ANGOORI DEVI JATAV Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is directed against judgment dated 30.04.2012 passed by the Court of Additional District and Sessions Judge (Fast Track), No. 1, Alwar (for short 'the trial court') whereby the trial court while acquitting the accused appellant for the offence under Sections 498A and 304B IPC, has convicted and sentenced her for offences under Section 302 IPC to life imprisonment and fine of Rs. 10,000/-, in default whereof, to further undergo three months simple imprisonment.

(2.) Brief facts giving rise to this appeal are that on the basis of parcha bayan (Exhibit P-22) of one Smt. Guddi admitted at General Hospital, Alwar in Female Surgical Ward at Bed No. 10, FIR No. 501/2010 for offence under Sections 498A, 323 and 307 IPC was registered and investigation commenced. It was alleged in the parcha bayan by Smt. Guddi that her marriage was solemnized with Vikram. In the marriage, her parents gave dowry articles more than their capacity. After the marriage her husband, mother-in-law Angoori Devi and father-in-law Harbhajan used to beat her for bringing less dowry and were demanding fridge and four wheeler. On 19.11.2010, her husband and father-in-law gave beating to her on the point of dowry. On 20.11.2010 her husband and father-in-law had gone to attend a marriage. Then at 4-5 P.M. in the evening her mother-in-law Smt. Angoori Devi set fire after pouring kerosene on her. On hearing her hue and cry, neighbours Pyarelal, Ramkhiladi, Smt. Mewa, etc. extinguished the fire and got her admitted to the hospital. During treatment, she expired on 12.12.2010. Post mortem was conducted on the body of deceased on 12.12.2010 and in the opinion of the doctors the cause of death was septicemia and shock. The case was therefore, converted into one under Section 304-B IPC. During the course of investigation the accused-appellant was arrested. After completion of the investigation, charge sheet was originally filed against accused-appellant Angoori Devi, her husband Harbhajan and son Vikram, husband of the deceased under Sections 498A and 304B IPC. However, the trial court vide order dated 29.01.2011 framed charges against accused Vikram and Harbhajan for offence under Section 498-A IPC only and against accused-appellant Angoori Devi for the offences under Sections 498A, 304B and in alternative under Section 302 IPC. Thereafter, the Public Prosecutor moved an application under section 316 and 317 Cr.P.C., 1973 for amending the charges framed against accused Vikram and Harbhajan. The trial court vide order dated 09.06.2011 amended the charges against Vikram and Harbhajan and framed additional charge for offence under Section 304B in alternative Section 302 IPC in addition to charge under Section 498A IPC. The accused persons denied the charges and claimed to be tried. The prosecution in support of its case produced as many as 16 witnesses and got exhibited 28 documents. The accused persons were examined under section 313 of Cr.P.C., 1973 wherein they stated that they have been falsely implicated in the case. The defence did not produce any witness but got exhibited two documents. On completion of trial, the trial court vide judgment and order dated 30.04.2012 acquitted co-accused Vikram and Harbhajan of the charges under Sections 498A and 304-B in the alternative Section 302 IPC and the appellant Angoori Devi for the charges under Section 498A and 304-B IPC, but convicted and sentenced the accused appellant for offence under Section 302 IPC in the manner as indicated above.

(3.) Mr. Rajesh Sharma, learned counsel for the accused-appellant argued that findings recorded by the learned trial court are against the facts and material on record and therefore liable to be set aside by this Court. The learned trial court has erred in not correctly appreciating Exhibit P-1 certificate issued by Dr. Madhuswaroop Saxena (P.W.1) mentioning that "it is certified that Smt. Guddi Wife of Vikram Caste Jatav R/o Chikani, Alwar is in position to give statement". Neither it is mentioned that she is mentally fit nor anything is mentioned about her physical condition. It is submitted that the doctor has to mention specifically that she is mentally and physically fit to give dying declaration. The acceptance of this certificate by the learned trial court for convicting the accused-appellant is illegal and perverse. Moreover, the aforesaid certificate has not been given by the doctor on the application given by the SHO to the doctor. The said certificate is alleged to have been issued by the doctor on 21.11.2010 at 12.15 AM. The parcha bayan (Exhibit P-22) of Smt. Guddi was recorded by investigating officer, Omprakash (P.W.15) on 21.11.2010 at 12.30 A.M. On the basis of parcha bayan of Smt. Guddi, FIR was chalked out at the police station on 21.11.2010 at 12.10 PM. The same ASI approached Shri Pavan Kumar Agarwal (P.W.12) for recording dying declaration and the same ASI also gave in writing to the doctor for issuing the medical fitness certificate. The alleged dying declaration (Exhibit P-19) was recorded by Pavan Kumar Agarwal, Judicial Magistrate (P.W.12) on 21.11.2010 but no time has been mentioned thereon. A bare perusal of these documents goes to show that neither a proper certificate has been issued by the doctor nor the identification of Smt. Guddi was established nor the time of documents co-related with each other. Hence, conviction of the accused-appellant relying on dying declaration is illegal and perverse and liable to be set aside by this Court.