AVINASH KUMAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The instant appeal is directed against the judgment dated 30.3.2007 passed by the Additional Sessions Judge (Fast Track) No.1, Jodhpur in Sessions Case No.54/2006 by which the appellant accused is convicted and sentenced under Section 302 I.P.C. for life imprisonment and a fine of Rs.5000/- in default of payment of fine, further to undergo 3 months imprisonment.

(2.) In nutshell the story of the prosecution is that Satyen Datta a Doctor of Military Hospital sent a proforma report Exhibit P.8 on 6.9.2005 to Police Station, Udai mandir Camp M.H. Jodhpur informing that; Smt. Oma Devi W/o Avinash Hawaldar was brought by Shri N. Murti and Ramswaroop per Ambulance with 100% burn injuries in the hospital for treatment, during the course of admission and check up, said Oma Devi informed doctor that her husband Avinash burnt her by dousing kerosene over her and she sustained burn injuries, initially on the basis of this medico-legal report, which was reduced into writing by the Duty Medical Officer attending the patient in Military Hospital, Jodhpur, a FIR was lodged as Report No.519/2005 under Section 498-A and 307 of IPC at Police Station Udai Mandir, Jodhpur and subsequent to the investigation undertaken and conducted, a charge-sheet under Sections 498A, 304B and 302 of IPC was filed qua husband of the deceased, against whom a narration naturing dying declaration was made before D.M.O and after filing of the charge-sheet, trial was conducted against the Accused, the trial Court framed charges under Sections 302 and 304-B of IPC and prosecution produced nineteen witnesses and got exhibited thirty one documentary exhibits, While culminating the trial, learned trial court held the appellant-accused guilty and convicted him under Section 302 IPC and sentenced him as stated hereinabove, the appellant-accused has preferred appeal under hand assailing the same.

(3.) Heard learned counsel for the appellant as well as learned public prosecutor, learned counsel for the appellant-accused has contended that there are two FIRs Ex.P.3 and Ex.P.8 but the doctor on whose information Exhibit P.3 was lodged has not ratified the same in his evidence, there was no kind of discontent between the couple and victim did not disclose anything in the nature of homicidal burning before anybody during the course of saving her at her residence and ferrying her to hospital, neither there was any reason to utter anything to the doctor in the nature of dying declaration, said army Doctor has not recorded any dying declaration, but has noted such kind of allegations in the case history without any disclosure or substance and Senior Doctor Datta has also not been produced in the evidence even the allegations of kerosene pouring by her husband has also not been narrated to another senior army Doctor to whom the patient was referred vide Exhibit 3, learned counsel has submitted that tendering of this document i.e. Ex.P.3 has also been declined by the said Doctor, if this FIR was there, which has been relied by the prosecution, then how and why Exhibit P.8 another FIR was taken on record, this makes the case of the prosecution highly doubtful and unreliable. Learned counsel has further added that PW10 Abhinandan, a child witness son of the accused has specifically said that incident was caused accidentally and no intentional burning was there. He has further said that the in-laws of the appellant-accused were nurturing animosity with the appellant-accused and the appellant-accused has lodged a FIR against his in-laws for theft, which they had committed in his house in Himachal Pradesh, this is why the parents of the deceased lady have concocted fake story against the appellant-accused. The said noting of alleged dying declaration allegedly recorded by the Army Doctor cannot be read against the appellant-accused, because it does not come under the purview of dying declaration. Moreover, the said Doctor and several other material witnesses even the Senior Physician having charge of the patient have not been produced in evidence. The prosecution story is highly doubtful, there are significant contradictions in the evidence of several witnesses and the learned trial court, while ignoring all the shortcomings has wrongly convicted the appellantaccused, so the appeal of the appellant be accepted and he be acquitted.