonstrates that the
marriage of the deceased was performed in the year 2007 and the
incident occurred on 15.05.2013. Meanwhile, a child was also
born. The dying declaration indicates that she had been subjected
[2024:RJ-JD:36424-DB] (8 of 14) [CRLA-429/2017]
to physical assault by all the accused demanding additional dowry
and two days prior to the incident also, husband, father-in-law and
sister-in-law had beaten the deceased, resultantly, she
approached the local police. But the Investigating Officer has not
collected any such report. The evidence is lacking in this regard.
The parents i.e. PW-1 & 9 have not supported any harassment
faced by the deceased. Even, PW-3 who is maternal uncle of the
deceased has also not supported the prosecution story. The
neighbours were examined as PW-10 and P-11, they have also not
supported the prosecution story. The only evidence which are
available to the trial court to convict the appellants was the dying
declarations of the deceased.
16) There are three sorts of dying declarations. The first
dying declaration was recorded under Exhibit-P/41 by the A.S.I. of
the concerned Police Station on the same day of the incident at
10:10 pm and the second dying declaration was recorded by PW-
16 Rampal, the Investigating Officer in the form of statement
under Section 161 Cr.P.C. under Exhibit-P/37. The third dying
declaration was recorded by Magistrate under Exhibit-P/19 and P/
39 on the same day at about 11:32 pm. The incident was
informed to PW-1 by father-in-law of the deceased at about 8:00
am. In the dying declaration under Exhibit P/41, it is also stated
by the deceased that her husband was mute spectator. Co-sister
i.e. Guddi caught hold of her hands and father-in-law poured
kerosene and lit fire. The same is the statement under Section
161 Cr.P.C. also. The dying declaration recorded by the Magistrate
show that Arjun Singh (younger brother of deceased's husband
Mangal Singh) and his wife Guddi caught hold her hands, father-
[2024:RJ-JD:36424-DB] (9 of 14) [CRLA-429/2017]
in-law poured kerosene and husband lit the fire. Whereas, in the
First Information Report, it is stated that Guddi i.e. co-sister of the
deceased caught hold her hands, father-in-law poured kerosene
and lit fire and at that time, the brother of the husband i.e. Arjun
Singh was standing near the gate outside the room and
subsequently her husband while shouting, also lit fire on her foot.
17) A conjoint reading of the above dying declarations and
the First Information Report shows that initial allegation was made
against father-in-law and co-sister Guddi. No role was attributed
to the husband except that he was silent spectator and in fact
presence of Arjun Singh was not indicated. Same is the case in
dying declaration Exhibit-P/37 recorded by the Investigating
Officer under Section 161 of Cr.P.C. However, some sort of
improvements are made under Exhibit-P/1 by the mother of the
deceased stating that the husband also lit the fire after his father
lit the fire pouring kerosene when co-sister of the deceased caught
hold the hands of the deceased. The presence of Arjun Singh at
the gate outside the room is also mentioned. However, the parents
did not support the case set up by the prosecution in the court
and they were declared hostile.
18) In the light of the above multiple dying declarations and
material inconsistencies, the injuries suffered by the deceased are
also relevant. The postmortem examination reveals that the
deceased received superficial burns all over the body except few
places i.e. scalp, perineal region, posterior part of abdomen and
thing, both palm and soles. There are signs of septicemia at
places. The cause of death is due to septicemic shock as a result
of extensive burns.
[2024:RJ-JD:36424-DB] (10 of 14) [CRLA-429/2017]
19) The Apex Court while dealing with the question whether
a case of suicidal or homicidal injuries is made out from the
presence of injuries on the body or whether it is indicative of self
inflicted or injuries in the nature of homicidal, in the case of State
of Uttar Pradesh Vs. Veerpal & Another, reported in (2022) 2
Supreme Court Cases (Cri) 224 in Paragraph 15 of the judgments
reads as follows:-
"Even considering the medical evidence on record
and the injuries sustained by the deceased, it is
found that there were no injuries at all on the chest
and injuries were found on the head and on the
backside. As rightly observed by the trial court, if
she had committed suicide by pouring kerosene
there would have been injures on the chest as well
as injuries would not have been on the head and on
the backside. In our view, such injuries as found on
the body of the deceased could have possible only if
somebody had poured kerosene on her from behind
her. The aforesaid aspect has not at all been
considered by the High Court."
20) The Court found that on examination of the injuries it
shows that the injuries sustained by the deceased on the head
and on the backside prima facie shows that it is a case of
homicidal death because if the deceased had committed suicide by
pouring kerosene there would have been injuries on the chest. In
the present case, the consistent statements show that some
persons caught hold the deceased and other accused poured
kerosene and lit fire. This means there could be no chance of
pouring kerosene from the front side when the persons caught
hold her hands. It is not the case of the deceased that hands of
the deceased were twisted by backside of the body. This means, if
it is a case of homicidal injuries, pouring of kerosene and lighting
of fire must be from the backside of the body. If an attempt was
[2024:RJ-JD:36424-DB] (11 of 14) [CRLA-429/2017]
made to pour kerosene and lit fire, definitely there could have
been injuries present on the scalp and posterior parts of thigh and
abdominal region. Absence of such injury gives a doubt over the
theory propounded by the deceased. If kerosene was poured and
fire was lit from the front side, definitely the injuries must have
been on the palm also, which is lacking as per PMR report, front
portion of body suffers extensive burns. These evidence creates
certain doubts over the claim of the deceased.
21) The Apex Court in the case of Abhishek Sharma Vs.
State (Govt. of NCT of Delhi), reported in 2023 SCC Online SC
1358 had an occasion to deal with all the case laws relating to
dying declaration and laid the following parameters to be looked
into before placing reliance on dying declarations:-
"9. Having considered various pronouncements of this
court, the following principles emerge, for a Court to
consider when dealing with a case involving multiple
dying declarations:
9.1 The primary requirement for all dying declarations is
that they should be voluntary and reliable and that such
statements should be in a fit state of mind;
9.2 All dying declarations should be consistent. In other
words, inconsistencies between such statements should
be 'material' for its credibility to be shaken;
9.3 When inconsistencies are found between various
dying declarations, other evidence available on record
may be considered for the purposes of corroboration of
the contents of dying declarations.
9.4 The statement treated as a dying declaration must
be interpreted in light of surrounding facts and
circumstances.
9.5 Each declaration must be scrutinized on its own
merits. The court has to examine upon which of the
statements reliance can be placed in order for the case to
proceed further.
9.6 When there are inconsistencies, the statement that
has been recorded by a Magistrate or like higher officer
can be relied on, subject to the indispensable qualities of
truthfulness and being free of suspicion.
[2024:RJ-JD:36424-DB] (12 of 14) [CRLA-429/2017]
9.7 In the presence of inconsistencies, the medical
fitness of the person making such declaration, at the
relevant time, assumes importance along with other
factors such as the possibility of tutoring by relatives,
etc."
22) Hence, the present dying declarations must be examined
as per the above parameters laid down by the Apex Court. The
evidence on record shows that there is no serious, strong motive
for the father-in-law and co-sister of the deceased to cause a
homicidal death of the deceased. If the husband of the deceased
was really present when the incident occurred, he would have
taken active role or he would have prevented the acts of his father
and sister-in-law. He could not be a silent spectator. Though initial
statement of the deceased reflects that her husband was only a
silent spectator, but the subsequent dying declaration was tried to
improve and attributes serious overt act against the husband that
he lit fire whereas in the first dying declaration, it is the father-in-
law who poured kerosene and lit fire. In the other dying
declaration, it was stated that co-sister of the deceased caught
hold of the hands whereas in the dying declaration made before
the Magistrate, it is stated that Arjun Singh and his wife caught
hold of her hands and father-in-law only poured kerosene and
husband lit fire. These are material inconsistencies, which are not
trivial in nature.
23) The injuries found on the body of the deceased also
creates a doubt over the infliction of homicidal burn injuries.
Further the fact is that it is deceased's own case that she resided
outside for one year on rent. Her husband was alcoholic and used
to beat her while in drunken condition. The evidence also shows
that for facilitation of comfortable leaving, the in laws of the
[2024:RJ-JD:36424-DB] (13 of 14) [CRLA-429/2017]
deceased have constructed a separate room for her and she was
shifted to that room. If the father-in-law had such a grudge, he
could not have created any special residence for the deceased.
The factum of creation of separate accommodation for the
deceased indicates that there was no serious motive for the in-
laws to do away with the deceased by inflicting such injury. The
other factor is that the evidence in the earlier dying declaration
clearly shows that it is the husband, father-in-law and co-sister,
who shifted the deceased to the hospital. The dying declaration
made before the Magistrate indicates that she tried to conceal the
factum of shifting her to the hospital by husband, father-in-law
and co-sister, whereas, she claimed to have been shifted by
unknown neighbours. The witness was trying to implicate all the
family members at one stage or the other stage so as to take
revenge for their unreasonable acts.
24) In the above facts and circumstances, this Court feels
that truthfulness of the dying declaration is not convincingly
proved beyond reasonable doubt such dying declaration requires
corroboration which is absent. The trial court committed error in
placing reliance on the dying declaration made before the
Magistrate without considering the overall circumstances
surrounding the incident. Therefore, the conviction of the
appellants-accused for the offence under Section 302/34 of IPC is
required to be set aside and they are liable to be acquitted.
25) Coming to the allegation regarding the harassment,
absolutely, there is no evidence from the parents and other
relatives of the deceased as they have become hostile. Though
there are allegations of harassment in the dying declaration but
[2024:RJ-JD:36424-DB] (14 of 14) [CRLA-429/2017]
such declaration cannot be made basis for conviction under
Section 498-A IPC as it is not relating to cause of death or
circumstances of transaction which resulted in death. In fact, the
trial court acquitted the appellants for offence under Section 304-
B IPC. In the absence of evidence other than dying declaration,
the conviction of the appellants under Section 498-A IPC is
unsustainable and they are also entitled for acquittal under
Section 498-A IPC.
26) Accordingly, the criminal appeal is allowed. The judgment
of conviction dated 20.03.2017 passed by learned Additional
Sessions Judge (Women Atrocities Cases), Jodhpur Metropolitan
on the file of Sessions Case No.150/2013 (N.C.V. No.886/2014) is
set aside. The appellants are acquitted of the charges for offence
under Sections 498-A, 302/34 of IPC. The appellant No.2-Saroj @
Guddi is on bail. Her bail bonds stand discharged. The appellants
No.1, 3 & 4 shall be set at liberty forthwith, if not required in any
other case.
27) Keeping in view the provision of Section 437-A Cr.P.C.,
the appellants are directed to furnish a personal bond in a sum of
Rs.40,000/- each and a surety bond in the like amount, before the
learned Trial Court, which shall be made effective for a period of
six months, to the effect that in the event of filing of Special Leave
Petition against this judgment or for grant of leave, the appellants,
on receipt of notice thereof, shall appear before the Hon'ble
Supreme Court as soon as they would be called upon to do so.
(MUNNURI LAXMAN),J (DR. PUSHPENDRA SINGH BHATI),J
58-NK/-
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