STATE OF RAJASTHAN Vs. BALA RAM

JUDGEMENT

(1.) The present appeal has been filed by the State of Rajasthan against the accused appellant, feeling aggrieved by the decision of the learned Sessions Judge, Jodhpur dated 27.3.1984 in Sessions Case No. 147/82.

(2.) The learned Sessions Judge, Jodhpur tried the accused respondent for offences under Sections 376 read with Sections 511 and 302 I.P.C. The allegation against the respondent accused was that he had assaulted the deceased Ansuya wife of his younger brother with the intention to outrage her modesty and on her resistance he burnt her by pouring kerosene oil on her. This allegation was levelled against the accused respondent in a statement recorded by the learned Magistrate which has been treated as the dying declaration of the deceased Ansuya and was produced as Ex.P 6. This statement was recorded on 3.11.1982. The incident of burning had occurred on 31.10.1982 at about 7 P.M. and the death of Ansuya had occurred on 9.11.1982.

(3.) The learned Sessions Judge after trial considered the prosecution evidence and came to the conclusion that the dying declaration Ex.P 6 is not a statement which can be relied. This statement was recorded on 3.11.1982 i.e., after 4 days of the occurrence. Prior to this two other statements of the deceased were recorded. Ex.D. 2 was a statement recorded by a police official on 3.11.1982 at about 12.15 A.M. in the presence of doctor after seeking certification that she was fit to give the statement and this statement runs contrary to the statement Ex.P. 6. There was another statement recorded of the deceased by the Doctor and was produced on record as Ex.D. 4. This statement was recorded on 31.10.1982 at 8.40. P.M. It was recorded by the Medical Officer Incharge, Primary Health Centre, Asop, where the deceased was taken soon after the occurrence. In the two earlier statements of the deceased the story given by the deceased was of an accident. According to this story the deceased told the police official and, the doctor attending on her that while she was lighting the lamp before the deity. She sustained the fire from the lamp. At that time her mother-in-law was preparing meals. She started shouting and on her shouts her mother-in-law and the accused came and attempted to save her. According to these two statements it was a mere accident. The learned Sessions judge was of the opinion that the statements recorded by the doctor and the police official were anterior to statement Ex.P 6. The witnesses Durgesh and Jagdish had met Ansuya before Ex.P 6 was recorded. There v/as a possibility of tutoring the deceased and any statement recorded on the advise and saying of P.W. 2 Jagdish cannot be made the basis of conviction of the accused respondent. The learned Sessions Judge was of the opinion that the prosecution had failed to bring home the case against the accused.