IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JUDGMENT Govind Narayan & Others Vs. State of Rajasthan (D.B. Criminal Appeal No.50/2004) D. B. Criminal Appeal under Sec.374 (2) Cr.P.C. against the judgment dated 22-12-2003 in Sessions Case No.33/2002 passed by Shri Abdul Gafoor, RHJS, Additional Sessions Judge (Fast Track) No.2, Jaipur City, Jaipur. Date of Judgment: January 17, 2008. PRESENT HON'BLE MR. JUSTICE SHIV KUMAR SHARMA HON'BLE MR. JUSTICE MAHESH CHANDRA SHARMA Mr. S.R.Bajwa, Senior Advocate] for the appellants. Mr. V.R. Bajwa ] Mr. Ashvini Sharma, Public Prosecutor for the State. BY THE COURT:(PER HON'BLE Shiv Kumar Sharma,J.) Challenge in this appeal is to the judgment dated December 22, 2003 of learned Additional Sessions Judge (Fast Track) No.2, Jaipur City, whereby the appellants, six in number, were convicted and sentenced as under:- Govind Narain & Hari Narain: U/s.302 IPC: Both to suffer imprisonment for life and fine of Rs.1000/-, in default to further suffer simple imprisonment for two months. U/s.498A IPC: Both to suffer simple imprisonment for two months and fine of Rs.500/-, in default to further suffer simple imprisonment for one month. Smt.Ram Janki, Smt.Indra Devi, Smt.Santosh and Ganesh Narain: U/s.498A IPC: Each to suffer simple imprisonment for two months and fine of Rs.500/-, in default to further suffer simple imprisonment for one month. Substantive sentences were ordered to run concurrently. 2. It is the prosecution case that on September 20, 2001 at 5.35 PM informant Om Prakash submitted written report (Ex.P-65) at police station Ramganj Jaipur to the effect that his niece Vinita was married to Govind. Sometimes after the marriage her in-laws started pestering her for want of dowry. His niece, on telephone used to divulge to her parents that her in-laws maltreating her for want of dowry, she was not given proper food and constant threats were given to her. On September 18, 2001 the informant along with parents of Vinita went to her marital house, but her in-laws stated that they would send her on next day. On September 20, 2001, the informant by way of telephonic call received the information that Vinita had been burnt. The informant and others rushed to her marital house and thereafter to SMS hospital Jaipur where Vinita disclosed that she was burnt by her in-laws. In the course of treatment Vinita succumbed to burn injuries. On that report a case was registered under sections 498A and 302 IPC and investigation commenced. Dead body was subjected to autopsy, necessary memos were drawn, statements of witnesses were recorded, accused were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No.2, Jaipur City, Jaipur. Charges under sections 498A and 304B IPC were framed against the accused, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Sec.313 CrPC, the appellants claimed innocence. Two witnesses in support of defence were examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. We have heard the submissions advanced before us and scanned the material on record. 3. A close look at the material on record reveals that informant Om Prakash, who had handed over the written report (Ex.P-65) at Police Station Ramganj, was not examined by the prosecution at the trial. It appears that Mahesh Kumar, Sub Inspector (Pw.10) on receiving telephonic information from the police control room rushed to SMS Hospital. Mahesh Kumar deposed that after coming to know from police control room that Vinita received burn injuries and admitted to hospital, he reached to the hospital and on the instruction of SHO recorded her Parcha Bayan (Ex.P-5). He stated in his cross examination that on reaching the hospital he found Vinita talking to her father. Mahesh Kumar admitted that on the first page of Parcha Bayan he did not get the signatures of Vinita. Neither he recorded time on Parcha Bayan nor got signatures of doctor. He further stated that after about one hour of recording statement of Vinita he took Magistrate to the hospital and identified Vinita. 4. Shri Neeraj Kumar, Judicial Magistrate (Pw.20), who recorded second dying declaration of Vinita (Ex.P-67), stated that after Mahesh Kumar, police officer, identified Vinita, he recorded her statement. In his cross examination the witness admitted that Mahesh sI did not inform him that he had already recorded the statement of Vinita. 5. Coming to the alleged dying declarations Ex.P-5 and Ex.P-67 of Vinita, we notice that she made allegations of dousing her with kerosene and set her ablaze on her husband Govind and father-in- law Hari Narain. She however stated before the Magistrate that she was sleeping with Govind at the time of incident and when she ran for her life, she was caught hold of by Govind and Hari Narain. Her Bhua-sas (sister of her father-in-law) came for rescue. 6. Manbhar (Pw.16) sister of Hari Narain deposed that although Hari Narain was her brother, she was not in talking terms with him and his family for the last 25 years. There was a street between her house and the house of Hari Narain. After his marriage Govind along with his wife Vinita resided in the room at first floor, which was just opposite to her residential room. On the date of incident around 3 AM she awoke as usual for going to `Govind Dev temple'. On hearing the cries she went to the house of Govind and saw Vinita in flames and Govind was extinguishing the fire. She accompanied Vinita to the hospital. She further stated that Vinita used to talk with her from her window but she never complained about demand of dowry by her in-laws. In her cross examination she stated that when Thanedar (SHO) arrived Vinita told him that she herself got burnt. SHO then threatened to register a case against her and got her signatures on some papers. Manbhar stated thus:- "थानेदारकोǒवनीतानेयहबतायाथाǑकवहखुदजलगईथी।थानेदारजीनेयहकहाथाǑक अगरतूऐसेबोलेगीतोतेरेǔखलाफमुकदमाबनादंगा ू तूतोइनकागजɉ परहः ता¢रकर।" Manbhar was not declared hostile by the prosecution. 7. As per postmortem report (Ex.P-70) deceased sustained superficial to deep burn with blackening, peeling, blister formation, singing of hair, with smell like kerosene and red line of demarcation present and in the opinion of Dr. Ravindra Sachdeva (Pw.21), who performed autopsy on the dead body, deceased died as a result of flame burns. 8. Appellants Govind Narain and Hari Narain had also sustained burn injuries which were examined by Dr. Vinay Kumar (Pw.13) vide injury reports (Ex.P-9 and Ex.P-10), which read thus:- Ex.P-9 (Govind Narain): Superficial to deep burn with blackening of skin, singing of hairs, scalp, eye brow and moustachs. Erythena Line of demarcation with blister formation, Peeling involving following parts of body:- 1. Left upper limb Anterior and posteriorly 2. Left side of chest Antero laterally. 3. Left side of thigh anteriorly. Ex.P-10 (Hari Narain): There is superficial to deep burn with blackening blister Formation, peeling of skin, singing of dorsum of left little finger, ring finger involving both hands with finger upto wrist. Apply coconut oil and white ointment with singing of forntal hair eye brow & eye lashes & moustachs. 9. Factual situation emerges from the material on record may be summarised thus:- (i) Prior to recording of dying statement of Vinita by Magistrate, she was surrounded by her father, Sub Inspector of Police and a Constable. (ii) Sub Inspector already recorded the statement of Vinita in two pages. First page however did not bear her signatures and time of recording the statement was not mentioned on the statement. (iii) Vinita stated before the Magistrate that at the time of incident she was sleeping with her husband and after her husband poured kerosene on her, she was caught hold of by her husband and father-in- law. She also stated that her Bhua-sas (sister of her father-in-law) came for her rescue. (iv) Manbhar (Pw.16), sister of her father- in-law, deposed that no demand of dowry was ever made from Vinita by her husband or in- laws and it was police officer, who instigated her not to speak the truth. (v) Husband and father-in-law of Vinita also sustained burn injuries. 10. Rule 6.22 of the Rajasthan Police Rules,1965 has discouraged the practise of recording dying declaration by the Investigating Officer himself. Legally there is no bar against recording of dying declaration by police officer, however, it is safe as well as prudent to get it recorded through independent person or the same be recorded in their presence and attested by them. In the instant case where Vinita was surrounded by her father, police officer and police constable right till before the arrival of the Magistrate, who recorded her dying declaration, it was quite likely that these persons availed every possible opportunity to tutor and brain wash her and in the circumstances it is difficult to hold that the statement was an untutored version given by Vinita, at the time, the statement was recorded in anticipation of her death. 11. From the totality of circumstances it appears that in the odd hour of night Govind and Vinita had a quarrel on some matter and after quarrel Govind poured kerosene on her and ignited lighter but when the flames were up he suddenly and frantically made attempt to save her from the tongues of flames and himself received burn injuries. This conduct cannot be seen divorced from the totality of circumstances. Very probably Govind would not anticipated that the act done by him would have escalated to such proportion that Vinita might die. If he had ever intended her to die he would not have alerted his senses to make effort to rescue her and took her to the hospital. We are inclined to think that all that Govind thought of was to inflict burns to her and to frighten her but unfortunately the situation slipped out of his control and went to the fatal extent. Govind would not have intended to inflict the injuries which Vinita sustained on account of his act. Therefore we are persuaded to bring down the offence to culpable homicide not amounting to murder. In a similar situation the Apex Court in Kalu Ram Vs. State of Rajasthan (2000)10 SCC 324 altered the conviction from 302 to 304 Part II IPC. 12. It also appears that appellant Hari Narain, (father-in-law of deceased Vinita), also made attempt to save Vinita and sustained burn injuries. Since the Investigating Officer himself pursuaded Vinita not to speak the truth, possibility of over implication of other family members in the case cannot be ruled out. The prosecution failed to establish charges against appellants Ram Janki (Mother-in-law), Hari Narain, Indra Devi, Smt.Santosh and Ganesh Narain and they are entitled to benefit of doubt. 13. For these reasons, we dispose of instant matter in the following terms:- (i) We allow the appeal of appellants Hari Narain, Smt.Ram Janki, Smt.Indra Devi, Smt.Santosh and Ganesh Narain. We acquit the appellant Hari Narain of the charges under sections 302 and 498A IPC. The appellants Smt.Ram Janki, Smt.Indra Devi, Smt.Santosh and Ganesh Narain stand acquitted of the charge under section 498A IPC. All these appellants are on bail, they need not surrender and their bail bonds stand discharged. (ii) We partly allow the appeal of appellant Govind Narain and instead of section 302 we convict him under section 304 part II IPC. Looking to the fact that the appellant has already undergone confinement for a period of more than six years, the ends of justice would be met in sentencing him to the period already undergone by him in confinement. We however acquit him of the charge under section 498A IPC. Appellant Govind Narain, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other case. (iii) Impugned judgment of learned trial court stands modified as indicated above. (Mahesh Chandra Sharma),J.(Shiv Kumar Sharma)J. arn/