1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR **** :JUDGMENT: Kishore & Ors. Vs. State of Rajasthan **** D.B. CR. APPEAL NO.258/2003 AGAISNT THE JUDGMENT AND ORDER DATED 14.2.2003 PASSED BY SHRI AMAR SINGH, RHJS, ADDL. DISTRICT & SESSIONS JUDGE (FAST TRACK), HANUMANGARH IN SESSIONS CASE NO.150/2001 <><><> Date of Order : 3rd April, 2008 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE BHANWAROO KHAN Mr.Dhirendra Singh, for the appellants. Mr.VR Mehta, Public Prosecutor. BY THE COURT: (Per Hon'ble Mr. Justice Prakash Tatia) This appeal is against the judgment and order of conviction and sentence dated 14.2.2003 passed by the court of Addl. Sessions Judge (Fast Track), Hanumangarh in Sessions Case No.150/2001 by which the trial court convicted the accused-appellants under Section 449/34 and 2 Section 302 IPC and sentenced them to undergo life imprisonment under each charge and imposed a fine of Rs.500/- on each of the appellants and in default thereof to undergo one month's simple imprisonment. Brief facts of the case are that on the basis of Parcha Bayan Ex.P/20 recored on 17th July, 2000 at 12.15 PM of victim deceased Ms. Nirmla D/o Brijlal aged 18 years, resident of Gali No.4, Ward No.24, Indira Colony, Hanumangarh Town, who was admitted in Government Hospital, Hanumangarh and was lying on bed no.24 of female ward-B, a FIR no.283/2000 under Section 452, 307 read with Section 34 IPC was registered. As per Parcha Bayan of Ms. Nirmla, in front of her house, there was house of owner of Govind Haryana Cloth Store. In the said house, the accused-appellant no.1 Kishore was residing as tenant. Yesterday (i.e., on 17th July, 2000) in evening at about 7.00 PM, the complainant Nirmla was sitting in her house with her father Brijlal, mother Kaushaliya and maternal-grand-mother Phoola. The accused-appellant no.1, who took liquor for whole of the day, disconnected and broke down the disc connection of 3 complainant's TV and started abusing the complainant and her family members in filthy language. The complainant's mother and father asked accused Kishore to go away from there, upon which, the accused-appellant Kishore told that he will remain there and he will die there only. According to the complainant then her father told complainant to bring her maternal uncle Banti, her maternal aunt Shanti and her uncle Subhash. The complainant went to bring those persons from Pareek Colony. About 7.30 PM or quarter to 8 she came back with her maternal uncle Banti, maternal aunt Shanti and her uncle Subhash and she found that in the courtyard of her house, her mother was lying on Charpai and neighbour including one Sabeer Lakhara were also present there. The complainant's mother told complaint that, after she left the house to bring her above relatives, the accused-appellant Kishore caught her neck and threw her in drain. Kishore's mother started beating complainant's father. Thereafter, complainant's mother, father, maternal uncle, maternal aunt and uncle proceeded to report the matter to police station. The complainant and her maternal-grand-mother and younger sisters Geetu and 4 Dhapa remained in the house. The neighbours also left the place. At about 8.30 PM when the complainant was preparing to cook food then the accused-appellant Kishore with his mother Noora and sister Soma came in the house of complainant. Noora caught complainant and Kishore pour kerosene on her and Soma sister of Kishore burned her by match stick. The complainant rushed outside her house and went to a public tape. She lie there to stop the fire. Hearing the voice, neighbour Sabeer Lakhara again came on spot. Thereafter, one Sukha also reached on spot, who rushed to inform complainant's mother and father, who already on the way to police station to lodge report about incident committed by Kishore earlier of pushing complainant's mother in drain. Sabeer brought a tempo and put complainant in said tempo and proceeded towards the Government Hospital of Hanumangarh town where she was admitted. When she was being taken for hospital in the tempo, her mother, father, maternal uncle, maternal aunt and uncle reached to her. She also stated in the Parcha Bayan that the kerosene in the jaricane was brought by Kishore and all the three accused-appellants with common 5 intention to kill the complainant pour kerosene on her and burned her. During investigation, the complainant Ms. Nirmla died and the case under Sections 302 and 453 IPC was registered. After investigation, charge-sheet was submitted only against the appellant No.1 Kishore and FR was submitted against accused Noora and Soma in the court of Addl. Judicial Magistrate, Hanumangarh from where the case was committed to the court of Sessions Judge, Hanumangarh and ultimately, transferred to the court of Addl. Sessions Judge No.1,Hanumangarh. The trial court- Addl. Sessions Judge, Hanumangarh on application under Section 319 Cr.P.C. took cognizance of committing offence under Section 302 and449/34 IPC against the appellant no.2 Noora and appellant no.3 Soma. The charge under Section 302, 449/34 IPC was framed by the trial court against all the three accused. The accused- appellants denied the charges and sought trial. The prosecution produced 11 witnesses and 21 documents. The statement of accused was recorded under Section 313 Cr.P.C. In the statement under Section 313 6 Cr.P.C., the appellant no.1 accused Kishore stated that he had relations with the complainant Nirmla and said Nirmla called him in her house. The complainant's mother and father came to know about this and accused Kishore's father also came there and they took him to his house and put him in one room and locked that room from outside. He stated that he does not know how Nirmla burned. The other two accused-appellants merely stated that they are innocent and they have falsely been implicated in this case. In defence, the appellants produced witnesses DW-1 Jagdish, DW-2 Rakesh Kumar, DW-3 Buta Ram and DW-4 Sabeer. The appellants also got the statements of Brijlal, Geeta, Dhapa, Kaushaliya and Banti as Ex.D/1 to D/5 and also produced one bill of PCO which was marked as Ex.D/6. The trial court after hearing the arguments, by impugned judgment, convicted the appellants for committing the offences under Section 449/34 and 302 IPC. The trial court heavily relied upon Parcha Bayan and the statement of prosecution witnesses including the statement of PW-11 Tarachand, who recorded the Parcha Bayan Ex.P/20 of the deceased Nirmla and on the basis of which, 7 the FIR Ex.P/21 was registered and dying declaration Ex.P/6, which was recorded by the Judicial Magistrate, Hanumangarh – Rajendra Kumar Tuteja PW-3 and other witnesses. The trial court did not rely upon the defence story after considering the statement of th defence witnesses in detail. In view of the conviction of the appellants, the appellants have preferred this appeal to challenge the judgment and order of the trial court dated 14.2.2003. Learned counsel for the appellant vehemently submitted that the entire story recorded in the Parcha Bayan Ex.P/20 is a story narrated by the victim after thoughtful consideration as well as on her tutoring by family members. In fact, it is clear from the statement of DW-4 Sabeer that the police was given information on telephone by the DW-4 Sabeer in the evening of 16th July, 2000,the date on which the victim got burn injuries, but that information has not been produced by prosecution wherein true story must have been recorded. Not only that, but in fact, the police recorded the statement of Nirmla on 16th July, 2000 and that statement also has been suppressed. It 8 is also submitted that in the injury report Ex.P/9 dated 17th July, 2000 it is mentioned that police recorded statement of injured. The statement of victim was recorded at 9.45 AM on 17th July, 2000. However, in the injury report the word “not” before the word “police” and after “recorded” has been inserted subsequently. It is also submitted that there was no reason for mentioning this fact in the injury report, but it appears that it was mentioned deliberately and subsequently and it was changed in negative form after concocting false story to implicate the appellant. According to learned counsel for the appellants, the witness Sabeer was present on both the occasions when, according to the prosecution case the appellant Kishore caught the neck of mother of the victim Nirmla and also when Nirmla came out from her house in flames. That important witness was deliberately not produced by the prosecution and the appellants have produced said witness whose presence on spot cannot be denied. He (DW-4- Sabeer) clearly stated that Nirmla was forced to give statement against all three accused persons in the presence of the witness Sabeer. He also stated that he informed the police on 16th July, 2000 9 itself on telephone about the incident of burning of Nirmla. He also produced PCO receipt to show that he telephoned the police station on 16th July, 2000 to inform the police about the incident. According to learned counsel for the appellants there is no eye witness to the incident and the prosecution's important witnesses PW-5 Brijlal, father of the deceased Nirmla, in cross-examination, admitted that police reached in hospital in the same night i.e., 16th July, 2000 when Nirmla was admitted in hospital and this admission supports the defence version that police was given information of the incident in the night of 16th July, 2000 itself. In that situation, the FIR was registered on 17th July, 2000 and that was sent to the concerned court on 18th July, 2000 and delay in recording the FIR and sending of it to Court after delay have not been explained by the prosecution and before that there was sufficient time within which the false story was concocted against all the appellants and due to ill-will of victim's family members which was due to relationship of appellant no.1 with victim, therefore, neither Parcha Bayan nor the statement of the prosecution witnesses can be relied upon. It is also 10 submitted that the appellants produced witnesses DW-1 Jagdish, DW-2 Rakesh Kumar (who were not produced by the prosecution inspite of the fact that during investigation, his statements under Section 164 Cr.P.C. was recorded), DW-3 Buta Ram and DW-4 Sabeer. The presence of DW-2 Rakesh Kumar and DW-4 Sabeer cannot be denied nor it can be disputed. They clearly stated that Parcha Bayan is out come of tutoring of Ms. Nirmla by her family members. According to learned counsel for the appellants, the prosecution failed to prove the fact of burning of Nirmla by the appellants because of the reason that from evidence it is proved that there was some intimate relations of appellant Kishore with victim Nirmla and they were seen by the parents of Nirmla and appellant Kishore's father and mother put the appellant Kishore in a room and locked it from outside, therefore, he could not have committed any offence as alleged by the prosecution and, therefore, the entire story of prosecution falls to the ground on the basis of the improbabilities which are inherent in it itself. Learned counsel for the appellants relied upon the judgment of the Hon'ble Supreme Court delivered in the 11 case of K. Ramchandra Reddy & Anr Vs. The Public Prosecutor reported in 1976 SCC (Cri.) 473 wherein the Hon'ble Apex Court noticed the fact that deceased was conscious at the place of occurrence, at the time when he was put on the lorry and also at the time when he was brought to the nursing home and was in a position to speak, he did not disclose the names of the assailants to anybody. In above situation there are two possibilities, one is that either the victim was not in position to talk and disclose the event or he could not identify the assailants. Learned counsel for the appellants submitted that in this case also, the incident took place on 16th July, 2000 and the alleged statement of victim as projected by prosecution was given on the next day and she had full opportunity to disclose the name of the assailants forthwith, but she did not tell it to anybody till next day and if the Parcha Bayan and her dying declaration which was recorded after her tutoring cannot be relied upon then there is no evidence against the appellants. Learned counsel for the appellants also relied upon the judgment of the Hon'ble Apex Court delivered in the case of 12 Rasheed Beg & Ors. Vs. State of Madhya Pradesh reported in 1974 SCC (Cri.) 426 wherein there were two dying declarations. The second dying declaration was containing names of two more persons then Hon'ble Supreme Court held that possibility of tutoring cannot be ruled out and conviction based on common names in the two dying declarations cannot be sustained. Yet another judgment relied upon by learned counsel for the appellants is judgment of the Hon'ble Apex court delivered in the case of Maharaj Singh (L/Nk.) Vs. State of U.P. reported in 1994 SCC (Cri.) 1390 wherein on facts, the Hon'ble Supreme Court held that FIR was anti-timed and FIR had not been recorded till the inquest proceedings were over at the spot by the Investigation Officer and Hon'ble Supreme court held that upon failure of prosecution to produce eyewitnesses it can be presumed that they were not prepared to support the false case and on the basis of above, learned counsel for the appellants submitted that in the present case two of the witnesses were not produced by the prosecution because they did not want to support the false case of prosecution and appellants have produced 13 above two prosecution witnesses and they supported the defence case fully and, therefore, it is clear that even prosecution witnesses did not support the prosecution case because of the reason that prosecution story is false one. Learned counsel for the appellants with the help of the judgment of the Hon'ble Apex court delivered in the case of State of Haryana Vs. Ram Singh reported in 2002 SCC (Cri.) 350 stated that defence witnesses are also required to be treated at par with the prosecution witnesses and deserves to be given equal respect, and credibility and trustworthiness also to be attributed to the defence witnesses at par with that of prosecution witnesses. Learned counsel for the appellants further relied upon the judgment of the Hon'ble Supreme Court delivered in the case of Khushal Rao Vs. State of Bombay reported in AIR 1958 SC 22 wherein the Hon'ble Apex Court made distinction between the dying declaration and contention has been considered and the value of dying declaration has been examined in detail. Learned Public Prosecutor supported the judgment of conviction of the appellants and stated that there is no 14 reason to disbelieve the Parcha Bayan Ex.P/20 given by the victim Nirmla in the hospital and it was recorded after fully satisfying the fit mental condition of the victim. The prosecution investigated and found the truth in the allegations levelled by the victim Nirmla in her Parcha Bayan and accused-appellant Kishore was present on the place of incident cannot be disputed in view of the fact that he himself admitted that he was present on the place of occurrence. However, his story that he was taken to his house by his mother and father and was put under lock cannot be believed. The victim died because of burn injuries and that has been proved by the corroborative medical evidence apart from other evidence. It is submitted that defence witnesses also supported the prosecution case fully if the improvements made by the defence witnesses in their statements are ignored. The improvements in the statement of DW-2 Rakesh Kumar and DW-4 Sabeer are apparent and from their improved statement given in the court it is clear that they have won over by the accused and, therefore, they gave false statement, which includes the statement of DW-4 Sabeer. 15 He stated that he telephoned the police from PCO and informed the police about the incident. It is also submitted that in the injury report it is clearly mentioned that the police did not record the statement of victim on 17th July, 2000 at 9.45 PM. And in fact, it was recorded at 12.15 PM on 17th July, 2000. The learned Judicial Magistrate recorded the dying declaration of victim Nirmla on 19th July, 2000 and there is a complete consistency in the two statements and conviction can be maintained only on the basis of the trustworthy dying declaration and in this case, there are all circumstantial evidence also proving guilt of all the three accused-persons. We considered the submissions of learned counsel for the parties and perused the record and also considered the judgments relied upon by learned counsel for the appellants. So far as prosecution case is concerned as per prosecution case, Parcha Bayan of victim Nirmla Ex.P/20 was recorded on 17th July, 2000 at 12.15 PM. In the Parcha Bayan victim Nirmla gave complete chain of events about her burning by the appellants-accused persons, which has 16 been mentioned in detail in the preceding para of the judgment in detail. In view of the Ex.P/20 Parcha Bayan FIR Ex.P/21 was registered at 1.30 PM. The learned Judicial Magistrate on written request and after obtaining certificate from the concerned doctor recorded the statement of deceased on 19th July, 2000. This statement Ex.P/6 is also having full consistency with the statement given by the victim Nirmla in Parcha Bayan Ex.P/20. The doctor certified that statement Ex.P/6 was recorded by the learned Judicial Magistrate in his presence and during recording of statement of victim, she remained mentally fit. In the Ex.P/9 the injury report which is dated 17th July, 2000 and was given at 9.45 AM there is note that police did not record statement of victim at that time. It appears that appellants wants to take benefit of the word “not” written in between the words “police recorded statement” but there is no reason to believe that the word “not” was inserted subsequently and not at the same time when the sentence was written on Ex.P/9 by the doctor. In this case prosecution witnesses PW-5 – the father of victim Brijlal, PW-8 Dhapu – child witness, sister of deceased PW-8 17 Kaushaliya, mother of victim also stated about how the incident took place and what happened just after incident of burning of the victim. Other witnesses PW-7 Banti – the maternal uncle of the deceased corroborated that statement of the above witnesses with respect to the fact of burning of deceased and taking her to the hospital etc. The defence witnesses DW-4 Sabeer in his examination-in-chief clearly stated that the deceased Nirmla's father Brijlal and his wife and Kishore were standing near the house of Brijlal where Brijlal and his wife were asking Kishore why he entered in their house. He further stated that Brijlal's wife was caught by Kishore and, thereafter, Brijlal intervened. He admitted that at that time, Kishore pushed Brijlal's wife in drain and she fell down in the said drain. At that time, Brijlal's daughter Nirmla came out and she tried to scold the Kishore. The defence witness DW-4 Sabeer thereby admitted the quarrel between Kishore and family members of victim, which took place on just before the ultimately fatal incident. He also stated in his examination-in-chief that Brijlal and his wife wanted to go to the police station for lodging the report and asked one Jaswant to accompany 18 them, but Jaswant told that they may go police station in the morning. He also stated that thereafter, Nirmla started preparing for cooking the food. He stated that Nirmla's maternal-grand-mother was also present there, but she was blind. He also stated that thereafter, when he came after taking some goods from the shop and was standing near his house, then he saw Nirmla coming out with flames. He also admitted that she rushed towards the public tape and, thereafter, he stated that he also poured water on Nirmla to save her and he took Nirmla in the house. Substantially, this is the story of the prosecution and it finds support from the statement of defence witnesses. However, thereafter, witness Sabeer stated that when Nirmla was on way to the hospital in tempo then she was tutored to implicate all three accused persons. He also stated that at that time Nirmla said that he will involve all the family members of accused-appellants and she will ruin them. However,he admitted that he did not tell this to anybody not even to the police. In cross-examination he admitted that he did not know the name of the PCO shop nor he knows any particulars of said PCO. He admitted that 19 he did not show the receipt of PCO Ex.P/6 to anybody not even to the police. He did not tell the police during investigation that he also telephoned the police and informed about the incident. In cross-examination he further admitted that some of the portion of his statement is given in the court were not the statement given during investigation to the police. In view of the above, it is absolutely unsafe to rely upon the statement of DW-4 Sabeer so far as he says that victim Nirmla was tutored by her family members. DW-2 Rakesh Kumar is also a witness, who was examined by the investigating officer under Section 164 Cr.P.C. , but was not produced by the prosecution and he has been produced by the defence. DW-2 Rakesh Kumar in his statement clearly admitted that victim's father Brijlal and his wife were quarreling with the appellant-accused Kishore and there were fighting also. However, he stated that appellant Kishore's father came there and took Kishore to his house. At that time Brijlal and his wife went saying that they are going to police station and two minutes thereafter, Nirmla with flames came from her house and 20 she fell down. He stated that someone put water on Nirmla but he does not know the name of that person inspite of fact he knew Sabeer. He stated that Sabeer and two other persons took Nirmla in the house. The above statement of DW-2 Rakesh Kumar is statement contradicting the statement of DW-4 Sabeer inasmuch as DW-2 Rakesh Kumar admitted that Sabeer was present there when Nirmla came out from her house. He stated that Sabeer did not pour water on Nirmla whereas DW-4 Sabeer stated that he pour water over Nirmla to save her. DW-4 Sabeer stated that he alone took Nirmla in the house whereas DW-2 Rakesh Kumar stated that Sabeer alongwith three other persons took Nirmla into her house. DW-2 Rakesh Kumar stated that he saw Nirmla burning but he remained standing at his house gate and he did not move. The statement of DW-2 Rakesh Kumar and DW-4 Sabeer substantially did not support to each other on material issues, how Nirmla came out and how she was taken in house. So far as statement of DW-2 Rakesh Kumar and DW-4 Sabeer with respect to the quarrel between the victim's mother,father and Kishore is concerned, they fully 21 supports the prosecution case upto to saying of victim's father that he and his wife are going to the police station for lodging report. DW-1 Jagdish is tempo (taxi) driver in whose tempo the victim Nirmla was taken to hospital. He stated that at that time, none of the family member of Nirmla was there and, therefore, he took Sabeer with him and, thereafter, victim's maternal uncle also came there. He stated that victim's mother, father and maternal uncle were telling the girl something, but he could not understand. However,they were saying that “we will be trapped”. In cross- examination, he stated that he could not understand about what the victim's father, mother were talking. DW-1 Jagdish is also neighbour and living in the same lane, but in cross-examination, he tried to project that whether Kishore was in drunken condition or not he did not know. He also stated that he did