Rajasthan High Court - Jaipur
Bakhtawar Singh vs State Of Rajasthan on 20 March, 1995
Equivalent citations: 1995CRILJ3914
Author: V.G. Palshikar
Bench: V.G. Palshikar
JUDGMENT B.R. Arora, J.
1. This appeal is directed against the judgment dated 19-6-1987, passed by the Sessions Judge, Pratabgarh, by which the learned Sessions Judge convicted the accused-appellant for the offence under Section 302, I.P.C. and sentenced him to undergo imprisonment for life and a fine of Rs. 1,000/- and in default of payment of fine further to undergo three months' rigorous imprisonment.
2. Appellant Bakhtawar Singh was tried by the learned Sessions Judge, Pratabgarh, for committing the murder of this wife Smt. Mohan Kanwar on the Deepawali day of the year 1982 by sprinkling kerosene oil on her and then litting the fire. The case of the prosecution is that on 15-11 -1982, at about 8.00 p.m., the accused-appellant demanded money from his wife for liquor, which she refused to give and, therefore, Bakhtawar Singh sprinkled kerosene oil over her body and put her to fire. This incident was witnessed by PW 11 Lalit (aged about 4 to 5 years) - the son of the accused and the deceased. An alarm was raised by Smt. Mohan Kanwar which attracted the neighbours and the relatives of the deceased. Thereafter Kesar Singh who is the brother-in-law (Sadhu) of the accused, as well as Parwat Singh, were informed regarding the incident, who reached at the place of the occurrence and on enquiry from Lalit, it was revealed that the accused burnt his wife Smt. Mohan Kanwar. The report of the incident was thereafter lodged at Police Station, Nimbaheda. The prosecution, in support of its case, examined fifteen witnesses. The accused did not examine any witness in his defence. The case of the accused in defence is that it was a Deepawali night; he had gone to market to buy some house-hold goods etc. His wife was litting the earthen lamps (Deepaks) as it was the Deepawali night, which encatched the fire; when he returned to the house he tried to extinguish the fire and received burn-injuries. The learned Sessions Judge, after trial, convicted and sentenced the accused, as stated above. While convicting and sentencing the accused, the learned trial Court believed the statement of PW 14 Lalit, the eye-witness of the occurrence, and the statement of the other witnesses who came there after hearing the cries. The learned trial Court, also, believed certain other circumstances, namely, (i) the accused, immediately after the occurrence, neither raised any cries nor he called any person to extinguish the fire; (ii) he did not inform his mother-in-law, brother-in-law (Sadhu) etc.; (iii) he ran away after the occurrence; and (iv) admitted him in the hospital on 16-11-1982 but left the hospital on 17-11-1982. It is against this judgment dated 19-6-1987, convicting and sentencing the accused, as aforesaid, that the appellant has preferred this jail appeal.
3. The nature of the evidence produced by the prosecution consists of the statement of eye witness PW 14 Lalit - the son of the deceased and the accused, which is sought to be corroborated from the evidence of PW 1 Shanker Lal - the landlord, in whose house the deceased and the accused were living. PW 2 Kashi Ram, the shop-keeper, from whom the accused purchased the house-hold articles, PW 5 Shambhu Lal, who came at the place of the incident immediately after the occurrence, PW 7 Dr. Rajendra Kumar, the Medical Officer, Government Hospital, Nimbaheda, who medically examined and treated accused Bakhtawar Singh and, also performed the post-mortem on the dead-body of Smt. Mohan Kanwar, PW 12 Kesar Singh, the brother-in-law (Sadhu) of the accused, who lodged the F.I.R. and is, also, a witness to the various Memos, PW 13 Parbat Singh, the brother-in-law of the accused, who was called from the factory by his mother and PW 15 Jamna Kanwar, the mother of the deceased, who came at the scene of the occurrence immediately after the incident. PW 6 Rang Lal is a Motbir witness to the arrest of the accused, PW 10 Kanhaiya Lal is a Motbir witness to the recovery of the Paijeb and PW 8 Mr. Rajendra Prasad Odichiya was the Munsif and Judicial Magistrate, who held the identification of the Paijeb. PW 9 Prem Singh was the Deputy Superintendent of Police (Circle Officer), who arrested the accused and made recovery of the Paijeb. PW 11 Murli Manohar was the Station House Officer, Police Station, Nimbaheda, who conducted the investigation.
4. The prosecution case mainly rests upon the statement of PW 14 Lalit, the son of the accused and the deceased, who, according to the prosecution, was present at the scene of the occurrence when the incident took place. When he was examined in the Court, his age was about eight to nine years and at the time of the incident he was aged only about four to five years. As he was a boy of four to five years at the time of the incident and his statement was not recorded by the police under Section 161, Cr.P.C. arid at the time when he was examined by the trial Court he was only aged about eight to nine years, therefore, the testimony of this child witness has to be scanned with great care and caution as there is every likelihood of his being tutored by the persons who are interested against the accused. It is, also, true that after the death of his mother, Lalit and his sister are living with their maternal-uncle, viz., Parbat Singh, and they are under their influence and, therefore, the evidence of this child witness has to be scrutinised closely and if the evidence of this child witness finds support from the other circumstances then the conviction can be based on the evidence of this child witness. It is a rule of caution that before relying upon the testimony of a child witness, who can be easily tutored, some corroboration from independent sources must be available. PW 14 Lalit has stated that the accused is his father, who burnt his mother after pouring kerosene and litting the fire. According to him, the accused demanded money from his mother, which she refused to give to the accused. After litting the fire, his father went away. In the cross-examination, he has admitted that it was the Deepawali night and earthen-lamps were litting in the house. His mother had worn new clothes and his father brought fire-works etc. When his father brought to fire-works, his mother was litting the earthen lamps, her Saari caught the fire from the earthen lamp. He denied the suggestion put to him in the cross-examination that his father never tried to extinguish the fire and his hands were not burnt. His mother, also, did not raise a cry because his father had put. a cloth in her mouth. His maternal grand-mother came after the fire was put. He has, also, admitted that he is living with his maternal-uncle. This witness, though has tried to state that his father put fire to his mother but in the cross-examination he had admitted that the Saari of his mother caught the fire from the earthen lamp which were litting on the eve of Deepawali. The story of the prosecution that it was the accused who put Mohan Kanwar to fire, stands demolished from the admission of this child witness in the cross-examination as he has stated that the Saari of his mother caught fire from the earthen lamp. This witness though has denied the suggestion that his father did not try to extinguish the fire and his hands were not burnt, but from the evidence of PW 7 Dr. Rajendra Kumar, who attended the accused on 16-11-1982, it. is clear that both the hands and the chest of the accused were burnt and his both hands were completely burnt and there were extensive blisters on his hands. PW 15 Smt. Jamna Kanwar has, also, stated that she heard the cries that the house of Bakhtawar Singh got the fire, several persons collected there who tried to extinguish the fire and she was not permitted to enter into the house. From the attending circumstances, it is, therefore, clear that PW 14 Lalit is not speaking truth and what he has stated, appears to have been stated on the advice and instructions of PW 13 Parbat Singh, his maternal-uncle, and PW 12 Kesar Singh (his Mausa). The evidence of this witness that it was the accused who poured kerosene on the deceased and lit the fire, does not inspire confidence as in the cross-examination this witness had admitted that the Saari of the deceased caught the fire from the earthen lamp which she was litting on the day of Deepawali. PW 1 Shanker Lal is the landlord of the accused and the deceased. He has only stated that on the day of the incident when he returned to his house, he saw a crowd in front of his house and the dead-body of Mohan Kanwar, the tenant, was lying, who died due to extensive burns and by her side the Gudri was lying which was, also, burnt and the smell of burned-clothes and kerosene was coming. Nothing-turns out from the statement of this witness as he has not seen the incident. PW 2 Kashi Ram is the shop-keeper, who has only stated that on the day of Deewali, the accused came to his shop at about 5.30 p.m. and bought Til-oil and at about 8.00 p.m. he heard that some lady caught the fire, but the incident took place at some distance and, therefore, he did not left the shop. This witness also, does not support the prosecution case, rather he states that a lady got the fire and not that the accused burnt Mohan Kanwar. PW 3 Kumari Pappu has not supported the prosecution case. PW 5 Shambhu Narain the other neighbourer, came after the incident. He has stated that when he was returning from the shop he heard the cries and went towards the house of the accused and saw the dead-body of Mohan Kanwar, which was completely burnt. Half of the dead-body was lying outside the house and half inside the house. The Gudri was, also, burnt and the mother-in-law of the accused was weeping at that time and saying that Mohan Kanwar is lying burnt and Kesar Singh and Parbat Singh be called. Someone went on a bicycle to call Parbat Singh, who came there after twenty to twenty-five minutes. Kesar Singh, also, came there. At that time the lady was not speaking. On enquiry, Lalit Singh informed that his mother was put to fire by his father after pouring kerosene on her;' he first sent him to bring fire-works and when he returned after buying the fire-works, his father and mother were quarrelling and thereafter his father put the deceased to fire. The version given by this witness is at variance with the statement given by Lalit. Lalit has stated that his father brought the fire-works and it was only on the demand of money by his father for liquor and on refusing by her mother to give the same that the accused poured kerosene over the deceased and put her to fire whereas this witness has given a new story. The evidence of this witness is, therefore, of no help to the prosecution.
5. P.W. 12 Kesar Singh has stated that on the day of the incident he and his wife were inside their house. A girl came there and informed them that accused Bakhtawar Singh has burnt Mohan Kanwar after pouring Kerosene and litting the fire. He went there and saw Jamna Kanwar-the mother of the deceased - present there. On enquiry from Lalit how the incident took place, he informed that his father put fire to his mother and ran away. At that time Bakhtawar Singh was not present there. He has further stated that Bakhtawar Singh used to take liquor. He is, also, a witness to the preparation of various Memos by the Investigating Officer. In the cross-examination when this witness was confronted with his earlier statement Ex. P. 21 that in his earlier statement he has stated that Bhama gave information that the deceased caught the fire, he stated that it was not stated by him but he actually stated that the girl informed him that Bakhtawar Singh poured the kerosene over Mohan Kanwar and then put her to fire and why it has not been mentioned in his earlier statement Ex. P. 21, he cannot say. This witness has tried to make improvement from his earlier statement in order to make his statement in consonance with the statements of other witnesses but this part of his evidence is not supported by PW 3 Kumari Pappu, who gave information to him. Moreover this witness came at the scene of the occurrence only after the incident was over and it is only on the disclosure made by PW 14 Lalit that his father burnt his mother that this witness has lodged the F.I.R. But after appreciation of the evidence of PW 14 Lalit, we have not believed his statement regarding commission of the crime by the accused and, therefore, the evidence of this witness is of no consequence.
6. Similar are the statements of PW 13 Parbat Singh and PW 15 Jamna Kanwar. They have not seen the occurrence and came at the scene of the occurrence only after the incident was over. They are, also disclosing on the basis of the statement given by PW 14 Lalit regarding the commission of the crime by the accused. The evidence is, also of corroborative nature but does not inspire confidence. PW 15 Jamna Kanwar has specifically admitted that when she came at the scene of the occurrence, the house of the accused was burning and the crowd had collected there which was trying to extinguish the fire. Lalit has specifically admitted that the Saari of his mother caught the fire from the earthen lamp. The dead-body of the deceased was found half inside the house and half outside the house. The accused, also, got extensive burns on both of his hands and the chest and he was admitted in the hospital, which clearly shows that the accused tried to extinguish the fire and in that attempt he got the burn-injuries. He has extensive blisters on both of his hands. The evidence of these witnesses, therefore, does not conclusively establish that the accused was the perpetrator of the crime and he burnt his wife Mohan Kanwar, rather when he returned from the market after purchasing the household goods, he saw Mohan Kanwar and his house burning, tried to extinguish the fire and got the burn-injuries.
7. The other circumstance, which has been relied upon by the prosecution and believed by the learned Sessions Judge, is the recovery of Paijeb of the deceased on the information and at the instance of the accused-appellant. The Paijeb was recovered from an open place hidden under the stone. Only one Paijeb was recovered and the other was not recovered. Moreover, Smt. Jamna Kaur (PW 15) and PW 13 Parbat Singh have not identified this Paijeb. PW 4 Shiv Narain Soni has identified the Paijeb. He has admitted in the cross-examination that there were burn-marks on the Paijeb while the other Paijebs mixed with it, had no such burning-marks. The identification of the Paijeb is, therefore, of no relevance as the article was easily identifiable due to burning-marks. This recovery cannot be read against the accused because it has been made from the open place accessible to all and the identification of it, also, does not inspire confidence. Moreover, the other ornaments were found on the person of the deceased and it was only one Paijeb allegedly taken away by the accused. This evidence of the recovery of Paijeb is of no assistance to the prosecution.
8. The other circumstance relied upon by the prosecution and believed by the learned trial Court is that the accused was not present on the next day and he did not raise any alarm when the fire took place. Even as per the statement of PW 15 Jamna Kanwar, the accused had gone to bring til-oil. The accused himself has stated that he was not at he house when the fire took place and when he returned, he saw his wife and the house burning, he tried to extinguish the fire and both of his hands and chest got extensive burns and there were blisters on both of his hands. This does not suggests the presence of the accused at the time of the incident but suggests his absence. He was admitted in the hospital on 16-11-1982. The learned trial Court was, therefore, not justified in corning to the conclusion that the accused was not present at the scene of the occurrence and that he did not try to extinguish the fire.
9. We are, therefore, of the opinion that the accused-appellant was not the perpetrator of the crime and the prosecution has failed to establish the case against the accused-appellant. The appellant, therefore, deserves to be acquitted.
10. In the result, the appeal filed by accused-appellant Bakhtawar Singh is allowed. The judgment dated 19-6-1987, passed by the learned Sessions Judge, Pratabgarh, convicting and sentencing the accused-appellant for the offence under Section 302, I.P.C, is set aside and the appellant is acquitted of all the charges. He is in jail and be released forthwith if he is not required in any other case.