1995 Supreme(Raj) 887
RAJASTHAN HIGH COURT
B.R.Arora, V.G.Palshikar, JJ.
Rela Ram - Appellant
Versus
State of Rajasthan - Respondent
D.B. Criminal Appeal No. 40 of 1989.
Decided On : 10-07-1995
A dying declaration is admissible under Section 32 of the Indian Evidence Act only if it is made by a person who is under the expectation of death and relates to the cause of his/her death or to any of the circumstances or transaction which resulted in death.
Headnote:
CRIMINAL APPEAL - Murder - Dying Declaration - Admissibility - Dying Declaration recorded by Police Officer - Dying Declaration not admissible under Section 32 of the Indian Evidence Act - Dying Declaration not reliable - Recovery of Dead Body - Recovery of Blood-Stained Kulhari - Recovery of Dhoti of the Accused - Circumstances not connecting the Accused with the Crime - Conviction and Sentence set aside - Accused acquitted.
Fact of the Case:
The appellant was convicted for the murder of his son Dhalia and causing the disappearance of the evidence of this murder, as well as for inflicting simple and grievous injuries to his wife Smt. Kasumbi. The prosecution's case was that the appellant became furious and inflicted injuries to Smt. Kasumbi with a Kulhari, one of the blows fell on Dhalia, who was in the lap of his mother Smt. Kasumbi, which resulted in his death. The accused concealed the dead body of Dhalia in the field situated in the periphery of Phalodi town.
Finding of the Court:
The court found that the dying declaration made by Smt. Kasumbi was not admissible under Section 32 of the Indian Evidence Act as it was not recorded by a Magistrate or a doctor and was recorded in suspicious circumstances. The court also found that the recovery of the dead body of Dhalia, the recovery of the blood-stained Kulhari, and the recovery of the Dhoti of the accused were not incriminating circumstances against the accused. The court further found that the investigation in the case was conducted in a perfunctory manner and that the FIR was ante-timed.
Issues: 1. Whether the dying declaration made by Smt. Kasumbi was admissible under Section 32 of the Indian Evidence Act? 2. Whether the recovery of the dead body of Dhalia, the recovery of the blood-stained Kulhari, and the recovery of the Dhoti of the accused were incriminating circumstances against the accused? 3. Whether the investigation in the case was conducted in a fair and impartial manner?
Ratio Decidendi: 1. A dying declaration is admissible under Section 32 of the Indian Evidence Act only if it is made by a person who is under the expectation of death and relates to the cause of his/her death or to any of the circumstances or transaction which resulted in death. The statement of a person, who dies, is admissible in evidence under Section 32 of the Indian Evidence Act only with respect of his/her own death but is not admissible with respect to the question of death of other person. 2. The recovery of the dead body of Dhalia, the recovery of the blood-stained Kulhari, and the recovery of the Dhoti of the accused were not incriminating circumstances against the accused as the recovery of the dead body was not made on the information and at the instance of the accused, the recovery of the Kulhari was not made on the information and at the instance of the accused and was found in an open place, and the recovery of the Dhoti of the accused could have been due to the fact that he was attending to his wife who had sustained injuries. 3. The investigation in the case was not conducted in a fair and impartial manner as the FIR was ante-timed and the investigation officer did not conduct the investigation properly.
Final Decision: The appeal was allowed, the judgment of the trial court was set aside, and the accused was acquitted of all the charges levelled against him.
JUDGMENT
1. - This appeal is directed against the judgment dated 30.11.88, passed by the Additional Sessions Judge No. 2, Jodhpur, by which the learned Additional Sessions Judge convicted the appellant for the offences under Sections 302, 307, 201, 326 and 324 Indian Penal Code and sentenced him to undergo imprisonment for life and a fine of Rs. 500/- and in default of payment of fine further to undergone two months' rigorous imprisonment for the offence under Section 302 Indian Penal Code; eight years' rigorous imprisonment and a fine of Rs. 300/- and in default of payment of fine further to undergo one month's rigorous imprisonment for the offence under Section 307 Indian Penal Code and two years' rigorous imprisonment and a fine of Rs. 100/- and in default of payment of fine further to undergo fifteen days' rigorous imprisonment for the offence under Section 201 Indian Penal Code. The learned Additional Sessions Judge, however, did not impose separate punishment for the offences under Sections 326 and 324 Indian Penal Code.
2. Appellant Rela Ram was cried by the learned Additional Sessions Judge No. 2, Jodhpur, for the offences under Sections 302, 307, 201, 326 and 324 Indian Penal Code for committing the murder of his s6n Dhalia (aged about ⅞ months) and causing the disappearance of the evidence of this murder, as well as for inflicting simple and grievous injuries to his wife Smt. Kasumbi. The case of the prosecution, which resulted in his trial and conviction, is that on 29.9.83, Smt. Kasumbi (wife of the appellant) was cooking food in her house and was serving it to the appellant. Dhalia - the younger son of the accused-was in the lap of Smt. Kasumbi. Some altercation took place and the appellant became furious and asked Smt. Kasumbi that he will beat her. After saying this, the accused got-up and picked up a Kulhari. Smt. Kasumbi asked the appellant that if he wants to beat her then beat her with Lathi instead of Kulhari because if the Kulhari will be used in her beating then it may result in her death. Thereafter the accused inflicting injuries to Smt. Kasumbi by Kulhari. One of the blows fell on Dhalia, also, who was in the lap of his mother Smt. Kasumbi, which resulted in his death. The accused concealed the deadbody of Dhalia in the field situated in the periphery of Phalodi town. The injuries of Smt. Kasumbi were dressed. This incident was witnessed by PW 2 Lalki and PW 3 Mangalki - the two daughters of the accused, who were present, at that time, in the house. PW 2 Lalki thereafter went to her uncle Chatra Ram and informed him about the incident. Chatra Ram went to Police Station, Phalodi and lodged the report on 30.9.83 at 3.30 p.m. The prosecution, in support of its case, examined fifteen witnesses. PW 2 Lalki (aged about eight years) and PW 3 Mangalki (aged about eleven years) are the two daughters of the accused and the eye witnesses of the occurrence. PW 1 Chatra Ram is the brother of the accused- appellant who, on being informed by PW 2 Lalki, went to the Police Station and lodged the report. All these three witnesses are closely related to the accused and they have not supported the prosecution case and were declared hostile. PW 4 Abdul Shah, PW 5 Bacchu Khan, PW 10 Bhom Raj Thanvi, PW 12 Kayamdeen, PW 13 Sumer Khan and PW 15 Abdul Sattar are the Motbir witnesses while PW 7 Bhanwar Singh, L.C. PW 8 Awatar Singh Gill, Deputy Superintendent of Police and the Circle Officer and PW 16 Dr. P.D. Purohit are the witnesses regarding the dying declaration made by Smt. Kasumbi. PW 16 Dr. P.D. Purohit, also, conducted the autopsy on the deadbody of Dhalia and, also examined the injuries of Smt. Kasbmbi. PW 6 Dr. Kamal Kumar Sabbarwal was the Radiologist posted in M.G. Hospital, Jodhpur, who took the X-ray of survival of Smt. Kasumbi on 30.10.83 on being referred to him by Dr. S.P. Chauhan, the Medical Jurist, M.G. Hospital, Jodhpur, and found a fracture of right frontal bone as well as of spinal process. PW 11 Kishore
Click Here to Read the rest of this document
Back
