1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : J U D G M E N T : MUKESH & OTHERS VS. STATE OF RAJASTHAN D.B. CRIMINAL APPEAL NO. 245/2002 against the judgment dated 22.12.2001 passed by the learned Additional Sessions Judge No.2, Jodhpur in Sessions Case No.2/2001. **** DATE OF JUDGMENT :: 7th February, 2006 PRESENT HON'BLE MR. N.N. MATHUR, J. HON'BLE MR. MANAK MOHTA, J. Mr. Dungar Singh, for the appellants. Mr. Vishnu Kachhwaha, Public Prosecutor. REPORTABLE BY THE COURT : (PER HON`BLE MANAK MOHTA, J.) 1. The instant appeal is directed against the judgment of conviction and sentence dated 22.12.2001 passed by learned Additional Sessions Judge No.2, Jodhpur in Sessions case No. 2/2001 whereby appellants-Mukesh, Ramesh Chand and Roop Chand have been convicted for the offences under Sections 498-A, 304-B and 302 IPC and each of them have been sentenced as under :- 498-A I.P.C. : 3 years R.I. and a fine of Rs.1000/-, in default of payment of fine to further undergo one month's simple imprisonment. 2 304-B I.P.C. : 10 years R.I. and a fine of Rs.5000/-, in default of payment of fine to further undergo three months' simple imprisonment. 302 I.P.C. : Imprisonment for life and a fine of Rs.5000/-, in default payment of fine to further undergo three months' simple imprisonment. 2. The prosecution case, as disclosed during trial, is that Smt. Durga W/o Mukesh, while she was admitted in Emergency Ward of Mahatma Gandhi Hospital, Jodhpur, gave a statement (Ex.P/14) to the SHO, P.S. Mahamandir that she got married with Mukesh 6-7 months prior. On 27.10.2000 at about 2:15 p.m. while she was at her in- laws' house, her husband Mukesh, father-in-law Roop Chand and brother-in-law – Ramesh ('Devar' -husband's younger brother) poured kerosene on her and she was set on fire by her husband. She did not know as to who extinguished the fire. On that day at about 10-11 a.m., her father came to see her, to whom she complained of being harassed by her in-laws on count of demand of dowry. After staying for about an hour, her father went away. Smt. Durga also stated that her mother-in- law had no role in the said incident. 3. On the basis of the aforesaid statement (Ex.P/14), an FIR No.455/2000 was registered at Police Station, Mahamandir for the offences under Sections 498-A and 307 I.P.C. and the investigation commenced. A statement (Ex.P/10) of the deceased was recorded by the Magistrate on the same day. After the death of Smt. Durga, offences 3 under Sections 304-B and 302 I.P.C. were added to the case. The witnesses were examined and other legal formalities were done. Thereafter, the post-mortem of deceased was conducted and on completion of the investigation, the police filed charge-sheet against the accused-appellants for the offences under Sections 498-A, 304-B and 302 read with Section 34 IPC in the court of learned Additional Chief Judicial Magistrate No.3, Jodhpur from where it was committed to the Sessions Court. Thereafter, the case was transferred to the Court of learned Additional Sessions Judge No.2, Jodhpur. Charges under the aforesaid sections were framed against the appellants, to which they pleaded not guilty and claimed trial. 4. The prosecution in support of its case examined as many as 11 witnesses, namely, PW-1 Deep Singh, PW-2 Tej Singh, PW-3 Mannu Bhai, PW-4 Jugal Kishore, PW-5 Girdhari Lal, PW-6 Uma Shanker Vyas, PW-7 Dr. N.S. Kothari, PW-8 Heera Lal, PW-9 Smt. Aichuki, PW-10 Bhagwana Ram and PW-11 S. Sainga Dheer and got exhibited certain documents as Ex.P/1 to Ex.P/17. The appellants in their statements recorded under Section 313 Cr. P.C. denied the correctness of prosecution evidence appearing against them. Further they denied the demand of dowry. Roop Chand and Ramesh stated that they were living separately from Mukesh. Ramesh further stated that he saw Smt. Durga giving greeting-card and letter to Sanjay Chouhan, who took that material. The accused persons examined three witnesses in defence, namely, DW-1 Nemichand, DW-2 Chandmal, DW-3 Akshayraj and got 4 exhibited the documents as Exhibit-D/1 to Exhibit-D/6. 5. After hearing the parties, the learned trial court having found the prosecution case proved, convicted the appellants under Sections 498-A, 304-B and Section 302 with the aid of Section 34 I.P.C. and sentenced the accused-appellants in the manner indicated above. Hence, this appeal has been filed. 6. We have heard Mr. Dungar Singh, learned counsel for the appellants and the learned Public Prosecutor Mr. Vishal Kachhwaha for the State and have carefully gone through the record of the case. 7. During the course of arguments, it was submitted by learned counsel for the appellants that the learned trial court has not properly considered the material on record and held the accused-appellants guilty for committing murder of Smt. Durga merely on suspicion. It was further submitted that the conviction of the accused-appellants under Sections 302, 304-B and 498-A I.P.C. is contrary to law and against the direct and circumstantial evidence on record. It was contended that the entire case of the prosecution is based on the dying declaration (Exhibit-P/14) before the police and Exhibit-P/10 before the Magistrate. Both the dying declarations are not of similar nature, as they were given in different pattern at different point in time. It was urged that the dying declaration made before the police named only three persons whereas in the dying declaration made before the Magistrate (Exhibit-P/10) Smt. Durga has 5 blamed four persons for pouring kerosene on her. Solely on this point these dying declarations cannot be relied on but the learned trial court has given much importance to these dying declarations to base its finding. Thus, it was prayed that the finding of the trial court is not sustainable and deserves to be set aside. 8. It was contended by the learned counsel of the accused- appellants that the case against accused is not proved beyond all reasonable doubts. It was stated that as per PW-10, Bhagwana Ram, SHO, P.S. Mahamandir he got Exhibit-P/14 recorded through PW-2 Tej Singh and the same was further attested by Bhom Singh, Assistant Sub-Inspector but PW-2 does not say anything in his statement and Bhom Singh, ASI was not produced. Likewise the doctor who gave certificate of fitness Dr. Adim also has not been examined. It was also submitted that, doctor Dharamvir who gave certificate of fitness at the time of recording of statement by Magistrate has also not been examined. In this way, it was urged that the material witnesses have not been produced but the learned court has ignored these aspects of the case. 9. It was contended on behalf of the accused-appellants that the prosecution case is that the accused-appellants poured kerosene on Smt. Durga and one of the accused-Mukesh set on fire and due to burns, she died. In this respect, police collected relevant material, as per Exhibit-P/7 empty bottle, match-stick, sari found on bed etc., but they were not sent to Forensic Science Laboratory for corroborating their story. No report of 6 FSL has been submitted. It was also contended in the same reference that the post-mortem of Smt. Durga was conducted by a Medical Board. As per Exhibit-P/11, one of the members of Board PW-7 Dr. N.S. Kothari does not support presence of kerosene smell in the body of Smt. Durga. He has stated that there was no trace or smell of kerosene found on the burns. In this way, it was urged that the prosecution has not been able to prove the case by strong and supporting evidence. It was stated that there is no eye-witness of occurrence and the circumstantial evidence are not of such clinching nature which can be relied on. It was contended that PW-8 is the person who attended Smt. Durga at the first instance and on his query, she did not gave any reply and later on she made allegations against the accused-appellants. Thus, the prosecution story becomes doubtful. 10. Learned counsel for the accused-appellants also submitted that the allegations of demand of dowry are not established. No independent witness has been produced. Likewise harassment on count of demand of dowry by the appellants soon before the death is not proved. In this respect, PW-4 father and PW-9 mother of the deceased have been produced and they have made allegations but they are not reliable witnesses. Their allegations are after-thought and made with ulterior motive as they are interested witnesses. Thus, their statements are not trustworthy and no conviction can be maintained on these statements. The learned court has committed error in believing them. 7 11. It was also contended that the learned trial court has given much importance to letter (Exhibit-P/5 – wrongly marked twice) given by Smt. Durga to her father on 27.10.2000 when he is said to meet her at her in-law's house but it was urged that this fact has not been disclosed by her in her statements made to police and to the Magistrate. Secondly, this letter (Exhibit-P/5) seems to have been written much prior to the incident but was not given to father earlier. It was contended that this letter is forged one, created for the purpose of evidence. Thus, this is full of doubt and no credence should have been given to it. It was submitted that Smt. Durga was found giving greeting card to one Sanjay Chauhan. A complaint was made to her father thereafter her father scolded her due to which she felt annoyed and committed suicide. At that time the accused-appellants were not present in the house. Therefore, the appellants cannot be made responsible for that. 12. It was submitted that the learned trial court has convicted the accused-appellants under both the Sections 302 and 304-B I.P.C. It was urged that both the Sections are of different category and the accused cannot be convicted under both the Sections. Thus, it was prayed that the appeal may be allowed and the impugned judgment dated 22.12.2001 passed by the learned court may be quashed and set aside and the accused-appellants may be acquitted from all the charges levelled against them. 13. On the contrary, the learned Public Prosecutor refuted the 8 contentions raised by the accused-appellants and supported the judgment. It was further contended that it is revealed from the record that Smt. Durga got married with Mukesh on 16.4.2000. She was making complaints of demand of dowry to her parents PW-4 and PW-9 father and mother whenever she used to visit her father's house. Thus, both the witnesses are the best witnesses in this respect and both have supported the allegations. It was stated by the learned Public Prosecutor that the occurrence took place within a period of seven months of the marriage i.e. on 27.10.2000. It was contended that soon before the death she was subjected to harassment for demand of dowry. It was proved by oral and documentary evidence (Exhibit-5) letter given by the deceased to her father on the very day of occurrence. She has made dying declarations before the police and Magistrate, which also corroborate the same. The dying declarations have been recorded after taking due care and those are reliable. It was submitted that the prosecution has been able to prove the case against the accused- appellants and the learned trial court has considered the material correctly, hence the finding may be maintained and the appeal may be dismissed. 14. Before adverting to the contentions raised by the learned counsel for the appellants, it would be proper to briefly survey the oral evidence adduced by the prosecution : 15. PW-4 Jugal Kishore is the father of the deceased. He 9 stated that Smt. Durga was married with accused-Mukesh on 16.4.2000 as per Hindu customs. In marriage dowry was given as per his status. He has narrated the items given in marriage. He further stated that whenever after marriage his daughter Smt. Durga came to his house, she made complaints against her in-laws for taunting her for giving less dowry. It was also stated that when she came just 15 days before Diwali, she stayed at house for 5 days. During that period, she stated that if he would not pay Rs.50,000/- to her in-laws, they will kill her. She also refused to go to her in-law's house but later on he dropped Smt. Durga at her in-law's house. It was further stated that on the day of 'Rama Shyama' (a day of courtesy meeting just after the diwali festival), he went to meet Smt. Durga's in-laws. On that day also, the accused persons alongwith Smt. Dugli Bai ('bhuva saas' – sister of father-in-law) demanded money from him. He stated that on that day Smt. Durga gave him a letter (Exhibit-P/5) and made complaint about demand of dowry by her in-laws. He further stated that later on he left house of Smt. Durga. At 3 p.m. while he was reading that letter, he received information from the police that his daughter is serious and has been admitted in Mahatama Gandhi Hospital. He alongwith his wife rushed to hospital. On asking, the Circle Officer of Police Station, Mahamandir informed him that his daughter had been burnt. He has further stated that after the statement recorded by Magistrate, he met with his daughter Smt. Durga. On his query she stated that kerosene was poured by her husband- Mukesh, father-in-law Roop Chand and Devar-Ramesh alongwith Smt. Dugli Bai and thereafter she was set on fire by her husband-Mukesh. He 10 stated that the writing of Exhibit-P/5 was in the hand of Smt. Durga. He handed over the letter to the Circle Officer on the day of occurrence. He was also contradicted with his previous statement recorded under Section 161 Cr. P.C. (Exhibit-D/1). He has denied that he had prepared forged letter (Exhibit-P/5). He also denied that he ever scolded his daughter on the complaint made by her father-in-law on the pretext of giving greeting-card and love letter to one Sanjay Chouhan. 16. PW-9 Smt. Achuki is the mother of the deceased-Smt. Durga. She also stated that whenever she came to her house, she was making complaints against her in-laws about demanding Rs.50,000/- otherwise they would kill her. On the day of 'Rama Shyama', when she went with her husband, a demand of Rs.50,000/- was made by her in- laws. She has also stated that Smt. Durga gave a letter (Exhibit-P/5) to her husband at that time. She has further stated that on receiving information, they reached at hospital. Her daughter named accused persons alongwith Smt. Dugli Bai for pouring kerosene on her and setting fire by her husband-Mukesh. She denied the fact that her husband scolded Smt. Durga for sending greeting card to Sanjay Chouhan and on this count she committed suicide. She was also contradicted by her previous statement under Section 161 Cr. P.C. (Exhibit-D/6). 17. PW-8 Heera Lal is the person who reached at the place of occurrence at 2-2.30 p.m. on 27.10.2000 after hearing cry. He stated that he phoned to Police Station, Mahamandir. He also made query to 11 Smt. Durga as to how she got burnt but she did not reply. He has further stated that at that time the accused persons were not there. 18. PW-3 Mannu Bhai and PW-5 Girdhari are the witnesses of Fard Surat Haal Lush (Exhibit-P/5), Panchayat Nama (Exhibit-P/4), Superdignama of dead-body (Exhibit-P/6), Fard of Recovery of Articles (Exhibit-P/7) and site-plan of the occurrence (Exhibit-P/8). 19. PW-7 is Dr. N.S. Kothari who being a Member of the Medical Board which conducted the post-mortem of deceased and prepared report (Exhibit-P/11) on 28.10.2000. He has stated that body of Smt. Durga was fully burnt. The cause of death was shock due to extensive burn. He further stated that at the time of post-mortem, there was no smell of kerosene coming out from the body. 20. PW-6 is Uma Shanker Vyas, the Magistrate who recorded the statement of Smt. Durga (Exhibit-P/10). He stated that Smt. Durga was in a fit state of mind to give statement. On his satisfaction, he recorded her statement. Dr. Dharamvir certified that she was in a fit state of mind to give statement. The certificate of doctor was also obtained as E to F on the statement (Exhibit-P/10). 21. PW-1 Deep Singh, PW-2 Tej Singh and PW-11 S. Sangadheer are the witnesses of Fard of Arrest and other Fards prepared by the police during investigation. PW-10 Bhagwana Ram is the Investigating 12 Officer. He stated that on 27.10.2000 on receiving message he reached Mahatma Gandhi Hospital, Jodhpur where Smt. Durga was admitted. On being certified by the duty doctor that she was in a fit state of mind to give statement, he recorded her statement (Exhibit-P/14). A to B is his signature and C to D is the signature of Bhim Singh, Asstt. Sub-Inspector and E to F is the endorsement on Exhibit-P/14. He has stated that the fitness certificate was obtained by him on Exhibit-P/13. C to D is the opinion and E to F is the signature of Dr. Adim. In her statement, she stated that the accused-appellants poured kerosene on her body and Mukesh her husband set on fire. She also stated the facts with regard to demand of dowry. 22. On the basis of statement (Exhibit-P/14), FIR (Exhibit-P/15) was chalked under Sections 498-A and 307 I.P.C. Statement of Smt. Durga was recorded by Magistrate later on. When she died, offences under Sections 302 and 304-B I.P.C. were added. He prepared site-plan (Exhibit-P/8) and Haalatmoka (Exhibit-P/16). He recovered kerosene bottle and match-box etc. from the place of occurrence vide Exhibit-P/7 and sealed them on the spot. He recorded the statement of witnesses. He has further stated that PW-4 handed over a letter of Smt. Durga (Exhibit-P/5) to him. He has also stated that Exhibit-P/14 was written by Tej Singh under his instructions and at that time father and mother of deceased had not reached the hospital. He has stated that in Fard Exhibit-P/8 and Exhibit-P/16 the facts of smell of kerosene in the water lying on the place of occurrence were mentioned. The accused persons 13 were arrested vide Exhibit-P/1 to Exhibit-P/3. 23. From the side of defence, DW-1 Nemichand stated that on the day of occurrence on 27.7.2000 he also went with Heera Lal to attend Smt. Durga. Heera Lal asked her what happened, then Smt. Durga did not reply. DW-2 Chandmal stated that he never heard any demand of dowry or any harassment made by accused-appellants with Smt. Durga. DW-3 Akshay Raj stated that about 10-15 days before Diwali-2000 he went to the house of Jugal Kishore. On the request of father of Smt. Durga, he dropped her at her in-laws house. She did not make any complaint to him with regard to demand of dowry. 24. We have considered the contentions raised by the learned counsel for the appellants. In the light of the material available on record, much stress has been given on the dying declarations recorded by the Police Officer and Magistrate but in our opinion they cannot be discarded merely on the ground that in the first dying declaration names of only three present accused persons have been mentioned. In the second dying declaration, alongwith the present accused persons, name of one Smt. Dungli Bai has also been added. It is revealed from the record that the first dying declaration (Exhibit-P/14) was recorded by the Police Officer just after the arrival of Smt. Durga in the hospital and in that dying declaration, present accused-appellants have been named and their role has been stated and same names of accused persons and their role has been stated in the second dying declaration. To this extent there 14 is consistency in both the dying declarations. It is also revealed from the statement of PW-10 Bhagwana Ram (Investigating Officer) that when he recorded the statement Exhibit (P/14), no relative of the deceased came in the hospital upto that time and nobody had met with Smt. Durga. The second dying declaration was recorded by Magistrate (PW-6) on the same day. In this way the dying declarations recorded by the independent and disinterested persons can be taken into consideration with more extra care and caution. 25. We have also considered the other contentions raised in this respect that the concerned doctor who certified that Smt. Durga was in a fit state of mind has not been produced. Likewise, the writer of Exhibit- P/14 Tej Singh has not stated anything in this respect and Bhoom Singh the attesting witness has not been produced but PW-10 has stated that Dr.Adim had certified that she was in a fit state of mind to give statement when her statement was recorded. Certificate of doctor was also obtained on Exhibit-P/13 i.e. C to D is his opinion and the signature of Dr. Adim is E to F. Likewise the Magistrate PW-6 Uma Shanker Vyas has stated that on being satisfied, he recorded the statement of Smt. Durga. He has further stated that he also obtained certificate from the concerned doctor i.e. Dr. Dharamvir, whose endorsement is E to F and signature is G to H on Exhibit-P/10. In this way the contentions raised by the appellants in this respect are having no force. 26. We have considered the contention raised by the learned 15 counsel for the appellants with regard to the letter (Exhibit-P/5) of Smt. Durga, which was stated as given on the day of occurrence when her father went to meet her at her in-law's house. It was contended that this letter was forged to create evidence but from the record, it is revealed that on the day of occurrence i.e. 27.10.2000, when PW-4 got information that his daughter is serious and has been admitted to hospital, he directly rushed to hospital and on the same day he handed over that letter to the Circle Officer concerned. PW-10 Bhagwan Ram also stated the same thing. In this way, in our opinion there was no time for preparing forged letter for creating evidence. Likewise, it was also contended that from the reading of this letter (Exhibit-P/4), it seems that this letter was written much prior to the incident and still that was not given to father therefore it is not believable that the letter was given on the day of occurrence. In our opinion, it is possible that Smt. Durga wrote this letter some time prior and handed over to her father on the day of occurrence. In this respect, PW-4 has stated in so many words that when he went to Smt. Durga's in-laws house, she handed over that letter (Exhibit-P/5) to him but he could not read that letter at that time. PW-9 is also corroborating same thing that Smt. Durga gave letter (Exhibit-P/5) to her father. The contention that Smt. Durga has not stated the facts of giving letter (Exhibit-P/5) in her statement to police (Exhibit-P/14) and, therefore, doubts are raised do not hold good because Smt. Durga has stated that her father met in the morning on the same day and the letter was handed over to the police on the same day. Therefore, the contentions raised in respect of Exhibit-P/5 are baseless 16 and having no force. 27. It was also contended that there was no material for demand of dowry by the accused-appellants but in this respect PW-4 and PW-9 being the father and mother of the deceased are the best witnesses. They have stated that whenever Smt. Durga came to their house, she used to make complaint about taunts for giving less dowry by her in-laws. PW-4 and PW-9 stated that when Smt. Durga came 10-15 days before Diwali, she complained about demand of dowry. She complained that her in-laws are demanding Rs.50,000/- in dowry to open shop and if it would not be paid, then they will kill her. She also refused to go to her in-laws house. It was contended by the learned counsel for the appellants that the allegations made by them in court statement had