Raja Ram Vs. State of Rajasthan
EmailAppeal: Criminal Appeal No. 180 of 1998
Petitioner: Raja Ram
Respondent: State of Rajasthan
Apeal: Criminal Appeal No. 180 of 1998
Judges: K.T. THOMAS & D.P. MOHAPATRA, JJ.
Date of Judgment: Feb 29, 2000
Head Note:
CRIMINAL LAW
Evidence Act, 1872
Sections 3, 32 with Indian Penal Code, 1860 – Section 302 – Dying declaration – Appreciation – Only circum-stance against accused – Two statements made – One to police officer and other to magistrate – Both in consonance – However, evidence of doctor showing that deceased was being told by one PW that she should implicate accused or else she may face prosecu-tion – Said witness not declared hostile – Even Investigating officer concurring that PW was conversing with deceased. Held that under the circumstances, dying declaration cannot be relied upon. Appeal allowed.
(Paras 9,10)
JUDGEMENT:
ORDER
1. The Appellant was the husband of Rameshwari Devi, who was first given in marriage to the Appellant’s elder brother – Ram Chander during their childhood. When Ram Chander died before attaining majority, Rameshwari Devi was married to his younger brother who is the Appellant before us. Regarding death of Rame-shwari Devi by burns, the Appellant as well as his parents were prosecuted on the strength of the dying declaration made by her. The trial court acquitted the parents of the Appellant, but convicted the Appellant under Section 302 of the Indian Penal Code (I.P.C.) and sentenced him to imprisonment for life. Though he filed an appeal before the High Court of Rajasthan a Division Bench confirmed the conviction and sentence and dismissed his appeal.
2. There is no dispute that Rameshwari Devi died of burn inju-ries. Kerosene was doused on her by about noon time on 27.2.1992 and she was set ablaze, but she died only on 10.3.1992.
3. On 27.2.1992 itself her statement was recorded by the Assis-tant Sub-Inspector of Police (PW-12) at 1.30 P.M. It is marked as Exhibit P-17. The F.I.R. was prepared on its basis for the of-fence under Section 307 of the I.P.C. After her death the said statement was treated as evidence falling under the purview of Section 32 of the Indian Evidence Act.
4. About one hour after Exhibit P-17 was recorded PW-9 – Judi-cial Magistrate recorded the dying declaration from Rameshwari Devi, which is marked as Exhibit P-13.
5. The above two dying declarations had definitely implicated Appellant and his parents for dousing her with kerosene and setting her ablaze. The motive alleged by her in the dying decla-ration was that her parents-in-law were constantly abusing her with the allegation that the last child born to her was conceived by her not out of the wedlock. Rameshwari Devi had two children after her marriage with the Appellant and the youngest was only 9 months old when she died.
6. In order to involve the Appellant with the alleged offence the solitary evidence is the dying declaration made by the deceased. Though the dying declaration was made by her repeatedly at an interval of one hour in between, the basic factum remains that the only material of the prosecution is her dying declaration. If the dying declaration would pass the test of scrutiny it can be relied on as the sole basis of conviction. There is no dispute on the aforesaid legal proposition.
7. But the difficulty in this case is that the dying declaration cannot survive the scrutiny due to certain broad circumstances. The first circumstance is the testimony of the father of Rameshwari Devi who was examined as PW-6. He said that one Khajan Chand (PW-5) who was a neighbour was impressing upon the deceased while she was in the burnt condition that she should not tell the authorities that she herself poured kerosene and set herself ablaze as that would land her in prosecution proceedings against her. Instead she was advised to put the blame on the husband and his parents as a way out to rescue herself. As the Public Prose-cutor treated PW-6 hostile the trial court and the High Court rightly declined to place reliance on his testimony.
8. But PW-4 – Subhash Chander another neighbour, who too was present when Rameshwari Devi was removed to the hospital had also testified to the same position as PW-6 said. Of course, he was also treated as hostile by the prosecution and, therefore, he was also placed on the same position of reliability as PW-6.
9. But the testimony of PW-8 – Dr. Sukhdev Singh, who is another neighbour, cannot easily be surmounted by the prosecution. He has testified in very clear terms that he saw PW-5 making the de-ceased believe that unless she puts the blame on the Appellant and his parent she would have to face the consequences like prosecution proceedings. It did not occur to the public prosecu-tor in the trial court to seek permission of the court to hear PW-8 as a hostile witness for reasons only known to him. Now, as it is, the evidence of PW-8 is binding on the prosecution. Abso-lutely no reason, much less any good reason, has been stated by the Division Bench of the High Court as to how PW-8’s testimony can be side-lined.
10. In the above context, it is important to notice that even PW-12, the Assistant Sub-Inspector of Police has admitted in cross-examination that he saw PW-5 conversing with the deceased before he started recording the dying declaration. Of course, PW-12 was not in a position to over-hear what exactly transpired between the deceased and PW-5. But when PW-8 – Dr. Sukhdev Singh, whose testimony is completely owned by the prosecution, has stated in clear terms that PW-5 was telling the deceased as noted above, there is no escape for the prosecution from the conclusion that the dying declaration cannot by made the sole basis for the conviction of the Appellant. It is admitted that apart from the dying declaration there is nothing in evidence against the Ap-pellant.
11. In the result, we allow this appeal and set aside the con-viction and sentence passed on the Appellant. We acquit him and direct that Appellant be set at liberty forthwith if he is not required in any other case.
1. The Appellant was the husband of Rameshwari Devi, who was first given in marriage to the Appellant’s elder brother – Ram Chander during their childhood. When Ram Chander died before attaining majority, Rameshwari Devi was married to his younger brother who is the Appellant before us. Regarding death of Rame-shwari Devi by burns, the Appellant as well as his parents were prosecuted on the strength of the dying declaration made by her. The trial court acquitted the parents of the Appellant, but convicted the Appellant under Section 302 of the Indian Penal Code (I.P.C.) and sentenced him to imprisonment for life. Though he filed an appeal before the High Court of Rajasthan a Division Bench confirmed the conviction and sentence and dismissed his appeal.
2. There is no dispute that Rameshwari Devi died of burn inju-ries. Kerosene was doused on her by about noon time on 27.2.1992 and she was set ablaze, but she died only on 10.3.1992.
3. On 27.2.1992 itself her statement was recorded by the Assis-tant Sub-Inspector of Police (PW-12) at 1.30 P.M. It is marked as Exhibit P-17. The F.I.R. was prepared on its basis for the of-fence under Section 307 of the I.P.C. After her death the said statement was treated as evidence falling under the purview of Section 32 of the Indian Evidence Act.
4. About one hour after Exhibit P-17 was recorded PW-9 – Judi-cial Magistrate recorded the dying declaration from Rameshwari Devi, which is marked as Exhibit P-13.
5. The above two dying declarations had definitely implicated Appellant and his parents for dousing her with kerosene and setting her ablaze. The motive alleged by her in the dying decla-ration was that her parents-in-law were constantly abusing her with the allegation that the last child born to her was conceived by her not out of the wedlock. Rameshwari Devi had two children after her marriage with the Appellant and the youngest was only 9 months old when she died.
6. In order to involve the Appellant with the alleged offence the solitary evidence is the dying declaration made by the deceased. Though the dying declaration was made by her repeatedly at an interval of one hour in between, the basic factum remains that the only material of the prosecution is her dying declaration. If the dying declaration would pass the test of scrutiny it can be relied on as the sole basis of conviction. There is no dispute on the aforesaid legal proposition.
7. But the difficulty in this case is that the dying declaration cannot survive the scrutiny due to certain broad circumstances. The first circumstance is the testimony of the father of Rameshwari Devi who was examined as PW-6. He said that one Khajan Chand (PW-5) who was a neighbour was impressing upon the deceased while she was in the burnt condition that she should not tell the authorities that she herself poured kerosene and set herself ablaze as that would land her in prosecution proceedings against her. Instead she was advised to put the blame on the husband and his parents as a way out to rescue herself. As the Public Prose-cutor treated PW-6 hostile the trial court and the High Court rightly declined to place reliance on his testimony.
8. But PW-4 – Subhash Chander another neighbour, who too was present when Rameshwari Devi was removed to the hospital had also testified to the same position as PW-6 said. Of course, he was also treated as hostile by the prosecution and, therefore, he was also placed on the same position of reliability as PW-6.
9. But the testimony of PW-8 – Dr. Sukhdev Singh, who is another neighbour, cannot easily be surmounted by the prosecution. He has testified in very clear terms that he saw PW-5 making the de-ceased believe that unless she puts the blame on the Appellant and his parent she would have to face the consequences like prosecution proceedings. It did not occur to the public prosecu-tor in the trial court to seek permission of the court to hear PW-8 as a hostile witness for reasons only known to him. Now, as it is, the evidence of PW-8 is binding on the prosecution. Abso-lutely no reason, much less any good reason, has been stated by the Division Bench of the High Court as to how PW-8’s testimony can be side-lined.
10. In the above context, it is important to notice that even PW-12, the Assistant Sub-Inspector of Police has admitted in cross-examination that he saw PW-5 conversing with the deceased before he started recording the dying declaration. Of course, PW-12 was not in a position to over-hear what exactly transpired between the deceased and PW-5. But when PW-8 – Dr. Sukhdev Singh, whose testimony is completely owned by the prosecution, has stated in clear terms that PW-5 was telling the deceased as noted above, there is no escape for the prosecution from the conclusion that the dying declaration cannot by made the sole basis for the conviction of the Appellant. It is admitted that apart from the dying declaration there is nothing in evidence against the Ap-pellant.
11. In the result, we allow this appeal and set aside the con-viction and sentence passed on the Appellant. We acquit him and direct that Appellant be set at liberty forthwith if he is not required in any other case.
