1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Mst.Ganwara Vs. State of Rajasthan D.B.CRIMINAL APPEAL NO.186/1985 against the judgment dt.25.5.85 passed by the Sessions Judge, Bikaner, in Sessions Case No.125/82. Date of Judgment: Nov.03, 2009 P R E S E N T HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.M.D.Purohit, Sr.Advocate, assisted by Mr.Pappu Sangwa & Mr.Devendra Godara, for appellant. Mr.K.R.Bishnoi, Public Prosecutor. BY THE COURT : (PER THANVI J.) 1. This appeal is directed against the judgment of the learned Sessions Judge, Bikaner dated 25.5.85 in Sessions Case No.125/85, whereby he convicted appellant Mst.Ganwara under Section 302 IPC and sentenced her to life imprisonment alongwith a fine of 2 Rs.50/-. 2. Facts leading to this appeal are that on 5.9.82, Jagdishlal, probationer RPS, posted as Incharge, Police Station, Naya Shahar, Bikaner recorded the statement of deceased Shanti, Ex.P.24 at PBM Hospital, Bikaner, wherein she stated that her mother in law accused appellant Ganwara was not happy on the issue of dowry, which she brought from her parental house and she used to beat her off and on. On the day of incident, her husband and father in law were outside the house and she and her mother in law were inside the house. In the morning at about 10 AM, when she was in the upper storey room of her house, her mother in law accused appellant Ganwara called her downstairs in the “aangan” (chowk) and told that she will put her to fire. She brought a kerosene bottle from “Ora” (store) inside the room and sprinkled kerosene on her body and lit fire with matchstick. She was not allowed to run away. Her clothes were burnt. The neighbourers assembled there and took her to the hospital. On the basis of this statement, probationer Dy.S.P. registered a case u/s.307 IPC against the accused appellant Ganwara. During the course of investigation, the dying declaration 3 of Mst.Shanti was recorded by the learned Magistrate vide Ex.P.11. During treatment, she died in the hospital on 7.9.82. Upon the death of deceased Shanti, the offence u/s.302 IPC was added. The post mortem of the dead body of deceased Shanti was conducted vide Ex.P.9. Prior to her death, her injuries were also examined vide Ex.P.23. After usual investigation, accused Mst.Ganwara was chargesheeted u/s.302 IPC in the court of learned Judicial Magistrate, who committed the case to the court of Sessions. Learned Sessions Judge framed charge against the accused appellant u/s.302 IPC to which she pleaded not guilty. The prosecution examined 16 witnesses. The statement of the accused Mst.Ganwara was recorded u/s.313 CrPC in which she stated that deceased Shanti was not liking his son and she wanted to live at her father's house, therefore, she died herself by pouring kerosene on her body. Many a times, the relatives tried to reconcile and ultimately, Shanti came to her in-laws' house. On the day of incident, she went to Gopalji temple as usual. There, she came to know from the boys of the locality that Shanti has poured kerosene on her body. She ultimately rushed to the house and took the deceased at the hospital. Thereafter, the relatives of Shanti came 4 to the hospital alongwith advocate Mr.Purushottam Vyas. She has been falsely implicated in this case. Accused appellant produced three witnesses in defence. After hearing the arguments, the learned Sessions Judge convicted the accused appellant as above. 3. It is contended by the learned Sr.Advocate Mr.M.D.Purohit that it is a false case registered against the accused appellant under the pressure of advocate and relatives of deceased Shanti. The theory of dying declaration is concocted one and the same has not been given voluntarily because at the time of giving the dying declaration, many of her relatives were sitting in the hospital alongwith advocate Mr.Purushottam Vyas. He further submits that not a single witness of the incident has supported the theory of putting kerosene on the body of deceased Shanti by accused appellant Ganwara, being mother in law. On the contrary, she was in Gopalji Temple when the incident took place and she herself took her daughter in law to the hospital. According to the learned counsel, this submission is fortified from the testimony of the investigating officer, who too has specifically stated that neither any neighbour told him about the incident of putting 5 kerosene by the mother in law of deceased Shanti nor any evidence was available to the effect that accused appellant Ganwara was in the house at the time of incident and on the contrary, she was in the Gopalji Temple at the relevant time. 4. Per contra, learned Public Prosecutor has supported the judgment of the trial Court. 5. We have re-appreciated the evidence on record. It is true that the relatives of deceased Shanti viz; Rama Devi PW 1 being mother of deceased, Radha Devi PW 2 being sister of deceased and Ram Bux PW 4 being brother of deceased and Nathmal PW 5 who is maternal brother of deceased Shanti, have ofcourse stated that Mst.Shanti was put to fire by her mother in law Mst.Ganwara on account of demand of dowry but their evidence is based on hearsay, as they were not present at the time when the incident took place. Hargopal alias Bhaiya, PW 3 has stated that from Raghunathji Temple, he saw the crowd, where some people were telling that mother in law of deceased Shanti put her to fire and some were saying that deceased burnt herself. Janki Prasad PW 6 is the panch witness of the recovery of 6 lantern, `Madaliya', kerosene box and inquest memos Ex.P.3 to Ex.P.8. Dr.P.N.Mathur, PW 7, who conducted the post mortem vide Ex.P.9 has stated that the cause of death was shock due to extensive burns, which were ante mortem in nature and self sufficient in the ordinary course of nature to cause death. According to him, 70% of the body surface of deceased was burnt. Dr.Brijbhushan Banga is another treating doctor, who prepared bed head ticket Ex.P.10. Bulaki Ram, PW 9 is the photographer of Ex.P.12 to 17. Rest are the investigating officer and the magistrate, who recorded the dying declaration Ex.P.11. 6. In the light of the above evidence, if we examine the case of murder by way of putting kerosene on the body of deceased Shanti, which is based on dying declaration, then the Court has to carefully examine the sensitivity of the dying declaration vis a vis other incriminating evidence brought on record. If there is no inconsistency in the dying declaration and if it is complete in nature, it can form the basis for conviction but where there are different dying declarations uncorroborated by the other material witnesses, then the Court has to scrutinize its credibility for using it 7 against the decased. Here in the present case, there are three dying declarations. First dying declaration was recorded at 1.45 PM on 5.9.82 Ex.P.24 by Jagdish Lal, investigating officer and second dying declaration is almost similar recorded, after registration of the FIR, under Sec.161 CrPC being the statement of deceased Shanti. On the basis of first dying declaration, Ex.P.24, a case u/s.307 IPC was registered, wherein deceased Shanti specifically told that she was taken to the hospital by the neighbours, when her mother in law put kerosene on her body but in the later dying declaration recorded by the magistrate vide Ex.P.11 at 3.40 PM, she stated that her mother in law herself took her to the hospital. When the investigating officer and the magistrate were cross examined from the side of the defence, it transpires that before recording first dying declaration by the investigating officer vide Ex.P.24, the fitness of deceased Shanti to give statement was not taken from the doctor. When the magistrate recorded the dying declaration Ex.P.11 two hours later than the earlier dying declaration, he stated that he obtained the fitness certificate from the doctor. In this statement, there is no mention as regards the demand of dowry by mother in law i.e. accused appellant but in the earlier 8 dying declaration before the investigating officer, this fact has been mentioned. The magistrate has not stated anything as to who were present at the time of recording dying declaration but if we turn to the statement of the investigating officer Jagdishlal PW 14, it transpires that when the statement was taken, both the sisters of deceased were sitting with her in the hospital. Apart from this material contradiction with regard to presence of the relatives of deceased and the advocate, taking the deceased to the hospital by mother in law or by the neighbours is a very important feature of this case, which creates a doubt as to whether the deceased was burnt with the aid of kerosene by the accused appellant. 7. Apart from the uncredible dying declarations, the investigating officer Jagdishlal, PW 14 has specifically stated in the cross examination that he enquired about the cause of burning from the neighbours but not a single neighbour told that the deceased Shanti was put to fire with the aid of kerosene by her mother in law i.e. appellant. He further stated that it was revealed from his investigation that at the time of incident, accused appellant had gone to temple and deceased 9 Shanti wanted to live at her parental house on account of in-fighting with her husband and mother in law. This statement of the investigating officer is supported from the last answer of the statement of accused appellant Ganwara recorded u/s.313 CrPC. The investigating officer has also stated alike other witnesses that deceased Shanti was more strong in the body shape than accused appellant Ganwara, her mother in law. 8. In view of the above discussion, when the case is based on inconsistent & uncredible dying declarations, particularly when the relatives of the deceased were present when her dying declaration was recorded and not a single neighbour has supported the incident, who were present at the scene in large number. Further, the statement of the accused is supported by the statement of the investigating officer that accused appellant Ganwara was not present in the house at the time of the incident but she had gone to temple and also the fact that deceased Shanti was more strong and stout in body shape than the accused appellant, who was 50 years at the time of incident as per arrest memo Ex.P.28 and is now 80 years of age, therefore, we are of the view that the prosecution case suffers from 10 various infirmities and doubts, where it will be unsafe to confirm the guilt of the accused appellant recorded u/s.302 IPC. 9. Consequently, we allow this appeal, set aside the judgment of the learned Sessions Judge, Bikaner dt.25.5.85 convicting accused appellant Mst.Ganwara u/s.302 IPC with life imprisonment & a fine of Rs.50/- and acquit her of the said charge. She is on bail, her bail bonds stand cancelled. (DEO NARAYAN THANVI), J. (A.M.KAPADIA), J. RANKAWAT JK, PS