Rajasthan High Court - Jodhpur

Jakir Hussain vs State on 13 June, 2025

Author: Pushpendra Singh Bhati

Bench: Pushpendra Singh Bhati

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR

D.B. Criminal Appeal No. 859/2013

Jakir Hussain s/o Shri Abdul Karee @ Babu Khan, r/o
Shramikpura, Masuriya, Jodhpur
(Lodged in Central Jail, Jodhpur)
----Appellant
Versus
The State of Rajasthan.
----Respondent

For Appellant(s) : Mr. Harshvardhan Thanvi (Amicus
Curiae).
For Respondent(s) : Mr. Deepak Choudhary, GA cum AAG

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE SANDEEP SHAH

Judgment

Reserved on 25/04/2025

Pronounced on 13/06/2025

Per Dr. Pushpendra Singh Bhati, J:

1. The instant criminal appeal under Section 374(2) Cr.P.C. has

been preferred by the accused-appellant against the judgment of

conviction and order of sentence dated 03.09.2013 passed by the

learned Additional Sessions Judge, Women Atrocities Cases,

Jodhpur Metropolitan in Sessions Case No.22/2013 (State of

Rajasthan Vs. Jakir Hussain), whereby the accused-appellant has

been convicted and sentenced as under:

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Conviction u/s. Sentence & Fine In Default of
payment of fine
further undergo
498-A of I.P.C. One Year's R.I., One month's
alongwith Fine of additional
Rs.1000/- imprisonment
302 of I.P.C. Life Imprisonment One Year's additional
alongwith Fine of imprisonment
Rs.10,000/-

2. The matter pertains to an incident which had occurred in the

year 2012 and the present appeal has been pending since the year

2013.

3. Brief facts of this case, as placed before this Court are that

one Liyakat (complainant) alongwith his younger brother Maqbool

Ali submitted a written report (Ex.P-5) on 08.02.2012, at around

12:30 p.m., before the Police Station, Pratap Nagar, Jodhpur,

stating therein that his sister, Aasfa had been married for 22 years

and was living in her matrimonial home situated at Shramikpura,

Masuriya, Jodhpur, with her husband, namely, Jakir Hussain

(present accused-appellant) and in-laws, who used to subject her

to grave acts of cruelty including beatings.

3.1. It was further stated in the report that in continuation of

such cruel acts, on 07.02.2012, at around 11:00 p.m., the

husband and in-laws of Aasfa, set her on fire, information

whereof, was received by the complainant (family member of

Aasfa) at around 12:15 a.m. As alleged in the report, Aasfa

received burns to the extent of 90%. As per the report, in the said

act, present accused-appellant Jakir (husband), Bibi w/o Babu

Khan (mother-in-law) and Yasmin d/o Babu Khan (sister-in-law),

were involved.

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3.2. On the basis of the aforesaid information, an FIR bearing

No.67/2012 was registered at Police Station, Pratap Nagar,

Jodhpur for the offence under Sections 498-A and 307 IPC, and

the police started investigation in the matter. However, before

conclusion of the investigation, Aasfa succumbed to the burn

injuries during the treatment on 18.02.2012. After completion of

the investigation, a charge-sheet under section 498A and 302 IPC

against accused-appellant was submitted before the learned

Additional Chief Judicial Magistrate No.2, Jodhpur.

3.3. Owing to the nature of crime involved, the matter was

committed to the Court of Sessions, wherefrom the same was

transferred to the learned Trial Court, for the necessary trial.

3.4. During the course of trial, the statements of 24 witnesses

(P.W. 1 to P.W. 24) were recorded, and documents (Ex.P.1 to 22)

got exhibited on behalf of the prosecution; in defence, document

(Ex.D.1) got exhibited, for examination; whereafter, the accused-

appellant was examined under Section 313 Cr.P.C., in which he

pleaded innocence and false implication in the criminal case in

question.

3.5. After conclusion of the trial, the learned Trial Court,

convicted and sentenced the accused-appellant, as above, vide

the impugned judgment of conviction and order of sentence dated

03.09.2013; against which, the present appeal has been preferred

by the accused-appellant.

4. Mr. Harshvardhan Thanvi, learned Amicus Curiae for the

accused-appellant contended that the judgment of conviction and

order of sentence dated 03.09.2013 is not sustainable in law, as

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the learned Trial Court failed to properly consider and appreciate

the material facts and evidence placed on record.

4.1. Learned counsel further submitted that the dying declaration

of the deceased (Ex.D.1), forming the sole foundation of the

conviction, was not recorded as per law. It was highlighted that

Santosh Agarwal (P.W.24), the magistrate who recorded the said

dying declaration, did not record the same in a question-answer

format which raises substantial doubts about potential leading

queries influencing the responses.

4.1.1. Learned counsel further submitted that the doctor Ramveer

Singh who granted the certificate of fitness for the statement was

not the competent doctor to grant the said certificate, he was just

a duty doctor, who was asked to grant the said certificate by P.W.

24. Moreover, it was highlighted that the said doctor was not even

examined as a witness.

4.1.2. Learned counsel also submitted that Dr. D.D. Meena

(P.W.20) who conducted postmortem of the deceased stated in his

testimony that both the thumbs of the deceased were completely

burnt, thus it was contended that it would impossible to have the

left thumb impression as apparent on the dying declaration with

the clear ridges and curves.

4.1.3. Learned counsel further submitted that Dr. Kamal Kant

(P.W.9) stated in his testimony that an analgeic injection was

given to the deceased so that the deceased could be relieved of

the pain, but the said injection as per the doctors testimony, does

have effect on functioning of the brain. Furthermore, it was

contended that the deceased was burnt more than 90% as per the

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Ex.P.10, and in such a situation a person cannot be in a fit state of

mind to give dying declaration. Learned Counsel relied upon the

jugement passed by the Hon'ble Apex Court in the case of

Sampat Babso Kale vs. State of Maharatra (2019) 4 SCC

739 wherein the it was held as hereunder:

"13. In our view, though the dying declaration stand proved,
the issue is whether we can convict the accused only on the
basis of these dying declarations. In a case of the present
nature where the victim had 98% burns and the doctor has
stated from the record that a painkiller was injected at 3:30
a.m. and the dying declaration had been recorded
thereafter, there is a serious doubt wether the victim was in
a fit state of mind to make the statement. She must have
been in great agony and once a sedative had been injected,
the possibility of her being in the state of delusion cannot
be completely ruled out..."
4.1.4. Learned Counsel submitted that these cumulative infirmities

vitiate the evidentiary sanctity of the dying declaration, rendering

it insufficient and unreliable to be admitted under Section 32(1) of

the Indian Evidence Act, 1872.

4.2. Learned counsel further contended that the Parcha Bayan

(Ex.P.21) cannot be relied upon as the Ram Nayaran (P.W. 23)

admitted in his testimony that he did not record the Parcha Bayan

himself, rather it was a Sipahi who recorded the same. It was

further contended that P.W.23 has also refused to remember the

name of the person who recorded the Parcha Bayan, and neither

was the said person examined as a witness. Moreover, it was

contended that the Parcha Bayan was recorded without certificate

of fitness by a doctor. The Parcha Bayan also contains infirmities

such as the date and time of recording not being mentioned on it,

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and it was also not mentioned that the same was read over to the

deceased. These omissions, it was submitted, create significant

gaps in the prosecution's case. Additionally, counsel argued that

the alleged recovery of the kerosene tin has not been duly

established. In view of the absence of such crucial evidence and

the non-examination of vital witnesses, it was asserted that the

conviction of the accused-appellant is not sustainable in law.

4.2.1. Learned counsel additionally submitted that Dr.

Kamalkant(P.W.9), unequivocally deposed that the injuries

sustained by the deceased were consistent with flame burns

rather than burns caused by kerosene. This testimony, it was

contended, undermines the prosecution's version that the

accused-appellant poured kerosene on the deceased and set her

ablaze.

4.3. Learned counsel further contended that the medical

evidence, specifically the postmortem report (Ex.P.19) of the

deceased, does not record any finding regarding the presence of

kerosene on the body of the deceased.

4.4. Learned Counsel also submitted that the prosecution's case

is not corroborated by its own witnesses, namely Wasim Ahmed

(P.W.1), Khurshid Ahmed (P.W.5), Jubeda(P.W.11), Liyakat

Ali(P.W.12), Abdul Gani(P.W.13), Chand Biwi(P.W.14),

Sabra(P.W.15), Rukiya Baano(P.W.17), Abdul Javed @ Guddu (P.W.

18) Shamin(P.W.19), all were declared hostile during the course of

the trial.

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4.5. Learned counsel further submitted that the allegations of

dowry demand do not find a strong footing in the present case, as

the same has not been supported by the prosecution witnesses.

4.6. Learned counsel further argued that the prosecution has not

established any motive on the part of the accused-appellant for

committing the alleged offence. It was also submitted that the

deceased and the accused-appellant had been married for 22

years, and none of the prosecution witnesses have alleged that

the deceased was subjected to cruelty or ill-treatment by the

accused-appellant at any point in time.

4.7. Learned counsel in support of his case relied on the following

Judgments:

(i) The State of Punjab vs. Gian Kaur and ors (Criminal

Appeal No. 122/1991 decided on 05.03.1998 by the

Hon'ble Supreme Court).

(ii) Govind Narain and Another vs. The State of

Rajasthan (Criminal Appeal Nos. 852 of1985 with 197 of

1987 and 279 of 1988 decided on 31.03.1993 by the

Hon'ble Supreme Court).

(iii) Panchanand Mandal @Pachan Mandal and Anr. Vs

State of Jharkhand (Criminal Appeal No.2173 of 2009

decided on 04.10.2013 by the Hon'ble Supreme Court).

(iv) Shrawan Ram and ors. vs. The State of Rajasthan

(D.B. Criminal Appeal No. 394/2012 decided on

21.10.2019 by this Hon'ble Court).

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(v) Rupa Ram and Ors. vs. State of Rajasthan (D.B.

Criminal Appeal No. 540/2017 decided on 04.03.2021 by

this Hon'ble Court).

(vi) Pravin vs. The State of Maharashtra (Criminal Appeal

No. 482 of 2016 decided on 07.01.2020 by the Hon'ble

High Court of Bombay).

5. Per Contra, Mr. Deepak Choudhary, learned Government

Advocate-cum-Additional Advocate General, appearing for the

State, opposed the submissions advanced on behalf of the

accused-appellant. He submitted that the dying declaration of the

deceased was recorded in strict compliance with the prescribed

legal procedures, and was made in the presence of PW.24 Santosh

Agarwal, Judicial Magistrate after acquiring the required certificate

of mental fitness. Accordingly, he contended that the credibility

and evidentiary value of the said dying declaration remain

unimpeachable.

5.1. Learned Additional Advocate General further submitted that

the fitness certificate of the deceased was duly issued by Dr.

Ramveer Singh, who was also responsible for treating the

deceased during her hospitalization. Therefore, it is incorrect to

allege that the dying declaration was recorded without a fitness

certificate from the attending doctor.

5.2. Learned Additional Advocate General further submitted that

both the dying declaration (Ex.P.5) and the Parchabayan (Ex.P.21)

were recorded within a few hours to each other. Accordingly,

there is no valid basis to question the authenticity or reliability of

these documents as there is sufficient consistency between them.

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5.3. Learned Additional Advocate General also submitted that the

recovery of a tin of kerosene was made from the accused-

appellant, which further fortifies the case of prosecution.

6. Heard learned counsel for the parties as well as perused the

record of the case.

7. This Court observes that on the night of 07.02.2012, the

deceased sustained severe burn injuries at her matrimonial home

and was admitted to the hospital with approximately 90% burns,

as reflected in the medical records (Ex.P.10), and consequently on

08.02.2012, a written report (Ex.P.5) was submitted by the

complainant Liyakat Ali (brother of the deceased) at Police Station

Pratap Nagar, Jodhpur, alleging that the deceased had been

subjected to cruelty by her husband and in-laws, and was set on

fire. Thus, an FIR No. 67/2012 was registered for offences under

Sections 498-A and 307 IPC, which was later converted to Section

302 IPC upon the death of the deceased on 18.02.2012. This

Court further observes that during the course of investigation, the

police recorded a Parcha Bayan (Ex.P.21) and a dying declaration

(Ex.D.1) of the deceased, and upon completion of investigation, a

charge sheet was filed against the present accused-appellant

under Sections 498-A and 302 IPC. At the conclusion of the trial,

the learned Trial Court vide judgment dated 03.09.2013, convicted

the accused-appellant, against which the present appeal has been

preferred.

8. This Court observes that as per the evidence on record, the

Parcha Bayan (Ex.P.21) is fraught with infirmities, including

absence of certificate of fitness by any medical professional

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and lack of mention of whether the statement was read over to

the deceased. It was admitted by Ram Narayan (P.W.23) that he

did not record the Parcha Bayan himself, and the person who did

record it was neither named nor examined before the learned Trail

Court. This Court is conscious of the judgment of Hon'ble Supreme

Court in the case of Manjunath & Ors vs. State of Karnataka

(Criminal Appeal No. 866 of 2011 decided on 6.11.2023,

wherein it was held as hereunder:

"11.10 Examination of the person who reduced into
writing, the dying declaration, is essential. Particularly, in
the absence of any explanation forthcoming for the
production of evidence is what stands observed in Govind
Narain v. State of Rajasthan.
11.10.1 In fact, in Kans Raj v. State of Punjab it was held:
-

11. ...To make such statement as substantive evidence, the person or the agency relying upon it is under a legal obligation to prove the making of such statement as a fact. If it is in writing, the scribe must be produced in the Court and if it is verbal, it should be proved by examining the person who heard the deceased making the statement. and;"

In view of the aforementioned precedent law and the infirmities

mentioned herein above in light thereof, the probative value of the

Parcha Bayan is substantially weaken.

9. This Court further observes that the dying declaration

(Ex.D.1), which forms the principal basis of conviction, was

recorded by Santosh Agarwal (P.W.24), Judicial Magistrate.

However, the same was not recorded in a question-and-answer

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format, and this Court is conscious of the Judgment of Hon'ble

Supreme Court in the case of State Delhi (Administration) vs

Laxman Kumar & Ors (1998) 4 SCC 517, wherein it was held

as hereunder:

"...Again, unless the dying declaration is in question and answer form it is very difficult to know to what extent the answers have been suggested by question put. What is neceassy is that the exact statement made by the deceased should be available to the Court..."

9.1. Moreover, this Court observes that a certificate of fitness was

issued by Dr. Ramveer Singh, who was not examined during the

trial, and his qualification or competence to issue such a certificate

remains unsubstantiated on record, and this Court is mindful of

the Judgment of Hon'ble Supreme Court in the case of Surjit

Singh vs. State of Punjab (Criminal Appeal No. 565/2012

decided on 07.12.2023), wherein it was held as hereunder:

" There is nothing brought on record to show that Dr. Sudhir Sharma examined the deceased before giving certificate of fitness at 4:30 p.m. What is most crucial is that Dr. Sudhir Sharma has not been examined as a prosecution witness. In view of the what is admitted by Surjit Singh (PW-10) in paragraph 2 in his cross- examination, which we have quoted above, an adverse inference will have to be drawn against the prosecution for not examining the said doctor. Therefore, for the aforesaid reasons, the dying declaration allegedly recorded by Surjit Singh (PW-10) will have to be discarded."

9.2. Thus, this Court finds that, in light of the principles laid down

by the Hon'ble Apex Court, the failure of the prosecution to

examine Dr. Ramveer Singh, who issued the certificate of fitness,

warrants drawing an adverse inference against the prosecution

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because P.W. 9 has testified that he was the doctor who treated

the deceased. Accordingly, this Court is of the considered view

that the evidentiary value of the dying declaration stands

substantially weakened.

9.3. This Court also takes note of the fact that Dr. D.D. Meena

(P.W.20), who conducted the postmortem, categorically stated

that both thumbs of the deceased were completely burnt, and in

such circumstances, the affixation of a legible thumb impression

with identifiable ridges and curves is highly doubtful.

10. This Court also observes that Dr. Kamal Kant (P.W.9), who

treated the deceased, admitted that the deceased was

administered analgesics to manage pain. Given that the deceased

had over 90% burns and was under sedative medication, serious

doubt is cast on her mental and physical fitness to make a cogent

and voluntary dying declaration. In such cases, the Hon'ble Apex

Court, in Sampat Babso Kale vs. State of Maharashtra

[(2019) 4 SCC 739], has laid down that conviction solely based

on a dying declaration must be cautiously scrutinized, especially

where the deceased had suffered severe burns and was under

sedative medication.

11. This Court observes that the recovery of kerosene tin, as

alleged, does not inspire confidence, keeping in view that Dr.

Kamalkant (P.W.9) has stated that the injuries sustained were due

to flame burns. Further, no chemical analysis or forensic report

substantiating presence of kerosene on the body or clothing of the

deceased was brought on record. The postmortem report (Ex.P.19)

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also does not record any finding regarding the presence of

kerosene.

12. This Court further observes that the key prosecution

witnesses, namely Wasim Ahmed (P.W.1), Khurshid Ahmed

(P.W.5), Jubeda(P.W.11), Liyakat Ali(P.W.12), Abdul Gani(P.W.13),

Chand Biwi(P.W.14), Sabra(P.W.15), Rukiya Baano(P.W.17), Abdul

Javed @ Guddu (P.W. 18) Shamin(P.W.19) were declared hostile.

These witnesses, did not support the prosecution's case, and failed

to corroborate the allegations of cruelty.

13. In view of the above, the allegations under Section 498-A IPC

and section 302 therefore remain unsubstantiated. Furthermore,

this Court also takes note that no specific or proximate motive has

been established against the accused-appellant. The deceased and

the accused-appellant had been married for over 22 years, and no

incident of prior cruelty or harassment has been credibly

established. In absence of a consistent chain of events or

corroborative evidence, the prosecution's case fails to meet the

standard of proof beyond reasonable doubt.

14. In view of the cumulative infirmities in the prosecution's

case, including the doubtful evidentiary value of the Parcha Bayan

and dying declaration, absence of medical corroboration, failure to

establish motive, hostile witnesses, and lack of proof of cruelty or

dowry demand, this Court is of the considered opinion that the

conviction of the accused-appellant cannot be sustained.

15. This Court further observes that when the judgment of

conviction is challenged before the Appellate Court, a proper

appreciation of the evidence recorded by the learned Trial Court

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has to be made. The power of the Appellate Court is provided

under Section 386(b) of Cr.P.C., which reads as under:-

"386. Powers of the Appellate Court.--

(b) in an appeal from a conviction--

(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or

(ii) alter the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same."

16. This Court also observes that as provided under Section

386(b)(i) Cr.P.C., the Appellate Court has the power to reverse the

findings of the conviction, so as to acquit the accused. At this

juncture, it is considered appropriate to reproduce the relevant

portion of the judgment rendered by the Hon'ble Apex Court in

case of Kamlesh Prabhudas Tanna v. State of Gujarat,

(2013) 15 SCC 263, as hereunder:-

"9. At this juncture, we are obliged to state that though it may be difficult to state that the judgment suffers from sans reasons, yet it is not at all difficult to say that the reasons ascribed are really apology for reasons. If we allow ourselves to say so, one may ascribe certain reasons which seem to be reasons but the litmus test is to give seemly and condign reasons either to sustain or overturn the judgment. The filament of reasoning must logically flow from requisite analysis, but, unfortunately, the said exercise has not been carried out. In this context, we may refer with profit to the decision in Padam Singh v. State of U.P [(2000) 1 SCC 621:

2000 SCC (Cri) 285], wherein a two-Judge Bench, while dealing with the duty of the appellate court, has expressed thus: (SCC p. 625, para 2)

"2. ... It is the duty of an appellate court to look into the evidence adduced in the case and arrive at an

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independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution can be said to have been proved beyond reasonable doubt on the said evidence. The credibility of a witness has to be adjudged by the appellate court in drawing inference from proved and admitted facts. It must be remembered that the appellate court, like the trial court, has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubt as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final Court of Appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court."

(emphasis supplied)

10. In Rama v. State of Rajasthan[(2002) 4 SCC 571 : 2002 SCC (Cri) 829], the Court has stated about the duty of the appellate court in the following terms: (SCC p. 572, para 4)

"4. ... It is well settled that in a criminal appeal, a duty is enjoined upon the appellate court to reappraise the evidence itself and it cannot proceed to dispose of the appeal upon appraisal of evidence by the trial court alone especially when the appeal has been already admitted and placed for final hearing. Upholding such a procedure would amount to negation of valuable right of appeal of an accused, which cannot be permitted under law."

11. In Iqbal Abdul Samiya Malek v. State of Gujarat [(2012) 11 SCC 312: (2013) 1 SCC (Cri) 636], relying on the pronouncements in Padam Singh [(2000) 1 SCC 621 : 2000 SCC (Cri) 285] and Bani Singh v. State of U.P. [(1996) 4 SCC 720: 1996 SCC (Cri) 848], this Court has reiterated the principle pertaining to the duty of the appellate court.

12. Recently, a three-Judge Bench in Majjal v. State of Haryana [(2013) 6 SCC 798] has ruled thus: (SCC p. 800, para 7)

"7. It was necessary for the High Court to consider whether the trial court's assessment of the evidence and its opinion that the appellant must be convicted deserve to be confirmed. This exercise is necessary because the personal liberty of an accused is curtailed because of the conviction.

The High Court must state its reasons why it is accepting the evidence on record. The High Court's concurrence with

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the trial court's view would be acceptable only if it is supported by reasons. In such appeals it is a court of first appeal. Reasons cannot be cryptic. By this, we do not mean that the High Court is expected to write an unduly long treatise. The judgment may be short but must reflect proper application of mind to vital evidence and important submissions which go to the root of the matter."

17. This Court also observes that looking into the overall factual

matrix and the circumstances of the case as well as the evidence

and the precedent law, as placed before us, it is a fit case to

exercise the power conferred under Section 386(2), which pertains

to the reversal of a finding from conviction to acquittal.

18. Accordingly, the present appeal is allowed and the

judgment of conviction and order of sentence dated 03.09.2013

passed by the learned Additional Sessions Judge, Women

Atrocities Cases, Jodhpur Metropolitan in Sessions Case

No.22/2013 (State of Rajasthan Vs. Jakir Hussain) is quashed

and set aside. The accused-appellant is acquitted of the charges

against him. The accused-appellant is in custody; he be released