Sharda vs State Of Rajasthan

2. Appellant has been found guilty of commission of offence under Section 302 of the IPC and has been awarded life imprisonment by learned Additional District and Sessions Judge, Dungarpur. On D.B. Criminal Appeal No. 1071/2003 being filed by her in the High Court of Judicature for Rajasthan at Jodhpur, Crl.A.No. 699/08 2 the same has been dismissed vide order dated 25.7.2007. Thus Judgment of conviction and sentence awarded by the Trial court has been affirmed. Hence, this appeal after grant of leave to the appellant.

3. Thumb-nail sketch of the facts of the case is as mentioned herein below:-

4. According to the prosecution story, for past two- three years, relations between deceased Sarla, her husband-Vinod and appellant-Sharda were strained. They used to demand dowry from her which she was not able to accede to. On 16.8.1999, deceased Sarla was alleged to have been set on fire by her mother-in-law while she was cooking food on a kerosene stove as a result of which she had sustained 90% burn injuries. She was immediately rushed to General Hospital, Sagwara.

5. On getting the aforementioned information on 16.8.1999, P.W-22 Kishore Singh posted as ASI at the Police Station Sagwara rushed to the General Hospital. Crl.A.No. 699/08 3 He reached there at about 9 O'clock at night. In the presence of PW-31 Dr. Gokul Prajapati, her first statement Exh. D-3 was recorded.

6. As per this first statement, Sarla disclosed that while cooking meals for the family, she pumped in air in the kerosene stove, which got inflamed thereby pallu of her saree caught fire. Thus she sustained burn injuries on her person. She further stated that no one had deliberately or intentionally put her on fire. Exh. D.3 is her first statement recorded at the hospital, in presence of P.W-31 Dr. Gokul Prajapati, who had put his signatures on the same along with P.W- 22 Kishore Singh. Thumb impression of deceased was also taken on it.

8. P.W-20 Ranjit Singh, after reaching hospital recorded another statement of deceased Sarla on the said date marked as Exh P-3. In the said statement, she reiterated that she had sustained burn injuries, while she was trying to extinguish burning stove, after cooking meals, which got inflamed and her Saree caught fire. Exh. P-3 bears signatures of Dr. Ravindra Mehta (not examined by prosecution), P.W-2 Ganesh Lal and P.W-20 Ranjit Singh besides the thumb impression of deceased Sarla. This was her second statement in point of time recorded in the Hospital.

9. Since the condition of Sarla had deteriorated, she was referred to Civil Hospital, Ahmedabad. She was accordingly taken there for better treatment. However, she died at Ahmedabad on 19.08.1999.

10. P.W-3 Purushottam, cousin of the deceased had submitted an application on 19.8.1999, on behalf of her grand-father PW-2 Ganeshlal to the Dy. Superintendent of Police, Sagwara stating that on the night of Monday, 16.8.1999 Sarla had been set on fire by her husband Crl.A.No. 699/08 5 Vinod and mother-in-law Sharda. This set the investigating agency into motion in registering a case against them initially under Section 498-A and 307/34 of the IPC.

11. As per prosecution, before her death, one more dying declaration was recorded by P.W-23 Suresh Chandra Dixit, Executive Magistrate, Ahmedabad, marked as Exh. P-18. This is in question - answer form. In the said last statement, for the first time, she alleged that kerosene was poured on her by her mother-in-law, the present appellant Sharda and she was set on fire by lighting a match-stick. She suffered burn injuries on account of her mother-in-law. When she cried for help, her father-in-law came downstairs and along with other neighbours, tried to extinguish the fire. She was carried to hospital by her father-in-law for treatment. Thus, this would be her third statement at the Hospital at Ahmedabad.

12. As mentioned hereinabove, initially on the report being filed at the instance of P.W-2 Ganesh Lal, offence was registered against Sharda under Section 498-A, 307/34 IPC and against her husband Vinod and Crl.A.No. 699/08 6 four other relatives only under Section 498-A of the IPC. However, after her death, charge sheet was filed against appellant under Section 302 of the IPC and against others under Section 498-A/34 of the IPC. Obviously, after her death, all the three statements of the deceased Sarla, Exh. D-3, Ex. P-3 and Exh. P-18 would be treated as her dying declarations.

13. To bring home the charges levelled against the accused, prosecution has examined, in all, 31 witnesses. In defence, no witness was examined by the appellant. On appreciation of evidence available on record, as mentioned hereinabove, the trial court recorded the finding of `not guilty' against other accused including husband of the deceased and they were acquitted but appellant was found guilty of commission of offence under Section 302 of the IPC and was awarded life imprisonment. The appeal preferred by her in the High Court was dismissed by Division Bench. Hence, this appeal.

30. Cumulative effect of the aforesaid leads to an irresistible conclusion that Exh. P-18 is not sufficient to hold the appellant guilty of commission of offence under Section 302 of the IPC. It neither inspires confidence nor is wholly trustworthy to sustain the conviction of the appellant. It was an after-thought and has been got prepared after the deceased appears to have been tutored to say so by her parents. In the light of this, it has to be completely ignored which we accordingly do so.

31. In other words, we place greater reliance on Exh. D-3, and Exh. P-3, her two earlier dying declarations which are not only consistent but also inspire confidence.

32. In the case in hand, the conviction of the appellant is based on the last dying declaration Exh.P- 18, said to have been recorded in presence of Executive Magistrate. The principle on which dying declarations are admitted in evidence is indicated in legal maxim:

33. It is indicative of the fact that a man who is on Crl.A.No. 699/08 14 a death bed would not tell a lie to falsely implicate an innocent person. This is the reason in law to accept the veracity of her statement. It is for this reason, the requirements of oath and cross-examination are dispensed with. Besides, if the dying declaration is to be completely excluded in a given case, it may even amount to miscarriage of justice as the victim alone being the eye-witness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence.

35. In the light of the aforesaid discussion, we are of the considered opinion that Exh. P-18 cannot be treated as wholly trustworthy as it is shrouded by many doubts. On the other hand, for the reasons recorded herein above, Exh. D-3 and P-3 are more reliable and credible. Going by the same would fully establish that the deceased had not implicated in the same anyone much less the appellant.

36. Thus, we have no doubt in our mind that the impugned judgment and order of conviction passed by the learned Sessions Judge and confirmed in appeal by the High Court cannot be sustained in law. The same are hereby set aside and quashed. The appeal is allowed accordingly. The appellant is in jail, she would be released forthwith, if not required in any other case.