STATE OF RAJASTHAN Vs. YUSUF

JUDGEMENT

(1.) Challenge in this appeal is to the judgment of a Division Bench of the Rajasthan High Court, Jodhpur, directing acquittal of the respondents, who were found guilty of offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the 'IPC') by the Learned Additional Sessions Judge, Sojat, Shivir.

(2.) Background facts in a nutshell are as follows; Smt. Sugra was wife of accused Yusuf, who was married with her 20 years ago. Smt. Sugra was blessed with two daughters; one was 12 years old and other was 5 years old. At about 1 O' clock on 25.2.1986 Smt. Sugra was thinking to prepare lunch in the kitchen. Just then her husband accused Yusuf entered in the house and asked her to get out of house. Smt. Sugra told him that she will leave only after a lapse of three months. On this Smt. Sugra's husband said that he would bring another wife, and Yusuf poured a bottle of Kerosene Oil on her and lit the fire. She rushed out of the house, then the daughter in law of Mahmood Khan and Farid Khan came out and threw a bucket of water on her. The Accused ran away through the crops of mustard. Head Constable Vijay Kumar and Constable Prabhu Singh of Jaitaran Police Station chowki were patrolling. The children heard the sound of running and crying that a woman is burnt whereupon they reached the spot. A woman was sitting outside the house of Sugra who was almost in naked condition. Sugra was covered with a blanket, which was lying on the cot, and with the help of a motorcyclist she was taken to hospital with constable Prabhu Singh in the hospital, Sugra's statements were recorded by the S.H.O. of Jaitaran. On the basis of above statement, case was lodged under Sec. 307, I.P.C. Site of occurrence was inspected on the day of occurrence itself and Memo Ex.P-1 was made during the inspection, on the spot (i.e. the kitchen) a kerosene bottle was found and sealed and pieces of burnt clothes were found outside the kitchen. A match-box was found in the kitchen. Collecting the pieces of burnt clothes from the spot, Memo. Ex.P-2 was prepared and memo Ex.P-3 of recovered burnt clothes - from the body of Smt. Sugra was prepared. During the investigation, certificate ExP-1 regarding the condition of Sugra for giving statement was prepared. Smt. Sugra's statement just before her dying declaration was recorded on the day of incident at 3:20 P.M. by S.H.O. Jaitaran which is exhibited as Ex.P.13. On 25/02/1986 statements of Ishq Ali, Mojhnuddin, Narpat Singh, Kaal, Jannat. Fatma, Sadiq, Tultana, and Anwar were recorded. On 27.2.1986 Smt. Sugra's dying declaration was recorded by the Additional Chief Judicial Magistrate Jaitaran. Injury report of Smt. Surga was received vide Ex.P-4. On completion of investigation charge-sheet was filed. Charges under Sec. 302, IPC against accused Yusuf and charges under Section 120-B read with Article 302, IPC against other six accused personss was read over to them. Accused persons denied the charges and claimed trial. On behalf of the prosecution side 29 witnesses were produced in the said case. Statements of accused persons were recorded under Sec. 313 of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C'). In their statements, accused said that statements of witnesses are wrong and that Sugra's father has burnt her and lodged this false case in the Court. Accused persons, in support of their defence, examined DW-1 Rajkumar. According to the evidence of D.W.1 Rajkumar, on listening to the shrieks and noise, reached to the spot first and throw water on Sugra and put off the fire and wrapped her in a blanket. Sugra told him that his father wanted to get her killed and Sugra had burnt herself and her father was standing outside the door. P.W.21 Dr. Kailash Chander Mathur on 20/05/86 was on the post of Medical Jurist in Amritkaur Hospital at Beawer. In his statement this witness has admitted that on that day, on the request of Police Station Beawer he performed the postmortem of Smt. Sugra W/o Mohd. Yusuf at 10:30 AM. It has been stated that Postmortem was done by the Board, whose members were he himself and Dr. Nirmala Agarwal and Dr. Gopal Mathur. This witness has stated that the medical board was of the view that the cause behind Sugra's death was toxemia due to extensive burn and she had died within six hours of postmortem. He stated that the postmortem report is written by him and bears his signature from A to B. The statement of this witness makes it clear that injuries of burn caused her death. According to Trial Court to be determined as to whether Sugra as per the accused persons, burnt herself or she was burnt by her father or Smt. Sugra was burnt by her husband after conspiring with other accused. The trial Court relied on the purported dying declaration and found the appellant guilty. The High Court found that there were several variations in the dying declaration and apart from that the High Court found that the dying declaration was not reliable and was not free from infirmity. The High Court found that the deceased had not made truthful statement. Primarily three circumstances were highlighted to find the dying declaration unacceptable. They were :

(3.) Learned counsel for the appellant submitted that even if there were exaggerations that should not have weighed with the High Court to direct acquittal.