State of Rajasthan Vs. Kishanlal and anr. - Court Judgment

G.L. Gupta, J.

1. Through this appeal under Section 378, Cr.P.C., the State of Rajasthan has questioned the acquittal of the respondents Kishanlal and Mst. Poora (now dead) by the Addl. Sessions Judge, Hanumangarh, vide judgment dated 1-4-83.

2. The facts of the case are that Sulochana, daughter of Chandulal (PW1) was married to Kishanlal respondent No. 1 on 17-7-75. There arose some dispute between Chandulal and father of respondent Kishanlal regarding the amount paid in the marriage. The prosecution case is that Kishanlal (husband), Poora (mother-in-law) Banwarilal (father-in-law and Om Prakash (brother-in-law) continuously pressurized Sulochana to bring Rs. 5,100 from her father. The prosecution case further is that on 12-9-76 Sulochna was given beatings by her husband Kishanlal. He took all her ornaments and threatened her that she would be killed. In the night at about 1 a.m. when Sulochna was sleeping with her mother-in-law. Poora, the accused persons poured kerosene oil on her and set fire to her. On screams made by Sulochna, Brijlal Rajput and one more neighbour reached there and they put off the fire. Sulochna was taken to the hospital, where the accused got her statement recorded which suited them. The prosecution case further is that on 6-11-76 when Sulochna while in hospital regained consciousness and she told that the accused persons, Kishanlal, Poora, Banwarilal and Om Prakash had poured kerosene oil on her and set tire to her. Chandulal lodged a report to DIG Bikaner on 11-11-76 on which a case was registered. As the police did not arrest the accused, Chandulal filed criminal complaint on 15-11-77 before the Munsif Magistrate, Suratgarh whereupon enquiry was held and cognizance was taken of the offences under Sees. 302/302/120-B IPC against Kishanlal and Mst. Poora vide Order dated 2-1-81. The case was committed to the Court of Session.

3. Charges under Section 120B and Section 302 IPC, in the alternative 302/34 IPC were framed against both the accused. They pleaded not: guilty. The prosecution examined 11 witnesses. Accused in their statements denied accusation. It was admitted by the accused that Sulochna was married to Kishanlal and that she got burns in the matrimonial home. The defence set up was that she got burns by coming into contact of a burning lamp. No witness was examined in defence. The learned Sessions Judge held that Sulochna met the homicidal death and that the cause of her death was burn injuries. He, however, held that the evidence produced in the case was not sufficient to connect the accused with the crime. He, therefore, acquitted both of them.

4. The contention of Mr. Bohra was that Mst. Sulochna got burn injuries in the night while living in the matrimonial home and, as she did not get injuries on her hands, it falsifies the defence version and it proves that she was set to fire by the accused persons. He contended that the trial Court has erred in disbelieving the evidence of dying declaration and extra judicial confession, which should be believed by this Court.

5. On the other hand, Mr. Mehta tried to support the judgment of the trial Court.

6. It is no more in controversy that Sulochna was married to Kishanlal respondent and she got burn injuries in the night intervening 12-9-76 and 13-9-76 while living in the house of the accused. Since the occurrence of burning took place in the house at night time, it can safely be presumed that no person other than the persons living in the house could have taken part in the occurrence. It is to be noticed (hat no burn injuries were found on the hands of the deceased. It is common knowledge that when the hands are free, the person who gets burns tries to put off the fire by rubbing the hands at the place of burning and in that process the victim is bound to burn his or her hands. Dr. Kalla has also stated that injuries which were found on the person of deceased could not be self inflicted because her hands and legs had not burnt. Dr. Kalla further stated that if the victim was in sleeping position and her hands and legs were kept in holding and oil was sprinkled such burns could be possible. He further opined that it was a case of homicidal death. In this case, the circumstances that the deceased did not get a single burn mark on her hands, clearly indicates that at the time of burning her hands were not free which was possible when some other persons kept her hands holding. This important circumstances falsifies the defence version that Sulochna suffered burn injuries by coming into contact of a burning lamp.

Dying declarations :

7. There are two dying declarations coming on record. One, produced by the prosecution Ex. P/5, which has been proved by Shri Murarilal (PW 10). The other dying declaration is coming through the statements of P.W. 1 Chandulal, PW 3 Shri Ram, PW 6 Smt. Sajana and PW 7 Smt. Chawli.

8. In the dying declaration, which was recorded by the Munsif Magistrate on 11-11-76, the deceased stated that when she was sleeping along with her mother, all of a sudden, she felt that there was sprinkling of some wet thing on her. She, therefore, got up and started running but she caught fire. According to her she had seen one female and two three males standing there, but she could not identify them. She then stated that her husband had beaten her many times and that he had told her that as her father had given insufficient dowry, he would marry again. She further stated that she did not burn herself but somebody set fire to her. Thus, in this statement, recorded by the Magistrate, the deceased did not name the persons who were responsible to set fire to her. However, she expressed in clear terms that she was ill-treated by her husband because of insufficient dowry given in her marriage, and that her husband had a desire to marry again. In this dying declaration it was not stated that she got burns because of coming into contact of a burning lamp. At the same time she said in clear terms that she was burnt by 2-3 males and one female.

9. In the other dying declaration, which is coming through father, uncle, mother and grand mother of the deceased, Sulochna told them that when she was sleeping with her mother-in-law she felt sprinkling of cold liquid substance and as she opened her eyes she saw 4 persons; viz. Kishanlal, Banwarilal, Poora and Omprakash setting fire to her.

10. The learned Sessions Judge disbelieved the statements of the 4 witnesses on the ground that there are some discrepancies in their statements and that the conduct of Mst. Chawli was far from natural. He observed that Sulochna had already regained consciousness and as she did not give statement implicating the accused at the earliest opportunity, the alleged dying declaration becomes doubtful. As Smt. Sulochna did not tell the names of the accused as the persons who set fire to her in her statement before the Magistrate. The Sessions Judge inferred that the witnesses have given false statements regarding the oral dying declaration.

11. First question to be considered is whether Smt. Sulochna had regained consciousness before 6-11 -76, the date on which she told about the occurrence to her parents. In this connection our attention was drawn to the bed head ticket Ex. D/11 wherein there is an entry on 13-9-76 that patient was conscious, and the entries indicating the oral treatment was also given to Sulochna in the month of September and October, 1976, and it was contended that Smt. Sulochna was conscious right from next day of the occurrence. In our opinion, on the basis of the entries made on the bed head ticket that the patient was conscious or that oral treatment was given, it cannot be inferred that Sulochna was in a position to speak anything. Sulochna might have opened her eye or even when pills were put in her mouth along with water, she swallowed them. It does not necessarily mean that she was fully conscious and was in a position to speak to her parents. It is to be noticed that there is only one entry indicating consciousness on 13-9-76 and thereafter she was almost kept on the drips, and she did not improve thereafter some time.

12. Apart from, this, it has come in the statement of Chandulal (PW 1) that for some days accused and her family members were there at the hospital. It was natural for Sulochna to be in fear psychosis from her husband and other family members, and she could not dare to say anything against them.

13. In these circumstances, on the ground that Smt. Sulochna did not tell anything against the accused prior to 6-11-76, it cannot be inferred that she was in a position to expose her husband and other family members for the occurrence.

14. The fact that, even after telling her father, grand mother and uncle about the occurrence, she did not name the accused before the Magistrate on 11-11-76, does not render the dying declaration coming through the witnesses unreliable. It is to be noticed that even on 11 -11 -76 in the statements before the Magistrate, the deceased expressed that her husband used to ill-treat her and she was given beatings by him and that her husband had even told that he would marry again. Sulochna was emphatic in expressing that she was set to fire by 3-4 persons. It appears that after Smt. Sulochna regained consciousness, she thought that if she did not die she would again be in the matrimonial home, and if she gave statement against them, she might be in trouble. Though she clearly stated that there were 2-3 males and one female at the time she woke up but she deliberately avoided to declare the names of the accused persons. The tenor of her statement clearly reveals that she indirectly named her husband and mother-in-law as the persons who took part in her burning. In our opinion, the fact that she did not explicitly name her husband or the mother-in-law as the persons who had taken part in her burning, does not help Kishanlal respondent.

15. The ground on which the trial Court has rejected the evidence of oral dying declaration of 6-11 -76 are far from convincing. It is not expected that there would be mathematical accuracy in the statements of the witnesses.

16. Shri Ram (PW3) has deposed at one place in his statement that Sulochna had told that ^^e> jkM u tyk fn;k** which indicated that some lady had burnt her. This discrepancy has been noticed by the trial Court.' If we read the whole of the statement of Sri Ram it becomes evident that according to him Sulochna had named all the 4 persons including Kishanlal as the persons who had set her to fire. PW 1 Chandulal, who is father of the deceased, has also deposed that Sulochna had told them that she was burnt by 4 persons including her husband.

17. In the statement of Chandulal (PW 1) it has come that when Sulochna told the above fact, his mother was also present. Whereas Sajana (PW 6), grandmother of the deceased, has deposed that when Sulochna disclosed the cause of death, only she was present and she informed Chandulal about it. It was therefore argued that there is discrepancy in the statements of the witnesses.' The argument is obviously misconceived. It is possible that when Sulochna spoke to her grandmother who was 70 years of age, there was no other person present in the room and Chandu and others were standing outside the room and when Sajana informed Chandulal that Sulochna was telling something, they went and in their presence Sulochna repeated the cause of burning. It is also possible that when Sulochna spoke about the cause of burning Chandulal and Shri Ram were also present but Sajana being old lady of 70 years forgot this fact. This fact cannot be lost sight of that the statements of the witnesses were recorded more than 5 years after the alleged dying declaration. It is not possible for every witness to remember the event fully and in the same sequence.

18. The learned Sessions Judge had noted that according to one witness Sulochna had told that on awakening she had seen one female and three males and thereafter she became unconscious which indicated that the assailants could not be identified by her; whereas according to another witness she became unconscious just seeing the fire and the third witness stated she saw 4 persons including her husband who had ignited her clothes, and observed that this rendered the testimony of the witnesses doubtful. It has come in the cross-examination of Chandulal (PW 1) that Sulochna told him that in the night she felt sprinkling of liquid substance on her and she noticed that there were 2-3 males and one female. The relevant part of the statement is as follows :-

^^jkr dk ckjg ,d cts BMk NhVk yxk A fQj esj vkxyx xbZ A vkx yxus ds ckn csgks'k gks xbZ eSusa ,d yxkbZ vkSj nks rhu vknehns[kdj csgks'k gks xbZ A blds ckn eq>s dksbZ gkss'k ugh- --**

19. This part of the statement ends with the close of inverted commas. This shows that a question was asked to the witness Chandulal on the basis of the dying declaration Ex. P/5 which indicated that she had not been able to identify female and 2-3 males. Otherwise there could not be any occasion to close the above portion by the inverted commas; Obviously, it has a suggestion put to the witness. It seems that the reply given by the witness to this question went unrecorded. If we read the whole of the statement of this witness, it clearly indicates that Sulochna had told him that 4 persons including Kishanlal had set her to fire. It is obvious that, there is no discrepancy in the statement of Chawli on this point.

20. In the statement of Sajana (PW6), at one place it has appeared that Sulochna had become unconscious just after seeing the fire. However, if her entire statement is read, it come out that Sulochna had identified the persons who had taken part in her burning and one of them was Kishanlal and thereafter she lost her consciousness. There is thus no discrepancy in her statement also on this point.

21. There are thus no discrepancies in the statements of Chandulal (PW 1), Shri Ram (PW 3) and Sajana (PW 6) regarding the dying declaration of Sulochna in which she stated that her husband Kishanlal and three more persons had taken part in her burning. The learned Sessions Judge had doubted the presence of Chawli mother of the deceased at Bikaner on the day Sulochna had spoken to her father and grand mother. Assuming that Chawli was not there, at that time, there is convincing evidence in the statement of 3 witnesses that Sulochna had informed them that she was burnt by her husband and 3 others. The learned Sessions Judge has referred to the case of Girdhari Singh v. State 1955 Raj LW 60 wherein it was propounded that there should be some corroborative evidence to support the dying declaration, In the instant case, the dying declaration indicates that Sulochna was burnt by pouring some liquid substance on her. The Bed Head Ticket indicates that Sulochna was admitted in the hospital and at that time she was having 30% burns. The cause of death as stated by the medical officer was the burn injuries. It is, thus, obvious that there is corroboration of the dying declaration by other circumstances. Moreover the Hon'ble Apex Court has observed in the case of State v. Kishore (1996) 2 JT (SC) 595 : 1996 Cri LJ 2003 that conviction is possible on the uncorroborated dying declaration, provided it is found to be true.

22. The learned Sessions Judge has cited the case of Rasheed Beg v. State of M.P. 1974 SCC (Cri) 426 : 1974 Cri LJ 361 for this proposition that if there are two dying declarations and there is addition of the names of the assailants in the second dying declaration the evidence of dying declaration becomes doubtful. We have already discussed that in the second dying declaration Sulochna had deliberately omitted to name the culprits presumably because she apprehended that if she survived she would again be sent to her matrimonial home, and there would be more harassment to her. This is also not a case where different names of assailants were given by the deceased in two dying declarations. In such circumstances, the ruling of Rasheed Beg (supra) does not help the accused. In that case it was also noticed by the Apex Court that a person named 'M' who bore enmity with the accused was all along with the deceased when his statement was recorded.

23. In the instant case, there is clear evidence on record in the statements of Chandulal, Shri Ram, Khubi Ram, Mst. Sajana and Mst: Chawli that at the time of marriage the in-laws of the deceased had made a demand of Rs. 5,000 and as the demand was not met because the amount was not paid, Sulochna was ill-treated in her matrimonial home. Hanuman (PW 8) is the cousin of the deceased. He has deposed that he had gone to take Sulochna 5-6 months after the marriage and at that time Kishanlal told him that five thousand rupees should be paid, otherwise he would burn Sulochna. Though in his statement under Section 202, Cr.P.C. Hanuman had not stated in clear terms about the threat of burning, but he had stated that Kishanlal had told that if amount of Rs. 5,000 was not paid, it would not be proper. It is obvious that even in that statement, the witness had deposed about the threatening given by Kishanlal. The statement of Hanuman cannot be seen with suspicion only on the ground that he happens to be the cousin of the deceased. There is thus, convincing evidence on record to hold that Kishanlal was adamant to recover Rs. 5,000 and if the amount was not paid, he could go to any extent. This circumstance further confirms our finding that accused Kishanlal had taken part in the occurrence of burning Sulochna.

24. In our opinion, the learned Sessions Judge had erred in rejecting the dying declaration of Sulochna corning through Chandulal, Sajana and Shri Ram without valid reasons.

25. The prosecution in this case had also relied on the extra-judicial confession of the accused. The evidence in this regard is contained in the statements of Chandulal (PW 1), Ganpat (PW 2) Shri Ram (PW 3) Khubi Ram (PW 4) and Hansraj (PW 5). All these witnesses have deposed that in the Parcchayat held in Raisingh Nagar School Kishanlal told them that he had committed mistake, he should be forgiven. According to the witnesses, at that time Poora (mother of Kishanlal) and Banwarilal (father of Kishanlal) had also prayed for forgiving them the sin they had committed. The learned Sessions Judge has disbelieved this evidence on the ground that there could not be any occasion for the accused to have gone to these persons for making confession. He has observed that the extra-judicial confession is the weak type of evidence.

26. No doubt the evidence of extra-judicial confession is weak type of evidence and it needs closer scrutiny. Ordinarily a culprit does not make extra-judicial confession before the persons who are not on good terms with him. However, in the instant case, what we notice is that the incident had taken place during night in the house of the accused and the accused knew it that the theory of burning by accident was not likely to be accepted. Therefore, it seems, Kishanlal (accused) thinking that there was no escape from the clutches of law, made last attempt to approach the father of the deceased to forgive him, so that he helped him in Court. The evidence in this regard is consistent that accused Kishanlal had told them that he had committed the sin by burning his wife and he was sorry for that. Of course, Chandulal, Shri Ram, Khubi Ram and Hansraj are brothers, but there is absolutely no reason to disbelieve Ganesh Dutt (PW 2) who was 96 years of age when he gave statement in the Court. It may be that Ganesh Dutt used to perform 'Pooja' in the house of Chandulal but by that it cannot be inferred that he got in so much interest in Chandulal as to give false statement implicating accused Kishanlal and others at the age of 96 years. He has deposed that Kishanlal, his father and his mother had told with folded hands that there was mistake on their part and he should help them. Ganesh Dutt was present in the Panchayat where Chandulal and others were present. He being the oldest man, the accused thought that he could help him. In our opinion, Ganesh Dutt is an independent person and there is no difficulty in accepting the evidence of extra-judicial confession.

27. Even if we ignore the evidence of extra- judicial confession, there is important evidence of dying declaration on record which leads to the irresistible conclusion that accused Kishanlal was one of the persons who had taken part in the burning of Sulochna.

28. There is clear evidence in the statement of Dr. S. C. Kalla (PW 11) that Sulochna was admitted in the hospital on 12-9-76 and was treated for the burns which were 30 to 40 per cent, and she died of Syncope. Simply because Sulochna struggled for life for about two months, it cannot be inferred that the cause of her death was not the burn injuries. In view of the clear medical evidence, it has to be found that Sulochna had died of the burn injuries which she had suffered on the night intervening 12-9-76 and 13- 9-1976.

29. For the reasons stated above, the learned Sessions Judge had committed grave error in acquitting respondent Kishanlal in this case. This is obviously a case where entire approach of the trial Court in dealing with the evidence was patently illegal and the conclusions arrived at by it are wholly unitenable. Of course, there are some rulings of the Apex Court that if two views arc possible, the High Court in appeal against acquittal, should not interfere with the order of acquittal. However, in recent case of Dhanna v. State (1996) 6 JT (SC) 652 : 1996 Cri LJ 3516 the Apex Court has observed that the High Court has full power to review the evidence and to arrive at its own independent conclusion whether the appeal is against conviction or acquittal. We have ourselves reviewed the entire evidence and have come to the conclusion that the accused was the person who along with other family members took part in the burning of Sulochna. As already stated, the incident had taken place in the matrimonial home and in the night where there was no possibility of outsiders setting fire to Sulochna. It is significant to point out that the accused has not come out with a case that some unknown person had set fire to Sulochna. Rather the defence version is that Sulochna got burns because of coming into contact of burning lamp, which is obviously false as the decased did not suffer burn marks on her hands which she was sure to suffer in an attempt of putting off the fire which fact indicates that at the time of burning, hands of the deceased were not free.

30. The circumstances of the case thus lead to definite conclusion that accused was the person who had taken part in the burning of his wife along with other persons in furtherance of the common intention to cause her death. We think it our duty to salvage criminal justice in this case by interfering with the unmerited acquittal emerged from a perverse approach made by the learned Sessions Court.

31. Consequently, we accept the appeal, set aside the acquittal of respondent Kishanlal and convict him under Section 302 read with 34 IPC and sentence him to undergo imprisonment for life. Appeal against Poora abates. Respondent Kishanlal is on bail. He shall surrender before the learned Sessions Judge within 4 weeks failing which the learned Sessions Judge shall take steps of his arrest and send him to prison for undergoing the sentence.