OWN brothers witness AGAINST dead wife +say she mad +suffrd fits! STIL LIFE SENTNC MIL. When a young woman dies, some one will be hung from the nearest pole, publicly and painfully ...that IS the situation in India; LIFE SENTENCE FR ELDERLY mother !!
* young wife of 20 years age dies
* kerosine burns
* parcha bayan given by dead wife and dying declaration state MIL poured kerosine etc
* many othere witnesses point otherwise
* OWN brothers of the wife say that she was mad and suffered fits
* the kerosine lamp that was supposed to be used to light up the women can hold ony 250 ml of kerosine ...completely insufficient to kill a person\
* many simmilar inconsistencies
* still High court refuses to intervene
* ELDERLY mother TO SERVE LIFE SENTENCE !!
the importance of dying declaration, was the woman fit to answer questions etc etc discussed at length
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CASE FROM INDIAN KANOON SITE
Rajasthan High Court
Smt Sharbati vs State on 17 August, 2011
IN THE HIGH COURT OF JUDICATURE FOR
BENCH AT JAIPUR.
J U D G M E N T
D.B. CRIMINAL APPEAL NO.254/2005.
State of Rajasthan
Date of Judgment :- August 17, 2011.
HON'BLE MR.JUSTICE MOHAMMAD RAFIQ
HON'BLE MR.JUSTICE S.S. KOTHARI
Shri Surendra Singh Sunda for the accused-appellant.
Shri J.R. Bijarnia, Public Prosecutor for State.
BY THE COURT:- (Per Mohammad Rafiq J.)
1) This appeal has been filed by accused-appellant-Smt.Sharbati u/S.374(2) of the Code of Criminal Procedure, 1973 assailing the judgment dated 14/2/2005 passed by learned Additional Sessions Judge (Fast Track) No.1, Alwar (Raj.) in Sessions Case No.45/2004 (43/2004) by which, accused-appellant was convicted for offence u/S.302 IPC and was sentenced to imprisonment for life with a fine of Rs.5,000/-.
2) Brief facts giving rise to filing of this criminal appeal are that a parcha bayan of deceased-Smt.Basanti W/o Shri Chajuram Meena was recorded on 3/8/2002 in the Primary Health Centre, Malakheda vide Exb.P.10 in the presence of the medical officer of PHC Malakheda by the S.H.O. Police Station Malakheda wherein, she has stated that on that day, only she and her mother-in-law i.e. accused-appellant were present in their house and no other member was there. At about 10.00 a.m. on 3/8/2002, her mother-in-law scolded her for not bringing enough dowry and stated that she should have brought atleast that much dowry which she gave to her daughter. It was stated that she was harassing the informant for last four years for not bringing the motorcycle and Rs.5,000/-. Accused-Sharbati poured kerosene on her body and ignited the fire by a match stick, as a result of which, the Sari which she was wearing caught fire and she got serious burns. On the basis of the parcha bayan, a regular first information report for offence u/Ss.498A & 307 IPC was registered and the investigation commenced. After completion of investigation, the investigation officer filed challan against the accused-appellant. During investigation, statement of the informant was recorded u/S.164 Cr.P.C. by the Magistrate in which she reiterated the same allegations. Soon thereafter, she died. Accused-appellant absconded yet, police filed challan against her with the aid of Section 299 Cr.P.C. Trial court took cognizance against accused-appellant for offence u/Ss.498A & 304B IPC. Learned Additional Chief Judicial Magistrate, Alwar committed the case to the Court of Sessions, Alwar for trial. Prosecution recorded as many as thirteen witnesses and produced sixteen documents but the accused neither produced any witness nor produced any document in her defence. Challan against accused-appellant was filed in her absence because she was absconding whereas, trial commenced against co-accused Chaju. During trial however, accused was arrested and made to join the trial. Charges against accused-appellant was framed on 26/3/2004 for offence u/Ss.498A & 304B IPC. Learned trial court convicted the accused-appellant alone as aforesaid. Hence, this appeal.
3) Shri Surendra Singh Sunda, learned counsel for the appellant has argued that the sole basis on which the appellant has been convicted; is the dying declaration of her daughter-in-law i.e. deceased-Smt.Basanti. Apart from that, there is no other evidence against the accused-appellant. Dying declaration does not inspire any confidence. Counsel argued that the learned Magistrate while recording the statements of the deceased himself recorded the certificate about the fitness of the deceased that she was not mentally fit to give statement. No such certificate has been given by the medical officer. Learned counsel invited the attention of the court in this connection towards Exb.P.10, dying declaration recorded by the Magistrate. Learned counsel for the appellant submitted that no fitness certificate was given by the medical officer and a note was put by the learned Magistrate at about 10.20 pm on 3/8/2002 that he inquired from Dr.Rakesh Kumar Sharma, who clearly stated that Mst.Basanti was mentally fit to give statement. Dying declaration does not prove the actual facts and therefore this case can at the most be accepted to be a case of suicide. There are number of contradictions between the first version given by the deceased in her parcha bayan and the second version in her dying declaration. In this connection, learned counsel referred to the parcha bayan of the deceased and argued that therein, the deceased started saying that accused was demanding from her dowry for the sum of Rs.5,000/- and a Hero Honda motorcycle for last five years. She and her mother-in-law were alone at the home. Deceased stated that earlier also, she had filed report against mother-in-law for demand of dowry. Her father-in-law and brother-in-law were not available at the home. At about 10.00 a.m. in the morning when she was thinking for going to bath, her mother-in-law poured on her body kerosene from a bottle of Aldrin and ignited the fire by a stick from the match box, which led to burn of her sari. On hearing her hues and cries, her father-in-law Samandar Singh brought the water and extinguished the fire. If the parcha bayan is compared with the dying declaration, there are so many discrepancies and contradictions. In the parcha bayan what the deceased stated was that an effort was made to put her on fire while she was preparing for bath. In dying declaration Exb.P.10 however no such mention was made. Learned counsel at this stage referred to the site plans Exb.P.7 and Exb.P.8 stating that between the place i.e. 'x', bathroom was at extreme corner of the house and argued that if deceased was preparing for taking bath, there was no reason why her mother-in-law would put her on fire. In the site plan, there are no marks of spreading over of kerosene on the walls or the floors of bathroom. Deceased in her statement stated that when she was already preparing for bath, there was no reason for her not to save herself. This is a false story, which has been cooked up. Learned counsel submitted that the tin box of Aldrin, which was used as a kerosene lamp (chimney), alleged to have been used for igniting the fire (recovered vide memo Exb.P.9) has the capacity of 250 mgm of kerosene. Such small quantity of kerosene was hardly sufficient to put someone to death. Intention of murder therefore cannot be attributed to the accused-appellant. Learned counsel argued that two brothers of deceased PW2-Phool Chand and PW9-Bablu have not supported the prosecution case inasmuch as, they have denied the allegation as to the demand of dowry. In fact, these witnesses have stated that mental state of the deceased was not stable and that she used to get fits of madness. The demand of dowry and dowry death for offence respectively of offence u/ss.498A and 304B IPC, has thus not been found proved by the trial court itself. In the circumstances, the alleged motive for putting the deceased to fire cannot be said to have been proved.
4) Shri Surendra Singh Sunda, learned counsel for the appellant has argued that dying declaration of the deceased even though has been recorded in the shape of question and answer by the learned Magistrate but prior to recording of that statement, Magistrate did not obtain the fitness certificate of the deceased from the medical officer. Magistrate merely singed the dying declaration without satisfying himself about the mental state of the deceased. Unless, fitness certificate was obtained by the Magistrate, he could not have recorded the dying declaration.
5) Learned counsel for the appellant has cited the judgment of Supreme Court in Paparambaka Rosamma and others Vs. State of A.P. : (1999) 7 SCC 695 and has argued that it was also a case of dowry death in which Magistrate himself recorded satisfaction as to the fitness of the deceased whereas, in the statement given by the doctor at the end of the dying declaration, he merely stated that she was not unconscious. It was held by the Supreme Court that while recording the dying declaration, the doctor merely stated that the patient was conscious, was not sufficient compliance of the law.
6) Learned counsel for the appellant argued that the circumstances in which the deceased appears to have caught fire, makes it a case of suicide. It could not be believed that a lady of 60 years of age would pour the kerosene on another woman of aged 20 years. Learned counsel alternatively argued that the incident had taken place at the spur of moment. Appellant had neither the intention nor knowledge of the fact that injury that was likely to be received by the deceased would ultimately cause her death. Accused-appellant was alone at home when deceased caught fire. There was no intention of pre-meditation on her part. Appellant was 60 years of age at the time of conviction and completed 70 years when her statement was recorded in the court on 5/1/2005 u/S.313 Cr.P.C. Offence in any manner does not travel beyond the scope of offence u/S.304 Part-II IPC. Learned counsel for the appellant in support of this argument relied on the judgment of Supreme Court in Yomeshbhai Pranshankar Bhatt Vs. State of Gujarat : AIR 2011 SC 2328. It is therefore prayed that this appeal be allowed.
7) Shri J.R. Bijarnia, learned Public Prosecutor has opposed the appeal and has argued that not only the dying declaration has been recorded by the Judicial Magistrate after getting the certificate from the medical officer but the parcha bayan too has been recorded by the S.H.O. and at that stage also, medical officer has also given certificate about fitness of deceased, made his signature and affixed the seal on the statement given by the deceased. Learned Public Prosecutor cited the judgment of Supreme Court in Ram Bihari Yadav Vs. State of Bihar and others : AIR 1998 SC 1850 and argued that in the present case Shri Sohanlal Sharma, learned Magistrate has appeared in the witness box as PW12 and has stated that he did so after obtaining fitness certificate from the medical officer Dr.Rakesh Kumar Sharma, which is Exb.P.7 that she was in a condition to give statement and he got signature of the medical officer on the back of Exb.P.6. Not only that, Dr.Rakesh Kumar Sharma PW13 was produced in evidence where he stated that deceased was in a fit condition to give statement but he has also put his signatures on the parcha bayan Exb.P.10. The tin box containing kerosene from which the kerosene was poured on the body of the deceased and another bottle containing kerosene was also recovered.
8) In the case of this nature, where there is not just one dying declaration recorded u/S.164 Cr.P.C. by the Judicial Magistrate but there is in fact one more statement in the shape of parcha bayan, which are consistent and tally with each other, we are not persuaded to uphold the argument that since medical officer did not give certificate as to fit mental state of the deceased, dying declaration so recorded should be discarded.
9) Judgment of Supreme Court referred to by the learned counsel for the appellant on Paparambaka Rosamma supra stands over-ruled in view of the subsequent judgment of the Constitution Bench of Supreme Court in Laxman Vs. State of Maharashtra : (2002) 6 SCC 710, wherein it was held by their lordships that absence of doctor's certification as to mental fitness of the declarant, is a sine qua non for the credibility of the dying declaration. Where the medical certificate indicated that the declarant was conscious, it was indeed a hyper technical view to say that there was no certification as to fitness of state of mind of the declarant. Moreso, when the fitness of the declarant's state of mind was proved by the testimony of the Magistrate, who had recorded the dying declaration, no further satisfaction was required. This view has been reiterated subsequently by the Supreme Court in several decisions.
10) We may refer one such decision in Muthu Kutty and another Vs. State by Inspector of Police, T.N. : (2005) 9 SCC 113, wherein their lordships have held that if the person recording the dying declaration is satisfied about the declarant's medical condition, then such declaration will not be considered invalid solely on the ground that the doctor has not certified the condition of the declarant. In this judgment, Supreme Court considered the principles governing dying declaration and held that it can be sole basis of conviction if it inspires full confidence of the court. Court should be satisfied that deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or product of imagination. Rule of corroboration is rule of prudence.
11) We find two fine distinctions between this case and judgment of Supreme Court in Paparambaka Rosamma supra. One distinction is that the dying declaration in that case was straightway recorded by the Judicial Magistrate whereas, in the present case, parcha bayan was recorded before recording the dying declaration by the Magistrate. Second distinction is that in that case deceased received burn injuries to the extent of 90% and the prosecutrix was claiming her to be conscious and in a fit state of mind to give statement about the incident voluntarily whereas in the present case, apart from getting the satisfaction of the medical officer recorded on dying declaration at Exb.P.6, who has opined that deceased was in a fit statement of mind to give statement, such certificate was also obtained when the parcha bayan of the deceased was recorded by the police on 3/8/2002 vide Exb.P.10. Medical officer i.e. Dr.Rakesh Kumar Sharma appeared in the witness box as PW13 to prove that thumb impression of the deceased was taken on Exb.P.10 and that therein she was in a fit state of mind to give statement. There is one more distinction of this case, which is that in Paparambaka Rosamma, the deceased admitted that she poured the kerosene on herself whereas, no such case is there in the instant case.
12) Coming now to the alternative submission of the counsel for the appellant that the site plan raises doubt about genesis of the incident. We are not inclined to accept this argument because in the site plan, it has specifically been disclosed that burning took place at place 'x', which was situated at the corner of the house. Burnt sari, one tin box, night lamp (chimney), tin box containing 250 mgm of kerosene oil and certain other articles of the deceased, which were used in commission of the alleged crime, were recovered. Version of the deceased in the parcha bayan recorded on 3/8/2002 Exb.P.10 as well as other statement i.e. Exb.P.15 recorded by the learned Magistrate has substantially remained consistent. At both the places, it was stated by the deceased that it was her mother-in-law i.e. accused-appellant Sharbati, who poured kerosene over her body when she was going to take bath, and then her mother-in-law ignited the fire by the match stick, whereupon, she herself tried to put the fire off but when flames reached to her face, she raised hue and cry; thereupon, her father-in-law Shri Samandar Singh came there and extinguished the fire.
13) Although, we are conscious of the fact that allegation of dowry has not been proved before the trial court, which therefore acquitted the accused-appellant and others from the very charge of Section 498A IPC; yet charge for offence u/S.302 IPC has been proved independently against the accused-appellant. The plea of alibi set up by the accused before the trial court has not been believed as she failed to prove the same. Daughter-in-law deceased-Mst.Basanti and mother-in-law accused-appellant Smt.Sharbati were alone at the home at the relevant time and there was no one else except them. Therefore, it must be held that it was she i.e. the accused-appellant and she alone, who put the deceased on fire, which ultimately led to her death.
14) It has been contended by the learned counsel for the appellant that accused-appellant cannot be held guilty of murder and at the best it could be a case of culpable homicide not amount to murder. This argument is sought to be supported by judgment of the Supreme Court in Yomeshbhai Pranshankar Bhatt supra to argue that the facts of the present case are such that offence does not travel beyond the offence u/S.304 Part II IPC. We find that the ratio of the aforesaid judgment is entirely different. In that case, what was alleged was that appellant had caught hold of deceased by one hand and poured kerosene upon her and thereafter ignited fire by a match stick. As per the plea set up by the accused in that case, the deceased had taken a loan of Rs.10,000/- from the appellant, who was working in the house of the appellant as a maid and he insisted her to return the same. Another person by the name of Alpesh, who accompanied the appellant, was not examined as a witness. Only husband of the deceased and her elder sister-in-law were examined. In those circumstances, Supreme Court held that the court has to see circumstances very carefully before arriving at finding of guilt. Accused had no pre-meditation to kill deceased or cause any bodily harm or injury to her. He did not carry kerosene with him, which in fact was found at the residence of deceased. The appellant lost his self control. Everything happened at the spur of moment whereas, there is no such defence set up in this case. On the contrary, the defence of alibi that was set up by the appellant in the present case was not proved despite appellant's examining DW1-Khemchand & DW2-Lalaram in her defence. When alibi is not proved, it rebounds. Participation of the accused in the alleged crime on the basis of the evidence of the prosecution has been fully proved.
15) The Supreme Court in Atbir vs. Government of NCT of Delhi : (2010) 9 SCC 1, while revisiting its previous judgments in Munnu Raja vs. State of M.P. : (1976) 3 SCC 104, Paras Yadav vs. State of Bihar-(1999) 2 SCC 126, Balbir Singh vs. State of Punjab-(2006) 12 SCC 283, State of Rajasthan vs. Wakteng-(2007) 14 SCC 550, Bijoy Das vs. State of W.B.-(2008) 4 SCC 511, Muthu Kutty vs. State-(2005) 9 SCC 113, Panneerselvam vs. State of T.N.-(2008) 17 SCC 190, culled out the following principles to be kept in view while dealing with a case of dying declaration:
(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the Court.
(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.
(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.
(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.
(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be discarded.
(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.
16) Contention of Shri Surendra Singh Sunda, learned counsel for the accused-appellant that two brothers and mother of the deceased have turned hostile and not supported the prosecution case and that the deceased was a woman of unstable mind, shall have to be considered in the light of the fact that deceased in her parcha bayan has stated that erlier also, a criminal case was lodged against the appellant for demand of dowry. Learned counsel relied on the statements of PW1-Smt.Vimla, sister-in-law i.e. bhabhi of the deceased to argue that they have denied demand of dowry and also the alleged statement said to be recorded by the police. PW2-Phool Chand has stated that deceased was having weak mind and in course of time, she used to get fits and therefore she got herself burnt by pouring kerosene over herself. PW9-Bablu, another brother of the deceased has also denied demand of dowry.
17) So far as statement of PW2-Phool Chand brother of the deceased is concerned, he has gone to the extent stating in the cross-examination that deceased used to get fits and supported the plea of alibi of the accused that she had on that day gone to attend some fetival to village Haldina. Such similar statements were also made by PW-1, PW-2 and PW-3 that deceased used to get fits but those statements when confronted with their statements given to the police u/S.161 Cr.P.C., it transpires that their statements do not inspire any confidence whereas, dying declaration Exb.P.10 & parcha bayan Exb.P.12 of the deceased are consistent. PW1-Vimla in her cross-examination has stated that now the matter has been compromised with the accused-appellant although, she denied that she gave that statement because of such compromise. This witness was declared hostile.
18) In the present case, considering the injuries received by the deceased to the extent of 70%, which was as a result of pouring of kerosene on the body of the deceased by the appellant, in our view, her case cannot be said to fall in any of the Exceptions to Section 300 IPC; on the contrary, in our opinion, the case should fall in clause thirdly of Section 300 IPC and this offence cannot be held to be a case in Part II of Section 300 of IPC.
19) We therefore do not find any infirmity in the impugned-judgment. The appeal is therefore dismissed.
(S.S. KOTHARI), J. (MOHAMMAD RAFIQ), J.
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