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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,

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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

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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

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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.