PETITIONER: STATE OF RAJASTHAN Vs. RESPONDENT: PRITHVI RAJ DATE OF JUDGMENT12/07/1995 BENCH: REDDY, K. JAYACHANDRA (J) BENCH: REDDY, K. JAYACHANDRA (J) PUNCHHI, M.M. CITATION: 1995 SCC Supl. (3) 410 1995 SCALE (4)358 ACT: HEADNOTE: JUDGMENT:
THE 12TH DAY OF JULY, 1995
Present:
Hon’ble Mr.Justice M.M.Punchhi
Hon’ble Mr.Justice K.Jayachandra Reddy
Mr.K.S.Bhati, Adv. for the Appellant
Mr.U.R.Lalit,Sr. Adv.and Mr.R.N.Keshwani, Adv.with him for
the Respondent.
JUDGMENT
The following Judgment of the Court was delivered:
State of Rajasthan
V.
Prithvi Raj
JUDGMENT
K.JAYACHANDRA REDDY,J.
This is an appeal by the State of Rajasthan against the
judgment of the High Court acquitting the sole respondent of
the offence punishable under Section 302 I.P.C. by setting
aside the judgment of the trial court. This is a case of
wife’s murder. The appellant was married to Smt. Lachmi,
deceased about 4-1/2 years prior to the date of occurrence.
According to the prosecution though the parents of the
deceased had given dowry according to their means but the
same fell short of the expectations of the accused and his
parents and therefore the relations between them became
strained. It is alleged that the deceased was driven out of
the house of her in-laws and therefore she was living with
her parents. A panchayat was held and the in-laws of the
deceased were persuaded to keep the deceased with them and
that the deceased would thereafter go to her father’s house
for 10 days and thereafter she would be brought to her
husband’s house. Pursuant to this panchayat the deceased
went to her father’s house at Padampur. Om Prakash, the
younger brother of the accused went to take her to her
husband’s house. At that time the deceased is said to have
told her parents to give the rest of the dowry but the
parents could not arrange the same. The deceased, however,
went weeping with Om Prakash in the morning of April 25,
1978. The neighbouring ladies P.Ws. 4 and 5 bid farewell to
her. The deceased, however, went to her husband’s house and
while she was sitting in the Kotha of the house, the accused
was annoyed and asked her to go away but the deceased did
not go out of the house. It is alleged that the accused who
lost his temper, poured Kerosene oil on her clothes, lighted
a match stick and set her clothes to fire. It is also
alleged that at that time the parents of the accused were
sitting at the outer door. The deceased raised an alarm
which attracted many. The deceased was moved to the hospital
and was admitted there at 2.40 P.M. on April 25, 1978. Dr.
Rajendra Kumar Gupta attended on her and finding her
condition serious he informed the local police for getting
her dying declaration recorded. The Doctor also stated that
during her examination the patient told him that her husband
had poured Kerosene oil on her clothes. On receipt of the
intimation from the Doctor, the Assistant Sub Inspector,
Iqbal Singh reached the hospital and recorded the statement
of the deceased which is Ex.p.7. In that she has stated that
the accused poured Kerosene oil on her clothes. The Judicial
Magistrate also reached the hospital for recording the dying
declaration and after satisfying himself with the condition
and the ability of the deceased for giving the statement,
recorded the statement and Dr. P.K. Agrawal, who was on duty
at that time, certified the fitness of the patient to make
the statement. The statement was recorded at 4.40 P.M. on
the same day. The A.S.I. on the basis of the statement
recorded by him registered a case under Section 307 I.P.C.
and proceeded with the investigation. The deceased, however,
died on April 28, 1978. On information of the death, an
altered F.I.R. was issued. The post-mortem examination
revealed that the deceased died due to extensive burns. The
accused was arrested and after completion of the
investigation, the charge-sheet was laid. To prove its case
the prosecution examined 12 witnesses alongwith other
documents mainly the dying declarations. The accused,
however, pleaded not guilty and put forward a plea of alibi
and in support of his plea he examined six defence
witnesses. His plea is that the deceased was a frustrated
person and used to desert him for no reason and that there
had never been any dispute regarding the dowry. Regarding
the incident of April 25, 1978 it is pleaded that the
deceased returned from her father’s house and after arrival
she herself poured Kerosene oil on herself in an effort to
commit suicide. It was further pleaded that at that time the
accused alongwith his brother was working in his field and
that during the investigation, the Additional Superintendent
of Police visited the village and made enquiries from the
villagers regarding the cause of the death of the deceased
and many of the villagers on special oath in the temple
stated that the accused did not commit the crime. The D.Ws.
examined by the accused deposed about the alibi of the
accused as well as about the enquiries made by the
Additional Superintendent of Police. It is also the case of
the accused that he himself took the deceased immediately to
the hospital. The trial court accepting the dying
declarations and other circumstantial evidence held that the
prosecution has proved the motive as well as the guilt of
the accused. The trial court, however, rejected the defence
plea. The High Court having examined the oral evidence as
well as the contents of the dying declarations reached the
conclusion that the conduct of the accused is consistent
with his innocence and that the motive part of it is not
established and the evidence afforded by the dying
declarations in the case is a weak type of evidence and
accordingly gave the benefit of doubt to the accused.
In this appeal the learned counsel for the appellant
submitted that there are no infirmities in the dying
declarations Ex.p.7 and Ex.p.11 and that motive aspect also
is established and that the High Court without giving sound
and cogent reasons interfered with the findings of the trial
court.
To satisfy ourselves we have carefully gone through the
evidence and also the original records. From the above
resume it can be seen that the dying declarations Ex.p.7 and
Ex.p.11 recorded by the Assistant Sub Inspector and the
Magistrate are of great importance in this case. It is held
in a number of cases that if there are more than one dying
declaration, the court has to see whether they are
consistent in material particulars. In the instant case we
have to examine the contents of the dying declaration
particularly in the background of the plea taken by the
accused. In Ex.p.7 the deceased stated that her husband used
to give her threats and that he would burn her to death and
that she returned from her father’s house and was sitting in
the kotha when her husband asked her to go out. Thereafter
her husband poured keorsene on her and went out into the
aangan (court-yard). He brought a match stick and set fire.
Her in-laws were sitting near the out gate and doing
stitching work. In ex.p.11 she stated that she was sitting
in the aangan and not in the kotha and that her husband set
fire to her clothes and on making hue and cry, people
gathered and her husband and her in-laws carried her to the
hospital.
While examining the question whether it was a suicide
or homicide, the High Court considered the evidence of
medical expert who examined the deceased in the first
instance in great detail and noticed that as per the
statement of the medical expert, the hairs on the head of
the deceased were neither signed nor burnt and therefore the
statement of the deceased that while she was sitting,
kerosene oil was poured on her, does not appear to be
correct. Further, the High Court also noticed that in Ex.p.7
she stated that she was sitting in the kotha and her in-laws
were sitting in the aangan whereas in Ex.p.11 she stated
that she was sitting in the aangan. Nothing this
discrepancy, the High Court noted that if she was sitting in
the aangan then her in-laws who were also sitting in the
aangan would have noticed as to what was happening and would
not have kept quiet. The High Court also noted that the
oral dying declaration said to have been made by her before
the Doctor was wholly of general type without any details.
The High Court also strongly relied on one important
circumstance namely that the accused as well as all the
members of the family immediately arranged a jeep and rushed
the deceased the hospital. The High Court further examined
the aspect of motive and the mental make-up of the deceased
and the frustrated condition in which she was, which would
have impelled her to commit suicide. The High Court in this
context was not prepared to simply brush aside the
voluminous defence evidence. Taking all these circumstances
into consideration alongwith the plea set up by the accused,
the High Court gave the benefit of doubt and in support of
the same has given a number of reasons which cannot be held
to be wholly irrelevant.
It is true, as contended by the learned counsel, that
the manner of appreciation of the evidence in respect of the
dying declaration is not altogether sound. But the High
Court has rightly held that the immediate conduct of the
accused and his parents in rushing the deceased to the
hospital immediately by arranging a jeep is quite consistent
with their being innocent. However, we find that the overall
reasoning of the High Court in giving the benefit of doubt
to the accused cannot be said to be wholly unsound and does
not stand judicial scrutiny. This is an wholly unsound and
does not stand judicial scrutiny. This is an appeal against
acquittal and that too in respect of an offence said to have
been committed in the year 1978. Since this is a bride
burning case and having regard to the nature of the evidence
that can be available in such cases, we have gone through
the entire records including the original records. However,
having given a careful consideration to the whole matter we
are not wholly satisfied that this is a case where
interference should necessarily be called for. Accordingly
the appeal is dismissed.