KANTA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated 23. 02. 1998 passed by the Additional Sessions Judge, Bali convicting the appellant Rikhab Chand of offence u/sec. 302 I. P. C. and sentenced to undergo imprisonment for life and to pay a fine of Rs. 2,000/- and in default of payment to further undergo one year's simple imprisonment. Smt. Kanku and Smt. Kanta had been convicted of offence u/sec. 302/109 I. P. C. and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,000/- and in default of payment of further undergo six months simple imprisonment.

(2.) BRIEFLY stated the prosecution case as disclosed during the trial is as follows:- The appellant Rikhab Chand, his mother Smt. Kanku and sister Smt. Kanta were put to trial on the charge of murder of Smt. Kanchan. In the year 1975, appellant Rikhab Chand married to the victim Smt. Kanchan but soon she was turned out. In the year 1977, he contacted second marriage with PW-14 Smt. Kamla. Out of the said relation, second wife bore four children. Fed up with the illtreatment, Smt. Kamla left the accused Rikhab Chand. The appellant reverted to his first wife deceased Smt. Kanchan and brought her back. On 10. 03. 1995, Rikhab Chand presented himself at the Police Out Post Sevadi and reported that his wife Smt. Kanchan was burning at his residence. PW. 10 and Head Constable Khiyaram made an entry of the. information in the rojnamcha vide Exhibit P-7 and proceeded to the sport alongwith PW-18 Sawai Singh, PW-23 Devi Singh and constable Sevapuri. Smt. Kanchan was found sitting in burnt condition covered by blanket at some distance from the house of the appellant Rikhab Chand. She disclosed that her husband on the instigation of his mother and sister poured kerosine and set her to fire. Rikhab Chand was asked to arrange a jeep. Mst. Kanchan was brought to Police Station Bali in Jeep. The information was also given to the Incharge of the Police Station. PW10 Khiyaram made an entry of the incident in duty register Exhibit P-18. Injured Smt. Kanchan was taken to the hospital at Bali. The Doctor examined Smt. Kanchan and prepared Injury Report at 8. 40 AM. The statement of Smt. Kanchan was recorded by PW-25 Bakhtawar Singh vide Exhibit P-32 at 8. 50 AM in presence of PW-8 Dr. Kailash Singh Deora wherein she stated that on being abetted by mother in law and sister in law, the appellant poured kerosine and lit fire to her. A letter of request Exhibit P-15 was sent to the Additional Chief Judicial magistrate, Bali for recording dying declaration of Smt. Kanchan. PW-9 Kailash Chandra Meena, A. C. J. M. , Bali recorded the dying declaration of Smt. Kanchan vide Exhibit P-16 at 9. 20 AM. On the basis of the first dying declaration Exhibit P-32 First Information Report was registered at Police Station Bali at 11. 00 AM vide Exhibit P-33. As the condition of Smt. Kanchan was deteriorating she was shifted to government hospital at Pali. Another dying declaration was recorded by the police in the hospital at Pali vide Exhibit P-39. Appellant Rikhab Chand was arrested on 12. 3. 1995 vide Exhibit P-5. On 14. 03. 1995, Smt. Kanchan died and as such offence u/s. 302 I. P. C. was added. The police prepared the inquest report. On 15. 3. 1995, post mortem of the dead body of deceased Kanchan was conducted by PW-26 Dr. K. N. Mathur vide Exhibit P-39. After usual investigation police laid chargesheet against appellants for offence u/sec. 302, 302/109 I. P. C.

(3.) PW-25 Bakhtawar Singh send a letter of request to the A. C. J. M. , Bali vide Exhibit P-15 to record the dying declaration of Smt. Kanchan. On his request, PW-8 Dr. Kailash Singh opined that Smt. kanchan was in a fit condition to give statement. He made endorsement on the application Exhibit P-15 to the effect that the patient was in fit condition to give statement. PW-9 Kailash Chandra Meena, A. C. J. M. , Bali recorded the dying declaration Exhibit P-16 in question answer form. She disclosed the name of her mother in law as Smt. Kanku and sister in law as Smt. Kanta, She stated that at the instance of mother in law and sister in law her husband Rikhab Chand set her to fire. She also stated that she was burned by pouring kerosine on her in kitchen. She also stated that nobody came to save her life. She also stated that her husband used to beat and pressurize her to bring money from her parents. The statement was read over to Mst. Kanchan. She put her thumb impression on the said dying declaration. The main criticism against the dying declaration Exhibit P-16 is that the learned Additional Chief Judicial Magistrate before recording the statement did not obtain the opinion from the Doctor, if she was in fit condition to give statement. Another criticism is that dying declaration is cryptic. As far as the first criticism is concerned, PW-9 kailash Chandra Meena has stated that he did not consider it necessary to enquire from the Doctor About the fitness of Smt. Kanchan as on the application Exhibit P-15 the Doctor had already made an endorsement about the fitness of the patient for giving statement. We have seen the Exhibit P-15. There is endorsement made about the condition of Smt. Kanchan by PW-8 Dr. Kailash Singh. It bears time 9. 20 AM. At the same time her statement has been recorded by PW-9 Kailash Chandra Meena. Thus, there is an endorsement with respect to the fit condition of Smt. Kanchan to give statement. It does not make difference, if the endorsement with respect to the fit condition of deponent was on dying declaration Exhibit P-15. PW-8 Kailash Singh has also stated in the court that Mst. kanchan was in a fit condition to give statement. In view of this, the first criticism leveled by the counsel for the appellant does not survive and the same is rejected.