Rathore, J. - (1.) BEING aggrieved of the judgment dated 1.9.2005 passed by learned Additional Sessions Judge (Fast Track) No.3, Ajmer in Sessions Case No. 12/2005, the accused appellant has preferred this appeal under Section 374 (2) of the Code of Criminal Procedure, 1973. The learned trial Court had convicted the appellant for the offence under Section 302 IPC and sentenced him to imprisonment for life with a fine of Rs. 5,000/- in default of which to further undergo six months S.I.
(2.) THE prosecution case was initiated on a Purchabayan (Ex.P/11) of Smt. Ratni Devi, while she was undergoing medical treatment, recorded by Rameshwar Dayal, A.S.I., (PW/21) on 4.10.2004 at 6.30 AM, at Government Yagya Narain Hospital, Kishangarh, Ajmer. It was stated by Smt. Ratni Devi that she is in conscious state of mind. Further, that she has 5 sons out of which, Bhanwar is the eldest one, Jeet Mal is younger to him, Babulal @ Pappu is younger to him and the youngest is Ramesh and all of them live separately. It was also stated that Ramesh lived with her. On 3rd October, 2004 in the night at about 10-11 PM, it was stated by Smt. Ratni Devi, that Babulal had come to her in a drunken position and started abusing. Further, he stated as to why she abused him the whole day. THEreafter, Babulal poured kerosene on Ratni Devi and put her on fire. She had then raised hue and cry as a result of which her son Ramesh came down and tried to extinguish the fire. THE blouse worn by Smt. Ratni Devi was burnt and she sustained injuries on her neck as well as on different parts of the body. Smt. Ratni Devi further stated in her Purchabayan that Babulal often used to abuse her. THE wife of Ramesh also came down from the First Floor and then Ramesh took her to the hospital where she was admitted. It was also stated by Smt. Ratni Devi that her husband was also at home, at that time. The said Purchabayan bears the signature of Kishore Kumar Tanwani the Medical Officer, dated 4.10.2004 at 6.30 AM, with the endorsement that "statement taken before him." The said Purchabayan also bears the thumb impression of Smt. Ratni Devi with the date as 4.10.2004. Thereunder Rameshwar Dayal, SI, Police Station, Kishangarh had put a note mentioning inter alia that there were burn injuries on the neck, chest and stomach of the person of Smt. Ratni Devi. Further it mentions that the aforesaid Purchabayan had been read over to Smt. Ratni Devi and after having understood the same, she had put her thumb impression. It is also mentioned that the Purchabayan was recorded in presence of Dr. K.K. Tanwani. Under the said endorsement (Karvahi Police), the Police Officer had put his signature mentioning the date as 4.10.2004 at 6.30 AM. The thumb impression of Smt. Ratni Devi was also put along with it. Subsequently, another Karvahi Police was drawn by the SHO on 4.10.2004 at 7.15 AM mentioning that Purchabayan of Smt. Ratni Devi had been recorded by Rameshwar, SI and according to it, the offence under Ss. 323, 324 and 307 IPC is made out. Thereafter, the investigation was handed over to Rameshwar Dayal, SI. It was on the said endorsement by SHO that the First Information Report came to be registered as FIR No. 236/2004 (Ex.22). On registration of the report, usual investigation commenced and the accused was taken into custody. The statement of prosecution witnesses were recorded and the police collected the evidence relating to the incident. On account of serious condition of Smt. Ratni Devi, she was referred to the JLN Hospital, Ajmer. However, Smt. Ratni Devi had thereafter died on 5.10.2004 at JLN Hospital, Ajmer and the police converted the case for the offence under Section 302 IPC. The post mortem report of deceased was also got conducted. On conclusion of the investigation, the police submitted charge sheet against the accused appellant before the concerning Court. The matter was then committed to the Court of sessions and thereafter, it was transferred to the Court of learned Additional Sessions Judge (Fast Track) No.3, Ajmer Camp at Kishangarh and registered as Sessions Case No. 12/2005. The trial commenced after framing of charge on 10.2.2005 for the offence under Section 302 IPC. The accused denied the charges and claimed for trial. The prosecution had in support of its case, produced 23 witnesses and 26 documents which were duly exhibited. Subsequently, the statement of the accused appellant was recorded under Section 313 Cr.P.C., wherein it was stated that the prosecution witnesses and their evidence is false. Further, it was stated that he has not committed the alleged crime. As regards the witness Susheela, it was stated that she is his `brother' who had later on became eunuch (Kinnar). It was also stated that he had taken the deceased to the hospital and then he went back to his home at about 8-9 PM. In the morning of the next day, he was informed that her mother has committed suicide by putting fire to herself. In defence, the accused appellant had produced three witnesses namely; Mahendra Jain, Smt. Anjoo and Bhanwar Lal. On conclusion of trial, the learned trial Court convicted and sentenced the accused appellant for the offences as aforementioned. It was contended on behalf of the accused appellant that the learned trial Court has grossly erred in passing the impugned judgment for the reason that the prosecution in the instant case has failed to prove its case beyond reasonable doubt. While inviting attention of the Court to various documents on record as for instance Nakshamauka (Ex.P/2), statement of deceased Ratni Devi under Section 161 Cr.P.C. (Ex.24), the statement of Susheela (PW/20), the medical jurist etc., it has been contended that there is no incriminating evidence against the appellant. The articles seized by the Investigating Agency does not show that it was a case of burning by kerosene. The material articles like the cot, the blouse etc. had not been seized so as to corroborate the case of the prosecution. It has also been submitted that perusal of the three statements of the deceased, namely Purchabayan (Ex.P/11) under Section 161 Cr.P.C. (Ex.P/24), and the statements of deceased recorded by the Magistrate (Ex. P/15) goes to show that the time in respect of the incident has been changed. It has also been submitted that the dying declaration of the deceased is an outcome of tutoring by Susheela (PW/20), who was very much present at the hospital. For the aforesaid reasons, the learned counsel for the appellant has submitted that the impugned judgment deserves to be set aside as the case of the prosecution has not been proved on the basis of any legal evidence. In support of his submissions, the counsel for the appellant has placed reliance on the cases of State of Punjab Vs. Praveen Kumar, 2004 Suppl (1) AD (SC) 294; Mehiboobsab Abbasabi Nadaf Vs. State of Karnataka, 2007 (3) Crimes 291 (SC); Chinnamma Vs. State of Kerala, 2004 Cr.L.J. 1447; State of Gujarat Vs. Khuman Singh Karshan Singh & ors., AIR 1994 SC 1641; Smt. Kamla Vs. State of Punjab, AIR 1993 SC 374; and State through CBI Vs. Mahendra Singh Daiya, 2011 II AD (SC) 161. On the other side, the learned Public Prosecutor has fully supported the judgment passed by the learned trial Court. He has submitted that the learned trial Court has thoroughly considered the evidence on record and it is with cogent reasons that he has come to the conclusion about the truthfulness of the dying declaration of deceased and also the other evidence on record produced by the prosecution. It has also been submitted that the deceased was in a perfect state of mind at the time of recording of the Purchabayan by the police at 6.30 AM on 4.10.2004. This fact has been endorsed by the medical jurist who was present at that time. Moreover, the dying declaration (Ex.15) was recorded by the learned Magistrate with full satisfaction about the condition of the deceased, after obtaining the opinion from the medical jurist with regard to fitness of Smt. Ratni Devi to give the statement. Therefore, he has submitted that there is no reason whatsoever not to rely upon the dying declaration given by the deceased wherein she has specifically alleged against the accused appellant for having burnt her, which resulted in her death. It has been thus submitted that the learned trial Court was justified in passing the impugned judgment and the same is in accordance to law which does not warrant any interference by this Court. In support of his contention, the learned Public Prosecutor has placed reliance on Chirra Shivraj Vs. State of A.P., AIR 2011 SC 604; and Abrar Vs. State of U.P., AIR 2011 SC 354.
(3.) AFTER the incident in the night intervening 3-4th October, 2004, the injured Ratni Devi was taken to Yagya Narain Hospital, Kishangarh and was got admitted. The information about injuries of burns sustained by Smt. Ratni Devi at her residence reached the Police Station at about 4.45 AM on 4th October, 2004. Thereafter, Rameshwardayal, S.I., along with Durga Prasad and Manak Lal had reached Yagya Narain Hospital. AFTER having come to the injured Ratni Devi at the Hospital, Rameshwar Dayal (PW/21) inquired about her condition from Dr. K.K. Talwani. The statements of injured Ratni Devi was then recorded in the presence of Dr. K.K.Talwani. The injured had stated in detail about the incident and specifically alleged that Babulal who was in a drunken state, poured Kerosene and set her on fire. AFTER recording of the statement (Ex.P/11), an endorsement was made by Dr. K.K.Talwani (PW/19) that the statement was taken before him. The thumb impression of Smt. Ratni Devi was put and her son Kishan Lal had also signed. The endorsement (Karvahi Police) recorded by Rameshwar Dayal, underneath the statement, gives about the injuries sustained by Ratni Devi on various parts of her body and that after recording of statement, the same was read over to the injured which she understood and put her thumb impression. The statement of Ratni Devi was recorded at about 6.30 AM, and thereafter Rameshwardayal submitted the same before the SHO of Police Station, Kishangarh who had also drawn the Kavahi Police and ordered for registration of the case (236/2004). Thereafter, handed over the investigation to Rameshwardayal SI at about 7.15 AM of 4th October, 2004. The fact with regard to the proceedings undertaken and recording of the statement of Ratni Devi was deposed in detail by Rameshwardayal (PW/21) before the learned trial Court. Similarly, as per Dr. K.K.Talwani (PW/19), the statement of Smt. Ratni Devi (Ex.P/11), was recorded before him and he had made the endorsement on it with his signature, date and time. On having been taken to Yagya Narain Hospital, the injured Smt. Ratni Devi was admitted by Dr. K.K.Talwar, the Medical Officer at 6.30 AM on 4.10.2004. Thereafter, the injuries on the person of Smt. Ratni Devi were examined by the Doctor which were sustained by burning. The medico-legal report (Ex.P/23) was prepared wherein it was mentioned that Smt. Ratni Devi had sustained 63% burns; the same were fresh and dangerous to life. Dr. K.K. Talwani, PW/19 had proved the injury report when he appeared in the witness box during the course of trial. Rameshwardayal, the Investigating Officer, PW/21 had also deposed about preparation of the injury report by Dr. Talwani. Subsequently,the Investigating Officer recorded the statements of Smt. Ratni Devi under Section 161 Cr.P.C. (Ex.P/24). The recording of the said statement was also proved by the Investigating Officer during the course of trial. He has also stated that the mental condition of Smt. Ratni Devi was perfect at the time of giving the statement. On having seen extensive burns on the person of Smt. Ratni Devi, the Investigating Agency had requested the concerning Magistrate for recording of her statements under Section 164 Cr.P.C. The said statement was recorded in the afternoon on 4.10.2004. The said statement was recorded in the form of questions- answers by Shri Ravi Sharma, Additional Chief Judicial Magistrate,Kishangarh (PW/9). Before recording the statement, the learned Magistrate inquired about the condition of the injured from Dr. Gopal Mathur (PW/23). An endorsement that the injured was in a fit condition to give statement was recorded by Doctor, on the letter of request itself (Ex.P/14) sent to him by the police. The learned Magistrate started recording the statements of Ratni Devi at 12.15 noon, and the same was over on 12.35 PM. The medical doctor Dr. Gopal Mathur was present at the time when the statements of deceased Ratni Devi was recorded (Ex.P/15). It has been deposed by the learned Magistrate, during the course of trial, that Smt. Ratni Devi was in a fit condition to give statement and she had properly replied to the question put to her. There was nothing unnatural in the behaviour of the injured at the time of recording of the statement by the learned Magistrate. Dr. Gopal Mathur (PW/23), had also categorically deposed during trial with regard to the statement of Ratni Devi, as having been recorded on 4.10.2004 at 12.15 AM by Shri Ravi Sharma, ACJM, Kishangarh. He had also stated that Smt. Ratni Devi was in a fit condition to give statement and the endorsement in this regard was given by him on Ex.P/14. The medical jurist Dr. Gopal Mathur was on duty on 4.10.2004 from 9.00 AM to 2.00 PM. Smt. Ratni Devi was admitted in his ward and he was the treating doctor. ;