DEVI DAS Vs. STATE OF RAJ

JUDGEMENT

(1.) Accused-appellant is said to be in jail since 27.2.2005 in a case under Section 302 of Indian Penal Code. His Advocate is also not present in the court. His jail appeal was filed in this Court on 3.3.2006 and since last eight years, appeal has been pending in this Court. Today, the learned Public Prosecutor has agreed to finally argue the appeal and so his arguments in detail were heard by this Court.

(2.) The accused-appellant was convicted on 1.3.2006 by the Sessions Judge, Jaisalmer in Sessions Case No. 13/2005 under Section 302 of Indian Penal Code and he was sentenced to life imprisonment with a fine of Rs.500/- and, in default of payment of fine, he was ordered to undergo rigorous imprisonment for three months. After hearing the arguments of the learned Public Prosecutor and after perusal of the written arguments which were submitted by the accused in the trial court, we are fully convinced that the prosecution story was full of doubts and benefit of reasonable doubt should have been given by the trial court to accused Devi Das, which has not been given by the trial court and hence this appeal of accused-appellant Devi Das deserves to be allowed in the following circumstances of the case.

(3.) The learned Public Prosecutor frankly admits that the prosecution case solely depends upon the dying declaration(Ex.P.8) of Smt. Amarawati w/o Devi Das Soni aged 30 years resident of Sunarpara of Ramgarh. He further argues that the dying declaration, though recorded by the S.H.O, Police Station, Ramgarh as Parcha- Bayan, on the basis of which FIR No. 5/2005 under Sections 498A, 307 and 302 of Indian Penal Code was registered by the S.H.O., Ramgarh but he argues that the S.H.O. had no bias against the accused and he had innocently written the dying declaration as per the statement given by the deceased before her death. It has been argued that the said statement was recorded in presence of Dr. Avdhesh Gautam (PW- 3) and it has been submitted by the learned Public Prosecutor that PW-3 Avdhesh Gautam fully supports the statement of PW-17 Gulab Singh and on the basis of these two statements only, the conviction of accused-appellant Devi Das under Section 302 of Indian Penal Code is fully justified. We do not agree with the arguments submitted by the learned Public Prosecutor in this regard. Smt. Amarawati had met with her death because of burn injury after ten years of celebration of her marriage with Devi Das and she was having two daughters and one son. In the statement Ex.P.8, she has stated that her husband used to misbehave with her when he was intoxicated and on the date of incident also, he had beaten her and then caused injuries on her head with a lock and then he sprinkled kerosene over her and lit the fire. The incident is said to have occurred on 2.2.2005. Her statement Ex.P.8 was also recorded by S.H.O. Gulab Singh on the same day which had been allegedly signed by Smt. Amarawati. Ex.P.7 is injury report of Smt. Amarawati which was also prepared on 2.2.2005 and this report does not contain the signature of Smt. Amarawati and only thumb impression of Smt. Amarawati has been marked on it. PW- 3 Dr. Avdhesh Gautam has been examined in this regard and he says that Smt. Amarawati was having 80% burns on her body and her both hands were also burnt and perhaps because of burn injuries on her hands, she was not in a position to put her signature on her injury report and so her thumb impression only was marked on injury report Ex.P.7. In the circumstances of the case, alleged signature of Smt. Amarawati on her alleged dying declaration Ex.P.8 becomes doubtful. For obvious reasons, the S.H.O. must have registered a case under Section 302 of Indian Penal Code against Devi Das, though PW-5 Mangi Lal, who was real brother of the deceased Smt. Amarawati, had even specifically stated not only in his police statement Ex.P.9 but also before the Court that his sister Smt. Amarawati had told him after the burn injury that this is wrong to say that Devi Das has burnt her sister by pouring kerosene over her. On the other hand, he specifically states that in injured condition when his sister Smt. Amarawati was admitted in Jodhpur hospital, then she told him that she had put kerosene by herself over her body and tried to commit suicide. He further states that when the incident occurred, Smt. Amarawati told that her husband Devi Das was not at the place of incident and rather he was taking his meals at the residence of Thakur Das(PW-10). It is a sorry state of affairs that there was no justification for declaring PW-5 Mangi Lal as hostile and he has wrongly been confronted with her police statement Ex.P.9 because he has not deviated from his police statement Ex.P.9 at all and really he was not a hostile witness. There is no reason to disbelieve the testimony of Mangi Lal (PW-5) who was real brother of deceased Smt. Amarawati and who had no ulterior motive to save accused- appellant Devi Das also.