-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Prakash Vs. State of Rajasthan (D.B. CRIMINAL JAIL APPEAL NO.864/2002) D.B. Criminal Jail Appeal under Section 374(2) Cr.P.C. against the judgment dated 23.8.2002 passed by the Additional Sessions Judge (Fast Track), Jalore in Sessions Case No.4/2002 (Old No.1/2002). *** Date of Judgment :: 18.2.2008 P R E S E N T HON'BLE MR.JUSTICE PRAKASH TATIA HON'BLE MR.JUSTICE BHANWAROO KHAN Mr. Dhirendra Singh, for the appellant. Mr. V.R. Mehta, Public Prosecutor BY THE COURT (PER HON'BLE MR.B.KHAN J.) : 1. The instant appeal has been preferred by accused-appellant Prakash against the judgment dated 23.8.2002 passed by Additional Sessions Judge (Fast Track), Jalore in Sessions Case No.4/2002 (Old No.1/2002) whereby the accused-appellant was convicted under Section 302 I.P.C. and was sentenced -2- to undergo life imprisonment and to pay a fine of Rs.2000/-; in default of payment of fine to further undergo 2 years rigorous imprisonment and for offence under Section 498-A I.P.C. he was sentenced to undergo 2 years rigorous imprisonment and to pay fine of Rs.500/-; in default of payment of fine to further undergo 6 months rigorous imprisonment. The other co- accused Smt. Tipu was acquitted by the trial court for the offence under Sections 302 and 498-A I.P.C. 2. Briefly stated the facts as narrated by the prosecution are that on 24.9.2001, Shanti Lal gave a written report stating therein that his daughter Mamta was married with Prakash S/o Bhanwar Lal, R/o Serna before about six months. In the marriage he has given gold ornaments and other articles of dowry as per his capacity. Mamta remained in her matrimonial house comfortably for three months, but thereafter her mother-in-law Smt. Tipu, father-in-law Bhanwar Lal, brother-in-law Narpat, sister-in-law and sister of Prakash started ill-treating for not bringing proper dowry in the marriage. This was conveyed by Mamta to her mother and father. Mamta before two months when came to her parental house, she was not having any ornaments on her person, about which when enquired to she told that all ornaments have been taken by her mother-in-law and sister-in-law and threatened that unless the new ornaments are given to her, she will not be entitled to return to her -3- matrimonial house. When Prakash husband of Mamta came to bring Mamta then the protest was lodged by them not to ill-treat and harass Mamta. Prakash agreed that he would neither beat nor harass and ill-treat Mamta for dowry in future. But on 20.9.2001 at about night Ghewar Chand telephoned her that Mamta was burned by the members of matrimonial house and she is being taken to Ahemdabad for treatment. On this information, on 21.9.2001, he reached to Civil Hospital, Ahemdabad where he found Mamta in hospital having burns all over body. When he enquired from Mamta, she told that her mother-in-law and husband after pouring kerosene oil burnt her. On this report, a case under Section 498-A I.P.C. was registered by the police, but after death of Mamta on 27.9.2001, the offence under Section 302 I.P.C. was also added on the basis of dying declaration recorded at Ahemdabad. 3. But prior to it, on the day of incident i.e. on 20.9.2001, the S.H.O. after receipt of information from hospital, proceeded to hospital and found Mamta in burn condition. He recorded her statement and also gave a requisition to the Executive Magistrate, who in turn also recorded the statement on the same day. 4. The police after due investigation submitted challan against Prakash-husband and Smt. Tipu for the aforesaid offence. -4- 5. The accused denied the charges levelled against him under Sections 302 and 498-A I.P.C. and claimed for trial. The prosecution in all produced 15 witnesses and documents Ex.-P/1 to Ex.-P/26. The accused-appellant Prakash in his statement recorded under Section 313 Cr.P.C. admitted the factum of marriage, but he asserted that on the day of incident, he has gone to Jalore railway station for reservation of train ticket and got reservation of his wife Mamta, mother Smt. Tipu and sister. From where, he returned about 4.00 p.m. and asked about her mother, who was not available in the house. His wife started preparing food, but he restrained her not to prepare the food. This led altercation in between, he went outside the house and set on the foot step of the house, but after hearing cries of Mamta, he ran inside and saw that Mamta was burning. He tried to extinguished the fire and while doing so he also received burn injuries on his hands. After hearing the cries of Mamta, his mother and other neighbourers came on the spot. They took Mamta to the police station and thereafter, to the hospital. He also got examined his injuries from the doctor. His mother took Mamta to Ahemdabad hospital. At Ahemdabad, mother and father of Mamta came and thereafter story of ill-treatment was created and false case was registered against him under the influence of Mamta's parents. Almost in the same version Smt. Tipu has stated in her defence. Three witnesses were produced in defence and exhibited -5- documents Ex.-D/1 to Ex.-D/7. 6. The learned trial court mainly relied on the dying declaration Ex.-P/12 recorded on 21.9.2001 at Ahemdabad by the Executive Magistrate and discarded previous statement Ex.-P/3 and Ex.-D/7 of Smt. Mamta, which were taken by the S.H.O. and Executive Magistrate on 20.9.2001. 7. Both the parties were heard. The entire record was gone through. 8. The learned counsel for the accused- appellant argued and pleaded that there were three different dying declarations recorded on different dates, one on 20.9.2001 by the S.H.O. Ex.-P/3, second on the same day by the Executive Magistrate Ex.-D/7 and third on 21.9.2001 at Ahemdabad Ex.-P/12. All these three dying declarations were described different version of Mamta. First two in favour of the accused and third against him. The third dying declaration was recorded at Ahemdabad after arrival of the parents of Mamta and they incited Mamta to involve the accused-person in the incident. So the third dying declaration is tutored one and is given under the influence of parents of Mamta. In such circumstances, the dying declaration become suspicious. There is no other evidence of ill-treatment of Mamta or demand of dowry. No witness of prosecution has asserted that any -6- demand of dowry was ever made by the matrimonial house. The burning of Mamta came to the knowledge of Shanti Lal on 21.9.2001, but FIR was lodged on 24.9.2001 to the police station. For this delay, no plausible explanation is coming forth from the prosecution side. The learned trial court has committed factual error as well as illegality by simply relying on the third dying declaration and discarded other two, which are prior in time of third dying declaration. There is no evidence of ill- treatment of Mamta in her matrimonial house. The learned trial court has committed error and also failed to appreciate the oral evidence, as well as legal aspect of dying declaration. 9. Per contra, learned Public Prosecutor vehemently opposed the arguments put forth by the learned counsel for the appellant and contended that two dying declarations recorded by the police and Executive Magistrate were at the time of when Mamta was in custody of accused-person and it is possible that out of fear she could not dare to disclose the truth, but after getting support and company of her parents, she could have narrated true story, and this situation led the recording of third dying declaration at Ahemdabad, in which she has categorically involved her husband and mother-in-law for the commission of offence. The learned trial court rightly discarded other two dying declarations and relied on third. A -7- dying declaration needs no other corroboration and if this found true and trustworthy and can be relied on for conviction. The learned trial court after relying the same, has punished the accused-person. No interference is called for in the impugned judgment. 10. The impugned judgment of the learned trial court completely based the conviction on the basis of last dying declaration Ex.-P/12 which is in Gujarati and english version of which is Ex.-P/23, in which Mamta asserted that on 20.9.2001 in her in-laws's house at about 5.00 p.m. her husband Prakash had quarrel with her and spread kerosene oil and burnt her. This dying declaration was relied on as it was written by the Executive Magistrate PW-4 Veer Singh, who has stated that after obtaining the opinion of doctor on the application for recording the statement, he proceeded to record dying declaration Ex.-P/12, in which she has levelled the allegation against her husband and had shown the presence of her mother-in- law. As per opinion the patient was conscious. This dying declaration was admittedly recorded on 21.9.2001. Prior to this initially after receiving the information, the S.H.O., Police Station, Modra PW-3 Chain Singh has recorded the statement of Mamta Ex.- P/3 on 20.9.2001, in which she has categorically stated that while preparing food, she had an altercation with her husband, she could not bear the burden of the altercation and sprinkled the kerosene -8- oil and burnt herself. On the same day, the Executive Magistrate DW-2 Uttam Singh on the requisition of the police recorded the statement of Mamta Ex.-D/7, in which she has stated that by accident kerosene bottle fell on her and when she tried, thereafter to lit the stove, accidently, the fire broke out. These three dying declarations, two by Executive Magistrate recorded after opinion of the doctor and one by S.H.O. Chain Singh have three different versions of deceased Mamta. 11. It is settled law that dying declaration needs no corroboration but the dying declaration so recorded should inspire confidence and should be trustworthy. There is neither rule of law nor a prudence that the dying declaration cannot be acted upon without corroboration (AIR 1976 SC 2199). Also if the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it without corroboration. (VS Mour V/s State of Maharashtra – AIR 1978 SC 519). But where dying declaration is suspicious and does not inspire confidence, it should not be acted upon without corroborative evidence (AIR 1974 SC 332). Again dying declaration can be sole basis for conviction provided it is truthful, when it is not truthful it cannot be relied on (AIR 1983 SC 274). Also inconsistency between two dying declarations suggesting possibility of tutoring and false involvement conviction cannot be -9- based on such inconsistent dying declarations (AIR 1994 SC 1641). It has also been held by the Supreme Court that in a case there are more than one dying declaration if some inconsistencies are noticed between one and the other, the court has to examine the nature of the inconsistencies namely whether they are material or not. In scrutinizing the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances of the case. 12. Admittedly, three dying declarations giving different version in every statement cast a serious doubt about truthfulness of dying declaration. The last dying declaration Ex.-P/12 recorded at Ahemdabad, in which the involvement of her husband was recorded after the parents of the deceased arrived at. Initially, version in Ex.-P/3 and Ex.-D/7, there is no such allegation of involvement of her husband for commission of offence. 13. The tenor of statements recorded on 20.9.2001 Ex.-P/3 and Ex.-D/7 by the S.H.O. and Executive Magistrate exonerate the accused. In that background, why statements on 21.9.2001 at Ahemdabad came to be recorded, wherein she implicate the accused. First reason appears to be the presence of family members. This gives a scope for tutoring. If a dying -10- declaration can be viewed in the possibility of tutoring then the same has to be considered which by itself cannot be form the basis of conviction. 14. First two dying declarations Ex.-P/3 and Ex.- D/7 recorded on 20.9.2001, no suspicious circumstances have been indicated while recording the statement. If both these statements are voluntary then theory of pressure is completely ruled out. 15. The statement Ex.-P/12 was tutored and manipulated can be gathered from the oral evidence submitted by the prosecution because PW-6 Shanti Lal father of the deceased has stated that on being enquired from Mamta, he was told that her husband, mother-in-law and sister-in-law jointly burnt her. Exhibit-P/12 only relates to her husband, PW-6 Shanti Lal came to know about this incident on 21.9.2001 but lodged a report at police station after three days with no plausible explanation. The other oral evidence of PW-9 Raman Lal also does not inspire any confidence as he has stated that Mamta gave information about the incident to himself done and he never disclosed about it to anybody. Same type of statement of PW-10 Lal Chand. Thus, it becomes also doubtful to whom Mamta informed about the involvement of her husband in setting her fire. There are many contradictions and omissions in the statement of all -11- these witnesses whatsoever deposed in the Court during trial and recorded during investigation by the police. Looking to the veracity of the statement, a serious doubt about oral statement also creeps in. 16. These three dying declarations Ex.-P/3, Ex.- D/7 and Ex.-P/12 if scrutinized closely looking to the surrounding facts and circumstances as also the oral evidence produced by the prosecution, it can safely be concluded that the third dying declaration was procured after tutoring the deceased Mamta and in previous statements Ex.-P/3 and Ex.-D/7 Mamta has neither involved her husband nor her mother-in-law but she held herself responsible for the incident. 17. The inconsistencies in between dying declarations cast a serious doubt the commission of offence by the accused and in such circumstances, it is not safe to rely on third dying declaration recorded at Ahemdabad. The conviction cannot be based on Ex.-P/12 alone in absence of corroboration, which completing lacks in this case. 18. If the corroboration is search for, then the oral testimony produced by the prosecution as lac of PW-6 Shanti Lal father of the deceased, Pw-7 Smt. Babi sister of the deceased, PW-8 Smt. Bhagwati sister of the deceased, PW-9 Raman Lal and PW-10 Lal Chand -12- cannot be relied on as they all have material contradictions and omissions in the statement deposed by them in the trial court and recorded by the police during investigation. Even the mother of the deceased PW-7 Bhagwati Ben has admitted that Mamta while in hospital did not disclose anything to her for two days, but on third day as per her statement, Mamta narrated to her the story involving husband and mother, which cannot be believed. All the family members are having material contradictions about the number of person corroborated and past played by the accused-person. No reliance can be placed on such statement. No one has spoken about the ill-treatment or harassment meted by Mamta at the hands of accused. The statements are simply given to involve the accused falsely in the commission of crime. 19. The lodging of FIR after coming to know about the incident on 21.9.2001 but till 24.9.2001 no action or complaint was lodged by Shanti Lal to the police with no plausible explanation from him is also fatal for prosecution. Cumulative fact of all these leads to inevitable conclusion that the trial court should not have placed reliance on the subsequent dying declaration Ex.-P/12 and if said Ex.-P/12 is excluded from consideration, there remain nothing to support the prosecution case. The conviction thus recorded by the trial court do not have any foundation and the appeal deserves to be accepted. -13- 20. In view of above infirmities, contradictions, omissions and suspicion, the only conclusion is that the prosecution utterly failed in proving the guilt charge against the accused. Resultantly, the judgment of the trial court cannot be maintained and deserves to be set-aside. 21. Accordingly, the appeal filed by accused- appellant Prakash is allowed and the judgment passed by the Addl. Sessions Judge (Fast Track), Jalore in Sessions Case No.4/2002 (1/2002 old) is set-aside. The appellant-Prakash is acquitted of the charges levelled under Section 302 and 498-A I.P.C. He is on bail, his bail bond stands cancelled. (BHANWAROO KHAN) J. (PRAKASH TATIA) J. RM/-