Rajasthan High Court - Jaipur
Jagdish S/O Asha Ram vs State Of Rajasthan on 29 November, 1985
Equivalent citations: 1986(1)WLN262
JUDGMENT Guman Mal Lodha, J.
1. We are exercising powers of suo moto revision also in this appeal by Jagdish, the appellant, who has been convicted for the offence under Section 302 IPC for causing death of his wife, Smt. Chand, by burning her alive. The allegation as per the prosecution is that the father of the deceased, Smt. Chand, filed a complaint at the Police Station, Ram Ganj (Jaipur) on September 16, 1981, mentioning therein that his daughter - Smt. Chand is married to Jagdish, the appellant, before 5-6 years; at his house at about 9.30 - 10 a.m. on September 16,1981, Madan Lal Khatik came and informed him that Smt. Chand has been burnt alive by pouring kerosene oil on her; upon this, he rushed to the house of Smt. Chand's-in-laws but, there, Smt. Chand was not available. The enquiries were made and he found that Smt. Chand was shifted to the place of his maternal uncle-in-law where, he saw Smt. Chand lying unconscious and that, he suspected that his daughter has been burnt by his son-in-law, Jagdish, and other members of her in-laws' family by pouring kerosene oil for the purpose of causing death.
2. On receipt of this report, the police started investigation. During the investigation, Smt. Chand expired. Before she expired, the dying declaration was recorded by the Magistrate. After completion of the investigation, the commitment proceedings were made and the accused-appellant was tried for the offence under Section 302, IPC.
3. The trial of the case resulted in conviction under Section 302, IPC, to the accused-appellant, but, while awarding the sentence, the lesser sentence of life imprisonment was imposed upon the accused-appellant.
4. The appellant-accused has filed an appeal against his conviction and sentence. The State has not filed any appeal for enhancement of the sentence.
5. However, during the hearing of the appeal, we notified to the learned counsel for the accused that in case the circumstances and the evidence believed by the trial court are believed by us then, the question would be as to why maximum sentence of death penalty should not be awarded against the accused, and, therefore, the accused should show cause why sentence be not enhanced to death.
6. The learned counsel for the accused has submitted that the case is of acquittal and the story of homicide is not proved. On the contrary, Shri Biri Singh submitted that the present one was a case of suicide committed by the deceased, Smt. Chand. Shri Singh, in support of his contention, submitted that the accused-appellant, Jagdish, tried to save the girl - Smt. Chand when she was in flames. It was also pointed out that one of the prosecution witness, Khairu (PW 6) has stated that he enquired from the accused-Jagdish, how Smt. Chand was burnt and then Jagdish told them that she has been burnt by fire. Shri Singh, the learned counsel for the accused then invited our attention to the defence evidence consisting of Madan Lal (DW 1) and Mohan Lal (DW 3).
7. Shri Ajay Purohit, the learned counsel for the State, has supported the judgment of the trial court, and submitted that the present one is a case where there is strong evidence which proves beyond all manner of reasonable doubt, that it is a case of bride-burning by the husband; and the dying declaration of the deceased which has been recorded by the Magistrate concerned provides clinching evidence of the prosecution, & the same is supported by the evidence of Dr. B.C. Temani (PW 3) who has also made a note in the injury report. In addition to the above, there is circumstantial evidence also proving that it was Jagdish, the accused, who poured kerosene oil on Smt. Chand and then lit the fire by match-stick in the dead of the night at about 12.30 a.m. when they were sleeping in the same room in the house.
8. Shri Purohit further pointed out that though the dying declaration is sufficient to hold that the accused-appellant is guilty, but in addition it is supported by the circumstantial evidence of recovery of burnt clothes and the bottle of kerosene etc., at the information and at the instance of the accused, himself.
9. Shri Purohit then argued that the grounds given by the learned Sessions Judge for imposing the lesser sentence of life imprisonment, are wholly inadequate and insufficient, because the young bride has been burnt alive in a very barbaric manner by pouring kerosene oil upon Smt. Chand in the dead of the night when she was with her husband and was helpless and defenceless.
10. Shri Purohit submitted that in such cases of serious crimes against the society the maximum penalty of sentence of death should be awarded.
11. Shri Biri Singh has taken us through the entire evidence in order to substantiate his version and has pointed out that the reasons given by the Sessions Judgr for imposing lesser sentence call for no interference in appeal filed by the accused specially because, there is no appeal by the State for enhancement.
12. We have carefully considered the rival contention of the learned counsel for the parties and are gone through the entire record of the case.
13. There is not doubt or debate on the point that Smt. Chand died on account of burning injuries caused to her. These burns were caused on account of the fire in which she was virtually roasted by pouring kerosene oil on her and then litting the fire with the help of match-box.
14. The trial Court has discussed, in details, the medical evidence, in this respect and since none of the parties are challenging, this finding, we are not required to go into the details of the medico-legal evidence so far as the injuries by burns to the deceased are concerned.
15. It would be sufficient to mention that according to the version of Dr. B.C. Temani (PW 3) who was medical jurist on 16-9-1981 when Smt. Chand Was admitted in the S.M. Hospital of Jaipur with burns on the entire body. The description of the burns is given in Ex.P 7 as under:
Ist, IInd and IIIrd degree burns are present with blackening, peeling and red line of demarcation with bilister formation on the following parts of the body. Singing of scalp hair at the frontal region with smell of kerosene oil present:
--Face as a whole;
--Neck as a whole all around;
--chest and abdomen anti & post as a whole;
--Both upper extrenitico as a whole with both hands;
--Perineum as a whole;
--Both buttocks at places;
--Both lower extrenitico as a whole, with both feet except soles.
16. According to Dr. Temani (PW 3), Smt. Chand's skin was almost blackened, many parts of the skin had been peeling and smell of kerosene was coming from her body.
17. We would dealt with the dying declaration recorded or mentioned by Dr. Temani (PW 3) in the injury report (Ex. P 7), a little later, because at present we are dealing with the nature of the injuries caused to Smt. Chand and the cause of her death only.
18. Dr. B.B.L. Goswami (PW 2) was medical jurist on September 20, 198I, in the S.M.S. Hospital, Jaipur, and he conducted the post mortem examination and gave report (Ex.P 6). The external injuries found at the time of the post mortem examination, as mentioned in the report (Ex.P 6) are as under:
(1) There is venisection mark just above the RL medical malcolas;
(2) There are 1st, 2nd and 3rd degree burns on the following parts of the body with the presence of blackening, peeling of skin, red-line of demarcation with pus and slough at places:
(1) singing of scalp hairs at frontal areas;
(2) Face as whole with singing of eye brows and eye lashes partially;
(3) Neck as a whole all around with partial singing of Hair at the nope of the neck; (4) Chest and abdomen as a whole;
(5) Back as a whole;
(6) Both upper limbs as a whole with both hands;
(7) Perineum as a whole with singing of hair partially;
(8) Both buttocks at places;
(9) Both lower limbs as a whole except soles.
19. Dr. Goswami (PW 2) has testified that the entire body of Smt. Chand was full of burns and they were 1st, 2nd and 3rd degree; the skin was blackening and peeling at many places. According to him, these injuries were sufficient in the ordinary course of nature to cause the death of the deceased; these burns were ante-mortem in nature; and in his opinion, the death was caused on account of these burns, wounds, shock and septicomea due to extensive ante-mortem burns.
20. It would thus be seen that there is no room for doubt that the cause of death of Smt. Chand was burning and the burn injuries caused on account of the burning of the entire body including its various parts as mentioned in the injury report (Ex. P. 7) and post mortem report (Ex. P. 6) which have been proved by Dr. B.C. Temani and Dr. B.B.L. Goswami (PW 3) respectively.
21. We have, therefore, got no hesitation in holding that the medical evidence so far as the aspect with regard to the cause of death on account of burns to Smt. Chand, is concerned, there is no debate or room for doubt that the young bride, Smt. Chand, lost her precious life on account of the fire burns, caused after the kerosene was poured on her body and the fire was lit by match-stick from the match-box.
22. The crucial question which comes up for our consideration is, whether it was a case of homicide or sucide, or accidental death due to the burning.
23. Obviously, apart from the circumstantial evidence which we would discuss a little later, the dying declaration of the deceased, Smt. Chand, assumes importance. The dying declaration recorded by the competent Magistrate is most important piece of evidence of the prosecution, and the learned trial court has relied upon it because there is no infirmity attached to it.
24. Sushri Chandra Kalan Yadav (PW 7) who was at the relevant time working as the Judicial Magistrate No. 7, Jaipur City, recorded the dying declaration. According to her, Sub-Inspector P.S. Ramganj moved an application (Ex. P. 11) before her mentioning that Smt. Chand w/o Jagdish is in hospital and there are chances that she would die in hospital and there are chances that she would die as her survival was very difficult and, therefore, her dying declaration may be recorded. Upon this, Chandra Kala Yadav (PW 7) proceeded to the S.M.S. Hospital, Jaipur; she consulted the doctor as to whether Smt. Chand was in a fit condition of death to give her statement; the doctor recorded his opinion about her fitness at the endorsement C to D; when it was testified and verified that Smt. Chand was in a fit condition of her health to give statement then her statement was recorded vide Ex. P. 12. Chandrakala (PW 7) has verified and testified that this statement (Ex. P. 12) was recorded by her and contains her signatures; and whatever Smt. Chand stated was mentioned in this statement. Ex. P. 12 reads as under:
^^ c;ku xokg^^ vkt vnkyr tas- ,e- ua- 7] eqdke t;iqj o eqdnes eq- ua- 432 vUrZxr /kkjk 307 vkbZ- ih- lh- iqfyl LVs'ku jkexat rkjh[k 16&9&1981 c;ku fnukad 17&9&1981 dks le; 2-40 ih-,e- A eS gYQ ls ¼lkSxU/k ls½ dgrh gwW fd esjk uke pkWn] ifr dk uke txnh'k] dkSe [kVhd mez 24 is'kk ?kj dk dke ] fuoklh fgnk dh eksjh ds ikl] [kVhdks dh cLrh] t;iqj] rglhy t;iqj] ftyk t;iqj A dy lqcg lks rhu pkj cts dh ckr gS] eS ikuh is'kkc ds fy, mBh A is'kkc ds fy, mBh A is'kkc djds eS okil vk;h A fQj eSus ikuh fi;k A esjs ?kj dk /kuh esjs ls vkB&ukS fnu ls ugh cksy jgk Fkk Aesjh lkl us jkr dks gh feV~Vh dk rsy eaxk dj j[kk Fkk A esjh cPph esjs mBus ls tkx x;h Fkh A eSus mldsk lqyk;k rFkk eS Hkh lsk x;h A esjh cPph FkskM+h lh nwjh ij Fkh A esjs vkneh us pqipki ls esjs mij feV~Vh dk rsy M+ky fn;k A eSus dksbZ pknj oxSjk ugh vksh Fkh A mlus feV~Vh dk rsy Mkydj ekfpl yxk nh AvkSj vkx yxus ds ckn eS fpYykbZ A tc eS mBdj Hkkxus yxh rks esjs dejs dk njoktk cUn FkkA tks esjs ifr us [kksyk A esjs fpYykus dh vkokt lqudj iM+kslh 'kadj] HkWojyky] HkxhjFk Bsdsnkj NksVsyky pDdhokyk vk x;s Fks A eS tehu ij lsk jgh Fkh A eq>s vkx yxk nsus ds ckn esjs ifr ckFk es Hkjdj njckts ls ckgj Qsd fn;k Fkk A esjh cPph nks&rhu jkst ls chekj py jgh Fkh Amldh nok fnykus MkDVj ds ;gka tkrh Fkh A esjh lkl o ifr nok fnykus ds ckjs es dkQh ukjkt Fks A esjh lkl us feV~Bh dk rsy Mkydj ls igys ,d fnu dgk Fkk fd rw ?kj ls fudy tk dskbZ nok oxSjg ugh fnyokuh gS A eq>s tyk nsus ds ckn esjs ekek llqj eksgu] lkl rFkk uusj lkl eq>s MkDVj lDlsuk ds ikl ysdj x;s A MkDVj us esjs dks ,d lqbZ yxkbZ A esjs ekek llqj us dgk fd T;knk gYyk epk jgh gS bldk eqag Hkhpdj iVd nksA tyk nsus ls esjk iwjk 'kjhj ty x;k Fkk A vkj-vks-,.M ,-lh-
g0 U;kf;d ¼T;wfMf'k;y½ eftLVªasV izFke Js.kh ua0 7 t;iqj 'kgj] t;iqj uksV% , et:ck ds c;ku eSus vkt fnukad 17&9&1981 dks le; 2-40 ih-,e- ij fy, tks gky ,l-,e-,l- vLirky] ckMZ 3 ,-ch- QLV ;wfuV] csM uEcj 11 ij HkrhZ gS A eSus dFku ys[kc) djus ls igys MkWDVj vferk }kjk nh x;h fjiksZV ns[k yh gS Afd et:ck c;ku nsus dkfcy gS c;ku lhycan cj lacf/kr U;k;ky; dsk Hksts x, A g0 ch0 U;kf;d ¼T;wfMf'k;y½ eftLVªasV izFke Js.kh ua0 7 t;iqj 'kgj] uksV% lh- eSus et:ck ds leLr 'kjhj dks ns[kk mlds nksuks gkFk ds vaxwBs tys gq, gS A blfy, vaxwBk fu'kkuh Bhd rjhds ls ugh fy;s tk ldrs A g0 Mh0 U;kf;d ¼T;wfMf'k;y½ eftLVªasV izFke Js.kh ua0 7 t;iqj 'kgj]
25. Chandra Kala (PW 7) the Magistrate has also stated that Smt. Chand's both hands thumbs were full of burns, therefore, thumb impression which has been obtained was taken with great difficulty, and which is marked as X1
26. According to the Magistrate (PW 7), Smt. Chand after giving statement verified that this was true statement and her thumb impression was verified by the Magistrate. According to Chandra Kala (PW 7), Smt. Chand informed her in her statement that her husband put the kerosene oil on her body and lit the match stick for burning upon fire, when she tried to run away and she cried she found that the door was closed; and ultimately the door was opened and her husband after picking up her threw out her. According to her statement (Ex. P. 12), her mother-in-law and father-in-law were not happy with her.
27. In the cross-examination of this witness Chandra Kala (PW 7), by Kantichandra Soni, senior Advocate in criminal law this witness(PW 7) deposed that when she reached there, Smt. Chand was injured and four persons were there who, removed her. The Police Officer was present on the doctor's table. Smt. Chand gave her own name. Smt. Chand was in 3-A.B. Ward on bed number 11 and was covered by bed-sheet (Chaddar). Smt. Chand narrated that after she was burnt, she was taken by her in-laws to Dr. Saxena. The Magistrate (PW 7) in her cross-examination again reiterated that whatever has been mentioned in Ex.P. 12 contains true and exact version of whatever was deposed by Smt. Chand before her death. According to the Magistrate (PW 7), Smt. Chand stated to her that her daughter was sleeping with her but no kerosene oil was poured on her daughter.
28. We find that there is no infirmity in the statement of the Magistrate (PW 7), Ex. P. 12 contains a note by the Magistrate (PW 7) mentioning that the statement was recorded at 2.40 p.m. and that Dr. Amita verified her health and physical state and her report mentioned that she was in a fit state of health to to give her statement before the Magistrate (PW 7). The endorsement of Dr. Amita was on the application (Ex. P.11) which mentions at C to D as under:
C fit to give statement. Sd/- Amita dated 17-9-1981 2.35 p.m.
29. We are of the opinion that the finding of the trial court that this dying declaration recorded by the Magistrate in the form of Ex. P.12 is truthful voluntary, and also gives a true story of the cause of death, is fully justified. Shri Singh was not in a position to show any infirmity in this dying declaration cither in the form of procedure adopted or any circumstance showing that it was not voluntary or was given under undue influence of the Police Officers. We are convinced that the dying declaration has rightly been believed for the reasons given by the trial court, with which we agree. The above dying declaration is also supported by another corroboratory dying declaration recorded earlier in point of time in the form of a note on the injury report Ex. P. 7 by the doctor (PW3). This note is C to D on the injury report (Ex.P. 7) which reads as under:
eS ikuh Hkjdj lqcg djhc 3&4 cts ysV x;h Fkh A rks esjs ifr txnh'k us dgk fd rq>s ?kj es ugh j[kwxk rw ?kj ls fudy tk vkSj fQj ejs Åij feV~Vh ds rsy dh cksry ls rsy fNM+d dj vkx yxk nh A rc eSus 'kksj epk;k vkSj Hkkxh ijUrq njcktk eq>ls [kqyk ugh vkSj eS fxj iM+h A
30. This particular dying declaration which was mentioned in the form of the history by the doctor concerned has been testified and verified by Dr. B.C. Temani (PW 3).
31. Dr. B.C. Temani (PW 3) Medical Jurist, S.M.S. Hospital, Jaipur, at the relevant time, has stated on oath that when enquired from Smt. Chand about the reasons of the incident in which she was burnt she stated that early in the morning at about 3 or 4 O'clock, her husband told her that he would not keep her in the house and wanted her to go out, and then poured kerosene oil on her body in order to burn her alive by lighting the fire. When she cried and rushed out but she could not open the door, she fell down.
32. We are also of the opinion that Dr B.C. Temani (PW 3 ) Medical Jurist, is absolutely an independent witness and he had no reasons to fabricate or falsely implicate the appellant-Jagdish by giving his false statement. His statement appears to be natural and trustworthy, and we put full reliance upon his statement.
33. Shri Singh could not show any infirmity in it. The cross examination done by Shri K.C. Soni Advocate, failed to point out any infirmity. In the cross-examination, Dr. B.C. Temani (PW 3) stated that the note, C to D on the injury report (Ex. P.7) is the declaration taken down by the com-pounder in his presence and who had recorded whatever Smt. Chand has stated before him.
34. The above dying-declaration was recorded on dictation of Dr. B.C. Temani (PW 3) who is an independent government officer and who has got no grudge against the accused Jagdish and has no reason to implicate him falsely in a serious case of murder. The above declaration (Ex.P. 7) has been recorded in the normal course, and it convinces us that Smt. Chand before her death put the truestery voluntarily that kerosene oil was poured on her body by her husband Jagdish and he then lit the fire match, on account of this, she received all burns injuries.
35. Shri Singh laid great emphasis on the point that it is not a case of dowry death and no reason has been given to show any motive of the murder. We feel that when the offence of burning bride is proved by these two dying declarations, apart from other evidence which we would discuss a little later, it is not necessary for us to go into details of motive for the same.
36. In addition to the above evidence, we find that the facts and circumstances in which the offence was committed also corrobarate the pro-secutory story. Narsingh (PW 1) father of the girl, Smt. Chand, stated that he was informed at 10 AM by the maternal uncle of Jagdish that Smt. Chand has been burnt alive by kerosene oil.
37. It is curious enough that as Madan did not inform Narsingh where the girl was, Narsingh (PW 1) went to the hour of maternal in-laws of Smt. Chand only to find out whether or not she was there then he went to the place of maternal grand father of Jagdish, i.e. Khairu's house and saw Smt. Chand there, unconscious. At that place, he was told that Smt. Chand was burnt alive early in the morning But, no reason was assigned by any body. He then filed the First Information Report (Ex. P. 1). The fact that Smt. Chand was not taken to the hospital directly inspite of such a serious burns by the in-laws including the husband-accsued and was taken to the house of Khairu maternal grand-father-in-law of the deceased, is also significant.
38. Apart from the above evidence, we find that even Khairu who is close relative of the accused has stated that early in the morning at 5 a.m, Jagdish brought Smt. Chand in a burnt condition at his house. It is significant that even Khairu has not come out with the story of the suicide or accident by fire. All that he stated is that when he enquired as to what was the reason for burning, it was told that it was due to the fire, and he did not elaborate it. It is also very significant because Khairu was none-else but the maternal grand-father-in-law of the accused Jagdish. If Jagdish did not give story of accident burns or suicidal burn, to Khairu then it clearly shows that the submission which is now being made by Shri Singh that it is a case of burns being suicidal or accidental, is wholly an after thought.
39. It is also significant that Khairu (PW 6) stated that Jagdish is son of his daughter Suja which means mother-in-law of Smt. Chand. What was talk between them after the burning of Smt. Chand has not been stated by Khairu (PW 6). Certainly, Khairu is primarily interested in Jagdish because Jagdish is son of Khairu's daughter and therefore, the fact that the talk has not been disclosed, speaks volumes about the truthfulness of the prosecution case.
40. Bhagirath (PW 9), the neighbour, has come to depose that he heard the cries of lady; upon which he rushed and entered the house of Jagdish where he found that Smt. Chand was lying burnt in a chowk. At that time, Jagdish could not state anything about the cause of the burns.
41. Manu Khan (PW 4), the Investigating Officer, who was Sub-Inspector Incharge of the Police Station, Ramganj at the relevant time, prepared all the documents on the spot and moved for dying-declaration before the Magistrate in the form of Ex. P. 11. He also recorded the police statement of the witnesses. According to his statement on September 17, 1981, the accused gave statement before him in the form of an information that he has concealed burnt clothes of the deceased after digging the land and also put the glass bottle. Upon this information, Mannu Khan (PW 14) got these articles recovered at the instance of the accused vide memos (Ex. P. 16) and (Ex. P. 17). According to him, these were also sent for the chemical examination; and he took the injured to the hospital and got the dying-declaration recorded thereafter.
42. The recoveries were made in the presence of the motbirs. The trial court has believed the evidence of the recoveries also and we do not find any infirmity in this evidence.
43. Ex. P. 13 is the report of the Director, Central Forensic Science Laboratory Central Bureau of Investigation, New Delhi, and it mentions that the articles which were sent in parcel No. 1 and 2 for chemical examination, on physico-chemical method of analysis shows that they contained kerosene residue. Parcel No. 1 is one sealed cloth parcel containing burnt peticoat, blouse, brassiers and dupatta and siege marked Exhibit No. A. Parcel* No. 2 is one sealed cloth parcel containing two pieces of bottle marked Exhibit No. B.
44. From the above evidence, we are in agreement with the finding arrived at by the trial court that a clear case of homicide by burning Smt. Chand alive by pouring kerosene oil on her body and lighting the fire, is made out.
45. The accused Jagdish, in his statement, has not even stated that he tried to rescue his wife, Smt. Chand, and sustanied the burns in that process. All that he stated is that he took his wife, Smt. Chand, in a burnt condition to the house of Khairu (PW 6) and at that place, he stated to Khairu (PW 6) that Smt. Chand has burnt herself. Obviously, Khairu (PW 6) has not supported him in this respect and Khairu (PW 6) being interested in Jagdish, if we can agree with this truthfulness, it was expected that he was supported by Khairu (PW 6).
46. Regarding the dying declaration before the Magistrate (PW 7), the accused stated that be was in custody of the police and according to his information, Smt. Chand did not give any dying-declaration. Regarding the recoveries, he denied. It is significant that he has not come with any version that he tried to rescue Smt. Chand from the fire and burnt himself in that process.
47. It is also significant that a case of suicide and the accused tried to rescue his wife from the burnings from the fire has not been put by the accused in his own statement and it shows that there is no element of truth in this defence version.
48. Madan Lal (DW 1) who has been produced by the accused, in his defence evidence, and who is his mother's brother, has stated that Smt. Chand was talking at his place and Narsingh came in the morning at 7.30 a.m. and then came at 11.30 a.m. with the police.
49. A very mysterous feature of the evidence is that in cross-examination by the learned Public Prosecutor, Madan Lal (DW 1) has stated that Jagdish, has not told him that Smt. Chand has been burnt alive with kerosene oil. Not only that, he directly belies the so-called defence of suicide when he stated that he enquired what was reason of the burning of Smt. Chand on which Jagdish stated that he was sleeping outside. This shows that even Madan Lal (DW 1) has not come with full support in defence to support the theory of suicide.
50. It is also significant that though he states that Smt. Chand was conscious and was talking, he could not dare to say that what was statement of Smt. Chand about the cause of burning.
51. Mohan Lal (DW 2), another defence witness has been produced by the accused, and he is also Khairu's son, and brother of other witness, Madan Lal (DW 1). According to him, Smt. Chand was brought to his house and was taken to Dr. Saxena (DW 4); Narsingh and Kanta were talking to Smt. Chand. According to Mohanlal (DW 2), when Narsingh was talking with Smt. Chand, she was conscious.
52. Curiously enough, even Mohanlal (DW 2) has not stated that when Smt. Chand was talking she mentioned the cause of burnings, nor Mohanlal (DW 2) has stated that Jagdish told him that it was a case of suicide. In his cross-examination, he stated then when Narsing came at his house, Smt. Chand was conscious and did not talk to Narsingh.
53. It is significant that according to the version of both these defence witnesses, the deceased was taken to the hospital after the relatives of Smt. Chand arrived. In our opinion, these two defence witnesses in no way supported the defence case of the theory of the alleged suicide or accidental death.
54. We are convinced that from the above evidence the finding of the trial court that it was a case of homicide and Smt. Chand was burnt alive by non-else but her own husband Jagdish, arc fully established and we are further convinced that these findings suffer from no infirmity.
55. We, ourselves, assessed the evidence afresh and we have got no hesitation in holding that the present one is a case of heinous and barbaric nature where, Jagdish taking undue advantage of the weaker sex, her helplessness, loneliness of a defenceless young bride, burnt her alive in the death night, and did not do anything thereafter to save her. She was not even taken to the hospital immediately although in a place like Jaipur on a telephonic call from a distinct place, an ambulence could have arrived in the night, itself. She was kept at the house of the accused's maternal relatives and shown to an ordinary private doctor.
56. It was only when the information reached the father of Smt. Chand who was also residing not at a far place, in the morning and although there would not have been difficulty to send the information about the incident within a few of minutes or in any case, in an hour or so as such, the delay in sending the information to the father of the bride, Smt. Chand also corroborates the guilty intention of the accused Jagdish to conceal the crime as far as possible.
57. We have, therefore, got no hesitation in upholding the finding of the trial court, and holding that the accused Jagdish has been rightly convicted under Section 302, IPC, for the gruesome murder of his own bride, wife, Smt. Chand.
58. Having confirmed the finding of the guilt of the accused Jagdish for committing the murder of his own wife, Smt. Chand, we are now considering the important contention and question, whether the sentence imposed upon the accused by the trial Court, of life imprisonment, when the State has not filed any appeal for enhancement of that sentence, nor the State filed any revision application, is inadequate and we should suo moto consider this question in this appeal filed by the accused by exercising powers of 'suo-motu revision'.
59. So far as the powers of this Court for enhancement of the sentence in the appeal filed by the accused against his conviction and without there being any appeal by the State for enhancement of the sentence of the accused, are concerned, the Apex Court of this country has amphatically and clearly laid down in Nadirkhan v. Delhi Administration that in an appropriate case, inspite of the exclusion contained in Section 377 and 401 Cr. PC and the express provision of Section 386, Cr. PC the High Court has got powers to act sou moto for enhancement. It was laid down as under;
The fact that the new Code of Criminal Procedure has expressly given a right to the State under Section 377, Cr. PC to appeal against inadequacy of sentence which was not there under the old Code does not exclude the revisional jurisdiction of the High Court to act suo moto for enhancement of sentence in appropriate cases. What is an appropriate case has to be left to the discretion of the High Court. The Supreme Court will be slow to interfere with exercise of such discretion under Article 136 of the Constitution. The provisions under Section 401 read with Section 386(c)(iii) Cr.PC are clearly supplementary to those under Section 377 whereby appeals are provided for against inadequacy of sentence at the instance of the State Government or Central Government, as the case may be.
60. In Nadir Khan's case was one, where the petitioner who was found in unlawful possession of ganja weighing 7 kgs., was convicted by the Metropolitan Magistrate, Delhi and sentenced to two months' rigorous imprisonment. The petitioner filed revision against the conviction before the High Court. The High Court instead of granting him relief made him worst, as in view of the High Court the sentence imposed was inadequate. Rejecting the application of the accused, the High Court exercised revisional jurisdiction and, suo moto, enhanced the sentence from two months' RI to six months. When the matter went up before the Supreme Court, the argument which is now being made by Shri V.S Gurjar, the learned counsel for the accused, was made there, also, that under Section 401, Cr.PC, there is no jurisdiction or power to anhance the sentence in the absence of appeal against the inadequacy of the sentence, under Section 377, Cr.PC
61. In para 4, their Lordships of the Apex Court observed that it is well known and has ever been recognised that the High Court is not required to act in revision merely through a conduct application at the instance of an aggrieved party; and the High Court, as an effective instrument for administration of criminal justice, keeps a constant vigil and wherever it finds that justice has suffered, it takes upon itself as its bounden duty to suo moto act where there is flagrant abuse of the law.
62. The Apex Court then observed that the character of the offence and the nature of disposal of a particular case by the subordinate court prompt remedial action on the part of the High Court for the ultimate social goods of the community, even through, the State may be slow or silent in preferring an appeal provided for under the new Code; and that, the High Court in a given case of public importance e.g. in now too familiar cases of food adulteration, reacts to public concern over the problem and may act suo moto on perusal of newspaper reports disclosing imposition of grossly inadequate sentence upon such offenders.
63. Their Lordships of the Supreme Court then took notice of the fact that there has been new provisions in Section 377 Cr. PC which expressly gives a right to the State to appeal against inadequacy of sentence which was not there under the Old Code; but, made it clear that so far as the powers of the High Court is concerned, in suo moto revisional jurisdiction for the enhancement of the sentence in appropriate cases, there is no bar. What is an appropriate case has been left to the discretion of the High Court by the Supreme Court in the above case.
64. In Bachan Singh and Ors. v. State of Punjab 1980 SCC (Cr.) 174 their Lordships of the Supreme Court considered the situation where the appeal was not preferred by the State for enhancement of the sentence under Section 377, Cr. PC. An argument was made that once the appeal was not filed, revision was not maintainable. Their Lordships then observed that the High Court under Section 397 Cr. PC can call for and examine records for proceedings before the trial court to exercise its revisional power. The Supreme Court also observed that the powers under Section 401 Cr.PC of calling for the record, includes the powers conferred on a court of appeal under Section 386 to enhance or reduce the sentence.
65. Their Lordships further observed that when the record of the case was before the High Court in connection with the two appeals and the revision petition, there was nothing to prevent the High Court from invoking its powers under Section 397 read with Section 401, Cr. PC and to make an order for the enhancement of the sentence. It was also observed in this case of Bachan Singh (supra) that there was no necessity to afford an opportunity separately to show cause under Section 377(3) Cr.PC because the appeal is being heard of the accused, the full opportunity was there to show cause against the enhancement.
66. In the instant case, during the course of the hearing of the appeal of the accused, at the very threshold when we found that if the facts as alleged by the prosecution are proved then a serious question would arise about the sentence, we have made it clear to the learned counsel for the accused that both aspects be kept in view during the arguments though it would all depend upon whether finally we come to the conclusion of holding the accused, guilty and then we come to the conclusion, whether we should consider this case as a case falling in one of the categories laid down by their Lordships of the Supreme Court in Machhi Singh v. State of Punjab .
67. Shri Biri Singh, the learned counsel, was fair enough when he argued the case on merits and he argued all facts of it. However, when the judgment was being directed, under instructions from some relative of the accused, Shri Singh moved two applications before this Court. This applications were placed before us during the course of the direction of the judgment after lunch hours, and we have considered them, also.
68. Before we mention about these applications, we would like to mention, whether, at all in the present appeal in the absence of the appeal by the State, and/or in the absence of revision by the State, we should invoke out extra ordinary powers of suo moto revision. It is true that normally in the matter of sentence more so, when no appeal has been filed by the State, this Court should not interfere and in any case, it is competent to do so.
69. However, as pointed out by their Lordships of the Apex Court in Nadir Khan's case (supra), where the question was regarding recovery of the ganja and the sentence was of 2 months' rigorous imprisonment, the Supreme Court increased it to six months RI, for the guidelines of all the Courts and particularly, the High Court, laid down that the High Court, as an effective instrument for administration of criminal justice, keeps a constant vigil and wherever it is found that the justice has suffered, it takes upon itself as its bounden duty to suo moto act where there is flagrant abuse of the law.
70. We have extracted above the observations a little earlier in our this judgment but we feel ourselves, tempted to repeat them here, because, we are more conscious of our constitutional duty to act as watch-dogs of the Constitution of India and whenever we find that the character of the offence and the nature of disposal of a particular case by the subordinate court, prompt remedial action on the part of the High Court, it is necessary for the ultimate social good of the community, even though the State may be slow or silent in preferring an appeal provided for in the New Code, the High Court would not shirk its responsibility even for the cases of the food adulteration etc. Their Lordships also observed and pointed out that the High Court should react to public concern over the problem and may act suo moto on the perusal of the news paper reports disclosing imposition of grossly inadequate sentence upon such offenders.
71. We, therefore, feel that it is our constitutional, legal, bounden duty and as per the mandate of the Supreme Court in Nadir Khan's case (supra), if social good requires even to act against insufficient imposition of the sentence in news paper reports, not to shirk or avoid suo moto revision for enhancement of sentence.
72. The question before us therefore, is, whether to do or not to do, whether to discharge the solemn social duty or to shirk on any pretext and we have got no hesitation in answering it in affirmative, and holding that if the peculiar facts and circumstances of the case warrants out interference by invoking suo moto powers, we should not shirk it on any pretext, what so ever, the question still remains, whether the present case is of that appropriate nature as rightly laid down by the Apex Court that such interference by suo moto revisions should not be made lightly.
73. We would, therefore, like first to examine the nature of the crime, the facts of which we have narrated, in details, above.
74. Here is a case, where a young bride of 24 years of her age, who was all alone helpless, undefended in the dead of the night in a room where she was expected to enjoy love and affection from her husband; where before the marriage or after the marriage she must have dreamt of the most lovely treatment from the husband where she was expected to have protection from husband against all the world if any evil eye or ill intentioned attack, was made victim by the husband. The protector-defender became the offender. The place chosen was lonely room. The time chosen was the dead of the night in the early hours about 2 or 2.30 a.m. when the whole of the world all around were in sleep in order to relax from their whole days exhaustion. The motive as disclosed in the dying declaration recorded before that Magistrate (PW 7) was still more heinous, gruesome, hair-raising, society rocking, nerve cracking, & conscious shokcing, as being the mother of a child, Smt.Chand wanted to get her daughter well treated & she was going to the doctor for her treatment but, the father did not like or appreciate it because he was enraged at the wife's getting treatment for her daughter and not permitting the slow death to her to getrid of a female child. We feel that it makes a most barbaric ghastly crime. The accused wanted indirectly that the girl child, female child of a weaker sex should be allowed to get rid of her by slow death. A mother of a child whether male or female, would not allow her flesh and blood to embrace the death.
75. We feel that such being heinous barbaric motive in this age where after thirty eighty years of the Constitution guarntees to the females and weaker sex of special protection where there is anti-social or specially abhorrent nature of the crime, would certainly fall in the category of 'rarest of rare cases' where death sentences should be awarded to the accused.
76. The fact that the crime was committed by pouring kerosene oil on Smt. Chand and lighting the match and that too, in the dead of the night when no body can come and rescue her; the fact that she was in loneliness, helplessness defenceless and belonged to weaker sex of the society; the fact that the murder of an defended bride was committed in an extremely brutal, barbaric, debased and gruesome ghastly manner by none-else but by her bride-groom and husband, himself; and the fact that after lighting the match and burning the fire, flames in which the poor undefended young bride was roasted, the accused-appellant in a most ghastly manner and beastly conduct picked up her from the floor and threw her out of the floor from the room, makes it a worst crime warranting exercise of our suo moto interference for social justice in order to protect the society from such crimes because such crimes are menace, social evils of serious magnitude, 'slur' on society and stigma on our present generation and on the preamble of the Constitution of India entering social justice, fraternity, and equality. It is day-light race on the 'social justice' concepts so consciously exhibited in the preamble and the Directive Principles under our Constitution. Such crimes are against women-hood, poverty and against all guarantees enshrined in our Constitution.
77. Such barbaric crimes which are anti-social and socially abhorrent nature of the crime, are social evils taking away the precious lives of young married brides and which are committed by bride grooms or husbands, after having failed to cow down wives as chattels and maltreat them due to their economical and social dependence on males deserves maximum extreme punishment, in terms of Machhi Singh's judgment standard as it is a caste iron case of 'bride burning'.
78. In Machhi Singh's judgment (supra), their Lordships of the Apex Court, while categorisation and preparation of the catalogue of the cases and kinds of the crimes where the maximum penalty of death sentence should be given, mentioned that the manner of commission of murder and offence re important factor, e.g., (i) when the house of the victim is set a flame with the end in view to roast him alive in the house; (ii) when the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death; (iii) when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.
79. Again, it was laid down that when the murder is committed for a motive which evinces total depravity and meanness, the death sentence should-be awarded. Again it was laid down under category II at p. 966, that when the cold-blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a award or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or in a position of trust; and murder is committed in the course for betrayal of the mother land, in that case, the death sentence should be awarded. The rest of the categories are as under:
III. Anti-Social or Socially abhorrent nature of the crime:
(a) When murder of a member of a Scheduled Caste or minority community, etc., is committed not for personal reasons but in circumstances which arouse social wrath. For instance, when such a crime is committed in order to terrorize such persons and frighten them into flaming from a place or in order to deprive them of, or make them surrender, land for benefits conferred on them with a view to reverse Caste injustices and in order to restore the social balance;
(b) In cases of 'bride burning' and what are known as 'dowry-deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
IV. Magnitude of crime:
When the crime is enormous in proportion for instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.
V. Personality of victim of murder:
When the victim or murder, is (a) an innocent child who could not have or has not provided even an excuse, muchless a provocation, for murder; (b) a helpless woman or a person rendered helpless by old age or infirmity! (c) when the victim is a person vis-a-vis whom the murderer is in a position of domination or trust (d) when the victims a public figure generally loved and respected by the community for the service rendered by him and the murder for political or similar reasons other than personal reasons.
80. These categories are illustrative and not exhaustive. We are of the opinion that the present one is a case where, the husband who was supposed to protect his wife Smt. Chand, the helpless bride and the young in age, in the house of the accused, in the dead of the night and whose only fault was that she out of her impulses of the mother-hood wanted to save her daughter by giving her proper treatment and was not prepared to kill her gradually, where the husband who can safely be treated as in a position of dominating or in a position of trust, was supposed to maintain the solemn and pious relations of a bride and bride-groom against the promises which they had taken while in front of 'Satpadi' during marriage, where he promised to protect her against all evils throughout the life, the method of committing murder was worst than a stone, of burning Smt. Chand alive in fire by pouring kerosene oil and lighting the fire by match; the additional aggravating factor that she was not taken to the hospital in a city like Jaipur where S.M.S. Hospital provides for urgent emergency treatment all the 24 hours and she was taken to her maternal-uncle-in-laws place and was allowed to rot there till she dies, make it a worst case. The father of the girl came and till then it became too late. These adverse factors all show that if we on account of the non-consideration of sole action of the Government in not preferring the appeal or indifference of the bureaucracy sitting in the department concerned for assessing the seriousness or barbaric nature of the crime allow lesser sentence to go enhanced, we would be failing to perform our solemn duty of vigil as watch-dogs of the Constitution against social crimes.
81. We have, therefore, got no hesitation that it is not only permissible but it is constitutional mandate in the interest of social justice to put an end to social crime of ever increasing bride burning cases that we should come with heavy hands not exhibiting the leniency not exhibiting that arms of the law are too strong and such cases would not be allowed to go without the accused going to allow unpunished. We are of the opinion that in such rarest of rare cases, and more so as in the present case, which is a rarest of rare case, extreme penalty of death should be imposed on the accused, and we have no hesitation in imposing the same for doing real social justice.
82. We feel that when the society is ever-fast increasingly exhibiting abhorance to roasting of young brides and even then the bride burning cases are suddenly increasing and there is flood of bride burning cases, challenging the judicial consciousness and authority of the judiciary, dignity, honour of womanhood of India, as well as the Slate to provide protection to the innocent young brides from the actual barbaric gruesome crime of husbands who misusing dominating position are taking out the flesh and blood of young brides, the punishment when such crime are proved, should be both, exemplary and deterrent, one such exemplary punishment if given demonstratively in public, can provide protection thousands of young brides, from being burnt alive, by creating fear and terror in the minds of such criminals who are doing torture of young brides for the satisfaction of the sadastic leasure. It would prevent attempt of creating miserable condition either of suicide or homicide, as every one would know that he would not be allowed to go unpunished and one can do it at his or her own peril.
83. We have, therefore, indicated that in case we confirm the finding of the trial court then we would consider the matter of enhancement of the sentence in our suo moto revisional jurisdiction. In view of that, we feel that the two applications filed by the accused after the arguments were over and when the judgment was being dictated are nothing but a frustrative attempt of some relative of the accused and the delay, delaying tactics to avoid the sentence which is being adopted at a stage of conclusion of the arguments, has got no merits. We, have therefore, no hesitation in rejecting these two applications which have been moved today.
84. In view of the above extra ordinary exceptional speaking circumstances, we feel that the present one is a case which can safely be treated and termed as 'rarest of rare cases' and we have got no position in invoking our suo moto jurisdiction which we are doing after hearing and which we are doing after we have notified to the learned counsel for the accused at the very threshold of the arguments in this appeal to show cause why enhancement of the sentence may not be made from life imprisonment to the death penalty.
85. We feel that so long as the statute of this land contains the provisions of the death penalty, the present one is one of the most appropriate case where we can do justice to the society by imparting the maximum penalty of capital sentence to the accused appellant Jagdish Khatik for committing the crime of burning his own wife-bride Smt. Chand alive by pouring kerosene oil on her body, for which he has been held guilt of the offence under Section 302, IPC.
86. While awarding the death sentence penalty in another case of State of Rajasthan v. Smt. Lichmadevi D.B. Cri. Appeal No. 330/78, decided on Nov. 21, 1985, we have directed that ever increasing crimes of bride burning which are creating a challenge to the social justice enshrined in the Constitution, when proved, deserves to be dealt with, without leniency by imposting extreme penalty of death; and to deter other from committing such heinous and gruesome crimes, the execution of punishment should be in a demonstrative manner for making it both, exemplary and deterrent. We have therefore, directed that the death sentence should be executed at a public place in the guage and eye of the public and this can be done at the stadium grounds or Ramlila Ground of Jaipur after giving widespread publicity throught the media of its date time and place. We have while directing the above manner and method of execution also mentioned that this can be subject to there being no prohibition in the jail rules and without creating any law and order problems or problem of security for the Government. We feel that the present one is also a case where the circumstances warrant the same methodology of execution of death penalty, and we order accordingly that looking to the peculiar facts and circumstances of the case, in order to make this punishment deterrent exemplary, prohibitory the accused-appellant Jagdish s/o Asharam Khatik who is being convicted under Section 302, I PC and sentenced to death, should be hanged by neck till he dies at a public place in Jaipur City provided the State Government Rules and the Jail Manual permits it and there is no law and order problem and security problem.
87. In the result, the appeal of the accused-appellant is dismissed. We, under our suo moto revisional powers and jurisdiction, enhance the sentence from the life imprisonment to the death sentence for the offence under Section 302, IPC, and accordingly modify the judgment dated the 22nd June, 1982 passed by the Sessions Judge, Jaipur City, Jaipur in Sessions Case No. 135/81; and further We order that the appellant-accused namely, Jagdish son of Asharam Khatik, r/o Mandi Khatikan Shyampura, Jaipur, who is being sentenced to death, would be hanged by neck till he dies. The accused Jagdish Is already in jail, A copy of the judgment be sent to him.