Rajasthan High Court - Jodhpur
State vs Vinod And Anr (2025:Rj-Jd:935-Db) on 7 January, 2025
Author: Madan Gopal Vyas
Bench: Madan Gopal Vyas
[2025:RJ-JD:935-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 426/2000
State of Rajasthan
----Appellant
Versus
1. Vinod Kumar son of Dhanraj, resident of Sujangarh Chandvas
District Churu, Police Station Sujangarh, Churu.
2. Smt. Pushpa wife of Vinod Kumar, resident of Sujangarh
Chandvas District Churu, Police Station Sujangarh, Churu.
----Respondents
For Appellant(s) : Mr. C.S. Ojha, PP
For Respondent(s) : Mr. Kalptaru Tripathi
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE MADAN GOPAL VYAS
Order
07/01/2025
1. This Acquittal Appeal is directed against the judgment dated
6th May 2000 passed in Sessions Case No.63 of 1998 by the
Additional Sessions Judge, Ratangarh, District Churu by which
Vinod Kumar and his wife, namely, Smt. Pushpa were acquitted of
the criminal charges framed against them under sections 498-A
and 302 of the Indian Penal Code.
2. A crime was registered on the basis of the statement of Smt.
Sita given to the police vide Exhibit P.24 to the effect that her
brother-in-law and his wife poured kerosene on her and set her on
fire on the night of 22nd August 1998 at around 09:25 p.m. Later
on, statement of Smt. Sita was recorded by the Magistrate around
10:00 p.m. in the hospital vide Exhibit P.13. In course of the trial,
the prosecution examined ten witnesses out of whom all material
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witnesses turned hostile and did not support the prosecution case
against the respondents. This was the statement of Smt. Sita
given before the officer-in-charge of Sujangarh, Police Station and
the Magistrate who was examined as PW-8 which formed the
foundation for prosecuting the respondents for committing murder
of Smt. Sita. However, the Sessions Judge at Ratangarh, Churu
disbelieved the dying declaration of Smt. Sita on the ground that
there were material discrepancies in the statements made by her
before the Police and the Magistrate.
3. In Acquittal Appeal, the powers of the High Court extend to
re-appreciating the evidence and come to a different conclusion.
But before reversing the findings recorded by the trial Court, the
High Court must come to a conclusion that there had been fatal
mistake committed by the trial Court in appreciating the evidence
and that has occasioned in failure of justice. Simply put, there
must be compelling reasons for over-turning the judgment of
acquittal of the respondent in a State Acquittal Appeal before the
High Court. In "Harbans Singh & Anr. v. State of Punjab" AIR 1962
SC 439, the Hon'ble Supreme Court observed that before
interfering in appeal with an order of acquittal the High Court
must examine not only the questions of law and fact in all their
aspects but must also closely or carefully examine the reasons
which impelled the lower Court to acquit the accused. We have
also in our mind, the law laid down by the Privy Council in "Sheo
Swarup v. King Emperor" 1934 SCC OnLine PC 42 that the
judgment of acquittal bolsters the innocence of the accused and
the High Court should not lightly interfere with the judgment of
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acquittal rendered by the Sessions Court. In "Sheo Swarup v. King
Emperor" the Privy Council held as under:-
"Sections 417, 418 and 423 of the Code give to the
High Court full power to review at large the evidence upon
which the order of acquittal was founded, and to reach the
conclusion that upon that evidence the order of acquittal
should be reversed. No limitation should be placed upon that
power, unless it be found expressly stated in the Code. But
in exercising the power conferred by the Code and before
reaching its conclusions upon fact, the High Court should
and will always give proper wait and consideration to such
matters as (1) the views of the trial judge as to the
credibility of the witnesses; (2) the presumption of
innocence in favour of the accused, a presumption certainly
now weakened by the fact that he has been acquitted at his
trial; (3) the right of the accused to the benefit of any
doubt; and (4) the slowness of an appellate Court in
disturbing a finding of fact arrived at by a Judge who had
the advantage of seeing the witnesses. To state this
however is only to say that the High Court in its conduct of
the appeal should and will act in accordance with rules and
principles well known and recognized in the administration of
justice."
5. After having examined the materials on record, particularly
the dying declarations of Smt. Sita given before the Police and the
Magistrate and the evidence tendered by the Magistrate as PW-8,
we have formed an opinion that the judgment of acquittal
recorded by the Sessions Court is seriously flawed in law and
warrants interference of this Court.
6. The Latin word "Leterm Mortem" which means "words said
before death" are said to be the origin of the term dying
declaration. That a dying man shall not lie to his Maker (Nemo
Moriturus Praesumitur Mentire) is the guiding principle on which
the sanctity of the dying declaration is founded. This is a clear
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exception to the rule of hearsay that the statement of a person
who is either dead or cannot be found or who has become
incapable of giving evidence becomes relevant when it relates to
cause of his death. The law is well settled that the dying
declaration of the victim is sufficient and it is only to lend
assurance to the dying declaration that the Courts seek
corroborative evidence to the dying declaration for recording
conviction of the accused. Though a dying declaration must be
approached with caution for the reason that the maker of the
statement cannot be subjected to cross-examination, but then,
there is no rule of law or any rule of prudence that a dying
declaration cannot be acted upon unless it is corroborated. In
"Jaswant Singh v. State (Delhi Administration)" 1978 (4) SCC 85
the Hon'ble Supreme Court held that it is not necessary that the
dying declaration must be corroborated by other evidence. In
"Smt. Paniben v. State of Gujarat" 1992 (2) SCC 474 the Hon'ble
Supreme Court observed that it cannot be laid down as an
absolute rule of law that a dying declaration cannot form the sole
basis of conviction unless it is corroborated by some other
evidence.
7. No matter that almost all material witnesses had turned
hostile, the presumption of truthfulness of the dying declaration of
Smt. Sita cannot be brushed aside on a minor discrepancy in her
statements made before the Police and the Magistrate. The trial
Court rejected the dying declarations of Smt. Sita on a very trifling
and insignificant discrepancy in her statement completely
forgetting the fundamental rules that minor inconsistencies,
discrepancies, exaggeration etc. which do not affect the core of
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the prosecution case should be kept aside. In "Shivaji Sahabrao
Bobade & Anr. v. State of Maharashtra" 1973 (2) SCC 793, the
Hon'ble Supreme Court cautioned that the excessive solicitude
reflected in the attitude that a thousand guilty men may go
scot-free but one innocent martyr shall not suffer is a false
dilemma.
8. In "Indrapal Singh v. State of Madhya Pradesh" 2001 (10)
SCC 736 the Hon'ble Supreme Court held that in order to make
the statement of a dead person admissible in law such statement
must be as to the cause of death or as to any of the circumstances
of the transactions which resulted in death. In "Pakala Narayana
Swami v. King Emperor" AIR 1939 PC 47, the Privy Council held
that the statement of a person which can be admissible in
evidence may be made before the cause of death has arisen or
before the deceased had any reason to anticipate being killed. The
statements made by Smt. Sita before the Police and the
Magistrate were admissible in evidence and are sufficient for
recording conviction of the respondents.
9. For the aforesaid reasons, we find that the Sessions Court
committed serious error in law in ignoring the dying declarations
of Smt. Sita and acquitting the respondents of the criminal
charges framed against them under Sections 498-A and 302 of the
Indian Penal Code. However, the issue which falls for consideration
is whether the respondents are liable to be convicted and
punished for the offence of murder of Smt. Sita. In our opinion,
the answer would be "No". As it would appear from the dying
declarations of Smt. Sita, it was a trivial matter/dispute between
the parties which had led to causing burn injuries to her. This is
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also a matter of record that about 15 days after the occurrence
Smt. Sita died of the burn injuries. As per the postmortem report,
the cause of death of Smt. Sita was septicemia. This is also
bearing in our mind that the incident had occurred way back in
1998 and the respondent no.1 remained in jail custody for about
one year and eight months and his wife who is the respondent
no.2 remained in jail custody for about seven months. As the
motive for the crime cannot be said to be committing murder of
Smt. Sita and all that can be inferred from the materials on record
is that the respondents wanted to cause hurt/grievous hurt to
Smt. Sita, reversing the judgment of acquittal, the respondents
are convicted for the offence under Section 325 of the Indian
Penal Code and are sentenced to the period already undergone by
them.
10. D.B. Criminal Appeal No. 426 of 2000 is disposed of in the
aforesaid terms.
(MADAN GOPAL VYAS),J (SHREE CHANDRASHEKHAR),J
64-manila/Bharti-
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