-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Sita Ram Vs. State of Rajasthan (D.B. CRIMINAL APPEAL NO.662/2001) D.B. Criminal Jail Appeal under Section 374 Cr.P.C. against the judgment dated 4.9.2001 passed by the Additional Sessions Judge, Nagaur in Sessions Case No.69/99. *** Date of Judgment :: 26.3.2008 P R E S E N T HON'BLE MR.JUSTICE PRAKASH TATIA HON'BLE MR.JUSTICE BHANWAROO KHAN Mr. Javed Moyal, for the appellant. Mr. V.R. Mehta, Public Prosecutor BY THE COURT (PER HON'BLE MR.B.KHAN J.) : Smt. Santosh wife of accused Sita Ram on 15.10.1999 was admitted in hospital in burnt condition gave a statement Ex.-P/16 to S.H.O., Police Station, Nagaur stating inter-alia that she was married to Sita Ram before six months and her father-in-law Sriram brought her to matrimonial house from her parental house, on a day before incident, she resisted while en-route to go to matrimonial house at Bus Stand, -2- Nagaur where people gathered, after seeing her resistance. The police was called who took both of them to the police station where she disclosed to the police that because of fear of beating, she is nothing to go to her matrimonial house, but there she was made to understand by her uncle-in-law Durga Ram and one police constable Pema Ram was also sent with them upto her matrimonial house. During night, she along with her mother-in-law Meera and husband Sita Ram slept in 'jhupa'. Early in the morning at 6.00 a.m., his uncle- in-law Durga Ram, brother-in-law and constable Pema Ram went to answer natural call and her father-in-law and mother-in-law went into 'Bada' for milking cow. Her husband and she remained in 'jhupa' where husband stated to her that she is of no use to him and he will not keep her, while saying so he poured kerosene oil on her and ignited the fire. On making noise by her, her mother-in-law and father-in-law came and extinguished the fire. It is her husband, who has burnt her. This report was written by the S.H.O., Police Station, Nagaur as per her statement in the presence of Dr. PW-15 Suraj Mal Mishra. Initially, the case was registered under Section 307 I.P.C., but when Smt. Santosh expired on 13.11.1999, a case under Section 302 I.P.C. was also registered against the accused-appellant. On this Purchabayan, the police after investigation submitted a challan against the accused- -3- appellant under Section 302 I.P.C. in the Court of Additional Sessions Judge, Nagaur. The accused denied the charges levelled and claimed for trial. The prosecution in all produced nineteen witnesses and exhibited documents Ex.-P/1 to Ex.-P/21. The accused- appellant in his statement under Section 313 Cr.P.C. denied the allegation of the prosecution witnesses. No defence was led by the accused. The trial court after evaluating the oral as well as documentary evidence convicted the accused under Section 302 I.P.C. and sentenced him to undergo life imprisonment along with fine of Rs.1,000/-; in default thereof further to undergo three months' rigorous imprisonment. The accused-appellant has preferred this appeal against the said judgment dated 4.9.2001 passed by the Additional Sessions Judge, Nagaur. Both the parties were heard. The entire record was gone through. The learned counsel for the accused- appellant argued and pleaded that there is not a single eye-witness of the incident and the trial court after relying on parchabayan Ex.-P/16 and Ex.P/10 dying declaration has wrongly convicted the accused as there is no corroboration of the dying declaration which also contain infirmities and inconsistencies and -4- cannot be sole basis of conviction. The dying declaration so recorded is neither trustworthy nor inspire any confidence in absence of corroboration to term the basis of conviction of the accused-appellant for the offence charged. The only sole independent witness PW-9 Pema Ram, Police Constable, who has not supported the version given by deceased Smt. Santosh and the theory of sleeping with her mother-in-law along with her husband in the same 'jhupa' is most unnatural and against the human conduct. From the evidence recorded, the presence of the accused is not proved at the time of incident. There is no motive also to wipe away the deceased. The dying declaration recorded by the Magistrate also does not inspire confidence because the starting of recording and finishing the same bear the time 1.00 p.m. which in all probability cannot be happened and this also creates a doubt. The learned trial court has ignored and discarded the testimony of witnesses, who were presented in the house at the time of incident though they are the relatives of the accused-appellant, but this itself cannot allow the learned trial court to throw away the testimony or version given by the eye- witnesses. If the dying declarations are not believed, then there is no evidence against the accused- appellant and he deserves acquittal. The learned Public Prosecutor vehemently opposed the arguments put forth by the learned counsel -5- for the appellant and pleaded that the first dying declaration Ex.-P/16 was recorded at about 12.20 p.m. on 15.10.1999 in the presence of doctor and second by the Magistrate on the same day at about 1.00 p.m. Both the statements Ex.-P/16 and Ex.-P/10 bears the authenticity of doctors. In both these dying declarations as per learned Public Prosecutor deceased Smt. Santosh has specifically alleged that it was her husband accused Sita Ram who after pouring kerosene on her ignited the fire from the match-box. There are no contradictions and infirmities which cast a doubt about her statement involving her husband in the commission of crime. From very start she was under premonition about her safety in her matrimonial house because of fear and beating, which ultimately proved true and culminated into her death. The dying declarations can be the basis of conviction if they are trustworthy and inspire confidence. The learned trial court after relying on the evidence produced by the prosecution has rightly convicted the accused for the offence charged. No interference is called for in the impugned judgment. The impugned judgment of the learned trial court has completely based the conviction on the dying declaration Ex.-P/16 and Ex.-P/10. Both these dying declarations were recorded in the presence of doctor, who certified about the mental fitness of the witness. -6- The deceased Smt. Santosh has levelled the allegation only against her husband consciously and has not involved any other person. The relevant witnesses produced by the prosecution are that PW-9 Pema Ram – Police Constable, PW-10 Rami – mother of the deceased and PW-14 Sukha Ram – father of the deceased. All the relatives of the accused namely PW-3 Meera – mother of the accused, PW- 4 Sangram – brother of the accused, Pw-5 Heera Ram – distant neighbour of the accused, PW-7 Sriram – father of the accused and PW-8 Durga Ram – uncle of the accused have turned hostile, but from the testimony of all these witnesses it is proved that accused Sita Ram was present at the time of incident. As PW-4 Sangram has specifically stated that Sita Ram was present during night in their house and the father of the accused has also admitted that the accused Sita Ram came on the day of the incident at about 4.00 a.m. in the house so the presence of the accused is well proved and Smt. Santosh died within period of six months after marriage with the accused. The injury report Ex.-P/9 and postmortem report Ex.-P/11 given by PW-11 Dr. Ramvilas Choudhary as also the report given by the Medical Board consisting of PW-12 Dr. Dhirendra Singh Rajvanshi and PW-13 Dr. Mohan Singh reveal that deceased Smt. Santosh died by burn injury and it was not a natural death. The presence of the accused on the spot is not disputed and well proved. -7- Of course, at the time of happening of incident those who were present on the spot, were all relatives of the accused, but immediately after the happening the police constable PW-9 when arrived on the spot found deceased Smt. Santosh in burnt condition and she was immediately shifted to Nagaur Hospital where Parchabayan Ex.-P/16 was recorded by the Investigating Officer Tej Pal Singh PW-16 in the presence of PW-15 Suraj Mal Mishra and thereafter dying declaration Ex.-P/10 was recorded by the Magistrate, PW-17 Ravi Prakash in presence of PW-11 Dr. Ramvilas Choudhary. The recording of dying declaration is well proved. There is neither any inconsistencies, infirmities or contradictions which cast a doubt about the version given by the deceased about involvement of her husband accused in the commission of crime. She has categorically stated in both dying declarations that it was accused Sita Ram who after pouring kerosene ignited her. The only contradiction which is present in both dying declarations about the person who extinguished the fire. In Ex.-P/10 she stated that it was her brother- in-law Sangram who extinguished the fire whereas in Ex.-P/16 as per her statement, it was her mother-in- law and father-in-law, who extinguished the fire. This contradiction itself is not so fatal which can cast a doubt about the version in involving her husband in the commission of crime. The cause of death given by -8- Smt. Santosh only relates to the conduct of the accused and involves him fully. It is settled law that dying declaration needs no corroboration but the dying declaration so recorded should inspire confidence and should be trustworthy. There is neither rule of law nor a prudence that the dying declaration cannot be acted upon without corroboration (AIR 1976 SC 2199). Also if the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it without corroboration. (VS Mour V/s State of Maharashtra – AIR 1978 SC 519). But where dying declaration is suspicious and does not inspire confidence, it should not be acted upon without corroborative evidence (AIR 1974 SC 332). Again dying declaration can be sole basis for conviction provided it is truthful, when it is not truthful it cannot be relied on (AIR 1983 SC 274). Also inconsistency between two dying declarations suggesting possibility of tutoring and false involvement conviction cannot be based on such inconsistent dying declarations (AIR 1994 SC 1641). It has also been held by the Supreme Court that in a case there are more than one dying declaration if some inconsistencies are noticed between one and the other, the court has to examine the nature of the inconsistencies namely whether they are material or not. In scrutinizing the contents of various dying declarations, in such a situation, the -9- court has to examine the same in the light of the various surrounding facts and circumstances of the case. Admittedly, two dying declarations given by the deceased are trustworthy inspire confidence and can be relied on safely for the conviction of the accused as it is truthful and devoid of contradictions. It also debars the suggestion of possibility of false involvement of the accused. The inconsistencies about the person who extinguished the fire are not so material to cast any doubt about dying declaration. In the dying declaration given by deceased Smt. Santosh clearly reveals that it was the accused who is responsible for the commission of crime. No suspicious circumstances have been indicated by the accused in recording the statement. Both the statements of deceased Smt. Santosh are voluntary and trustworthy and can be relied on safely. In such circumstances, no corroboration of the dying declaration is required, but still the corroboration of statement of Smt. Santosh is available on record from the statement of PW-10 Rami, the mother of the deceased to whom, in hospital Smt. Santosh narrated the story of pouring kerosene on her by her husband and igniting of fire. The same statement is also given by PW-14 Sukha Ram, father of the deceased, the statements of both these about the commission of crime by the accused are well proved and find support from -10- dying declaration. The learned trial court after relying on these two truthful dying declarations if convicted the accused, has not committed any illegality and irregularity. The evidence produced by the prosecution is reliable and trustworthy. In such circumstances, no interference is warranted in the impugned judgment passed by the learned trial court. The appeal deserves to be dismissed. Accordingly, the appeal filed by accused- appellant Sita Ram is dismissed. The accused is in jail, who will serve the remaining part of his sentence. (BHANWAROO KHAN) J. (PRAKASH TATIA) J. RM/-