SHARBATI Vs. STATE OF RAJASTHAN

JUDGEMENT

(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.