High Court heard suspension of sentence application contending prosecution case was spurious and dying declaration was forged due to superimposed thumb impressions. Bench rejected defence theory as unbelievable and dismissed application.
Application for Suspension of Sentence dismissed as being devoid of merit.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 446/2019
----Petitioners
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Suresh Kumbhat Mr. Panney Singh For Respondent(s) : Mr. N.S. Bhati, PP
HON'BLE MR. JUSTICE SANDEEP MEHTA HON'BLE MR. JUSTICE ABHAY CHATURVEDI
Order
27/05/2019
Heard learned counsel for the appellant-applicant and perused the material available on record.
Learned counsel Mr. Suresh Kumbhat and Mr. Panney Singh representing to appellants-applicants vehemently and fervently contended that entire case of the prosecution is false and fabricated. They referred to the statements of the prosecution witnesses PW-1 Rashal, PW-4 Sukhi Devi, PW-5 Champi Devi, PW7 Sonaram, PW-8 Poni Devi, PW-9 Bharat Singh, PW-13 Harish, PW-21 Hansa Ram and vehemently urged that the parcha bayan as well as dying declaration of the deceased Rupa are ex-facie
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[SOSA-446/2019]
falsfiled by the evidence of the these witnesses. It was contended that the Magistrate, who recorded the dying declaration Ex.P/29, also indulged in fabrication. As per the defence counsel, the thumb impressions of deceased Rupa on the document Ex.P/29 appear to be superimposed. He further submits that the dying declaration is also unbelievable and liable to be discarded for the reason that the doctor did not opine that the patient was fit to give the statement. He thus urges that the applicants deserves indulgence of bail during the pendency of the appeal.
Per contra, Learned Public Prosecutor has pointed out that the deceased Smt. Rupa was married to the accused Mahendra about 3 years before the incident. She was having a small child and was also pregnant when, she was first beaten and then, set to fire after pouring kerosene on her body. He urges that the parcha bayan (Ex.P/1) as well as the dying declaration (Ex.P/29) clearly portray that the accused applicant the & co-accused indulged in meting out cruelty and harassment to the deceased on account of demand of dowry. Finally she was set to fire by pouring kerosene on her body. He urges that merely because some of the prosecution witnesses stated that the deceased intentionally set herself to fire, these two irrefutable documents cannot be discarded.
We have given our thoughtful consideration to arguments advanced at bar and went through the material available on record. For the present we are least satisfied with the defense theory, which is dubitably portrayed in the statements of the few prosecution witnesses that the deceased set fire to herself. This version is absolutely unbelievable for the simple reason that the deceased had no cause whatsoever for committing suicide unless
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the accused had harassed and humiliated her as alleged by the material prosecution witness. We have carefully examined the dying declaration of deceased Rupa (Ex.P/29) recorded by the Magistrate and find that aspersion cast by Shri Kumbhat that the thumb impressions of Smt. Rupa on this document are superimposed is absolutely untenable. It is clear that the Magistrate recorded the dying declaration almost to the bottom of the page and then got the thumb impressions of the deceased taken. She was severely burnt to the extent of 98% and thus, the lack of precision in marking the thumb impressions can is well explained.
In this background and considering the specific allegations attributed to the accused in the dying declaration of the deceased recorded by a Magistrate, we are not convinced with the contention of Shri Kumbhat that the case is of false implication. Hence, the application for Suspension of Sentence is dismissed as being devoid on merit.
(ABHAY CHATURVEDI),J (SANDEEP MEHTA),J
42-Hanuman/-
2 issues framed by the court
Whether the suspension of sentence is sustainable on the ground that the prosecution case is false.
Whether the dying declaration of the deceased is reliable given the claim of superimposed thumb impressions.
Prem W/o Shri Suwa Ram
Suwa Ram S/o of Shri Dena Ram
State Of Rajasthan
Sandeep Mehta
Abhay Chaturvedi
As recorded by the court registry
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