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Rakesh Kumar Nagal Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberD.B. Criminal Appeal No. 440 of 1981
Judge
Reported in1985(2)WLN495
AppellantRakesh Kumar Nagal
RespondentState of Rajasthan
DispositionAppeal dismissed
Excerpt:
.....would like to say, and then she narrated the entire story. in these letters, she has written that rakesh was kept by her because she wanted to nourish him like a son and, reform his habits, but he has started beating her and, therefore, she felt frightened as her life was in danger. it was also stated that rakesh had broken lock and come inside and threatened her that her head would be broken [kksim+h dks [kjcwts ds hkakfr f[kyk nwaxk 33. undoubtedly, these letters support that rakesh developed serious bad character and used to beat her on refusal of giving money for purchasing the liquor......was converted into under section 302, ipc. during investigation the police prepared site plan and recorded statement of the witnesses under section 161, cr.p.c.5. after completion of investigation, the police submitted a challan against the accused under section 302, ipc, in the court of munsif and judicial magistrate, kota who committed the same for trial to the court of sessions judge, kota. the sessions judge framed charge against the appellant under section 302, ipc. the charge was denied by the accused appellant and the trial was conducted.6. in support of its case, the prosecution examined as many as 17 witnesses, namely, kusumalata (pw 1), shakuntla dube (pw 2), pushplata dube (pw 3), sukhraj bhandari (pw 4), nandkishore (pw 5), narendra avasthi (pw 6), mahendra mishra (pw 7),.....
Judgment:

Guman Mal Lodha, J.

1. Rakesh Kumar, the appellant, has filed this appeal against his conviction of life imprisonment with a fine of Rs. 200/- (in default of payment of fine, two months further RI), for committing murder of Urmila by burning her alive.

2. Smt. Urmila Devi widow of Devi Sahay was a teacher in Railway Loco Primary School, Kota. Urmila did favour to Rakesh by maintaining him like a son. Rakesh developed bad habits and started harassing Urmila for getting money for liquor. Whenever Urmila refused to Rakesh, she was harassed and beaten.

3. On the unfortunate night in between 29th and 30th August, 1979, Rakesh demanded money as usual from Urmila at about 10 p.m. and when Urmila refused, she was beaten. A constable on patrol took Rakesh and noted down the address of Rakesh which was objected to by Rakesh. Then Rakesh took his attachi and posed that he was going to Ahmedabad with the constable. Thereafter, they both took wine in the cooperative bank. Urmila having observed this felt frightened and, therefore, closed the doors and concealed herself in the kitchen. Later on, Rakesh came at about 2-30 a.m. in the night and after enforcing her forcible entry, sprinkled kerosene oil on her and burnt her. Thereafter she shouted and some neighbours came there, who took her to the hospital.

4. After recording statement on Parcha, Ali Mohammed sent the same at police station where a case No. 213/79 was registered Under Section 307, IPC, and investigation commenced. The statement was also got recorded by the police during investigation by Magistrate. At 1.20 p.m. Urmila died and the case was converted into under Section 302, IPC. During investigation the police prepared site plan and recorded statement of the witnesses under Section 161, Cr.P.C.

5. After completion of investigation, the police submitted a challan against the accused under Section 302, IPC, in the Court of Munsif and Judicial Magistrate, Kota who committed the same for trial to the court of Sessions Judge, Kota. The Sessions Judge framed charge against the appellant under Section 302, IPC. The charge was denied by the accused appellant and the trial was conducted.

6. In support of its case, the prosecution examined as many as 17 witnesses, namely, Kusumalata (PW 1), Shakuntla Dube (PW 2), Pushplata Dube (PW 3), Sukhraj Bhandari (PW 4), Nandkishore (PW 5), Narendra Avasthi (PW 6), Mahendra Mishra (PW 7), Dhirajbhai Desai (PW 8), Vinod Kumar Dwedi (PW 9), Ashok Chavrekar (PW 10), Dr. A.S. Chaudhari (PW 11), Manohar Lal Mishra (PW 12), Riyajuddin Khan (PW 13), Dr. M.M. Mishra (PW 14), Dr. V.K. Chautravedi (PW 15), Ali Mohd. (PW 16) Moinuddin (PW 17).

7. Kusum Lata (PW 1), Shakuntla (PW 2), Pushpa Lata Dube (PW 3) and Narendra Avasthi (PW 6) were cross-examined by the Public Prosecutor on his request. Nand Kishore (PW 15) and Vinod Kumar Dwedi (PW 9) were declared hostile. Sukhraj Bhandari (PW 4) Magistrate recorded statement of Urmila deceased.

8. Thereafter statement under Section 313, Cr.P.C. was recorded of the accused wherein, he denied the allegations and submitted that Urmila wanted to take him in adoption as her son but the brother and father of Urmila were not in agreement with her, therefore, they were annoyed with him. On the date of occurrence a quarrel took place between them. Thereafter he went along with his attache at about 10.30 p.m. at the residence of his friend Ravin Dwedi and only at about 4-5 early in the morning after the occurrence be came.

9. In defence, the appellant examined Mohammed Farooq (DW 1) and Rama Tilok (DW 2). The learned Sessions Judge after hearing the agreements convicted and sentence the accused appellant as mentioned above.

10. The conviction of the appellants has been challenged on the various grounds. We have heard Shri Biri Singh, the learned counsel for the appellant and Mrs. Kamla Jain, the learned Public Prosecutor, and perused the record of the case. There is no doubt that in this case, the neighbours who could have thrown real light on the incident, have turned hostile. However that alone cannot result in acquittal of the accused because, there are three dying declarations of the deceased-Urmila which have been relied upon by the trial court.

11. First dying declaration was given to Dr. A.S.Chaudhary (PW 11) at 5.40 a.m. in the morning, second, to Ali Mohd. ASI (PW 17) at 6 a.m. and third one to the Magistrate, Sukh Raj Bhandari, AMJ No. 2 (North), Kota, at 9.25 a.m.

12. Mr. Biri Singh, the learned counsel for the appellant, wanted to make much capital out of some stray sentences in the statements of Dr. A.S. Chaudhary (PW 11) wherein, he has stated that sometimes, Urmila-deceased was semi-consicous, and sometimes, unconscious.

13. Now, we would first examine the statement of Dr.A.S. Chaudhary (PW 11). He has stated that on that night, he was Medical Officer, Railway, Kota and was on emergency duty in hospital. He was called to attend one Urmila who had severe burns, at her residence. He brought Urmila to the hospital in ambulance and informed surgeon, and he also informed the police on phone, and sent a written memo (Ex. A. 15) bearing his signatures A to B, According to him, the patient was semi-conscious. Outdoor patient ticket (Ex.A. 16) was prepared. He had a talk with the patient and whatever was told to him was written in writing in Ex. A. 17 at C to D, which reads as under:

The patient says that some Rakesh Nagal aged about 20 years who was staying with her has beat her and burnt her. Police was informed immediately.

Dr. Chaudhary has stated that when the above statement was given by Urmila, she was fully conscious, and was fully mentally fit to speak. This witness also stated that the police also enquired from him, whether Urmila can give statement or not, to which he replied in writing at A to B in Ex. D. 1, which in terms states that she is conscious and can give the statement. Dr. Chaudhry also stated that in Ex. A. 18, at C to D, he mentioned that she was conscious.

14. In cross-exmination, Dr. Chaudhary (PW 11) admitted that, the case was of heavy burns like 70XI, that, at some times, Urmaila was unconscious and some times she was semi-conscious. He also stated that he gave the treatment of transfusion of blood and so also oxygen.

15. Shri Bin Singh, appearing for the appellant, argued that this doctor (PW 11) has stated that her condition (Urmila's condition) was deteriorating every minute and therefore, her dying declaration could not have been recorded because, even when she was brought, she was semi-conscious only. We are not inclined to accept this contention because, the doctor has positively stated that she was in a fit mental stage to give statement, and doctor has certified it to the police also at A to B in Ex. D. 1, and also recorded the statement, himself, as mentioned above.

16. The mere fact, the doctor has stated that the decased Urmila was semi-conscious or sub-conscious, would not mean that she could not have given statement. Moreover, Oxygen was being given and therefore, there is bound to be some moments of improvements even though general condition may be deterioreting.

17. Dr. Chaudhary (PW 11) has stated clearly as under:

I asked her that how this accident took place, she was telling in broken voice and that, she has been burnt by some Rakesh Nagal.

She had a pauses 2-3 times within interval of few minutes while narrating about the incident and this was due to her semi-consciousness.

We think that the above version of this witness, Dr. A.S. Chaudhary (PW 11) is very natural and inspires confidence.

18. Merely because, the condition of the patient was serious, it cannot be inferred that the patient was not in a position to speak or think of mentally, understand the question and give correct reply.

19. Again, we do not attach much importance to the submission of Shri Biri Singh that on telephone the doctor has not mentioned the details of the incident to the police. Obviously, the information is given to the police of the seriousness of the injuries so that they can make arrangements for dying declaration and also, record the incident.

20. Shri Biri Singh also laid much emphasis on the fact that the certificate (Ex. D. 1) was given on 30-8-1979 about the condition of the patient and then again, another certificate (Ex. A. 18) was given by the doctor on 31-8-1979. The answer given by the doctor in cross-examination is also sensible as he has stated that earlier certificate in the ward was given without seal and stamp, and, therefore, the police came back and wanted a certificate with seal, and, therefore, he gave another certificite (Ex. A.18). The explanation for the dates 30th and 31st August, 1979 contained in the answer in cross-examination, appears to be true and just, which reads as under:

As the earliest certificate Ex. D. 1 was given by me in the ward without any stamp and seal. The police came back and asked for another certificate, I gave on 31-8-1979 under my seal in office. Ex. A. 17 is in my hand-writing. Ex. A. 18 was written by me on 31-8-1979 itself and therefore I had put on the date of 30th August, 1979 at E to F but the police never came to take this certificate on the same day and he came on 31-8-1979 and therefore, I have put on the date of 31-8-1979 under my signature. Ex. D. 1 portion C to D and Ex. A. 18 both are written by me on 31-8-1979. It is not correct that I examined her about her consciourness about 5.30 A.M.

21. It is significant that apart from the testimony of the above doctor, (PW 11), Sukhraj Bhandari Munsif Magistrate (PW 4) has given a detailed version of the dying declaration recorded by him, which inspires confidence. According to his statement he received an information from the police station Bhimganj Mandi, Kota in the form of Ex. A. 4, and he went for recording dying declaration of Urmila Devi. Shri Sukhraj Bhandari (PW 4) also stated that the dying declaration was recorded in his handwriting; he has read over the dying declaration to Urmila again, and made endorsement of 'R.O. and A.C and got signatures of Urmila. Sukhraj Bhandari also stated that she was in a fit mental condition to give statement and the doctor has also certified it to be so.

22. The dying declaration made by Urmila Devi and recorded by Sukhraj Bhandari (PW 4) which is Ex. A. 6, reads as under:

Fkkuk Hkhexat e.Mh dh lfefr dh rgjhj ij eqLekr jk mfeZyk nsoh ifr Hkw nso izlkn Fkk] tkfr czkge.k mez 32 o'kZ] v/;kfidk] fuoklh jsyos dkyksuh] dksVk dk e`R;qdkfyd dFku vkt rkjh[k 30&8&1979 dks 9-25 ,- ,e- ij fy;k x;k A

'kiFk fnykbZ xbZ

d eqs jkts'k dqekj iq= jkedqekj ukxy us tyk;k gS A igys Hkh esjs lkFk dbZ ckj ekjihV og dj pqdk gS A dy rkjh[k 29&8&1979 dks jkr 8-30 ih-,e- ij og esjs ?kj vk;k vkSj vPNh rjg ckrphr djrk jgk vkSj dgk esjh vVSph tek nks A ml nkSjku mlus ih j[kh FkhA vVSph ysdj og esj ?kj ls djhc 10 cts fudy x;k og dkWvkijsfVo es tkdj cSBk A ogka ij cSBdj fi;k vkSj fQj vkdj eq ls xM+k djus yxk fd rqeus esjh iqfyl es fjiksZV D;ks djh A eSus mlus dgk fd rqe eqs jskt ekjrk ihVrk gS blfy, fjiksZV dh FkhA mlds ?kjokyks dks Hkh lwpuk nsrh jgh fd mls esjs ikl ls gVk yks fdUrq mUgksus ugh gVk;k A viuh lqj{kk gsrq eSus iqfyl es fjiksZV ,d grk igys Hkh dh Fkh AfQj eqs dy jkr dks ekjus yxk A rks eS ?kj ls ckgj fudy vkbZ A ckgj ds x'r ds flikgh dks eSus dgk vkSj og ykSVdj esjs ikl okil vk;k A fQj og flikgh vkSj mlds ckrphr gqbZ vkSj flikgh mls ckgj ys x;k A flikgh dks mlus nk: fiykbZ A mlh nkSjku jkr 2 ct x;s A fQj nks cts ls mlus eqs ok;j ls ekjuk 'kq: fd;k fQj og pyk x;k fQj eSus pkjks vksj ls njoktk cUn dj fn;s o tkijh es fNi x;h A tkijh dks rksM+dj vUnj vk;k A fQj xkyh xykSp o ekjihV djus yxk A fQj eSus njoktk tkQjh dk [kksyk A fQj og jlksbZ es vk x;k vkSj eq ij feV~Vh dk rsy M+kydj esjs vkx yxk nh AeS fpYykbZ Fkh fdUrq dksbZ iM+kslh ugh vk;k A D;ksfd iM+kslh;ks dks og xkyh xykSp djrk gSA eSus mls iM+kslh es ukrs csVk cukdj j[kk A mldh eka us dgk Fkk fd blds ckcwth dh rfc;r [kjkc gS dqN fnu bls vius ikl j[k yks A og djhc 3 o'kZ ls esjs ikl Fkk AvDVwcj 29 es mls 3 o'kZ gks tk;sxs A mlh mez 22 o'kZ gS A flikgh nk: ihdj pyk x;k Fkk A okil ugh vk;k Fkk A esjs fpYykus ij iM+kslh Hkh tcjnLrh vk;s Fks vkSj eqs mUgksus cpk;k Fkk A ;g ekjihV o tykuk mlus blfy, fd;k Fkk fd eSus iqfyl dks ekjihV dh fjiksZV D;ks dh vkSj ?kj dh ckr ckgj D;ks fudkyh A esjs lkFk jgus ds Ms o'kZ ckn blus esjs lkFk ekjihV djuk 'kq: dj fn;k Fkk A og nk: ihus ds fy, iSls ekaxrk ;k rks ns nks ugh rks ekjihV djrk A bl izdkj nk: ihus ds fy, gh iSls u nsus ij ekjihV djrk jgk A eSus blds fy, bls lq/kkjus gsrq [kkus ihus] iguus dk [kpZ mBk;k Fkk AeSus ,d eka dk QtZ fuHkkus gsrq lkjk dk;Z fd;k Fkk A ;g irk ugh Fkk A bldks nks ckj gkbZLdwy dk QkeZ Hkjk;k Fkk fd ;s dSls Hkh viuk thou cuk ys A cksry es ?kklysV iwjk Hkjk gqvk Fkk A;g vkSj iwjh cksry eq ij M+ky nh A eSus ykr ekjh Fkh fd og esjs vkx u yxk lds A ij esj ftruk cl Fkk mruk gh dj ldh Fkh Aog tkijh rksM+dj vk;k rc vdsyk gh Fkk A eS jlksbZ es cUn gks jgh Fkh blfy, eSus ugh ns[kk fd mlus tkijh dSls rksM+h A ekjihV dejs es gqbZ Fkh blfy, eSus ugh ns[kk vkSj fQj eqs [khp dj jlksbZ es ys x;k Fkk vkSj eq ij rsy Mkydj eqs mlus tyk;k Fkk A

vkj- vks- ,.M ,- lh-

lg@n-

30&8&1979

bZle; 9-45 ,-,e-

23. According to S.R. Bhandari (PW 4), when he reached the hospital Urmila was an indoor patient and taking glucose bottle. Bhandari (PW 4) stated that he asked Urmila as to what she would like to say, and then she narrated the entire story. Whenever after spearing something, she did keep mum then he again asked her as to what were further details. Ex. P. 5 is that statement. Bhandari also stated that before recording statement, he ascertained from the doctor that the patient was in a fit condition to give statement. Though this witness (Bhandari PW 4) was to put a very lengthy close cross-examination but nothing has come on account of which his testimony can be discredited. According to the statement recorded in the form of dying declaration, it was accused Rakesh who burnt Urmila alive.

24. Third dying declaration was recorded by Ali Mohd. (PW 6), ASI P.S. Bhimganjmandi (Kota), which reads as under:

ipkZ c;ku lfefr mfeZyk nsoh dk lgk;d v/;kfidk yksdks izkbZejh Ldwy dksVk t- mez 28 lky fuoklh U;w jsyos dkyksuh] dksVk DokVj ua- 380 lh eqfrZtk vy eksgEen ,- ,l- vkbZ- Fkkuk Hkhexate.M+h] ceqdke jsyos vLirky] dksVk okMZ ua- 4 csM+ ua- 1 ij ysVh gqbZ fnukad 30&8&1979 le; 6 ,- ,e-

us jsyos gkLfiVy okMZ ua- 4 csM+ ua- 1 ij ysVh gqbZ mfeZyk nsoh us crk;k fd jkts'k dqekj ukxy dks djhc 3&4 lky ls eSus vius ikl cPps dh rjg j[kk gS Ablds firk vDlj chekj jgrs gS blfy, mldh eka us dgk fd rqe bls vius ikl j[k yks jkts'k eq>ls djhc Ms lky ls >xM+k ,oa ekjihV djrk vk jgk gS A ;g eq> ls 'kjkc ds iSls ekaxrk Fkk] ysfdu eSus bu :i;s dks nsus ls budkj dj fn;k A vkt jkr dks djhc 10 cts blus esjs lkFk ekjihV dh ml le; ,d flikgh tks x'r es lkbZfdy ij Fkk A mls le>k cq>kdj dkWvijsfVo lkslkbVh cSd ij ys x;k] mlus esjk irk Hkh uksV fd;k Fkk ftl ij jkds'k us ,srjkt fd;k fd bldks irk er fy[kkvks ;g Ikjs'kku djsxk A blds ckn vgenkckn tkus dks dgdj viuh vVSph ysdj flikgh ikBd ds lkFk pyk x;k Fkk A bu nksuks us dksvkiWjsfVo cSad es 'kjkc ih;k ;g ns[kdj M+j ds ekjs DokVj ds fdokM+ tkijh ds vUnj dh fcUnq yxkdj jlksbZ es fNi xbZ A jkts'k fQj esjs DokVj ij jkr ds djhc nks kbZ cts vk;k o tkijh rksM+dj jlksbZ es vUnj vk x;k ogkW Hkh esjs lkFk ok;j ls ekjihV dh vkSj ,d cksry es ftles ?kklysV Hkjk Fkk A esj mij Mky fn;k vkSj ekfpl ls vkx yxk nhA esjs fpYykus ij eksgYys okys nkSM+dj vk, A mUgksus esjh vkx cq>kbZ o gkLihVy ys x, esjh gkyr xEHkhj gS eS ugh cpwaxh A

uksV% mDr c;ku idj lquk;k lgh ledj gLrk{kj fd;s A

vkj- vks- ,.M+ ,- lh-

,l- Mh- ,- ,l- vkbZ-

25. Ali Mohd. (PW 16) stated that he went to ward No. 4 of Railway hospital where, at bed No.l, Urmila Devi was sleeping and took her statement (Ex. P. 24). The statement of Ali Mohd. (PW 16) also inspires confidence and there is nothing to discredit him.

26. According to the version of Ali Mohd. (PW 16), he took the statement of Urmila Devi and thereafter got her medically examined first and seeing the report obtained the information about the feasibility of recording statement. Ex. D. 1 contains the report of doctor. It is significant that in the statement of deceased recorded before her death.some allegation of burning her alive by Rakesh has beem mentioned. Ali Mohd. (PW 16) has stated that Urmila Devi was definitely in serious condition when he examined her because the blood was being given and glocuse was also being given. According to Ali Mohd. Urmila also used to cry some times, but she gave her statement with all knowledge and consciousness that she was giving statement.

27. Ali Mohd. (PW 16) also recovered bottle of kerosene oil and tin with match box. The statement of this witness (PW 16), as a whole, inspires confidence.

28. We are convinced that the finding of the trial court based on these three dying declaration recorded by three different officers doctor, Magistrate and Investigating Officer, calls for no interference in appeal as it is based on just and proper appreciation of the evidence.

29. The learned trial court has discussed in details the credibility of these three witnesses and, whether the dying declarations have been given voluntarily and recorded truthfully.

30. We are convinced that there is no serious infirmity in any of these dying declarations recorded by three different agencies, a doctor, an SHO, and a Judicial Magistrate, as they corroborate each other and prove that it was Rakesh accused who, burnt the deceased-Urmila alive, these deserve to be accepted.

31. Other circumstantial evidence relied upon by the trial court supports the prosecution case. Shri Biri Singh argued that there are contradictions in these three dying declarations. But, we do not find any material contradictions. The medical and post mortem reports support the prosecution case. The trial court has taken notice of the details of dying declarations, alleged discrepancies, and how are they immaterial, and then relied upon them, and we also agree with it.

32. The trial court has also placed reliance upon Ex. A. 20 and Ex. A. 21, letters of Urmila to the authorities, and SHO. These are in the handwriting of Urmila Devi and have been found to be so. In these letters, she has written that Rakesh was kept by her because she wanted to nourish him like a son and, reform his habits, but he has started beating her and, therefore, she felt frightened as her life was in danger. She stated in that letter that on 16-8-1979 Rakesh started abusing her and quarrelling with her at 12 O'clock in the night and continued to beat her upto 2.30 O'clock in the night, and, therefore, she wanted that Rakesh must be removed from her house with the help of the police. She stated that when ever she could not give money to him, he started beating. It was also stated that Rakesh had broken lock and come inside and threatened her that her head would be broken [kksiM+h dks [kjcwts ds Hkakfr f[kyk nwaxk

33. Undoubtedly, these letters support that Rakesh developed serious bad character and used to beat her on refusal of giving money for purchasing the liquor.

34. Since we are in agreement with the judgment of the trial court, and no other infirmity has been shown by Shri Biri Singh in any other evidence relied upon by the learned trial court, it would be futile exercise to repeat, in details, all the facts and circumstances relied upon by the learned trial Court against the accused.

35. We must mention that the entire prosecution case can swim or sink on the basis of these three dying declarations. If we would have disbelieved them no other evidence was sufficient to prove the guilt of the accused Since we have accepted them, any other minor infirmity in other evidence even if found to be there, would not in my manner undermine the sanctity, credibility truth worthiness, voluntariness correctness and truthfulness of these three dying declaration, recorded by three different authorities, one from judiciary, one from police, and one from medical and health department, non of whom had any motive to falsely implicate Rakesh accused.

36. All the three officers are government officers of some standing and status, and nothing has been shown to discredit them inspite of the detailed lengthy cross-examination.

37. Consequently, this appeal fails and deserves to be dismissed.

38. Before parting with this judgment, we must mention our deep sense of anguish, shock and sorrow at the incident wherein an attempt to reform accused resulted in sacrifice by burning of the deceased Urmila the reformeRule The fact that that vice of liquor and drinking is directly responsible for this murder only aggravates seriousness of the offence and gives lesson to all and sundry that developing habit of drinking liquor or addiction to it can result in a ghastly tragedy of murder of one who wanted to nourish and protect and develop the accused as son. In also shows that we must practice 'prohibition' by respecting principle in Article '47'.

39. In the result, this appeal fails and is hereby dismissed.


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