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DHIRA RAM versus STATE

High Court of Rajasthan

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DHIRA RAM v STATE - CRLA Case No. 83 of 2001 [2006] RD-RJ 75 (13 January 2006)

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IN THE HIGH COURT OF JUDIC ATURE FOR RAJ ASTH AN

AT JODHPUR

JUDGMENT

Dheera Ram Vs. State of Rajasthan

(1) D.B.CRIMINAL APPEAL NO.159/2001

Dhe era Ram Vs. State o f Rajastha n

(2) D.B.CRIMINAL JAIL APPEAL NO.83/2001 against the judgment dt. 2. 12. 2000 passed by

Additional Sessions Judge, Bhinmal, in Sessions Case No. 89 /19 99.

Date of Judgment: Sept.13, 2006

PRESENT

HON'BLE MR.JUSTICE N.N.MATHUR

HON'BLE MR.JUSTICE R.P.VYAS

Mr.Pradeep Shah, for appellant.

Mr.J.P.S.Choudhary, Public Prosecutor.

REPO RT ABLE BY THE COURT : (PER HON'BLE MR. MATHUR J.) 1. Appellant Dhe era Ram w as charged for having committed the offen ce of murder of his wife Mst. Pabu by pouring kerosen e oil and setting her aflame. Learned

Additional Sessions Judge Bhinmal, District Jalo re, by judgment dated 2.1 2. 2000 has convicted him of offen ce under Section 302 IPC and sentenced to imprisonment for

-2- life and to pay a fine of Rs. 100/- & in default of payment thereof, to furth er undergo three months' R. I. He has also been co nvicted of offence u /s. 498A IPC and sentenced to three years' R.I. & to pay a fine of Rs. 1000/ - & in default of payment thereof, to fu rther undergo three months' R. I. 2. The prosecutio n case as disclosed during trial is that daughter of PW 3 Peetha viz; Pabu resident of village

Hariyali was married to appellan t Dhe era Ram resident o f village Jherol about ten years prior to the date of occurr en ce. Out of their w edlock, tw o children w ere born namely PW 14 Ishw ar aged 5 years and daughter viz; Ma ni.

However, it is alleged that their relations w ere not cordial.

There is specific allegation th at she was subje cted to cruelty for dowry by the appellant. Prior to the incident, a con ciliation proceeding was also taken in the Gram

Panchayat in the presence of PW 10 Avtaar Singh, Sarpan ch,

Haryali, wherein appellant promised to improve his conduct towards the deceased. On 25. 4.1999, PW 3 Peetha submitted a w ritten report Ex.P. 7 at the Police Station, Jhab narrating the background as stated above. It was also stated that on 21 s t April, 1998, appellant visited his house and made a demand of Rs. 1000/- . W hile leaving, he threatened to kill his daugh ter, in event of failure to meet his demand. He reported the matter to Sarpanch. He sent his nephew PW 1 Rana and PW 12 Uka to village Jher ol to

-3- inquire about the welfare of Mst.Pabu. On visiting Jherol,

Ran a an d Uka came to know that appellant Dheera, PW 7

Chhoga, PW 4 Pancha and Bijla had taken Mst. Pabu to

Palanpur fo r treatment. On receiving this information, he dispatched his nephew PW 2 Haru an d PW 1 Rana to

Palanpur. They came to know from appellant in the hospital that Mst. Pabu on her ow n, sustained burn injuries an d, as such, she was un der treatment. When they met Mst. Pa bu, she wanted to give ou t som ething but the appellant did not allow her to speak. It was reported by the hospital staff th at

Mst.Pabu w as burnt. On this information, the police registered a case for the o ffence u/ss.498A and 307 IPC.

The police proceeded with investigation. PW 20 Dhanna

Ram, A. S. I., Police Station, Jhab visited th e Palanpur

Hospital and record ed the stateme nt of Mst.Pabu vide

Ex.P.26 on 26. 4.1999. On the same day, PW 17 Hathi Bh ai,

Executive Magistrate, Palan pur, also recor ded her statement vide Ex.P.21. She breathed her last on 2. 5.1999. The information w as given at the Police Station, Palanpur. PW 21

Poonam Chand, Head Constable, visited the hospital.

Necessary proceedings were taken. The information was also given to the concern ed Police Station. The police added the offence u/s. 302 IPC. Appellant w as arrested on the sa me day. After usual investigatio n, the police laid ch argeshe et against the appellant for the offence u/s.3 02 IPC. Appellan t denied the charges levelled against him and claimed trial.

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The prosecutio n adduced oral an d docum entary evidence.

Appellant in his statement under Section 313 CrPC denied the corr ectn ess of the prosecution evidence appea ring against him. He stated that his wife w as bu rnt in the accident while cooking food. He tried to save her and in that pro cess, he also su stained inju ries. She came to his place only about a month back from the date of o ccurr en ce. Prior to incident, she was living with h er parents. He also sta ted that his children were living with his in-law s and they ha ve given evidence against him at th eir instance. He pleaded inno cence. He produced the injury report Ex. P.35 to show injuries on his person. However, he did not examine any witn ess in his defence. The trial Co urt havin g found the ca se pro ved against him, convicted & sentenced him in the manner noticed above. 3. Mr. Pradeep Sh ah learned counsel for the appellant at the outset has pointed out as to how the trial Judge has added th e offence under Sec. 302 IPC at the conclusio n of trial by writing over the original charge. It is submitted that appellan t was tried for the charge under Sec. 304- B IPC and at the co nclusion of trial, the manner in which he has added the charge under Section 302 IPC, has prejudiced the ca se of the appellant causing seriou s miscarriage of justice leading to vitiating the trial. The contention at first blush i.e. the statement of fact of writing 302 IPC over the

-5- original charge is impressive. However, on careful scrutiny, w e do n't find substan ce in the con tention. It appears that on 9. 10. 2000, learned Public Prose cutor submitted an application u/sec.216 of the Code of Criminal Procedure to add charge of offence u/s.302 IPC. The learned trial Court after h earing learned P.P. and the counsel for defence accep ted the application. It further appears fro m th e ordersheet dated 9.10.2000 that learned co unsel desired to make a reque st to recall only PW 20 Dhana Ram and PW 21

Poonam Chand fo r cross examination. Learned P. P. expressed desire to re- examine PW 3 Peetha. All the three witn esses were recalled and their statem ents w ere recorde d on 13. 11. 2000. Their statem en ts w ere put to appella nt under Section 313 CrPC on th e same day. 4. Section 216 CrPC empowers the trial Court to add a new charge at any time before the judgment is pronoun ce d.

The procedure for trial with regard to addition or altera tion of a charge is laid down in Section 216(3) and (4). Th e addition or alteration of th e charge does not open up the trial from the begin ning and the court may immediately pro ceed with the trial, if it is of th e opinion that there will be no prejudice to the accused. If the defen ce or the pro secution expresses desire to re- examine the witness or to produce any other witness, such a permission should ordinarily be granted. Se ction 217 CrPC provides that when

-6- a charge is altered or added, th e cou rt should recall any witn ess w hich the prosecution or the defence desires. But it is not obligatory on the cou rt to recall a witness, if it is of the opinio n that the witnesse s are sought to be recalled for the purpose o f vexation or delay or defeating the ends of justice. We also make it clear that when the trial court amends or adds a charge, it should not write over the original charge but shou ld leave it on the file for referen ce, if necessary an d should write the new charge separately a nd correctly dated. But if this procedure is not followed, this will not lead to vitiating the charge. In the instant case, the learned trial Judge addin g the charge, has put his initials and also given the date. He has draw n the ordersh eet and given the opportunity to the Public Prose cutor and the defence. Thus, no prejudice is caused to the appellant. W e can only say tha t it would have been better, if instea d of w riting over the original charge, the trial Judge w ould ha ve drawn the new ch arge on a separate sheet. Thus, the contention stands rej ecte d being of no substan ce. 5. It is co ntended by the learned counsel that there is delay of four days in lodging the F. I. R. inasmuch as while the incident took place on 21.4.1999, the F.I. R. was lodged on 25.4. 1999. Learned counsel has also criticized the dyin g declarations recorded by PW 20 Dhana Ram, A. S. I., vide

Ex.P.26 and also PW 17 Hathi Bhai, Executive Magistrate

-7- vide Ex. P.21. It is further submitted that the alleged witness of occurren ce PW 14 Ishw ar, son of deceased, min or aged 5 years, is not a trustworthy witness. Learned coun sel has also criticized the testimony of other prose cution witnesses.

Lastly, it is submitted that one of the important witness viz;

Mst. Mani, daughter o f deceased, has not been produced, as such, adverse inference against the prosecutio n be drawn. 6. In order to appreciate the conten tion, it would be appropriate to briefly survey the prosecutio n evidence.

Before we proceed to deal with the prose cution evidence, it w ould be appropriate to refer- to medical evidence. 7. The Medical Board headed by D r. B.B.Sutaria conducted the post mortem on the dead body of Mst. Pabu vide Ex. P. 6 and in their opinion, the cause of death was septicaemic sho ck due to exten sive burns over the body. 8. Dealing with the ocular evidence, PW 3 Peeth a, fa ther of deceased, deposed that his daughter decease d Pabu w as married to appellant abou t ten years back. Whenever she used to visit the house, she u sed to narrate cruelty towards her o n the part of appellant. The appellant used to make demand of ornaments and money. He also used to threa ten to kill her in the event of not meeting the demand. Abou t eight months prior to the date of occur rence, deceased Pabu

-8- came to his house and reported that she was being assaulted by appellant, who also cause d burn injuries. He took the matter to the Panchayat. Many people including

Ran a, Chhoga, Pancha, Bheema etc. were also present at the time of Panchayat. Appellant w as also called in the

Panchayat. He tendered apology and assured the Pancha yat for not repeating such incident. On the death of elder bro ther of appellant, he sent Mst. Pabu to her in-laws.

Sometime back, appellant visited his hou se and made a demand for Rs. 1000/- . He also threatened that in the event of not making the paymen t, his daughter w ould be killed.

Thereafter, he sent PW 1 Rana and PW 2 Haru to village

Jherol to en sure that som ething untoward may not happen to Mst.Pabu. There, the son and dau ghter of Pabu told th em that their mother was burnt by appellant after pouring kero sene on her. Rana and Haru returned to Haryali an d reported the incident. He came to know that his daughter

Mst.Pabu w as taken to the hospital. He sen t Rana and Haru to Palan pur. Initially, they w ere not allow ed to see

Mst.Pabu . He has also given the details of investigation.

There is a lengthy cross examination but nothing substa ntial has been elicited to discredit the testimony of this witn ess. 9. P.W .1 Rana is the cousin brother of deceased Pabu, being uncle's son . His statement is almost on the line of

PW 3 Peetha. He deposed that appellant used to harass &

-9- torture his deceased sister Pabu and that he expressed his desire on various o ccasions to bring an other wife. This fa ct w as bein g repo rted by deceased Pabu to the family members as & w hen she visited the house. Eight to ten months prior to the date of occurren ce, a "panchayat" was conven ed in village Jherol. In the "panchayat", appellant admitted his guilt and assured that in futu re, he would not harass and ill- treat M st.Pabu . Th ereafter, Mst. Pabu stayed at her in-laws hou se. He had go ne to village Jh er ol to verify if she was being treated well. The children of Mst.Pabu viz; Mani and

Ish war informed that their mother was put to flames by pouring kerosene by appellant and she was removed to the hospital. He reported the matter to PW 3 Peetha.

Thereafter, he wen t to Palanpur Hospital alongwith PW 2

Haru. They found Pabu admitted in the ho spital. They w ere not allow ed by appellant to meet Pabu. Thereaf ter, they returned to the village and informed PW 3 Peetha. On receiving this information, PW 3 Peeth a submitted a written report at the Police Station. Ther e is a lengthy cross examination but nothing substantial has been elicited to discredit the testimony of this witness. 10. PW 2 Haru is another cou sin brother of deceased Pabu.

The statemen t of this witness is almost on the line of PW 3

Peetha and PW 1 Rana. Nothing substantial has been bro ught- in to discredit the testimony of this witness.

-10- 11. PW 11 Kama is a labour of PW 3 Peetha. He deposed that deceased Pabu w as married to appellant about ten years befor e the date of occurrence. Appellant used to harass and torture deceased Pabu. He came to know fro m

PW 2 Haru and PW 7 Chhoga that Mst. Pabu was burnt by

Dhe era. She w as admitted in th e ho spital at Palanpur. PW 12 Uka is the sister of deceased Pabu. His statement is almost on the line of PW 3 Peetha. 12. PW 10 Avtaar Singh is Sarpanch of village Hariyali. He deposed th at deceased Pabu w as married to appellant about ten years back. Whenever Mst.Pabu visited the village, she reported about the ill-treatment to her at the han ds of her husband. Abou t one and half years prior to the date of occurr en ce, attempt to burn Mst.Pabu w as made by appellan t. The incident w as reported to him. M st.Pabu ha d approach ed to him. He wrote a letter to the husband of

Sarpan ch, Jherol viz; Hem Singh, who had conven ed a meeting and summoned accu sed and his parents. The accu sed was given firing in the meeting. He confe ssed the guilt and assured the "panchayat" that in future, there w ould be no repetition of such mistake. He also stated tha t

Pabu used to visit the village after marriage and ma ke complaints about the ill-treatment by h er husband and other members of his family.

-11- 13. The other witnesse s viz; PW 4 Pancha, PW 5

Mahadeva, PW 6 Hema Ram, PW 7 Chhoga, PW 8 Herchand,

PW 9 Mst. Thakri, PW 13 Mohabbat Singh and PW 16 Sanwla

Ram have not supporte d the prose cu tion case and, as such, they were declared hostile. 14. Analyzing the evidence, we find that inspite of the fa ct that som e of the witnesses have not supported the pro secution case and they have been declared hostile, there is consistent credible evidence that th e appellant wa s married to deceased Pabu about ten years back and the cruel treatment meted out to deceased had continued until her death. It is significant that on earlier occasion , a n attempt was made to kill her by burning. A "panchayat" wa s also conve ned wherein appellant tendered apology a nd assured of good treatment to her. Thus, there is the evidence of ha rassm ent and torture to deceased by appellan t. We are of the view that the trial Court has righ tly convicted the appellant of offence under Section 498A IPC. 15. The prose cution in order to establish the charge of murder has mainly relied on the dying declarations. The first oral dying declaration was recorded by PW 20 Dhana Ram,

A.S.I. , Police Sta tion Jhab. He depo sed that he w as sent to

Palanpur by the S. H.O., Police Statio n, Jhab on an F.I. R. being lodged by PW 3 Peetha. When he reached to the

-12- hospital, on inquiry, he came to know that Peetha was admitted in the Burn Unit. He inquired from the duty doctor about the fitness of deceased Pabu to give a statement. The docto r certified that she was in a fit con dition to give her statement. Accor dingly, he recorded the statem ent of deceased Pabu vide Ex.P.26. She made a statemen t to the effect that her husband had pou red kerosen e o n her and lit fire. She also disclosed that during the night of occu rrence,

Besra Meghw al visited their house, which w as objected - to by her husband. She also stated that her husband had no liking for her, as su ch, he used to harass an d torture her. At the time of occurren ce, her dau ghter and son were also present. She pu t her thumb mark on the statement. In the cross examination, he admitted that Mst. Pabu gave statement in Rajasthani language. He also admitted that sometime before the Executive Magistrate had also reco rded her statemen t. He denied the suggestion that Mst.Pabu had told him that she sustained bu rn injuries in an accident w hile preparin g food. 16. Another dying declaration has been record ed by PW 17

Hathi Bhai, Executive Magistrate, Mamlatdaar Kacher y,

Palanpur, District Banaskanta. He depose d that the police made a request to him vide application Ex.P.20 for recording statement of Mst.Pabu. He visited the Civil Ho spital,

Palanpur, where Mst. Pabu w as admitted in th e Burn Unit. He

-13- inquired about the fitness of Mst.Pabu for giving statement fro m PW 18 Dr.S. M.Advan, who gave him a certificate

Ex.P.21 to the effect that she was in a fit condition to give statement. He recorded h er statem ent vide Ex.P.21, wh erein she stated th at appellant poured kero sene on her and lit fire. Thereafter to extinguish the fire, he threw water on her. She also sta ted that appellant had no liking for him.

She further stated that at the time of occurr en ce, her daughter and son were present. 17. PW 18 Dr.S.M.Advan deposed that on 26. 4. 1999, he w as posted as Medical Officer, Civil Hospital, Palanpur. At about 5.30 PM, he was in the Emergency W ard. Deceased

Pabu w as admitted in the Burn Unit. The Executive

Magistrate, Palanpur had visited for recording dying declaration of Mst. Pabu. At that time, he checked Mst. Pabu and found her physically & mentally fit to give statem ent. In that regard, he gave a medical certificate as to her fitness to give statem ent making an endorsem ent on dying declaration Ex.P.2 1. Nothing substantial has been elicited to discredit the testimony of this witness. 18. On careful consideration of the dying declarations, we do not find any reason to discredit them. There is nothing to suggest that it was the outco me of the tu toring. The dying declarations appear to be volun tary and she was in a fit

-14- condition to give statement. Thus, we are of the view tha t the trial Court has rightly relied on both the dying declarations. 19. PW 14 Ishwar is th e minor son of deceased Pabu. The trial Court befor e recording the statement of this witness, put certain question s to satisfy wh ether he had the understanding to give statement on oath. It was noticed by learned trial Judge that the witness was repeatedly made to understand the questions, put to him. He stated that his father Dheera poured kerosen e on his mother and lit fire.

In the cross examination, h e admitted that he w as staying with his maternal uncle. He also admitted that he w as giving the statement as tuto red by her maternal uncle. He also admitted that his maternal uncle had accompanied him in the court. On careful con sideration of the statement, we are of the view that it is not safe to rely on the testimony of this witness. 20. It is lastly contended by the learned counsel that only indepen dent eye witness Mani has not been produced. It may be stated that PW 14 Ishw ar is a child of 5 years. He has not been able to give statem ent. Mani is younger sister of Ishwar. Thus, she must be abo ut 3 to 4 years at the time of incident. Thus, no adverse inference can be drawn for non - production o f Mani.

-15- 21. As far as the criticism o f delay in filing the F.I. R. is con cerned, we are of the view that there is no substance therein. It is ofcour se true that the alleged occurr ence took place on 21.4.199 9 but the F. I.R. w as lodged as late as on 25 t h April, 1999. It may be stated that immediately after the occurr en ce, she w as shifted to Palanpu r for treatment. PW 3 Peetha stated that he sent PW 1 Rana an d PW 2 Haru to village Jhab to inquire about the welfare of his daughter

Pabu. PW 1 Rana and PW 2 Haru visited th e village Jhab, w here they came to know that Mst. Pabu was taken to the hospital at Palanpur. They retu rned to village Hariyali a nd reported the matter to PW 3 Peetha. Ther eafter, Rana a nd

Haru were despatch ed to Palanpur, where they came to know about the details of the incident. They returned from

Palanpur to village Hariyali and narrated the incident to PW 3 Peetha. Only thereafter, the F. I.R. co uld be lodged. Thus, the delay in lodging the F.I.R. is not fatal to the prosecution case. 22. From the evidence discussed abo ve, we find that the evidence of dying declaratio ns is of clinching nature so as to fully establish involvement of appellant in the murder of his wife M st.Pabu. The dying declarations fin d corrobo ration fro m th e medical evidence and oth er incriminating circumstances.

-16- 23. Consequ ently, w e fin d no merit in these appeals. Thus, both the appeals i.e. Regular Appeal as well as the Jail

Appeal are dismissed. Appellant Dheera Ram is in jail. He will serve out the remaining part of the senten ce.

(R.P.VYAS), J. (N.N.MATHUR), J.

RANKAWAT JK, PS


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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