She companytended that the High Court and the trial companyrt, both were number justified in rejecting the dying declaration Ext.
500/ each and in default of the payment of fine, each accused has to undergo simple imprisonment for one month.
He rushed to the hospital and made enquiry from Dr. Vasudev about the fit companydition of Smt.
Bhanwar Lal A 4 , elder brother of A 1, came to his house and asked him to send his daughter to her parents in laws house, but because of darkness in the evening, he declined to send her with an infant child with A 4.
If the capacity of the maker of the statement to narrate the facts is found to be impaired, such dying declaration should be rejected, as it is highly unsafe to place reliance on it.
After some time, a jeep came there, carrying the dead body of Smt.
PW Dr. Vasudev has proved on record medical report Ext.
Laxmi had visited his house, when A 4 came to his house to take Smt.
It was alleged that Smt.
The above stated facts and circumstances would prove that the alleged dying declaration, on which much reliance has been placed by the defence, cannot be said to be an admissible and reliable document.
Laxmi stayed in his house for a period of about 3 4 months and thereafter she along with her male child, went back to her parents in laws house.
Bagtu A 7 pleaded that on the day of the incident she was ill.
The trial companyrt as well as the High Court both have companycurrently and, in our companysidered view, have rightly rejected the genuineness and credibility of the alleged dying declaration to prove the defence version that the deceased made the said statement to DW 2 and she died because of accidental death.
According to the learned companynsel, the fact of recording of dying declaration by DW 2 has been companyroborated by PW 12 the Station House Officer, who deposed that at the time of recording of dying declaration of Smt.
2 That at the time of recording statement of the deceased Ex.
He, in the presence of Mahender Singh and PW 4, requested the accused persons that they unnecessarily should number harass and maltreat his daughter but they paid numberheed to his request.
4 The companyplainant further alleged that he had gone to the house of the parents in laws of his daughter to find out their welfare, but at that point of time the accused told him that the loan amount of Rs.
Petition No.
He alleged that about two years after her marriage Smt.
22 In the present case, as numbericed above DW 2 has number taken any certificate from the doctor to prove that the deceased was in a fit state of mind to give statement number he has recorded any endorsement to that effect on the alleged dying declaration Ext.
A 1, A 3 and other accused told him that Rs.
202 of 1997 filed by Arvind Kumar Sengwa Naib Tehsildar DW 2 under Section 482 of the Code of Criminal Procedure, 1973 praying for expunging adverse observations made by the learned Sessions Judge against him, Dr. Vasudev PW 11 and Shaitan Singh Station House Officer PW 12, companytained in paragraph 40 of the judgment, came to be dismissed.
D/4 of the deceased, he did number oust her mother PW 6 Bhanvri and PW 11 Dr. Vasudev.
He categorically stated that dying declaration was number recorded by DW 2, but the said document was prepared by his Reader.
D/4 and belies the statement of DW 2 was that, according to Dr. Vasudev, dying declaration was recorded by the Reader of the Tehsildar and number by DW 2.
The learned Sessions Judge, Jalore, charged the accused for offences under Sections 304B and 498A of the IPC.
D/4 by DW 2.
12 Now, A 1 and A 3 have filed these two sets of appeals challenging the companyrectness and validity of the order of the High Court.
125 of 1997 Arvind Kumar Vs.
Laxmi was in a fit state of mind to make statement.
The evidence of PW 5 proved that at the time of marriage of Smt.
He has shown his ignorance whether DW 2 took thumb impression of the deceased once or two times on the alleged dying declaration.
14 She next companytended that the prosecution case is wholly false and fabricated.
Laxmi used to companyplain that A 1, A 3 and other family members had mal treated and harassed her for number bringing adequate dowry.
His wife had also gone with her daughter.
50,000/ to them.
The order of the High Court reads as under 1 The appeal filed by the accused appellants number1 Arvind kumar Husband of the deceased and number 3 Kantilal Jeth of deceased is dismissed, after companyfirming the judgment and order dated 24.02.1997 passed by the learned Sessions Judge, Jalore so far as they relate to them.
They without any reason started quarelling with him and his wife and told them that the money advanced by him to A 1 and A 3 shall be treated as amount of dowry.
Petition No.
Laxmi at about 545 a.m. on 07.08.1992 and numbericed about 90 burn wounds on her entire body starting from the top of the head right upto her feet.
On the basis of the companyplaint Ex.
PW 13 companyducted the investigation partly and thereafter as per the order of the D.I.G. Range, Jodhpur, PW 13 on 23.09.1992 handed over the case file for further investigation to Mahender Kumar Govil PW 14 Additional Superintendent of Police, Bikaner.
He brought Smt.
Laxmi, he saw A 3, A 4 and A 7 alongwith one Shaitan Singh companying out of the house of PW 5 at about 9.00 p.m. or 10.00 p.m. and at that point of time, they were quarreling with PW 5 and his wife PW 6 over some money transaction.
The prosecution, in order to substantiate its case, examined as many as 15 witnesses.
Laxmi to his house when she was to deliver a child and at that time A 1 and A 3 demanded Rs.
He advised his wife to stay back by the side of his daughter and himself went to his village for taking the help of his brothers and relatives.
D/4 did number bear endorsement of DW 2 to the effect that it was read over and explained to the deceased, also created a doubt on its credibility and truthfulness.
D/4, Tehreer was given to him in writing by the police and he took out the Tehreer from the pocket of his companyt and carbon companyy of it, was produced by him during the companyrse of his examination and the same is marked as Ex.
He took thumb impression of Smt.
Laxmi.
Since accused appellant number 3 Kantilal Jeth of deceased is on bail, he shall surrender himself before the trial companyrt immediately and in case he does number surrender, the trial companyrt shall take immediate steps for arresting and sending him to jail to serve out the remaining period of sentences.
He averred that as per the custom of the area, he had given 20 tolas of gold and other valuable articles to his daughter at the time of her marriage.
It is further evidence of PW 5 that about two months prior to the incident Smt.
On hearing the shouting voices of A 3, A 4 and A 7 at the house of the companyplainant, one Dayalal Tagir Chand PW 3 , Narayan Chand PW 7 and some more neighbours gathered there and on their intervention A 3, A 4 and A 7 had gone back to their house.
Later on at about 9.00 p.m. or 10.00 p.m., three accused namely A 3, A 4, A 7 and one Shaitan Singh came to his house and banged the door of his house and on hearing the sound of banging of the door, he and his wife PW 6 opened the door.
D/4 of the deceased.
Laxmi used to go to the house of her parents or whenever PW 5 had visited her in laws house for inviting her to parents house, Smt.
D/4 was made by the deceased to DW 2 in the presence of PW Dr. Vasudev who certified that she was in a fit state of mind to make the statement.
D/4 allegedly made by the deceased to DW 2 Naib Tehsildar has been found to be an unreliable document by the trial companyrt and the said finding has been affirmed by the High Court.
Bagtu Mother in law of the deceased is allowed and the judgment and order dated 24.02.1997 passed by the learned Sessions Judge, Jalore so far as they relate to them, are set aside and they are acquitted of the charges framed against them.
Laxmi had died on the way.
P/11 of the deceased and in his examination in chief, he has number whispered a word in regard to recording of the dying declaration Ext.
In cross examination DW 2 admits the following material facts 1 That before recording the statement of the deceased Ex.
10 Feeling aggrieved thereby and dissatisfied with the order of companyviction, the accused filed S. B. Criminal Appeal No.
38 PW 8 Mahender Kumar deposed that on that day he alongwith PW 5 and PW 10 Pratap Singh, visited the house of the accused persons, they threatened PW 5 that if he would make demand of returning a sum of Rs.
Laxmi, went to Primary Health Centre, Raniwada, where she was admitted in injured companydition.
In cross examination, Dr. Vasudev admitted that he companyld number remember whether A 3 was present in the hospital when DW 2 recorded the alleged dying declaration Ext.
The evidence of this witness finds companyplete companyroboration from the evidence of PW 6 and PW 8 on this companynt.
D/4 voluntarily made by the deceased to DW 2, an Officer of the State Government, stating clearly therein that on the intervening night of the incident she attempted to lit the chimney with burning match stick, but in the darkness accidentally kerosene oil fell on the ground of the room, by which her orna dupatta caught fire and as a result of the accidental fire she received burn injuries.
3 The criminal misc.
5 It was alleged that about 10 days prior to the date of incident, companyplainant along with Mahender Singh his brother in law and Pratap PW 10, an acquaintance of the companyplainant, went to the house of the parents in laws of his daughter.
P7 before Shaitan Singh PW 12 Station House Officer, Police Station Raniwada at about 800 or 900 p.m. on the same day.
202 of 1997 praying for expunging of the adverse observations made in paragraph 40 of the judgment.
The dying declaration should be voluntary and should number be prompted and physical as well as mental fitness of the maker is to be proved by the prosecution.
9 On examination of the oral and documentary evidence produced on record, the learned Sessions Judge by his order dated 24.02.1997 found the accused guilty of the offences under Sections 304B and 498A of the IPC and sentenced them to suffer 10 years rigorous imprisonment for offence under Section 304 B of the IPC and 3 years rigorous imprisonment for an offence under Section 498 A of the IPC with a fine of Rs.
PW 13 before handing over the dead body to PW 5 father of the deceased got her dead body examined from the Medical Board.
Laxmi before her death was in a fit companydition to make statement and therefore, he called DW 2 for recording her statement.
Laxmi was being companystantly harassed and tortured by A 1 and A 3 for the demand of dowry and a sum of Rs.50,000/ paid to them as loan amount was also adjusted by them as dowry money.Bhanvri fully companyroborates the testimony of PW 3 and PW 5 her husband on this point.
All the accused said that an amount of Rs.
After the delivery of a child, Smt.
Laxmi.
50,000/ borrowed by A 1 and A 3 from him will be treated as dowry amount.
He took his brother Angraj and Jayantilal and some more people of the village to the hospital, where they were informed that the victim was being taken to Thonera for further treatment.
It was also stated that in the early morning of the day of incident, one Mishrimal Soni and two Rajputs came to his house and revealed that Smt.
All the sentences were ordered to run companycurrently.
11 The High Court dismissed the appeal of A 1 and A 3, whereas the appeal of A 2, A 4, A 5, A 6 and A 7 was allowed and their companyviction and sentence imposed upon them by the learned Sessions Judge, Jalore, has been set aside.
Laxmi was found in a fit state of mind to give statement which he companyrectly recorded.
3 The incident, which led to the trial of the accused, occurred on 07.08.1992 at about 9.00 a.m. at Village Silason, District Pali.
D/4, PW 12 Shaitan Singh, SHO was number there.
D/4 suffers from a number of basic infirmities and such dying declaration cannot be found admissible and accepted as genuine document.
126/92 Ex.
It is also the evidence of DW 2 that after recording the alleged statement of the deceased, he did number seal the dying declaration and unsealed document was handed over to the Station House Officer.
50,000/ shall be adjusted against the demand of dowry money.
37 PW 3 Taga deposed that about two months prior to the death of Smt.
He stated that he was number present in the room when DW 2 recorded the alleged dying declaration Ext.
He alleged that after the marriage, his daughter had lived a happy and peaceful life in her parents in laws house for about one year, but soon thereafter whenever his daughter used to companye to his house or whenever he paid visits to the house of her parents in laws, his daughter had made repeated companyplaints to him in regard to ill treatment and harassment meted out to her at the hands of the accused for number bringing sufficient dowry.
On these premises, he lodged a companyplaint Ext.
We agree with the findings and reasoning of the companyrts below that the alleged dying declaration Ext.
Laxmi came to his house about two months prior to her death.
P 2 under the instructions and supervision of PW 13.
19 PW Shaitan Singh Station House Officer stated that Medical Officer had given to him in writing that Smt.
36 It is the evidence of PW 5 that after about 10 days prior to the fateful incident, he went to village Silason to take his daughter, but A 1, A 3 and other family members the acquitted accused had refused to send her unless their demand of dowry was number fulfilled by him.
She stated that the dying declaration Ext.
50,000/ paid by him as loan to A 1 and A 3, he would face dire companysequences.
20 It is the evidence of DW 2 Arvind Kumar Sengwa that on 07.08.1992 one companystable came to him with a letter of request and disclosed that one woman, namely, Laxmi was admitted in the hospital and her statement was to be recorded.
P.C. denied the incriminating evidence appearing against them.
Laxmi back to their house but he did number allow her to go with him because it was number advisable to send her with an infant child in the late hours of the evening.
Laxmi was blessed with a male child.
Bagtu A 7 and acquitted them of the charged offences.
P8 came to be registered at Police Station Raniwada against the accused persons for offences punishable under Sections 304B and 498A of IPC.
Laxmi in hospital, Raniwada, Raghubir Singh PW 13 O., Bhinmal, rushed to the hospital and found Smt.
On receipt of the information about the admission of injured Smt.
The abovesaid persons started quarreling with him and impressed upon him to adjust the amount of Rs.50,000/ as dowry money.
Petition No.
D/4 in the presence of Dr. Vasudev.
He paid Rs.
2 The appeal filed by the accused appellants number2 Sanwal Chand Father in law of deceased, number4 Bhanwar Lal Jeth of deceased, number 5 Chetan Lal Jeth of the deceased, number 6 Popat Lal Devar of the deceased and number7 Smt.
He admitted that PW Bhanvri mother of the deceased was present in the room and she refused to put her signature or thumb impression on the statement of the deceased.
125 of 1997, whereas Arvind Kumar Sengwa DW 2 Naib Tehsildar filed S. B. Criminal Misc.
DW 2 has number produced on record the original companyy of the Tehreer submitted to him by a companystable requesting him to visit the hospital for recording the alleged dying declaration of the deceased, and a carbon companyy whereof was produced by him during his cross examination.
He later on arrested A 1, A 3 and A 6.
The Criminal Revision Petition filed by Arvind Kumar Sengwa DW 2 Naib Tehsildar has been dismissed.
Laxmi was sent to her parents in laws house.
petition filed by the petitioner Arvind Kumar Sengwa, DW 2 is also dismissed.
Laxmi with A 1, he gave 20 tolas of gold and other dowry articles to A 1, A 3 and other family members.
PW Shaitan Singh called Arvind Kumar Sengwa DW 2 Naib Tehsildar to the hospital, who recorded dying declaration of Smt.
The fact that the alleged dying declaration Ext.
This incident took place in the presence of PW 3 Taga and PW 7 Narainchand.
He requested PW Dr. Vasudev about the companydition of Smt.
The accused examined Doongarmal DW 1 and Arvind Kumar Sengwa DW 2 Naib Tehsildar, Raniwada, Yashpal DW 3 and Bhanwar Lal A 4 in their defence.
Laxmi appeared to be four hours old.
On this companynt, the accused started ill treating and harassing his daughter.
Laxmi dead on account of 90 per cent burn injuries.
He went inside the house to meet his daughter, whereas Mahender Singh and PW 10 remained sitting outside.
His daughter had disclosed to him that all the accused had maltreated and harassed her for number bringing adequate dowry.
6 Dr. Vasudev PW 11 Medical Officer posted at Raniwada Hospital, on the request of the police, examined Smt.
Laxmi.
He did number agree to the proposal of the accused.
He alleged that on the same night at about 900 p.m. or 1000 p.m. three accused, namely A 3, A 4 and A 7, came to his house and banged the door of his house.
He was told that Smt.
He recorded the statements of the witnesses.
He inspected the spot of the incident and prepared Site Map Ext.
According to the doctors report, the wounds numbericed on the person of Smt.
The accused persons in the statements recorded under Section 313 of the Code of Criminal Procedure, 1973 for short Cr.
50,000/ from him as loan for running their business.
However, S. B. Criminal Misc.
For about one year after marriage, his daughter lived happy married life in her parents in laws house.
P 11 .
On hearing the repeated sound of banging of the door, he and his wife Bhanvri PW 6 immediately opened the door of the house and saw A 3, A 4 and A 7 standing outside the house.
50,000/ borrowed as a loan should be adjusted and treated as dowry money.
A categorical refusal of putting her signature or thumb impression on the alleged dying declaration Ext.
8 The accused pleaded number guilty to the charges and claimed to be tried.
P 11 .
The learned Sessions Judge in paragraph 40 of the judgment directed higher officers of PW 11 Dr. Vasudev, PW 12 Shaitan Singh Station House Officer and DW 2 Arvind Kumar Sengwa Naib Tehsildar to take disciplinary action against them for number discharging their official duties properly and diligently.
25 of 1993, has set aside the companyviction of Sanwal Chand A 2, Bhanwar Lal A 4, Chetan Lal A 5, Popat Lal A 6 and Smt.
Laxmi aged about 22 years was married to Arvind Kumar A 1 son of Sanwal Chand A 2, resident of Village Silason.
7 PW Shaitan Singh, before the death of Smt.
PW 14 recorded the statements of the material witnesses.
D/4 was stated to have been thumb marked by the deceased and duly signed by DW 2 and A 3 and PW Dr. Vasudev.
He along with his wife PW 6 went to the hospital where they saw their daughter lying on the bed with burn wounds on her body.
PW 6 Smt.
It is the evidence of DW 2 that when he recorded the alleged statement of the deceased, her mother PW 6 was present in the hospital, but she refused to append her signature or thumb impression upon the document.
Thus, relying upon the evidence of PW 5 and PW 8, the trial companyrt and the High Court came to the companyclusion that the prosecution has proved beyond reasonable doubt that Smt.
He prepared injury report Ext.
On spot inspection, some burnt pieces of the bangles, ash, match box companytaining burnt and unburnt sticks, some burnt pieces of the skin attached with clothes and one bhabka a kerosene burning lamp which is being used by a goldsmith for placing joints in making of gold ornaments were companylected from the spot.
Thereafter, whenever Smt.
202 of 1997 Arvind Kumar DW 2 Vs.
P 12 in the presence of Jalam Singh PW 1, Shaitan Singh PW 2 and Ook Singh PW 4.
Parasmal PW 5 father of Smt.
Laxmi was caused by burn injuries within seven years of her marriage.
After the companypletion of the investigation of the case, Station House Officer prepared chargesheet against accused persons and filed the same in the companyrt of Judicial Magistrate under Sections 304B and 498A of the IPC.
D/4 by PW 6 Bhanvri mother of the deceased would further go to prove that the alleged dying declaration was number at all recorded by DW 2 in the room of the hospital where the deceased was lying before she died.
Laxmi Ext.
PW Shaitan Singh prepared panchnama Ext.
The Judicial Magistrate companymitted the case to the Sessions Judge for trial.
Dr. Vasudev opined that injured Smt.
Laxmi lodged written report Ex.
P 7 to Shaitan Singh PW 12 Station House Officer, Police Station Raniwada, District Pali alleging inter alia that about three years prior to the day of incident, his daughter Smt.
Lokeshwar Singh Panta, J. 1 Both these appeals arising out of a companymon judgment and order dated 26.04.2001 passed by learned Single Judge of the High Court of Judicature for Rajasthan at Jodhpur in B. Criminal Appeal No.
State of Rajasthan, were taken up and heard together and shall stand disposed of by this companymon judgment.
2 By the impugned order, the High Court while dismissing the appeal of Arvind Kumar A 1 and Kanti Lal A 3 and companyfirming their companyviction and sentence under Sections 304B and 498A of the Indian Penal Code, 1860 for short the IPC recorded by the learned Sessions Judge, Jalore, in Sessions Case No.
Laxmi became pregnant and as per the custom of the area, she came to her parents house for delivery of the first child and at that point of time his son in law A 1 and his son in laws elder brother A 3 had demanded loan amount of Rs.50,000/ from him for starting some business, which amount he had paid to them.
Laxmi stayed at his house for about 3 4 months when she was blessed with a son and after some period Smt.
It is also proved on record that DW 2 did number ask preliminary questions from the deceased before the dying declaration allegedly made by her was recorded and this fact also created doubt about the companyrectness and truthfulness of the dying declaration.
18 The dying declaration Ext.
17 The dying declaration Ext.
D/4 which read as under That on the night, there was darkness and she took match box to lit the chimney and when she started to lit the chimney, kerosene oil fell on the ground and it caught hold fire, by which her orna caught fire and, thereafter, her husband tried to save her and people of village gathered and thereafter, she was taken to hospital.
The Investigating Officer seized all those articles and sealed them in a parcel which was deposited with the In charge of the Police Station.
State of Rajasthan and S. B. Criminal Misc.
Laxmi on the injury report Ext.
Another factor which impairs the credibility of the alleged dying declaration Ext.
Laxmi by DW 2, the companyplainant PW 5 and his wife PW 6 both parents of the deceased were present and the prosecution deliberately and intentionally companycealed the production of dying declaration from the Court and also withheld the examination of DW 2 the Naib Tehsildar as a prosecution witness with clear intention to companyceal true facts of accidental burning of the deceased.
Laxmi had been admitted to Raniwada Hospital as she was suffering from stomach pain.
Since they are on bail they need number surrender and their bail bonds stand discharged.
