1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT Smt. Sugra Vs. State of Rajasthan D.B. CRIMINAL APPEAL NO.59/2002 Date of Judgment : December 01, 2008 PRESENT HON'BLE MR. JUSTICE N.P. GUPTA HON'BLE MR. JUSTICE K.S.CHAUDHARI Mr. D.S.Udawat, for the appellant. Mr. JPS Choudhary, P.P., for the respondent. BY THE COURT (PER HON'BLE CHAUDHARI,J.): Accused-appellant has filed this appeal against the judgment dt. 23.11.2001 passed by Additional Sessions Judge, Sojat, Camp Jaitaran in Sessions Case No.5/1996, by which he acquitted accused-appellant and her son Aslam of the offence under section 498-A I.P.C., but convicted the appellant under section 302 I.P.C. and sentenced her to undergo life imprisonment, and fine of Rs.2000/-, in default of payment of fine, to further undergo six months' rigorous imprisonment. Brief facts of the prosecution case are, that deceased Jamila wife of Aslam made “Parcha Bayan” Ex.P/13 2 on 24.10.1995 and alleged, that she was married to Aslam before one and a half year, she was harassed and tortured by her husband and mother-in-law, the appellant. Jamila further narrated, that at 4.00 P.M., appellant poured kerosene, lying in “Kupi”, on her and sat her on fire by matchstick, she ran outside, where elder father-in-law Rimuji, Devar Khurshid and other neighbour poured water on her. Her husband had gone to other village in morning, he gave beatings to her by kicks and fists. She also alleged, that her husband had illicit relations with some other ladies and to get rid of her, appellant has burnt her. On this “Parcha Bayan”, a case under section 307, 324 and 498-A I.P.C. was registered and during investigation, Jamila died on 31.10.1995 and after investigation, challan was filed under sections 498-A and 304-B I.P.C. After committal, Additional Sessions Judge framed charge under section 302, 498-A I.P.C. against the appellant and under section 498-A I.P.C. against Asraf. Prosecution has examined 18 witnesses, whereas the defence has examined 4 witnesses. After hearing arguments, appellant was convicted under section 302 IPC and sentenced as mentioned above and appellant and her son were acquitted under section 498-A I.P.C. Heard learned counsel for the parties and perused record. Learned counsel for the appellant vehemently 3 argued, that presence of appellant on spot was not proved by the prosecution evidence, even then the trial court has committed error in convicting the accused. He further argued, that prosecution witnesses have admitted, that deceased was plugged in fire by kerosene stove, and the appellant had not poured kerosene on her, even then the trial court has committed error in convicting the accused, so the appeal may be accepted and the accused may be acquitted of the offence under section 302 IPC, whereas learned Public Prosecutor submitted, that the prosecution has proved beyond reasonable doubt that accused-appellant poured kerosene on deceased and sat her on fire, and on account of burn injuries, she had died and thus, the trial court has not committed any error in convicting the accused, hence, appeal may be dismissed. It is an admitted fact, that deceased Jamila died due to burn injuries. All the witnesses examined by the prosecution have revealed, that when Jamila came out of her house, she was burning. PW.15 Dr. Suresh Yadav examined Jamila and found, that there were 71% burn on the body of the deceased Jamila and he prepared injury report Ex.P/10, which bears his signature and thumb impressioni of Jamila. PW.17 Dr. N.S.Kothari has stated, that on 31.10.1995, post mortem of Jamila was conducted by Medical Board and he was one of the member of Medical Board. He further stated, that cause of death of Jamila was shock and toxemia due to burns, and her 4 post mortem report is Ex.P/12, bears his signature. Now the question remains for consideration is, whether the appellant poured kerosene on deceased and sat her on fire, or deceased caught fire while working on stove. Admittedly, there is no eye-witness to the occurrence. PW.18 Narayan Dass, SHO, Police Station, Jaitaran has stated, that he recorded “Parcha Bayan” Ex.P/13, which bears his signature. He further deposed that “Parcha Bayan” Ex.P/13 was recorded in the presence of Doctor, which bears note to this effect, and he recorded whatever was told by Jamila. He specifically stated, that Jamila told in “Parcha Bayan” that her mother-in- law poured kerosene by “Kupi” on her body, which was lying near “Chulha” and then sat her on fire by matchstick. PW.15 Dr. Suresh Yadav deposed, that he was Medical Officer, Jaitaran on 24.10.1995, on that day, Jamila was admitted in Government Hospital, Jaitaran in burn condition, but she was fit to give statement. In his presence, Shri Narayan Dass, SHO, Police Station Jaitaran recorded the statement of Jamila Ex.P/13, which bears note and his signature to this effect. He has specifically admitted that whatever told by Jamila, was inscribed by SHO and Jamila put her thumb impression on “Parcha Bayan” Ex.P/13 in his presence. Thus, it becomes clear that “Parcha Bayan” Ex.P/13 was recorded by PW.18 Narayan Dass in presence of PW.15 Dr. Suresh Yadav and at the time of statement, Jamila was in fit condition to give 5 statement and whatever was deposed by Jamila, was recorded by Narayan Dass. “Parcha Bayan” Ex.P/13 clearly reveals, that the appellant poured kerosene on the body of deceased and sat her on fire. No doubt, PW.15 Dr. Suresh Yadav has admitted in cross-examination, that on enquiry from Jamila, she told, that while working on stove, she caught fire, but he stated this fact on the basis of memory, though this fact has not been mentioned by him in injury report Ex.P/10. Dr. Yadav's statement to this effect, that Jamila narrated him that while working on stove, she caught fire, cannot be believed because firstly, this fact has not been mentioned by Dr. Yadav in injury report Ex.P/10, secondly, it is contrary to the fact mentioned in Ex.P/13, which is said to be correct recording by PW.18 Narayan Dass as per the statement of Dr.Yadav himself, thirdly theory of stove cannot be believed because site plan Ex.P/3, which was prepared by PW.18 Narayan Dass does not depict, that stove was available there, on the contrary, it has been mentioned in Ex.P/3 that kerosene was spread near Chulha, and on the spot, there was smell of kerosene and fourthly, PW.17 Dr.N.S.Kothari, who conducted post mortem, has deposed in his cross-examination, that if there is smell of kerosene in body or clothes on the body, then it can be said, that concerned person caught fire due to kerosene. PW.18 Narayan Dass has deposed, that he prepared memo Ex.P/2 and by this memo, he took in his possession clothes and chappal of Jamila, in which there was smell of kerosene. Thus, 6 it is established beyond doubt that on the scene of occurrence, there was no stove, so deceased could not have caught fire while using stove. On the contrary, it is proved beyond reasonable doubt that deceased died of burns caused by kerosene. No doubt, some of the prosecution witnesses have turned hostile and not supported the prosecution case. PW.1 Rahim Bux deposed, that when Jamila came out of house, he asked how it happened, then Jamila told that she was working on stove and caught fire. His statement cannot be believed because he has denied even memo Ex.P/2 and Ex.P/3, which bear his signature. He has also deposed, that when Police Officer asked Jamila in hospital, then Jamila told, that she caught fire by stove, but on the contrary “Parcha Bayan” Ex.P/13 does not contain this fact and clearly reveals, that appellant poured kerosene and sat her on fire. He also admitted in his cross-examination, that when the appellant came in hospital and put her hand on the head of Jamila, then Jamila weeped and in anger, disclosed name of the appellant. This fact also corroborates to the prosecution story, that the appellant poured kerosene on Jamila, otherwise, why at that time, Jamila would have expressed name of appellant. PW.1 Rahim Bux has also stated, that he himself, Khurshid and other ladies poured water on Jamila. Jamila has also narrated in “Parcha Bayan” Ex.P/13, that her elder father-in-law Rimuji, Devar Khurshid and neighbours poured water on her. On the contrary, PW.3 Khurshid, who is son of PW.1 Rahim Bux has 7 stated, that on 24.10.1995 at 4.00 P.M., he neither heard nor seen anything. He further deposed, that he does not know to Jamila and at the time of occurrence, he was in Bombay, so he cannot say how Jamila caught fire. Thus PW.3 Khurshid does not help the appellant. PW.5 Hamiru deposed, that he heard cries of Jamila, he went to the spot and saw that Jamila was burning, and Khurshid and Rahim Bux were pouring water on her. He further deposed, that Jamila did not say anything in his presence. This statement clearly proves this fact, that when Jamila came out of house, she did not say anything to the bystanders about cause of burns. PW.14 Asraf deposed, that he saw Jamila in burning condition and people had gathered there. When Khurshid enquired from Jamila about cause of burn, then Jamila told, that while working on stove, her clothes caught fire. On the contrary, PW.3 Khurshid has even denied his presence on the spot and PW.5 Hamiru controverts theory of burns by stove. In such circumstances, it cannot be believed, that while working on stove, Jamila caught fire, on the contrary it is proved beyond reasonable doubt, that kerosene was poured on her and she was sat on fire by appellant. Learned counsel for the appellant argued, that presence of the appellant on the spot has not been proved by 8 the prosecution and on the contrary, defence has proved, that at the time of occurrence, she was in nearby village Kalu, from where she was brought by Asraf. PW.14 Asraf deposed that at the time of occurrence, the appellant was in village Kalu, from where, he brought the appellant to the hospital. He has admitted in his cross-examination that in hospital, what conversation took place between the appellant and deceased, he cannot say. On the contrary, PW.1 Rahim Bux deposed, that when Asraf brought the appellant to the hospital and the appellant put her hand on the head of Jamila, then in anger, Jamila named the appellant. Only these two witnesses have stated, that Asraf brought appellant from village Kalu. On the contrary, PW.5 Hamiru has deposed in his cross-examination, that he brought the appellant on motorcycle from village Kalu. Appellant herself appeared as DW.1 and stated that she was brought on scooter by Asraf from village Kalu. She further deposed, that when she left village Kalu, there were Sultan Khan Mirasi, Labu Ram and other persons. DW.2 Sultan Khan has also stated, that one person came on scooter to village Kalu and took away the appellant with him, he is not aware about the conversation between them. He has not disclosed name of that person. DW.3 Labu Ram deposed, that he does not know anything about the incident. DW.4 Abdul Jabbar deposed that Jamila came out of house and cried that “she is burning - she is burning” and on enquiry, Jamila told that, while working on stove, she caught fire. Then they sent Asraf 9 to bring appellant from Kalu as on enquiry from Jamila, she told that her mother-in-law-appellant had gone to village Kalu. None of the other witnesses deposed, that any enquiry about the appellant was made from Jamila, when she came out of house in burning condition. In such circumstance, it cannot be believed, that he was present on the spot as his presence has not been admitted by other witnesses also. All the defence witnesses have deposed, that Asraf brought the appellant on scooter from village Kalu on Rama Sama (next day) of Diwali, whereas PW.15 Dr. Suresh Yadav has deposed, that injury report Ex.P/10 was prepared on 24.10.1995 and on that day, it was Diwali, so he was alone in the hospital. Thus, it becomes clear, that defence has failed to prove, that on the date and time of occurrence, the appellant was in nearby village Kalu, from where, she was brought to hospital at Jaitaran. On the contrary “Parcha Bayan” Ex.P/13 and other evidence clearly prove that appellant was at home and she poured kerosene on Jamila and sat her on fire. PW.8 Sarifan, who is mother of deceased, PW.9 Khurshid, PW.10 Iqbal, who is maternal uncle of deceased, PW.11 Mehboob Khan, who is brother of deceased, PW.12 Salam Khan, who is neighbour of deceased's father, PW.13 Sattar, who is father of the deceased have deposed, that on telephonic information, they went to hospital and enquired from Jamila, who narrated that appellant poured kerosene on her and sat her on fire. 10 The sole dying declaration is sufficient to convict the accused when it inspires confidence and in this case, the dying declaration of deceased Jamila, corroborated by many other witnesses and circumstances, proves that the appellant was on the spot at the time of occurrence and she poured kerosene on Jamila and sat her on fire, on account of which, Jamila died. Thus, defence has failed to prove the theory of alibi and the prosecution has proved beyond reasonable doubt the offence under section 302 I.P.C. against the appellant and thus the trial court has not committed any error in convicting the accused and sentencing her as aforesaid. Consequently, the appeal fails and is dismissed. [ K.S.CHAUDHARI ],J. [ N P GUPTA ],J. /m.asif/