STATE OF RAJASTHAN Vs. KISHORE
LAWS(SC)-1996-2-37
SUPREME COURT OF INDIA (FROM: RAJASTHAN)
Decided on
February 27,1996
STATE OF RAJASTHAN
Appellant
VERSUS
KISHORE
Respondents
Referred Judgements :-
KHUSHAL RAO VS. STATE OF BOMBAY [RELIED ON]TARACHAND DAMU SUTAR VS. STATE OF MAHARASHTRA [RELIED ON]
KUSA VS. STATE OF ORISSA [RELIED ON]
STATE OF MAHARASHTRA VS. RAJENDRA GARBAD PATIL [REFERRED TO]
GANGOTRI SINGH VS. STATE OF UTTAR PRADESH [RELIED ON]
GANPAT MAHADEO MANE VS. STATE OF MAHARASHTRA [REFERRED TO]
KUNDULA BALA SUBRAHMANYAM VS. STATE OF ANDHRA PRADESH [REFERRED TO]
GOVERDHAN RAOJI GHYARE VS. STATE OF MAHARASHTRA [RELIED ON]
MEESALA RAMAKRISHAN VS. STATE OF ANDHRA PRADESH [RELIED ON]
JOSE VS. STATE OF KERALA [REFERRED TO]
Cited Judgements :-
MAN SINGH VS. STATE OF RAJASTHAN [LAWS(RAJ)-2004-2-33] [REFERRED TO]MANGI LAL VS. STATE OF RAJASTHAN [LAWS(RAJ)-2002-2-74] [REFERRED TO]
DESH RAM VS. STATE OF RAJASTHAN [LAWS(RAJ)-2005-6-5] [REFERRED TO]
STATE OF RAJASTHAN VS. JAS ALIAS JASJEET SINGH [LAWS(RAJ)-2010-1-25] [REFERRED TO]
KANAKARAJ VS. STATE OF KERALA [LAWS(KER)-2013-8-216] [REFERRED]
PRAKASH PODDAR VS. STATE OF BIHAR [LAWS(PAT)-2001-9-61] [REFERRED TO]
RAJU MALAKAR VS. STATE OF TRIPURA [LAWS(TRIP)-2020-7-51] [REFERRED TO]
ASHOK KUMAR @ JHABRU VS. STATE [LAWS(DLH)-2018-4-10] [REFERRED TO]
DIPAK KUMAR RAI VS. STATE OF JHARKHAND [LAWS(JHAR)-2022-10-22] [REFERRED TO]
REETA SONKAR; SUSHILA BAI; SUNIL VS. STATE OF MADHYA PRADESH [LAWS(MPH)-2007-8-169] [REFERRED]
STATE OF MAHARASHTRA VS. SURESH NAVNATH LONDHE [LAWS(BOM)-2020-2-176] [REFERRED TO]
BIKAU PANDEY VS. STATE OF BIHAR [LAWS(SC)-2003-11-70] [REFERRED TO]
DINABANDHU SAHU VS. STATE OF ORISSA [LAWS(ORI)-2000-3-40] [REFERRED TO]
LEELA RAM VS. STATE OF HARYANA [LAWS(SC)-1999-10-80] [REFERRED]
PRAMIL ALIAS PREMANAND GAJANAN RAO VS. STATE OF GOA [LAWS(BOM)-2006-6-104] [REFERRED TO]
ANAND ALIAS BHAUSAHEB YUVRAJ PATIL VS. STATE OF MAHARASTRA [LAWS(BOM)-2011-10-133] [REFERRED TO]
DEBASISH SAHA S/O. KARTIK SAHA VS. STATE OF TRIPURA [LAWS(GAU)-2013-3-18] [REFERRED TO]
SANJAY SINGH VS. STATE OF BIHAR [LAWS(PAT)-2022-7-67] [REFERRED TO]
BALLU JATAV VS. STATE OF MADHYA PRADESH [LAWS(MPH)-2014-9-49] [REFERRED TO]
STATE OF RAJASTHAN VS. KISHANLAL [LAWS(RAJ)-1997-8-44] [REFERRED TO]
RAMILABEN HASMUKHBHAI KRISTI WD O HASMUKHBHAI ASHABHAI VS. STATE OF GUJARAT [LAWS(GJH)-2000-9-68] [REFERRED]
NANDUBEN GOBARBHAI VS. STATE OF GUJARAT [LAWS(GJH)-1996-8-10] [REFERRED TO]
STATE OF U P VS. VIRENDRA KUMAR [LAWS(ALL)-2008-7-36] [REFERRED TO]
SADHU BARMAN VS. THE STATE OF WEST BENGAL [LAWS(CAL)-2015-3-93] [REFERRED TO]
SHAIK SIDDIQ HUSSAIN ALIAS SIDDIQ VS. STATE OF A P [LAWS(APH)-2002-11-16] [REFERRED TO]
STATE, BY PUBLIC PROSECUTOR VS. MUTHU AND ANOTHER [LAWS(MAD)-1996-8-122] [REFERRED TO]
PANCHANAN DAS VS. STATE OF ORISSA [LAWS(ORI)-2016-10-1] [REFERRED TO]
SOBARAN SINGH VS. STATE GOVT OF NCT OF DELHI [LAWS(DLH)-2006-11-15] [REFERRED TO]
STATE OF MAHARASHTRA VS. GORAKSHA AMBAJI ADSUL [LAWS(BOM)-2005-9-56] [REFERRED TO]
PAWAN KUMAR PANDEY @ BABLU VS. STATE OF U.P. [LAWS(ALL)-2022-5-38] [REFERRED TO]
NANTULAL BISWAS VS. STATE OF TRIPURA [LAWS(GAU)-2009-9-31] [REFERRED TO]
MANGULI ROUT VS. STATE OF ODISHA [LAWS(ORI)-2020-12-27] [REFERRED TO]
STATE OF GUJARAT VS. ADAMBHAI SULEMANBHAI AJMERI [LAWS(GJH)-2010-6-2] [REFERRED TO]
MD SHAHABUDDIN VS. STATE OF BIHAR [LAWS(PAT)-2017-7-95] [REFERRED TO]
KHEER SAGAR @ KHEERU VS. THE STATE OF M.P. [LAWS(MPH)-2018-3-54] [REFERRED TO]
P V RADHAKRISHNA VS. STATE OF KARNATAKA [LAWS(SC)-2003-7-103] [REFERRED]
B SHASHIKALA VS. STATE OF ANDHRA PRADESH [LAWS(SC)-2004-1-85] [REFERRED TO]
RAMESH @ MAHESH VS. STATE OF RAJASTHAN [LAWS(RAJ)-2004-1-70] [REFERRED TO]
ANAND SINGH VS. STATE [LAWS(RAJ)-2005-3-27] [REFERRED TO]
V. MURLI VS. STATE OF NCT OF DELHI [LAWS(DLH)-2020-8-41] [REFERRED TO]
DASHRATH ALIAS CHAMPA VS. STATE OF MADHYA PRADESH [LAWS(SC)-2007-10-93] [REFERRED TO]
KUNJUMON @ UNNI VS. STATE OF KERALA [LAWS(SC)-2012-11-44] [REFERRED TO]
BADAL BISWAS AND ANOTHER VS. THE STATE OF WEST BENGAL [LAWS(CAL)-2017-1-17] [REFERRED TO]
STATE OF H.P. VS. KISHORI LAL AND ORS. [LAWS(HPH)-2015-8-3] [REFERRED TO]
JOHN PANDIAN VS. STATE [LAWS(MAD)-2006-4-116] [REFERRED TO]
SATENDRA @ BANTU VS. STATE OF U P [LAWS(ALL)-2019-1-81] [REFERRED TO]
ARUN KUMAR VS. STATE OF JHARKHAND [LAWS(JHAR)-2022-10-21] [REFERRED TO]
STATE OF GUJARAT VS. DHARMENDRASINH alias MANSINH RATANSINH MAKWANA [LAWS(GJH)-2001-7-6] [RELIED ON]
MONOJ SONI & ORS. VS. STATE [LAWS(CAL)-2003-4-78] [REFERRED TO]
TRIDIBSARMA VS. STATE OF ASSAM [LAWS(GAU)-2004-4-34] [REFERRED TO]
SUBODH DEBBARMA VS. STATE OF TRIPURA [LAWS(GAU)-2009-8-47] [REFERRED TO]
BHAGWAN SINGH NATH VS. STATE OF M.P. [LAWS(MPH)-2018-5-59] [REFERRED TO]
AJMER KHAN (DEAD), MUNEER KHAN & ANOTHER VS. STATE OF MADHYA PRADESH [LAWS(MPH)-2017-7-170] [REFERRED TO]
SHAM SHANKAR KANKARIA VS. STATE OF MAHARASHTRA [LAWS(SC)-2006-9-9] [REFERRED TO]
SUNDER LAL VS. STATE OF RAJASTHAN [LAWS(SC)-2007-5-140] [REFERRED TO]
LILABEN W/O VIRCHAND PATANI VS. STATE OF GUJARAT [LAWS(GJH)-2008-12-250] [REFERRED TO]
AMBA LAL VS. STATE OF RAJASTHAN [LAWS(RAJ)-2002-9-4] [REFERRED TO]
SULTAN SINGH VS. STATE OF RAJASTHAN [LAWS(RAJ)-2006-5-24] [REFERRED TO]
SUKUMARAN VS. STATE OF KERALA [LAWS(KER)-2005-3-28] [REFERRED TO]
ARYAKKAMDY SUKUMARAN VS. STATE OF KERALA [LAWS(KER)-2005-11-62] [REFERRED TO]
Muhammed VS. State of Kerala [LAWS(KER)-1999-11-73] [REFERRED TO]
VIJAY SINGH VS. STATE OF BIHAR [LAWS(PAT)-2022-7-62] [REFERRED TO]
DINABANDHU SAHU VS. STATE OF ODISHA [LAWS(ORI)-2023-3-108] [REFERRED TO]
BAIJNATH VS. STATE OF UTTAR PRADESH [LAWS(ALL)-1996-8-96] [REFERRED]
VIRAMJI MOHATJI THAKORE VS. STATE OF GUJARAT [LAWS(GJH)-2004-8-17] [REFERRED TO]
STATE OF GUJARAT VS. KOLI CHUNILAL SAVJI [LAWS(GJH)-1996-6-14] [REFERRED TO]
NALLAKANNU @ MUTHU VS. STATE REP.BYINSPECTOR OF POLICE,PALAYAMKOTTAI POLICE STATION, PALAYAMKOTTAI [LAWS(MAD)-2002-4-134] [REFERRED TO]
STATE OF ANDHRA PRADESH VS. RAYAPATI THIRUPATHI REDDY [LAWS(APH)-2011-3-26] [REFERRED TO]
ISHAN DEB BARMA VS. STATE OF TRIPURA [LAWS(GAU)-2008-12-27] [REFERRED TO]
RAJA RAM VS. STATE [LAWS(ALL)-2019-5-53] [REFERRED TO]
DHARAMPAL VS. STATE [LAWS(ALL)-2018-4-105] [REFERRED TO]
RAMPAL SINGH VS. STATE OF U. P. [LAWS(ALL)-2021-3-49] [REFERRED TO]
ANAND SINGH ALIAS BABU SINGH VS. STATE OF U.P. [LAWS(ALL)-2009-8-306] [REFERRED TO]
PRADEEP KUMAR VS. STATE OF U P [LAWS(ALL)-2004-3-200] [REFERRED TO]
DEVI VS. STATE NATIONAL CAPITAL TERRITORY OF DELHI [LAWS(DLH)-2001-1-77] [REFERRED]
RAJ KUMAR VS. STATE [LAWS(DLH)-2001-3-61] [REFERRED .]
NOUSHAD VS. STATE OF KERALA [LAWS(KER)-2005-12-4] [REFERRED TO]
SHANKARRAO RAMRAO SHINDE VS. STATE OF MAHARASHTRA [LAWS(BOM)-2018-6-69] [REFERRED TO]
BIKAU PANDEY VS. STATE OF BIHAR [LAWS(PAT)-2002-9-21] [REFERRED TO]
PURAN CHAND VS. STATE OF HARYANA [LAWS(SC)-2010-5-77] [REFERRED TO]
SHAKUNTALA VS. STATE OF HARYANA [LAWS(SC)-2007-7-49] [REFERRED TO]
EIAUN YADAV VS. STATE OF BIHAR [LAWS(PAT)-2001-7-17] [REFERRED TO]
TANUA RABIDAS VS. STATE OF ASSAM [LAWS(SC)-2014-9-13] [REFERRED TO]
ABBAS SK. VS. STATE OF WEST BENGAL [LAWS(CAL)-2022-9-83] [REFERRED TO]
STATE OF ORISSA VS. SIMANCHAL GOUDA [LAWS(ORI)-1996-9-7] [REFERRED TO]
HASANBANU SAHIDBHAI KURESHI VS. STATE OF GUJARAT [LAWS(GJH)-2012-7-365] [REFERRED TO]
RAMESH VS. STATE OF M P [LAWS(MPH)-2002-3-12] [REFERRED TO]
MURUGESAN VS. STATE OF TAMIL NADU [LAWS(MAD)-2000-4-30] [REFERRED TO]
STATE VS. RASALAIYAN [LAWS(MAD)-2002-2-65] [REFERRED TO]
BENGO KUMARI VS. STATE OF BIHAR [LAWS(JHAR)-2004-9-60] [REFERRED TO]
NARA MANOHARA RAO VS. STATE OF ANDHRA PRADESH [LAWS(APH)-1997-6-69] [REFERRED TO]
STATE THROUGH CBI VS. SAJJAN KUMAR & ORS [LAWS(DLH)-2018-12-152] [REFERRED TO]
TUFANI VS. STATE OF U.P. [LAWS(ALL)-2012-12-36] [REFERRED TO]
JUDGEMENT
K.RAMASWAMY -
(1.)LEAVE granted.
(2.)DESPITE issuance of non-bailable warrant and attachment of the properties, presence of the respondent could not be secured for executing the warrants as it was reported that his whereabouts were not known. Consequently, as per the directions of the Court, the Legal Aid Committee assigned Shri S. K. Pasi to assist the Court as a counsel for the respondent. After hearing the counsel for the State and the respondent, we had reserved the judgment on 30/01/1996. However, on 2/02/1996, the respondent was brought and his counsel Shri Sushil Kumar Jain requested the Court to give an opportunity for hearing. Accordingly we hear the matter again. This case also indicates avoidance on the part of the people like the respondent to delay the disposal of the appeal in this Court. When the attempts were found to be unsuccessful, he made appearance in the Court which gave us an insight to adopt such appropriate procedure for securing presence for early disposal to avoid miscarriage of justice.
On 21/06/1984, Prosecution witness 6, Station House Officer, Sodala Police Station in Jaipur, Rajasthan State had received a telephonic message, recorded under Ex. P-22, that Guddi, the deceased was burnt of injuries and was admitted in the hospital. After its entry in the G. D., he proceeded to the hospital and recorded her statemnet Ex. P 16, came back to the police station, issued the F. I. R. and set the investigation in motion. Prosecution witness 8 took over the investigation, went to the deceased and recorded her statement Ex. P-19 under Section 161 of the Code of Criminal Procedure, (Cr. P. C.) and sent the requisition Ex. P-7 to the Chief Judical Magistrate, Jaipur to record her declaration. The latter directed Prosecution witness 1, the Addl. Chief Judicial Magistrate by names Hari Singh Punja to proceed to the hospital and record the statement. Accordingly. Prosecution witness 1 on receipt of the order at 9.45 p. m. proceeded to the hospital and reached the hospital at about 10.10 p. m. on 21/06/1984. He sent a nurse to get the doctor for his proceeding with the recording of her statement. He waited till 10.50 p. m. but no doctor turned up. Consequently, he proceeded to record her statement by way of questions and answers under Ex. P-8. He put 8 questions in all. Relevant questions are : Questions Nos. 1, 2 and 3. They along with answers read as under :JUDGEMENT_217_8_1996Html1.htm
The other questions are not relevant for the purpose of this case; hence omitted. She died on June 22, 1984 due to 80 per cent burn injuries. The crime was covered under Section 302, Indian Penal Code (IPC). Prosecution witness 7, the doctor conducted autopsy and issued post-mortem certificate, Ex. P-21. At the trial, prosecution had examined as many as 8 witnesses including Prosecution witness 3 and Prosecution witness 4, the immediate neighbours and Prosecution witness 2, brother of the deceased to prove motive. Prosecution witness 3 and Prosecution witness 4 turned hostile. The Sessions Judge relied upon the three dying declarations and he has given primacy to the dying declaration recorded by the Judical Magistrate under Ex. P-8 and held that the charge under Section 302, I. P. C. was proved against the respondent and convicted him under Section 302 and sentenced him to undergo rigorous imprisonment for life. But he acquitted the deceased's mother-in-law Pushpa.
(3.)THE State did not file any appeal against the acquittal of the mother-in-law. THE respondent filed appeal in the High Court. THE Division Bench of the High Court in Criminal Appeal No. 116 of 1986 by order dated 13/05/1988 has acquitted the respondent. Reasons in support thereof are that: the Judicial Magistrate had not recorded her mental condition; he did not get any confirmation of the mental condition of the deceased before recording the declaration; the articles seized at the scene of the offence were not sent for chemical examination; the hair of the deceased sent for chemical examination did not contain the smell of kerosene oil; doctors would normally be available in the ward; the Judicial Magistrate without waiting for the doctor and without obtaining from him proper certificate of the mental condition of the decased, recorded Ex. P-8 declaration which would be highly irregular on the part of the Magistrate to record such statement; the deceased was under agony with 80 per cent of burn injuries. THErefore, the story set up by the prosecution is not genuine and is shrouded with doubts. THE prosecution, therefore, has not proved the case beyond reasonable doubt. Accordingly, the Division Bench acquitted the respondent giving him the benefit of doubt.
It is contended for the State that the view taken by the High Court is unjustified on the facts of this case. Prosecution witness 1, the Judicial Magistrate waited for the doctor for 40 minutes near the deceased before recording the statement of the deceased, which has now turned out to be dying declaration, but no one had turned up. Therefore, he though it expedient to proceed with recording the dying declaration. He put questions and elicited answers from the deceased. The answers given by her clearly indicate her mental condition. Therefore, the absence of certificate from the doctor does not cast any cloud on the correctness of the declaration by the deceased. They get corroboration from the F. I. R., Ex. P-16 and Section 161 statement, Ex. P-19 which consistently spoke of the offence committed by the respondent. The omission on the part of the investigation officer to have the seized clothes sent for chemical examination is a lapse on the part of the investigation officer but that does not cast doubt on the prosecution case. In view of the evidence on record that after the deceased was burnt, her clothes were changed and the burnt clothes were found under the Panchanama showed that evidence of offence was destroyed. In view of the doctor's evidence that he died due to 80 per cent burn injuries, the collusion would be that the cause of the death was burns. The omission to find kerosent oil smell on the hair sent for chemical examination also does not cast any doubt on the prosecution case. The statement of the deceased, Ex. P-8 is clear and unequivocal that the respondent had poured kerosene on her and set to fire and consequently she sustained 80 per cent burn injuries and died due to shock. The offence, therefore, of murder, has been made out. Though Pushpa, mother-in-law of the deceased was wrongly acquitted, the acquittal does not cast any doubt on the veracity of the declaration, Ex. P-8.
(2.)DESPITE issuance of non-bailable warrant and attachment of the properties, presence of the respondent could not be secured for executing the warrants as it was reported that his whereabouts were not known. Consequently, as per the directions of the Court, the Legal Aid Committee assigned Shri S. K. Pasi to assist the Court as a counsel for the respondent. After hearing the counsel for the State and the respondent, we had reserved the judgment on 30/01/1996. However, on 2/02/1996, the respondent was brought and his counsel Shri Sushil Kumar Jain requested the Court to give an opportunity for hearing. Accordingly we hear the matter again. This case also indicates avoidance on the part of the people like the respondent to delay the disposal of the appeal in this Court. When the attempts were found to be unsuccessful, he made appearance in the Court which gave us an insight to adopt such appropriate procedure for securing presence for early disposal to avoid miscarriage of justice.
On 21/06/1984, Prosecution witness 6, Station House Officer, Sodala Police Station in Jaipur, Rajasthan State had received a telephonic message, recorded under Ex. P-22, that Guddi, the deceased was burnt of injuries and was admitted in the hospital. After its entry in the G. D., he proceeded to the hospital and recorded her statemnet Ex. P 16, came back to the police station, issued the F. I. R. and set the investigation in motion. Prosecution witness 8 took over the investigation, went to the deceased and recorded her statement Ex. P-19 under Section 161 of the Code of Criminal Procedure, (Cr. P. C.) and sent the requisition Ex. P-7 to the Chief Judical Magistrate, Jaipur to record her declaration. The latter directed Prosecution witness 1, the Addl. Chief Judicial Magistrate by names Hari Singh Punja to proceed to the hospital and record the statement. Accordingly. Prosecution witness 1 on receipt of the order at 9.45 p. m. proceeded to the hospital and reached the hospital at about 10.10 p. m. on 21/06/1984. He sent a nurse to get the doctor for his proceeding with the recording of her statement. He waited till 10.50 p. m. but no doctor turned up. Consequently, he proceeded to record her statement by way of questions and answers under Ex. P-8. He put 8 questions in all. Relevant questions are : Questions Nos. 1, 2 and 3. They along with answers read as under :
The other questions are not relevant for the purpose of this case; hence omitted. She died on June 22, 1984 due to 80 per cent burn injuries. The crime was covered under Section 302, Indian Penal Code (IPC). Prosecution witness 7, the doctor conducted autopsy and issued post-mortem certificate, Ex. P-21. At the trial, prosecution had examined as many as 8 witnesses including Prosecution witness 3 and Prosecution witness 4, the immediate neighbours and Prosecution witness 2, brother of the deceased to prove motive. Prosecution witness 3 and Prosecution witness 4 turned hostile. The Sessions Judge relied upon the three dying declarations and he has given primacy to the dying declaration recorded by the Judical Magistrate under Ex. P-8 and held that the charge under Section 302, I. P. C. was proved against the respondent and convicted him under Section 302 and sentenced him to undergo rigorous imprisonment for life. But he acquitted the deceased's mother-in-law Pushpa.
(3.)THE State did not file any appeal against the acquittal of the mother-in-law. THE respondent filed appeal in the High Court. THE Division Bench of the High Court in Criminal Appeal No. 116 of 1986 by order dated 13/05/1988 has acquitted the respondent. Reasons in support thereof are that: the Judicial Magistrate had not recorded her mental condition; he did not get any confirmation of the mental condition of the deceased before recording the declaration; the articles seized at the scene of the offence were not sent for chemical examination; the hair of the deceased sent for chemical examination did not contain the smell of kerosene oil; doctors would normally be available in the ward; the Judicial Magistrate without waiting for the doctor and without obtaining from him proper certificate of the mental condition of the decased, recorded Ex. P-8 declaration which would be highly irregular on the part of the Magistrate to record such statement; the deceased was under agony with 80 per cent of burn injuries. THErefore, the story set up by the prosecution is not genuine and is shrouded with doubts. THE prosecution, therefore, has not proved the case beyond reasonable doubt. Accordingly, the Division Bench acquitted the respondent giving him the benefit of doubt.
It is contended for the State that the view taken by the High Court is unjustified on the facts of this case. Prosecution witness 1, the Judicial Magistrate waited for the doctor for 40 minutes near the deceased before recording the statement of the deceased, which has now turned out to be dying declaration, but no one had turned up. Therefore, he though it expedient to proceed with recording the dying declaration. He put questions and elicited answers from the deceased. The answers given by her clearly indicate her mental condition. Therefore, the absence of certificate from the doctor does not cast any cloud on the correctness of the declaration by the deceased. They get corroboration from the F. I. R., Ex. P-16 and Section 161 statement, Ex. P-19 which consistently spoke of the offence committed by the respondent. The omission on the part of the investigation officer to have the seized clothes sent for chemical examination is a lapse on the part of the investigation officer but that does not cast doubt on the prosecution case. In view of the evidence on record that after the deceased was burnt, her clothes were changed and the burnt clothes were found under the Panchanama showed that evidence of offence was destroyed. In view of the doctor's evidence that he died due to 80 per cent burn injuries, the collusion would be that the cause of the death was burns. The omission to find kerosent oil smell on the hair sent for chemical examination also does not cast any doubt on the prosecution case. The statement of the deceased, Ex. P-8 is clear and unequivocal that the respondent had poured kerosene on her and set to fire and consequently she sustained 80 per cent burn injuries and died due to shock. The offence, therefore, of murder, has been made out. Though Pushpa, mother-in-law of the deceased was wrongly acquitted, the acquittal does not cast any doubt on the veracity of the declaration, Ex. P-8.
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