1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. ORDER Vikram Singh @ Vicki Vs. State of Rajasthan SB CRIMINAL APPEAL NO.1033/2007. Under Section 374 of the Code of Criminal Procedure. DATE OF ORDER: 2nd March, 2009. PRESENT HON'BLE MR. JUSTICE S.P. PATHAK Mr. Praveen Balwada) for the appellant. Mr. Suresh Dhanwal ) Mr. S.C. Purohit PP for the State. BY THE COURT: This criminal appeal under section 374 of the Code of Criminal Procedure has been filed against the judgment and order dated 11th April, 2007 in Sessions Case No.16/2006 passed by the learned Additional Sessions Judge, Neem-ka-Thana District Sikar whereby the accused appellant has been convicted as under: U/s 376 IPC 10 years R.I. and a fine of Rs.500/-, in default of payment of fine to further undergo 4 months R.I. U/s 306 IPC 10 years R.I. and a fine of Rs.500/-, in default of payment of fine to further undergo 4 months R.I. U/s 452 IPC 2 years R.I. and a fine of Rs.500/-, in default of payment of fine to further undergo 4 months R.I. Briefly stated the facts for the disposal of present appeal are that PW-1 Rajendra Singh, the complainant, submitted a written report Ex.P-1 in the BDM Hospital, Kotputli before PW-17 Kanhaiya Lal, SHO Police Station Patan on 14.04.2006 alleging 2 therein that in the evening at around 5.00 p.m., his bhabhi (sister- in-law) Smt. Sudesh Kanwar wife of Surendra Singh and his wife Rajbala were at house. At that time, Vikram Singh @ Vikki, accused who is son of his maternal aunt Smt. Anop Kanwar came at the house and committed rape with his bhabhi. It is also alleged that his bhabhi tried to make hue and cry but the accused put his hand on her mouth. It is also alleged that due to rape committed with his bhabhi, she committed suicide and set herself on fire. Soon thereafter his mother Achraj Kanwar, aunt Prakash Kanwar and uncle Ranjeet Singh took her to the hospital, Kotputli and got her admitted. It is also alleged that in relation to the rape committed with her, the deceased disclosed all facts to them. On the above written report in the police station FIR No.54/2006 was registered under sections 376, 452 and 306 IPC and investigation commenced and accused was arrested vide arrest memo Ex.P-14. Medical examination report of Smt. Sudesh Kanwar dated 14.4.2006 is Ex.P-16. She died on 17.4.2006, therefore, autopsy was done on her dead-body. Post-mortem report is Ex.P-33. From the spot, the match box and other articles were seized and sealed. The clothes of the deceased were also seized and sealed which were worn by her at the time of incident and memos thereof Ex.P- 6, P-7, P-8, P-9 and P-10 were prepared. Since it was a burn case and condition of deceased after she was admitted in the hospital was deteriorating, therefore, at the request made vide Ex.P-51 by the S.H.O., Police Station Patan on 14.4.2006, PW-18 Pramod 3 Bansal, the then Civil Judge (JD) and Judicial Magistrate, Kotputli reached in the hospital and recorded the statement of the deceased after obtaining certificate in relation to the condition of the deceased as to whether she was in a fit condition to make statement. Dr. S.N. Yadav certified about the condition of the deceased to the effect that the deceased was in sense to make her statement. Certification made by the doctor was signed and thereafter statement of the deceased was recorded which contains the signature of Pramod Bansal, the Magistrate. The visra was taken and clothes which the deceased was wearing at the time of incident were seized and sealed and sent to FSL for examination. FSL report is Ex.P-36 wherein on examination semen was found on the chaddi of the accused and also on clothes of the deceased which was worn by the accused and the deceased at the time of alleged incident. After completion of investigation, charge-sheet was filed in the court. Ultimately, the matter came for trial before the Additional District & Sessions Judge, Neem-ka-Thana District Sikar who framed charge against the accused u/s 376, 452 and 306 IPC on 5.9.2006 to which the accused denied and claimed trial. In order to prove its case, the prosecution has examined as many as 19 witnesses. After close of the prosecution evidence in the statement recorded under section 313 Cr.P.C., there has been simple denial of the accused of all the allegations and stated that he has falsely been implicated in the case. No evidence in defence was produced. The learned trial court after hearing final 4 submissions convicted and sentenced the accused as indicated here-in-above. I have heard Mr. Praveen Balwada, learned counsel for the appellant and Mr. S.C. Purohit, learned public prosecutor for the State and have carefully perused the impugned judgment and the statement of the deceased recorded by the Magistrate and also other material available on record. It has been contended by the learned counsel for the appellant that the learned trial court has not properly appreciated the evidence in this case. According to the learned counsel, the dying declaration is not reliable because as per the statement of the doctor and the evidence which has been led in this case, it would appear that the deceased had 100% burn all over her body, therefore, she was not in fit mental state to depose the correct version of the incident. It is also contended that in fact the deceased suffered with the disease of insanity and she used to go out from the house off and on. It is also contended that the learned trial court had convicted and sentenced the appellant only by raising a presumption under section 113 of the Evidence Act as deceased died within seven years of her marriage. It is also contended that in the dying declaration at one stage, she has stated that she caught flames of fire from stove burst and, therefore, to rely upon such a dying declaration and to convict the accused is not liable to be sustained. It is also contended that most of the prosecution witnesses have not supported the 5 prosecution version and in the absence of eye witness of the occurrence and also in the absence of cogent evidence against the accused, the conviction and sentence recorded by the trial court is liable to be set aside. Learned counsel for the appellant in support of his submissions has placed reliance on the decisions in the case of State of Punjab Vs. Gian Kaur and another- 1998 Cr.L.J. 2061, Ramilaben Hasmukhbhai Khristi and two another Vs. State of Gujarat- 2002(2) WLC (SC) Criminal 324, Arvind Singh Vs. State of Bihar- 2001(2) Crimes 242 (SC), Panchdeo Singh Vs. State of Bihar- 2002 Cr.L.R. (SC) 97, State of Gujarat Vs. Khuman Singh Karsan Singh and others- AIR 1994 SC 1641, Jagdish Vs. State of Rajasthan- 2006(1) Cr.L.R. (Raj.) 759 and Rasheed Beg and others Vs. State of Madhya Pradesh- AIR 1974 SC 332. Learned public prosecutor contends that Ex.P-53, the dying declaration recorded by the Magistrate after obtaining certificate from the doctor regarding condition of the deceased, the statement was recorded which speaks of the entire story. The accused being a near relation took advantage of his coming into the house off and on and on finding the deceased alone in the house on the day of incident, forcibly committed rape with her and the deceased considering the act of the accused which compelled her to sacrifice her life and poured kerosene oil on her and thereafter set herself on fire. According to the learned public prosecutor, the law has developed on the point that in a case 6 where only evidence is of dying declaration and that inspires confidence of the court then that has been considered sufficient to base conviction whereas in the present case other corroborative evidence is available on record though the near relation of the deceased subsequently were managed and they turned hostile as would appear from their deposition made before the court. In the present matter, the points for consideration are: (i) whether the dying declaration Ex.P-53 is reliable and the finding in this regard recorded by the trial court deserves acceptance; (ii) whether the finding of guilt recorded by the trial court against accused while convicting him under section 452, 376 and 306 IPC requires to be maintained. Before considering the dying declaration, it shall be useful to examine the law developed on the point and the authorities cited by the learned counsel. In the case of State of Punjab (supra), the Hon'ble Apex Court on the appeal preferred by the State against acquittal dismissed the appeal for the reason that the dying declaration recorded was found suspicious as according to the medical evidence deceased had 100% burns, the thumb mark of Rita appearing on the dying declaration had clear ridges and curves and the doctor examined in the case could not satisfactorily explain how such thumb mark could appear on the dying declaration when there were 100% burns over her body and the thumbs. The Apex Court in the above circumstances found that 7 the High Court was right in giving benefit of doubt to the accused- respondent. In the case of Ramilaben Hasmukhbhai Khristi & 2 anr. (supra), the facts were slightly different than the present case. The case was one under section 302 IPC and there were as many as 4 dying declarations and no certificate on any of the four dying declarations that the deceased was mentally fit to make statement was obtained though doctor was always available. The Hon'ble Apex Court also found that two dying declarations only stating to have been beaten by accused but no injuries were found on body of deceased, in the above circumstances, the evidence of dying declaration was discarded. In the case of Arvind Singh (supra), the Hon'ble Apex court while considering dying declaration in the facts where in a case under section 304B/302 IPC, a dying declaration was made by the deceased to her mother where she stated that all family members of accused husband poured kerosene oil on the girl and thereafter she was set on fire. The Hon'ble Apex Court found the evidence in that regard not reliable and in the absence of fit condition about the girl to make statement observed that the dying declaration was not reliable. In the case of Panchdeo Singh (supra), the Hon'ble Apex Court in the facts and circumstances that in a case u/s 302 IPC, no certification of fitness was obtained from the doctor and after signature or the thumb impression of the deceased were also 8 not obtained, such a dying declaration not evoking confidence then conviction based thereon was not sustainable. In the case of State of Gujarat (supra), the Hon'ble Apex Court while considering two dying declarations in the facts found that there were inconsistencies between two dying declarations suggesting possibility of tutoring and false involvement due to strained relations, therefore, conviction recorded against the accused was set aside. In the case of Jagdish (supra), this court in a burn case observed that the dying declaration which was recorded of the deceased at the time when deceased was not fully conscious and unable to respond verbally though the doctors stated that the deceased was able to speak but no fitness certificate was obtained. It was held that such dying declaration of the deceased did not inspire confidence of the court and conviction was not liable to be maintained. In the case of Rasheed Begt and others (supra), the Hon'ble Apex Court in the facts found that two dying declarations were made by a boy of 12 years of age and it was found that those declarations were recorded when the boy was serious and was loosing consciousness and it was further found that the person who bore enmity with the named accused had accompanied the boy from the place of the incident to the hopital and was also present when the dying declarations were recorded. In the above set of facts it was held that the possibility of the boy being tutored 9 to name the accused could not be ruled out and that it was not safe to fasten the guilt on the named accused without any corroborative evidence in support of the dying declarations. After carefully examining the law cited at the bar, it appears that the dying declaration recorded by the Magistrate after obtaining certificate in relation to the witness about the mental condition to give statement can be acted upon, the conviction can be based on the sole testimony of the dying declaration. POINT NO.1. The dying declaration has been recorded by PW-18 Pramod Bansal, Magistrate. He has stated that on 16.4.2006, he was posted as Civil Judge (JD) and Judicial Magistrate, Kotputli. On that day, on behalf of S.H.O. Police station Patan, a tehrir Ex.P-51 was received for recording dying declaration of Smt. Sudesh Kanwar wife of Surendra Singh who was admitted in the emergency ward of BDM Hospital, Kotputli. He has stated that on Ex.P-53, dying declaration he obtained certificate given by Dr. S.N. Yadav. He has stated that the doctor had certified at place 'A' to 'B' and put his signatures at place 'C' to 'D' on his certification that patient was in a fit condition to give statement. The entire statement of the deceased is in the question and answer form and in between place 'E' to 'F' which bears his signatures at place 'I' to 'J'. The witness has also stated that he recorded the statement in the manner witness stated in Ex.P-53. A note has also been appended at the foot of Ex.P-53 to the effect that as both the 10 hands of witness were burnt and the witness was not in the condition either to sign or to affix her thumb impression. The statement recorded Ex.P-53 was subsequently sent to the Chief Judicial Magistrate. In the cross-examination, he has stated that he reached at the hospital at 10.25 p.m. and recorded the statement in the emergency ward but he does not remember about the number of the bed but there were nobody on other beds. On further cross-examination he has stated that he did not know Smt. Sudesh Kanwar and stated that at that time she was on a glucose drip but oxygen was not given to her. He has also stated that he does not know that who was the treating doctor of Sudesh Kanwar but at that time Dr. S.N.Yadav was present and on the basis of report of Dr. Yadav he recorded the dying declaration. He has also stated that at the time when statement was recorded except Dr. Yadav there was nobody. On a specific question put to the witness in the cross-examination that since Sudesh Kanwar had 95% burns, she was not in a condition to give statement to which the witness denied. A suggestion was also put to the witness that he has recorded the statement as SHO and the relatives of the deceased Sudesh Kanwar told him to record the statement to which also he denied. At this stage, it is necessary to see as to what is the dying declaration. The dying declaration has been recorded in Hindi. The English translation of the dying declaration is thus: “DYING DECLARATION 11 Before: Judicial Magistrate- Pramod Bansal, CJ(JD) & JM, Kotputli FIR No. ___ Police Station, Patan. Place: Emergency Ward, Bed No.4, BDM Hospital, Kotputli. Presence: Dr. S.N. Yadav, Medical Officer. A. Patient is in the condition to give statement and her statement has been recorded in my presence.B. C. Sd/- (Dr. S.M. Yadav)D. E. Date: 14.4.2006 Time:10.25 PM Victim gave following dying declaration: Name: Sudesh, Husband's name: Surendra Singh Age: 19 years, By caste Rajput, Resident of Raipur. Q.1 This incident happened at what time and date? Ans. At 7.00 p.m. in the evening on 14.4.2006. Q.2 Where the incident took place? Ans. In in-laws house at Raipur. Q.3 How you reached in this condition? Ans. Stove tank burst. I sat myself on fire. Q.4 Why you did so? Ans. I set on fire myself. Q.5 Who were present at the time of incident? Ans. My mother-in-law Achraj Kanwar was milking the she-goat. Younger sister Rajbala was cooking meals and nobody was there. I was cooking vegitables. Q.6 Who else came at the place of incident afterwards? Ans. My mother-in-law, maternal aunt. Q.7 Do you want to say something more? Ans. My maternal aunt's son is Vikram. My mother-in-law had gone to take milk. No male member was at home. Younger sister was cooking meals (Roti). Vikram did bad work with me. My tamper was raised and I sat on fire myself. The tank of stove was not burst of its own. Rape was committed with me. Q.8. Prior to this Vicky did anything wrong to you? Ans. No. Q.9. Where is Vicky now? Ans. He ran away. 12 Q.10. When the rape was committed? Ans. About 5 O'clock. Q.11. Whether anybody was present at that time? Ans. Nobody was there. Younger sister was preparing meals outside. Q.12. Why Vikram used to come? Ans. His coming to the house was frequent. Q.13. Why you did not take any steps to save yourself? Ans. He closed my mouth. B. Both hands of the witness had burnt, therefore, the witness was not in a condition to either sign or put her thumb impression. RO & AC Signature of the doctor is available at place 'I' to 'J' and of Pramod Bansal, the Magistrate from place 'F' to 'G'.” I. Sd/- J. G. Sd/- H. (Dr.S.M. Yadav) 14.4.2006. Civil Judge (JD) & Judicial Magistrate, Ist class, Kotputli, Distt. Jaipur. A perusal of the dying declaration when seen, it appears that it is in question and answer form. PW-18 Pramod Bansal has properly recorded the statement after obtaining certificate from the doctor available at place 'A' to 'B' on Ex.P-53. It also appears that the witness in relation to question no.7 and answer to the question has clearly stated that she was subjected to rape by the accused and on account of the act of the accused her tamper raised, she committed suicide. The contention of the learned counsel for the appellant that in reply to question no.4, the deceased has stated that she set herself on fire, therefore, the entire statement recorded by the Magistrate becomes doubtful is liable to be rejected because the dying declaration Ex.P-53 is to be read as a 13 whole and there does not appear any ambiguity in dying declaration. A lengthy cross-examination done from the witness could not shake the credibility of PW-18 Pramod Bansal. It is also pertinent to mention here that even in relation to reply to question no.4 when seen, it appears that she stated that she herself set on fire is not wrong because in reply to question no.7 the deceased has narrated the entire incident happened with her and stated that after rape by the accused she lost her tamper and set herself on fire. In other evidence, PW-5 is Dr. Vijaya Sherawat. She has stated that on 14.4.2006 she was posted as Medical Officer in BDM Hospital, Kotputli. On that day at about 11.25 p.m. deceased Sudesh Kanwar wife of Surendra Singh was examined by the medical board to ascertain the possibility of rape. She has stated that she being one of the member of the board on examining Smt. Sudesh Kanwar it was found that she was fully developed lady. No injury was found on her person. Her hymen was absent. She was habitual of intercourse. She has also stated that vaginal swab, vaginal smear, blood controlled saliva were taken and thereafter sealed. Ex.P-16, examination report was prepared which bears her signature. She has also stated that the letter Ex.P-17 was sent to the FSL and also proved the bed headed ticket Ex.P-18. It was also stated that Smt. Sudesh Kanwar was referred to SMS Hospital, Jaipur in the night at about 12.00 O'clock. It has also been stated that the condition of the patient was not good. She 14 had more than 90% burns on her body. PW-12 is Dr. Mahesh Kumar who has examined the husband of the deceased. He has stated that there were burn wounds on his face, right shoulder and hands. He has further stated that he examined accused Vikram Singh for potency and it was found that accused Vikram Singh was competent to perform intercourse. The report prepared Ex.P-38 was proved by him. PW-11 is Dr. N.L. Disania who has conducted autopsy of the dead-body of deceased Smt. Sudesh Kanwar on 17.4.2006. He has found 90% burns on the body of the deceased and the cause of death was septicemia on account of ante-mortem burn injuries. He has proved the letters written to FSL Ex.P-54 to Ex.P- 57. He has also stated that at the time of conducting post-mortem, the body was giving smell of kerosene oil. PW-20 is Neetu Rajeshwari. She has stated that on 17.4.2006 she was posted on the post of Sub-Divisional Officer, Jaipur conducted enquiry us 174 Cr.P.C. On the information of Ramesh Chandra, Head Constable, Police Station, Patan, she reached at the police chowki of SMS Hospital, Jaipur and thereafter she reached at the mortuary and there Ramesh Chandra, Head Constable gave copies of the FIR and other memos like Panchayat Nama etc. She has stated that in the opinion of panchas Smt. Sudesh Kanwar was subjected to rape and thereafter she poured kerosene oil on herself and set on fire herself. 15 PW-7 is Ramphal. He has stated that one packet in sealed condition, one small tin, one match box, burnt clothes, hairs of head, pieces of bangles, a peticot of red colour on which semen was visible and other articles were deposited in the malkhana and entries were made in malkhana register at item no.130 on Ex.P-19. He has also stated that Suresh Kumar constable no.929 brought sealed packet which was marked 'A' containing vagina swab, vaginal smear, blood control and saliva control. He has stated that entries were also made in malkhana register at Ex.P-19 at place 'C' to 'D'. He has also stated that packets received were sent to FSL, Jaipur in sealed condition. Nothing material has been extracted from this witness in the cross-examination. PW-8 is Suresh Kumar. He has stated that the accused was arrested vide memo Ex.P-11. He has also stated that he took 10 sealed packets to deposit the same in the FSL. He after obtaining the sealed packets went to FSL and thereafter deposited the same in the FSL and receipt was handed over in the police station. He has proved the entries made in the rojnamcha of his leaving police station and returning back to the police station Ex.P- 23. PW-17 is SHO, Kanhaiya Lal. He has stated that on 14.4.2006 on a wireless message received, he reached at Kotputli Hospital along with police constables, there he found Sudesh Kanwar admitted at 9.45 p.m. He has also stated that he found that there were 90% burns on the body of Sudesh Kanwar and on 16 making enquiry from Sudesh Kanwar she stated that accused Vikram committed rape with her and apprehending defamation, she poured kerosene oil and ablazed herself. He has also stated that he sent a tehrir Ex.P-52 to the Magistrate to record the statement of Sudesh Kanwar. In relation to the condition of Sudesh Kanwar, he also obtained certificate on Ex.P-52. He has also stated that Surendra Singh, the husband of Sudesh Kanwar told him that rape was committed with Sudesh Kanwar. He has further stated that he seized clothes and other articles during the course of investigation. He has also stated that on the peticot of Sudesh Kanwar white colour material was found. It is a matter of great strange that Sudesh Kanwar who was bhabhi of PW-1 Rajendra Singh who