-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Arjun Ram and Ors. Vs. State of Rajasthan (D.B. CRIMINAL APPEAL NO.113/1994) D.B. Criminal Appeal under Section 374 Cr.P.C. against the judgment dated 22.2.1994 passed by the Sessions Judge, Jaisalmer in Sessions Case No.18/1992. *** Date of Judgment :: 14.2.2008 P R E S E N T HON'BLE MR.JUSTICE PRAKASH TATIA HON'BLE MR.JUSTICE BHANWAROO KHAN Mr. Suresh Kumbhat, for the appellant. Mr. Vishal Raj Mehta, Public Prosecutor BY THE COURT (PER HON'BLE MR.B.KHAN J.) : 1. On 27.3.1992, S.H.O., Police Station, Khuhadi, who was on routine checking on the activities of Smuggler, happens to visit Bhilon Ki Mali where at an oral report dictated by Smt. Chhagni was taken down by him. The same sent to Police Station, Jaisalmer having jurisdiction resulted in the conviction of accused after trial by the Sessions Judge, Jaisalmer, -2- who convicted and sentenced to Arjun Ram, Peera Ram and Smt. Ashi for the offence under Section 304-B I.P.C. to undergo the life imprisonment. The said accused-persons have preferred this appeal. 2. Brief facts as narrated by the prosecution are that Chokha Ram, S.H.O., Police Station Khuhadi, who was on routine checking, when reached to Bhilon Ki Mali, received an information from Chuhad Ram about the seriousness of his daughter. At the residence of Chuhad Ram, an oral information was given to the S.H.O. Chokha Ram by Smt. Chhagni, who stated inter- alia that she was married to Arjun Ram S/o Teja Ram, R/o Jaisalmer before four years. After the marriage, her husband Arjun Ram, mother-in-law Smt. Ashi, father-in-law Teja Ram, sister-in-law Sajni and younger brother of husband Peera Ram used to harass her for not bringing proper dowry as her father has not given sufficient brass metal and because of that demand they used to give him beating and harassment. They used to say that she is not educated, so they would not keep her as wife of Arjun Ram. The protest of said action of the accused-persons was lodged by her father and mother, but they kept on beating her. Peera Ram gave beating from handle of spade on her head. All used to beat her in close room, by which she received head injury and two teeth were broken. She received injury on the back portion of her person and on the head. She was given burn injury by hot iron -3- rod (Dab) on buttocks and on internal part of body. She was not given proper food and she has been dropped at her parental house by Arjun Ram along with Amba Ram and 4-5 other persons in a jeep. The dowry given by her father is lying with the accused-persons. This report was taken down at 1.00 p.m. and sent to Police Station, Jaisalmer which was received at about 5.30 p.m. 3. The injured Smt. Chhagni was admitted in hospital on the same day and she died about 5.55 p.m. Initially, the case was registered under Sections 498- A, 342 and 323 I.P.C., but after death of Smt. Chhagni, Section 304-B I.P.C. was also added. The challan was filed against Arjun Ram, Teja Ram, Peera Ram, Smt. Ashi and Smt. Chhagni for the commission of the said offences. 4. The accused-persons denied the charges framed under Section 304-B I.P.C. and claimed for trial. The prosecution in all produced 22 witnesses and also produced documents Exhibit-P/1 to Exhibit-P/16A. The accused-persons in their statements under Section 313 Cr.P.C. denied the allegation levelled by the prosecution testimony by admitting the marriage of the deceased with Arjun Ram and asserted that the deceased's father and mother wanted to marry the girl somewhere else, for which a private complaint was lodged by deceased Smt. Chhagni against her father and -4- others. The statement of Smt. Chhagni was also recorded in that complaint and because of that enmity mother and father are stating against the accused. Three witnesses were produced in defence and documents Exhibit-D/1 to Exhibit-D/3 were got exhibited on behalf of the accused-persons. 5. The learned trial court after going through the entire evidence acquitted Teja Ram and Smt. Sajni for the offence charged, but convicted and sentenced the appellants on the basis of FIR treating it ot be dying declaration and believing the testimony of prosecution. 6. Both the parties were heard. The entire record was gone through. 7. The learned counsel for the accused- appellants pleaded that there is not an iota of evidence against the accused-persons to convict them under Section 304-B I.P.C. as Smt. Chhagni after marriage visited her parental house only twice, she also lodged a private complaint against her own father and others and gave a statement against them narrating that she was living in her husband's house comfortably and she never alleged that any dowry was demanded by the accused or harassment given by them. She used to remain ill and because of that the husband dropped her at parental house. No complaint whatsoever has been -5- lodged by the parents of the deceased but when S.H.O, Police Station, Khuhadi, who was not having jurisdiction of investigation simply taken down an oral report and sent to the concerned police station for investigation. In no circumstances, this report can be treated as dying declaration and if at all it is to be treated as such still at the time of recording of the statement, no fitness of mental status of the deceased was recorded by any expert. The FIR recorded at 1.00 p.m. and she died in hospital at 5.55 p.m., it cannot be said that she was fit to give the oral statement. The circumstances do not link the accused-persons for the commission of crime. There is no custom in the Bheel community to give and demand of dowry at the time of marriage. It was simply alleged that a brass pot was not given in the dowry, because of that the accused-persons harassed her, the fact cannot be believed. There is no corroboration of the testimony produced by the prosecution witnesses. The learned trial court has committed an error by relying on uncorroborated evidence. The prosecution has completely failed to bring home the guilt against the accused-persons. 8. Per contra, learned Public Prosecutor supported the judgment of the learned trial court and pleaded that dying declaration recorded by the S.H.O, Police Station, Khuhadi needs no corroboration and deceased Smt. Chhagni has herself given the statement -6- in which she narrated to have received all injuries which ultimately culminated in her death. The S.H.O., Police Station, Khuhadi, who happens to be an experienced person, by looking to the mental status of the deceased have recorded all the statement dictated by her and no manipulation, addition was done by the S.H.O. The father of the deceased categorically stated that how the girl was harassed for demand of dowry. Though the mother turned hostile, but her total statement cannot be effaced from the record as her statement finds corroboration with the statement of her husband. There is no illegality or any error of facts which requires any interference in the judgment of the learned trial court, who after going through the entire evidence documentary as well as oral have convicted the accused-persons. 9. The marriage of deceased Smt. Chhagni with Arjun Ram is admitted. She was dropped by her husband 4-5 days prior to 27.3.1992 along with PW-3 Deu Ram, PW-4 Thana Ram and PW-5 Ganpat Ram in a jeep at her parental house. It is also admitted that when she was dropped at her parental house, no FIR was lodged by any of the family member of the deceased and they remain seated in their village. But on 27.3.1992 when S.H.O. Chokha Ram arrived at, was requested to take down the report given by deceased Smt. Chhagni. 10. PW-10 Chuhad Ram has admitted that after -7- marriage, his daughter came to her parental house once after 15 days of marriage and thereafter, she was dropped by the accused-persons at her parental house after 3½ years. Then it was narrated by his daughter deceased Smt. Chhagni that the accused-persons used to harass her for dowry. His daughter was given beating by Arjun Ram and given burn injuries by hot iron rod (Dab) on her body including the internal organs. He has also admitted that when his daughter returned after fifteen days of her marriage, she did not complaint about the dowry, but second time when he went to bring his daughter, a complaint was made by his daughter about the dowry and harassment, but no complaint was lodged by him against the accused. He has also admitted in his cross-examination that his daughter has filed a private complaint (which is Exhibit-D/2) against him and the same has been proved by the accused-persons through statement of DW-3 Omprakash, who was advocate of the deceased in which the statement of Smt. Chhagni Exhibit-P/3 were recorded. 11. From perusal of Exhibit-D/2 and Exhibit-D/3, it is revealed that till 1990 deceased Smt. Chhagni was comfortable at her husband's house. The complaint filed indicates that Smt. Chhagni has levelled allegation against her father stating that her father wants to give her in marriage to some other person. To achieve this, her father along with others tried to -8- abduct her, but failed. From this complaint and statement of deceased Smt. Chhagni it is well proved that till 1990 there was no allegation of any harassment and demand of dowry by the accused-persons. As per statement of Chuhad Ram her daughter came to her parents house only once and at that time no complaint for demand of dowry was made, so it cannot be said that prior to 1990 any demand or harassment was ever complaint by the deceased to her father and mother. After marriage, she was finally dropped by the accused-persons in the year 1992 and at that time when they dropped her at her parents house, no such complaint was made by the parents of the girl and no report was lodged by the parents to the police. 12. From perusal of the postmortem report (Exhibit-P/6) it is found that the cause of death of is sub dual heamatoma at occipital and left parietal regions which is a serious injury. Even the father of the deceased Chuhad Ram has admitted in his cross- examination that when Smt. Chhagni was deboarding the Jonga jeep, she fell down and PW-11 Dr. Gajendra Kumar has admitted that the injuries mentioned in the postmortem report (Exhibit-P/6) can be received by falling on the ground. Looking to the physical conditions of the deceased as she was of weak body and at the time of giving FIR she was supported physically by her mother. It cannot be ruled out that while deboarding from the Jonga jeep, she could have fall on -9- the ground. The receiving of head injury by falling on the ground cannot be ruled out. 13. Along with this, there is also dispute about the number of injuries. First time the number of injuries were recorded in Exhibit-P/7 by Chokha Ram, S.H.O, Police Station, Khuhadi, the same is not tallying with the injuries mentioned in the postmortem report (Exhibit-P/6) and also the injuries mentioned in Exhibit-P/4. PW-22 Dr. B.R. Goyal, who got admitted that the deceased in the hospital has not recorded the injuries on the person of the deceased, but only called for medical jurist. But before medical jurist could reach, Smt. Chhagni died in the hospital at about 5.55 p.m. In Exhibit-6 there is no mention of the injuries by burn and on the internal part of the body. How these injuries were mentioned by the S.H.O. at the time of recording the FIR is not understandable and does not find the support from the medical report. About the number of injuries there is also doubt and it cannot be presumed that deceased also received burn injury (Dab) at the hands of the accused-persons. As PW-11 Dr. Gajendra Kumar has categorically admitted that he had not seen any burn injury on the internal part and any other part of the body except those of mention in Exhibit-P/6, so the injuries mentioned in Exhibit-P/7, Exhibit-P/4 are totally doubtful and cannot be relied on. -10- 14. For the offence of demand of dowry and harassment which always occurred at the residence of the husband. The eye-witness or any other witness linked with the harassment cannot be produced by the prosecution. The inference has to be drawn from the overall situation and circumstances of the case. Mostly, circumstantial evidence are produced by the prosecution but the circumstantial evidence should undoubtedly be linked to the accused-persons in the commission of crime. Here in the instant case for circumstantial evidence only mother and father have been produced. PW-15 Maggi mother of the deceased stated in chief about the harassment and demand of dowry, but in the cross-examination she has completely denied about the statement whatever she has deposed in the examination-in-chief and has admitted that her daughter was suffering from epilepsy and under the fit she could fell down at any time. The complete denial of allegation in cross-examination cast a doubt about her testimony. She is mother of the deceased, but the statement is not in corroboration of what her husband deposed. Father of the deceased Chuhad Ram also faced a criminal trial lodged by her against him. In these circumstances, when these two witnesses' statements do not support and corroborate each other, it cannot be said that the accused-persons are responsible for demand of dowry and harassment. 15. Now comes the question of Exhibit-P/3, the -11- FIR written by the S.H.O., Police Station, Khuhadi Chokha Ram PW-21, who has stated that the said FIR was written by him as per oral statement of Smt. Chhagni in the presence of Chuhad Ram – father of the deceased, Maggi-mother of the deceased and deceased Smt. Chhagni herself and one Poonma Ram and another Ugam Singh, both independent witnesses. Ugam Singh has categorically denied in his examination-in-chief that no such FIR was written in his presence and it was got signed by the S.H.O. while he was in the School and he has not been turned declare hostile. Poonma Ram has not been produced in prosecution witness. It is a settled law that the FIR is not a substantive piece of evidence. It can either be used for corroboration or contradictions. The contents of the FIR has not been corroborated by the independent witness. 16. Now whether it can be treated as a dying declaration and what effect it will have to be seen. It is also a settled law that the dying declaration needs no corroboration but the dying declaration so recorded should inspire confidence and 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 -12- suspicious and does not inspire confidence, it should not be acted upon without corroborative evidence (AIR 1974 SC 332). While relying on the dying declaration, the sole basis of conviction and sentence by the Courts of law, it must be kept in view that the prosecution story may not only be true but it must be true. 17. While keeping these observations, a close scrutiny of Exhibit-P/3 dying declaration reveals that the language used in Exhibit-P/3 could not have been dictated by uneducated lady because the language used is very tough and she could not have understood the word used in the said dying declaration. A close scrutiny of Exhibit-P/3 clearly indicates that the thumb impression was obtained prior of writing it because the hand-writing is super imposed on thumb impression which is not possible and cast a doubt about it. Along with this the witnesses in whose presence it was written, have not supported Exhibit- P/3 because Ugam Singh PW-19 has completely denied about the writing of this report in his presence and next witness Poonma Ram has not been produced by the prosecution. In these circumstances, it can safely be presumed that this declaration was not recorded in the presence of independent witnesses. Maggi, mother of the deceased has not supported the version of her husband Chuhad Ram, in such circumstances recording of Exhibit-3 as per direction of Smt. Chhagni becomes -13- doubtful. 18. The Rajasthan Police Rules, 1965 are elaborate in laying down the procedure for recording the FIR and dying declaration. Rule 6.22 of the Rules of 1965 is reproduced as under :- “Rule 6.22 – Dying Declaration :- (1)- .... .... .... .... .... .... .... .... .... .... .... .... (2)- .... .... .... .... .... .... .... .... .... .... .... .... (3)- If no Magistrate can be obtained the declaration shall, when a Gazetted Police Officer is not present, be recorded in the presence of two or more reliable witnesses unconnected with the police department and with the parties concerned in the case. (4)- .... .... .... .... .... .... .... .... .... .... .... .... (5)- .... .... .... .... .... .... .... .... .... .... .... ....” 19. The statement of Chokha Ram reveals that the rules are not complied with strictly in later and spirit as in absence of Magistrate dying declaration should be recorded in the presence of two or more reliable witnesses unconnected with the police department which is not found in the instant case. -14- Hence, this lacuna is also fatal to the prosecution case. 20. The overall discussion of the case reveals that there is difference about the number of injuries on the person of deceased Smt. Chhagni mentioned in Exhibit-P/7, Exhibit-P/4 and Exhibit-P/6. Chokha Ram, S.H.O., Police Station, Khuhadi (PW-21) prepared Exhibit-P/7, Jai Narayan Sher, Dy.S.P. (PW-20) prepared Exhibit-P/4 and postmortem report (Exhibit- P/6) prepared by the doctor. Even the doctor has not found burn injuries on the body and private part of the deceased. The writing of dying declaration by S.H.O., Police Station, Khuhadi, is in total contravention of the Rules provided under the Rajasthan Police Rules. No complaint was ever lodged by the parents of the deceased when she was dropped at the residence of her parents and they remain silent without any further action on their part. For this delay no explanation is coming forth from the prosecution side. There is no corroboration of whatsoever of the statement of Chuhad Ram from any other independent witness. The dying declaration also seats serious doubt about its truthfulness and when suspicion arises about dying declaration the corroboration must be searched for, which is totally absent in this case. No expert evidence is available about the mental fitness of the deceased at the time of recording of the dying declaration as it was taken -15- down by the S.H.O. at about 1.00 p.m. and Smt. Chhagni died in hospital at about 5.55 p.m. In such circumstances, it cannot be presumed that she was mentally fit to depose whatever has been written by Chokha Ram. In view of the aforesaid infirmities, suspicion, the only inevitable conclusion is that the prosecution has utterly failed in proving the guilt charge against the accused-persons. Resultantly, the judgment of the trial court cannot be maintained and deserves to be set-aside. 21. Accordingly, the appeal filed by accused- appellants is allowed and the judgment passed by the Sessions Judge, Jaisalmer in Sessions Case No.18/1992 is set-aside. The appellants (1)- Arjun Ram, (2)- Peera Ram and (3)- Smt. Aashi are acquitted of the charges levelled under Section 304-B I.P.C. They are on bail, their bail bonds stand cancelled. (BHANWAROO KHAN) J. (PRAKASH TATIA) J. RM/-