Allahabad High Court
Jaswant Singh And Another vs State Of U.P. on 29 April, 2022
Bench: Sunita Agarwal, Subhash Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 46 A.F.R Reserved on: 09.02.2022 Delivered on:29.04.2022 Case :- CRIMINAL APPEAL No. - 1834 of 2008 Appellant :- Jaswant Singh And Another Respondent :- State of U.P. Counsel for Appellant :- Rajeev Sisodia,Ajay Kumar Barnwal,Atul Sisodia,C.V.S. Raghuvanshi,J.P.S.Chauhan,R.K. Shukla,Ramesh Kumar Shukla,S.A,V.Singh Counsel for Respondent :- Govt. Advocate Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Subhash Chandra Sharma,J.
(Delivered by Hon'ble Mrs. Sunita Agarwal,J.)
1. Heard Sri Kamal Krishna learned Senior Advocate assisted by Sri Ramesh Kumar Shukla learned counsel for the appellants and learned A.G.A. for the State-respondents.
2. This appeal is directed against the judgment and order dated 29.02.2008 passed by the Additional Sessions Judge, Court no.6 Bijnor whereby two appellants herein namely Jaswant Singh and Resham Singh have been convicted for the offence under Section 302 read with Section 34 IPC and sentenced for imprisonment for life and fine of Rs.15,000/- each. The default punishment is one year rigorous imprisonment for each appellant. The appellant no.1-Jaswant Singh had died. Only surviving appellant Resham Singh is represented by the learned senior counsel.
3. The first information report of the incident occurred on 01.08.2006 at about 11.30 a.m was lodged by Charan Singh S/o Jagir Singh, husband of deceased Chhindra Pal Kaur on 01.08.2008, at about 8.30 p.m. The assertion in the written report given by Charan Singh (P.W-1) is that the first informant was four brothers. Out of whom, the eldest one Bagshish Singh was living in Punjab. The entire landed property (agricultural field) of the father of the first informant was given to his two elder brothers namely Jaswant Singh and Resham Singh. The first informant stated that he did not get any share in the property of his father and was doing Majduri (labour work) to feed his family. A dispute related to the landed property was going on between him and his two brothers Jaswant and Resham (the appellants herein). A case under Section 107/116 Cr.P.C was pending before the S.D.M., Dhampur. On account of the said dispute, his wife Chhindra Pal Kaur was burnt to death by pouring kerosene on her by the appellants at about 11.30 a.m on the fateful day. At that point of time, the first informant was out of his house as he went to bring fodder for his cattle. The deceased was admitted in the Government Hospital by the Gram Pradhan Sri Chatar Singh s/o Sri Aidal Singh and other villagers and died at about 4.00 p.m in the hospital. After getting information, the first informant also went to the hospital and brought home the dead body of his wife with the help of villagers. While keeping the body at his house, he went to lodge the first information report.
4. On presentation of the written report, check FIR and G.D entry were made, which were copied in the case diary by the Investigating Officer, who had entered in the witness box as P.W-7. The Investigating Officer stated that he was posted at the police station-Afjalgarh as S.H.O on 01.08.2006. The investigation was accepted by him on the information received from the hospital. He had reached at the house of the first informant prior to lodging of the FIR. The Head constable Bhagwan Sharan Pandey handed over the copy of the check report, and the written report on the spot and the investigation was then commenced. The statement of the first informant Charan Singh was recorded on the spot. The inquest of the body of the deceased kept on a cot in the Varandah of the house of first informant Charan Singh was conducted on 02.08.2006 and the body was sealed and sent for post-mortem alongwith relevant papers. The site plan on inspection of the site of the incident was prepared, which was proved as Exhibit-Ka-5. From the place of the incident, the burnt clothes of deceased Chhindra Pal were collected and a memo was prepared, which was proved as Exhibit-Ka-6. P.W-7 gave the details of the clothes collected in the memo of recovery. The statement of other witness and that of Gram Pradhan Chatar Singh were recorded and the appellant Resham Singh was arrested. On 05.08.2006, the statement of other witnesses were recorded. The appellant Jaswant Singh was arrested on 07.08.2006.
5. On completion of the investigation, chargesheet was filed in the Court which was proved as Exhibit Ka-'7' being in hand writing and signature of P.W-7. P.W-8, the constable clerk had proved the inquest as Exhibit Ka-'8' being in the handwriting of Constable Ramji lal carrying his signature and that of another police personnel. He stated that the body was sealed and sent with relevant police papers and handed over in the Mortuary. After post mortem, body was brought from the Mortuary and handed over to the relatives of the deceased. P.W-8 stated that no one had touched the dead body from the place of the inquest till it was kept safe in the Mortuary. In cross, P.W-8 stated that the body was straightway taken to the Mortuary and they left the place of the incident at about 8.00 a.m and reached at the Mortuary in about two hours. The inquest was done in his presence and his signature also finds place therein. Total eight papers were given to the Chief Medical Officer including inquest report, photo lash etc.
6. P.W-5, doctor-Shamim Ahmad Ansari was posted in the P.H.C Kadrabad District-Bijnor as Medical Officer. On 01.08.2006, the date of the incident, he stated that deceased Chhindra Kaur was brought to the hospital at about 1.00 p.m in the burnt state upto 60-70%. She was brought by Gram Pradhan-Chatar Singh and the admission in emergency register was made by the pharmacist. After examination of the deceased, it was found that her general condition was poor and pulse rate was feeble, i.e very slow. Blood pressure of the patient could not be recorded as her hands were burnt. The first aid was given to the deceased at the hospital and at that point of time Chatar Singh, Baldev Singh and the pharmacist was present. In the presence of these persons, deceased Chhindra Kaur told that she was burnt by pouring kerosene by two brothers of her husband, namely Jaswant Singh and Resham Singh. The said fact was noted by the doctor (P.W-5) in the emergency register of the hospital. The entry of the said statement bears signature of P.W-5, Chatar Singh and Baldev Singh present there. P.W-5 stated that he had transcribed whatever was stated by the deceased. The original register was brought in the Court to prove the said fact. The attested photocopy of the said register was given to the police which was available on record. The signatures on the attestation had been proved by P.W-5 being his own and being correct as per the original register. The photocopy of the extract of emergency register was exhibited as Exhibit Ka-2. P.W-5 kept on to tell that looking to the critical condition of the patient she was referred to a higher centre.
Besides that a letter was sent to the Station House Officer Afjalgarh that Smt Chhindar Kaur w/o Charan Singh was brought to PHC in 60-70% burnt state by Gram Pradhan Chatar Singh and she had been referred to higher centre after first aid. The original copy of the said letter was sent to the police station whereas the carbon copy was pasted on the emergency register which was prepared in the same process. The receipt of the report from the police station in the carbon copy, at about 16.00 hours on 01.08.2006, was proved by P.W-5 with his signature on the carbon copy and by filing a certified copy of the same in the Court, as Exhibit Ka-3. It was stated by P.W-5 that after some time he came to know the deceased Chhindra Pal could not be taken to higher centre and she had died in the hospital itself and her family members took her home. The name of the person who brought the deceased to the hospital was mentioned in the register as Sri Chatar Singh, Pradhan.
7. It was reiterated by P.W-5 in the examination in chief that the deceased had told her name as Chhindra Kaur and narrated the incident on his asking and the said details were entered in the emergency register. In cross, he stated that he did not prepare any medico legal report of the deceased as she was critical and he referred her to a higher centre for treatment. He further stated that he did not talk to other people who brought the deceased to the hospital and only Gram Pradhan-Baldev was present in his chamber with whom he talked. It was reiterated by P.W-5, in cross, that he transcribed the statement of the deceased as was told to him. No certificate was given by him to certify the condition of the deceased that she was fit to make the statement and stated that the statement was written by him personally. He did not consult any other doctor. A suggestion that the deceased was not in the condition to make the statement was emphatically denied by P.W-5 who had reiterated that she was fit enough to make the statement. P.W-5 categorically stated that the deceased had narrated the whole story herself. However, the register on which the statement was written, the thumb impression of the deceased was not taken. The smell of kerosene oil was not coming from the body of the deceased.
8. On a suggestion, P.W-5 stated that after getting 95% of burnt injuries a patient would not be in a condition to speak. As per his own assessment, the deceased was burnt to the extent of 60-70%. Lastly, P.W-5 denied that he did not record the statement of the deceased and it was written on the narration of other people accompanying her.
9. P.W-6 is the doctor who had proved the post-mortem report as Exhibit Ka-'4' being in his signature and handwriting. The external and internal condition of the dead body as described in the post-mortem are:-
"External examination- average body built female, pugilistic appearance, redness present, eyes closed, mouth closed.
Ante time injuries-
Superficial to deep burn all over the body except both soles, Perineum and some part of right leg skin peeled off at places, scorched hair. Burnt area about 95%.
Internal examination-
Brain congested, Trachea congested with carbon particles, both lungs congested, right heart full, left empty (100 gm), stomach empty, gall bladder congested, spleen congested, both kidney congested, bladder empty.
The estimated time of death was about one day."
10. In the opinion of the doctor, death was caused due to shock on account of burnt injuries and the proximate time of death was one day ago. P.W-6 stated that he had given two sealed envelop, postmortem report, papers of inquest and a sealed bundle of clothes to Constable CP 1257 Tejpal Singh, P.S-Afjalgarh. The appearance of the body mentioned as 'pugilistic' with redness was explained by P.W-6 to be a condition on the body which occur when some one is burnt alive. On a suggestion, P.W-6 stated that even on getting such burnt injuries it was possible that the deceased was not unconscious, she, however, could be unconscious also. Most of the part of the body including neck was burnt and it was possible to have difficulty in talking clearly. He further stated that he did not write in the report that the smell of kerosene oil was coming from the body. In cross, P.W-6 stated that it was possible that the deceased had suffered burn injuries at about 9.00 p.m on 01.08.2006.
11. The recovery memo dated 02.08.2006 (Exhibit Ka-6) describes the burnt clothes of the deceased as: (i) one shirt yellow colour having designs in green etc (in the burnt state); (ii) slip ((baniyan) colour faded (in burnt state); and (iii) one underwear (kachha) grey colour in burnt state, which were siezed from the spot. They were kept in a blue colour polythene and sealed.
12. The post-mortem contains description of clothes and jewellery found on the dead body sealed and sent for postmortem, which is as follows:
1. Salwar -one
2. Dupatta-four
3. broken pieces of glass bangles
4. one metal kada
5. one metal nose pin
6. one braid (total six items) All these items were sealed in a cloth bundle and stamped as noted above. The sealed bundle of clothes of the deceased recovered from the place of the incident was opened in the Court and P.W-7, the Investigating Officer had identified them which were marked as Material Exhibit-'1' to '4'.
13. Amongst the witnesses of fact (three witnesses) Charan Singh, P.W-1, the first informant, the husband of the deceased, had been declared hostile as he did not support the prosecution version about the involvement of the accused persons. He, however, proved his signatures on the written report which was exhibited as Exhibit Ka-1. As to the contents of the written report, P.W-1 stated that whatever was written in the said report was not in his knowledge. He further stated that the scribe of the written report was known to him being his neighbour. In cross by the prosecution he stated that he did not know as to how it was written in the report that his brother had killed his wife by burning her. The other contents of the report had also been denied not being in his knowledge. P.W-1 had denied his statement under Section 161 Cr.P.C by saying that the Investigating Officer did not record his statement and when the said statement was put to him he replied that he did not know as to how it was written. He had denied the enmity between him and his brother about the landed property as also the proceedings under Section 107/116 Cr.P.C. In cross, on a suggestion by the prosecution, P.W-1 admitted that a compromise had been arrived with his brothers. But the suggestion that he was making a wrong statement on account of the said compromise was denied by P.W-1. He also denied that the written report was got scribed by him in his senses. In cross for defence, P.W-1 stated that his two daughters Balvindra Kaur and Rajvindra Kaur were not at home and they were at the house of their maternal grand father. His wife before becoming unconscious told him that she caught fire while cooking food. Lastly, P.W-1, though admitted that his wife was not unconscious during treatment but in the same breath stated that she was unconscious and died in that state.
14. Another hostile witness is P.W-2 who was an acquaintance of the deceased. In her examination in chief she had denied the involvement of the accused persons in the occurrence and stated that she went to the hospital and the deceased was unconscious and she did not name anyone as accused. In cross by the prosecution, P.W-2 reiterated that when she reached the hospital, the deceased was unconscious. She had denied any relationship with the accused person or the first informant Charan Singh and further retracted from her previous statement recorded under Section 161 Cr.P.C. In cross for the prosecution, P.W-2 again stated that the deceased was unconscious before she died and was referred by the doctor to the Government Hospital while she was in unconscious state.
15. P.W-3 Chatar Singh (a hostile witness) stated that he got information on 01.08.2006 that Chhindra Pal Kaur (deceased) got burnt. The said information was given in the police station by him. He denied having gone to the house of the deceased and witnessing her in the burnt state therein but admitted that he brought the deceased to the Government Hospital, Kadrabad and got her admitted therein. He then stated that Chhindra Pal was taking names of her brothers-in-law. On the asking, he stated that the deceased had two brothers-in-law and he did not remember as to whose name was mentioned by her. P.W-3, further stated that Chhindra Pal was saying that her brothers-in-law had burnt her but he did not know as to how it happened. P.W-3 further stated that Amarjeet Kaur (P.W-2) and one Seema were present when statement was made by Chhindra Pal Kaur and then he stated that she did not take name of any of the accused. In cross by the prosecution, P.W-3 stated that the Investigating Officer had recorded his statement in the hospital but he could not tell the time when it was recorded. He had denied his previous version in the statement under Section 161 Cr.P.C saying that it was wrong and further stated that the deceased was alive for about 2-3 hours in the hospital and doctors made all efforts to save her. When doctor referred her to Bijnor, he went to arrange a vehicle and in the meantime she died. In cross for the defence, P.W-3 stated that the deceased was repeating the word "jeth" as if she was calling her jeth. Two daughters of the deceased were in the village and he did not know as to whether they were present at the time of the incident. He stated that when deceased Chhindra Pal was admitted in the hospital she was unconscious and was not in a condition to speak. No paper work was made by the doctor in the hospital in his presence.
16. P.W-4 is an important witness of fact, who is daughter of the deceased. She was aged about thirteen years on the date when her statement was recorded. Before recording her statement, the Court had satisfied itself that she was in a position to understand and give reasonable answers to the questions put to her. In her examination in chief, P.W-4 stated that on the fateful day, her younger sister Balvindra Kaur and her mother Chhindra Pal Kaur were in the house. Her mother was cooking food and her father Charan Singh went to jungle to bring fodder. Her two Uncles Jaswant and Resham and Aunt started quarreling (oral) with her mother. Her uncle Jaswant and Resham (appellants) then stated that "this bitch used to quarrel daily, let her finish today." Jaswant then brought kerosene Can (kantari) from his room and poured kerosene on her mother. Her another Uncle Resham lit the fire through a match stick in the clothes of the deceased. Her mother started burning and when both the sisters tried to save her, her uncles frowned that they should also be burnt. Out of fear they kept mum. P.W-4 stated that they had seen that their mother was turning over and over. The incident had occurred in the kitchen outside the Varandah while the deceased was cooking food and the deceased kept on turning over and over in the empty place at the Varandah. Both the sisters went out of the house out of fear and later when lots of people were collected, they came back to the house. Before they came back, the villagers took their mother to the hospital and in the evening she was brought back dead. The police came in the night and took away the body for postmortem. Their father came back to the house in the night and they met him and told him everything truthfully. P.W-4 further stated that their uncles had killed their mother because of the land dispute and now they were residing with their maternal grand father as they still had fear for life from their uncles.
17. In cross, P.W-4 reiterated that she was residing with her maternal grand father and came to the Court alongwith him. The topography of the place of the incident has been narrated by P.W-4 stating that there was one varandah in front of two rooms and there was no construction in front of the Varandah. She then stated that she had no idea of the directions, but stated that there was no boundary wall around the house and no Main gate was also there. Her mother was cooking food in the Sehan and they were using wood stove to cook food. The incident had occurred at around 11.00 a.m to 12.00 noon. Her Aunt was present in the house and arguments between her mother and her Aunt were going on since morning. When her father went to jungle her uncles were present in the house. P.W-4 then stated that they were not beaten by their uncles and when they were threatened orally they went out of the house and came back after sometime. P.W-4 had specified her relationship with appellants-Jaswant and Resham by saying that they were her uncles. On a suggestion by the defence, P.W-4 stated that their neighbours did not reach at the place of the incident when quarrel was going on and they came later. Her mother was wearing salwar-kurta. She had denied the suggestion that her mother became unconscious and stated that she was screaming, before her mother was taken to the hospital, they went out of the house. When the deceased was taken to the hospital she was speaking and that fact was told to her by other people.
18. P.W-4 further goes on to say that the dead body of her mother reached home from the hospital at around 4.00-5.00 p.m on the same day and the police reached at around 8.00-9.00 p.m. Her statement was not recorded by the police on the same day, rather it was taken after 4-5 days of the incident. She had denied the suggestion of giving false testimony under the pressure of her maternal grand father with whom she was residing and stated that it was wrong to say that the incident did not occur in the manner in which it was described by her and that her mother caught fire while cooking food and her uncle did not put her to fire. She has also denied the suggestion that her uncles were not at home and that on the date of the incident she was in the house of her maternal grand father and did not watch the incident.
19. Placing the testimony of the three hostile witnesses and the statement of the doctors (P.W-5 and P.W-6), it was argued by the learned counsel for the appellant that it was an accident and in view of admission of P.W-4 that the deceased was cooking food, it is established that the occurrence was in fact an accident. The deceased caught fire while cooking food through her clothes and for this reason, smell of kerosene could not be found by two doctors namely P.W-5 and P.W-6, who had treated the victim and conducted post mortem of the dead body; respectively.
20. It is vehemently argued that considering the pungent nature of smell of kerosene, it is impossible that smell of it could not be found from the body of the deceased. Both the doctors namely P.W-5 and P.W-6, in cross, categorically stated that they could not smell kerosene from the person of the deceased. The Investigating Officer who collected clothes of the deceased from the spot marked as Exhibit ka-6, also stated that no smell of kerosene was coming from the burnt clothes of the deceased. He also admitted that the 'Can' of kerosene Oil was not confiscated as it could not be found on the spot. Moreover, the clothes of the deceased were not sent for FSL examination to ascertain whether the kerosene was poured on the deceased. Looking to the prosecution story, it is a case of accidental fire and conviction of the appellants is unjustified. Reference has been made to the decision in case of Janardan Dube and ors vs State of Uttar Pradesh reported in 2019 (4) ADJ 307.
21. Learned A.G.A in rebuttal, argued that PW-3-Chatar Singh though had turned hostile but proved that he brought the deceased to the hospital in the burnt state and admitted her for treatment. He also proved that the deceased was taking names of his brothers-in-law and was saying that they had set her on fire. In the examination-in-chief P.W-3 had turned hostile but this part of his testimony cannot be discarded. Moreover, presence of P.W-4, daughter of the deceased is corroborated by the statement of P.W-3. There is no reason for P.W-4, a girl of 13 years, to falsely implicate her two uncles/appellants in the crime. The evidence of P.W-4 cannot be discarded. The doctor P.W-5 who had examined the deceased on her admission in the hospital proved that the deceased was brought by Chatar Singh (P.W-3) in 60-70% burnt state and she was conscious when brought to the hospital. The statement of the deceased giving description of the incident had been recorded in the register by him. The version of the prosecution witnesses corroborate with the medical evidence wherein superficial burn all over the body of the deceased was found except the sole (undersurface of the foot) and her bronchea was found congested with the presence of carbon particles therein. It is, thus, argued that in the totality of facts and circumstances of the case, the prosecution evidence cannot be discarded for the mere fact that three witnesses had turned hostile and the fourth witness of the prosecution is a child witness. The prosecution has proved its case beyond all reasonable doubt and appeal deserves dismissal.
22. In rejoinder, it is submitted that appellant Resham Singh is 63 years old and he is in jail for more than 16 years. His remission may be recommended by the Court, in case, it reaches at the conclusion of the guilt of the appellant.
23. Having heard learned counsel for the parties and perused the record.
24. At the outset, it may be noted that appellant no.1-Jaswant Singh had died on 16.01.2021 while lodged in the Central Jail, Bareilly. The report in this regard has been sent by the Senior Superintendent, Central Jail, Bareilly vide letter dated 20.01.2021. The present appeal, therefore, stands abated in so far as the appellant no.1-Jaswant Singh is concerned. Only surviving appellant before us is appellant no.2-Resham Singh. Coming to the prosecution evidence, we may first consider the statements of the hostile witnesses to find out as to whether their statements in any manner are consistent with the case of the prosecution or the defence version. It may be noted that it is well settled principle for appreciation of evidence of a hostile witness that the evidence of such a witness must be subjected to close scrutiny. Merely because a witness is declared hostile, his entire testimony cannot be excluded from consideration.
25. Any portion of evidence consistent with the case of the prosecution or defence version can be relied upon. The statement particularly examination-in-chief in so far as it supports the case of the prosecution is admissible and can be relied upon by the Court. Reference: Gura Singh vs State of Rajasthan reported in (2001) 2 SCC 205 ; Bhagwan Singh vs State of Haryana reported in 1976 AIR 202; Ramesh Harijan vs State of Uttar Pradesh reported in (2012) 5 SCC 777; Haradhan Das vs State of West Bengal reported in (2013) 2 SCC 197; Lahu Kamlakar Patil and another vs State of Maharashtra reported in (2013) 6 SCC 417;
26. Keeping in mind the above position of law, we proceed to examine the statement of three hostile witnesses so as to find as to what extent they support the prosecution case or their testimony is in favour of defence. P.W-1, husband of the deceased is real brother of the appellants Jaswant Singh and Resham Singh. This witness though supported the defence that the appellants did not pour kerosene or set his wife on fire and stated that when he returned from the fields, he found his wife badly burnt, he took her to the hospital and she was unconscious at that time. She died during treatment in the hospital. In his testimony P.W-1, however, proved the written report which was marked as Exhibit-Ka-1 having been lodged by him. He also identified his signature on the said report and stated that scribe of report was his neighbour and acquaintance. He, however, had denied the contents of the written report by saying that he was not in his senses and did not know as to what was written therein. P.W-1 had also denied his previous version under Section 161 Cr.P.C and disputed the presence of his two daughters Balvindra Kaur and Rajvindra Kaur in the house at the time of the incident. From the statement of P.W-1, thus two facts are proved: firstly the lodging of the first information report by submitting a written report under his signature and, secondly that the said report was scribed by Harish Kumar s/o Kuvar Singh, his neighbour. P.W-1 had also proved that the deceased was found in a burnt state in her house and she was admitted in Kadrabad hospital and died there.
27. P.W-2, Amarjeet Kaur was an acquaintance of the family of the deceased. She did not support the prosecution case that the deceased had disclosed names of the appellants as assailants by saying that she was unconscious throughout. P.W-2 also denied having knowledge as to who had admitted the deceased in the hospital. Nothing much could be elicited from the statement of P.W-2 in favour of the defence except that according to her the deceased was unconscious when she reached the hospital. It is, however, proved by P.W-2 that the deceased was admitted in the hospital and died there and that the doctor at Kadrabad hospital had referred the deceased to the Government hospital Bijnor for treatment.
28. P.W-3-Chatar Singh is an important prosecution witness who though had turned hostile but has supported the prosecution case to the extent that the deceased was admitted in the hospital namely the Government hospital Kadrabad by him in the burnt state and she was treated therein. In the examination in chief, P.W-3 also admitted that deceased namely Chhindra Pal was taking the names of his brothers-in-law and saying that her brothers-in-law had set her on fire. It is, thus, proved that the deceased was conscious when admitted in the hospital. P.W-3, however, had denied as to how she was set at fire was not known and further that the deceased did not take the names of any of the accused appellants. In cross, P.W-3 had admitted that there were only two brothers-in-law of the deceased who were the appellants namely Jaswant and Resham. He also admitted that the deceased was repeating "Jeth-Jeth". P.W-3 though tried to explain this version by saying that while deceased was saying "jeth-jeth", it seemed to him that she was calling her brothers-in-law for help. P.W-2 also admitted that two daughters of deceased Chhindra Pal were in the village but he did not know as to whether they were present at the time of the incident. It is also proved by P.W-3 that the deceased was referred to Bijnor and she died in the hospital before she could be taken to Bijnor. He was confronted with his previous statement under Section 161 Cr.P.C that the appellants Jaswant and Resham poured kerosene on the deceased and set her on fire which he refuted. He admitted that the deceased was alive for 2-3 hours but stated that when she was admitted in the hospital she was unconscious and was not in a position to speak. The doctor did not make any paper work in his presence. From the statement of P.W-3, it is established that the deceased was talking when she was admitted in the hospital by P.W-3, who was the then Gram Pradhan of the village. She was taking names of her brothers-in-law. It is also admitted that the appellants were only brothers-in-law of the deceased.
29. The version of P.W-3 that the daughters of the deceased were present in the village also supports the prosecution case, though whether they were present at the time of the incident may not be known to him. It has come in the examination of P.W-1 that a compromise had been arrived between he and his two brothers. It seems that P.W-1 had turned hostile in order to save his brothers from the clutches of law after getting his share in the landed property with respect to which dispute was earlier going on between them.
30. Having considered the evidence of hostile witnesses, the testimony of the last witness of fact, P.W-4 is also to be considered as an important piece of evidence. P.W-4 Jasvindar Kaur @ Rajvindra Kaur is daughter of the deceased and P.W-1. She was aged about 13 years at the time of her deposition in the Court. The Court had satisfied itself about the competence of this witness looking to her age. P.W-4 categorically stated in the examination in chief that she and her younger sister Balvindra Kaur and deceased Chhindra Pal Kaur were at home. Her mother was cooking food and her father went to collect the fodder. Her two uncles namely Jaswant and Resham (the appellants) and her aunt, were arguing with her mother and during the said argument, the appellants Jaswant and Resham exhorted each other to kill her. Jaswant then brought kerosene from his room and poured on her mother. Resham had set her on fire. In the statement of P.W-4, it has come that the deceased had tried to save herself and in that effort she was turning over and over on the floor of the Varandah after she caught fire. She also stated that when she and her sister tried to save their mother, her uncles had threatened them. It was repeatedly stated by P.W-4 that her mother was turning over and over in the Varandah in an empty place, which seems to us was an effort to save herself from the fire. However, on account of threat given by their uncles both the sisters went out of their house. In cross, P.W-4 categorically stated that she was present in the house at the time of the incident and since after the incident both the sisters were residing with their maternal grand father as they had a threat of their life from her uncles. There is a categorical denial of P.W-4 to the suggestion that her mother caught fire while cooking food and her uncles did not set her on fire. The suggestion that both her uncles were not present in the house was also denied being false. It was categorically denied that she did not witness the incident or was in the house of her maternal grand father at the time of incident.
31. From a careful reading of the statement of P.W-4, no inconsistency or infirmity could be found. Her presence in the house at the time of the incident is proved by the prosecution. The statement of P.W-4 that while her mother was burning she made all efforts to save her by turning over and over in the empty place at Varandah is to be considered in the context of Exhibit-Ka-6 which is the recovery memo of burnt clothes of the deceased. A perusal of Exhibit Ka-6 shows that even underclothes (underwear) of the deceased was collected in the burnt state from the site of the incident, which was the house of the deceased.
32. A further perusal of the post mortem report indicates that four dupattas and one salwar was kept in the bundle by the doctor but none of those clothes were mentioned being in the burnt state. The joint reading of the statement of P.W-4, Exhibit Ka-6, the recovery memo of clothes of the deceased and the postmortem report indicates that in an effort to save herself, the deceased had taken out her clothes while burning and in the process she became naked. The deceased was brought to the hospital by P.W-3 who was the Gram Pradhan. The clothes found on the dead body during the postmortem were four dupattas and one salwar which again show that she was covered by the people who brought her to the hospital.
33. This takes us to the argument of the learned counsel for the appellant that smell of kerosene oil was not found from the clothes of the deceased and neither the autopsy surgeon had noticed the smell of kerosene oil nor the doctor P.W-5 who treated her. As noticed above it is evident from the record that the clothes on which kerosene oil was poured when the deceased was burnt were removed by her in an effort to save herself from the fire and they were collected by the Investigating Officer. The statement of P.W-4 that her mother was turning over and over in the varandah, in an empty place, is a proof of the said fact. Further the clothes of the deceased found on the spots were not burnt completely, as she had taken them out, though her body was burnt to the extent of 95% as per the postmortem doctor and 60-70% as per P.W-5, the doctor who treated her first. In the situation like this, if smell of kerosene oil could not be noticed by the P.W-6, postmortem doctor on the body of the deceased, nothing would turn in favour of the defence, in as much as, once the skin were burnt to the above extent in all likelihood, there was no possibility of presence of smell of kerosene on the naked body.
34. At the cost of repetition, it may be noted that the clothes noted in the postmortem report four Dupattas and shalwar were used to cover the naked body of the deceased and, as such, there was no question of finding smell of kerosene on them.
35. As regards, clothes seized and noticed in Exhibit Ka-6 (Recovery memo) and the statement of the Investigating Officer that he did not find smell of kerosene oil in the clothes or did not seize any such article which could prove that kerosene oil was poured on the deceased, would not be of any help to the defence, in as much as, for any slackness on the part of the Investigating Officer the defence would not be benefited. It has also come in the evidence that the burnt clothes (though not completely) were not sent to the forensic laboratory. The statement of the Investigating Officer that the smell of kerosene oil was not present in the clothes, therefore, cannot be given undue weightage and cannot be read in favour of the defence. As the said fact had neither been noted in the seizure memo (Exhibit Ka-6) nor there is any report of the FSL, it cannot be accepted that the Investigating Officer, who was not vigilant enough to send the clothes to the forensic laboratory, would remember at the time of his deposition that whether the smell of kerosene was coming from the burnt clothes or not.
36. In all the facts and circumstances brought before us, the prosecution has proved by an eye-witness account of P.W-4, the manner in which the crime was committed by the appellant Resham Singh along with his brother. It is also proved by P.W-4 that an oral altercation was going on between the deceased on the one hand and her two brothers-in-law and a sister-in-law on the other side, since morning and they both got angry during the altercation, and poured kerosene oil on the deceased and set her on fire. There is no reason to doubt or discard the statement of P.W-4, the daughter of the deceased, who is found to be a wholly reliable witness.
37. Moreover, appellant Resham Singh was a normal resident of the house and his presence in the house at the time of the incident was proved by P.W-4. In his explanation under Section 313 Cr.P.C, the accused-appellant Resham did not take plea of alibi rather his version in reply to question no.7, to give his explanation, was that clothes of the deceased caught fire while she was cooking food and she had died due to burnt injuries immediately. The appellant Resham Singh then stated that the case against him was false and was pursued at the instance of the father of the deceased who wanted that the landed property be given to his grand daughters. From this explanation of the accused appellant, atleast, his presence in the house at the time of the incident is proved. As regards the false case lodged at the instance of the father of the deceased, suffice it to note that the first information report of the crime was given by the husband of the deceased namely P.W-1, the father of the deceased was nowhere in picture when the report was lodged, the case was investigated and even till the chargesheet was submitted. He did not even enter in the witness box to depose against the accused. By mere fact that two daughters of the deceased started residing with their maternal grand father after this ghastly incident, it cannot be said that their grandfather cooked up the case.
38. Having found that the prosecution had proved occurrence by the statement of eye-witness (P.W-4), the last question which remains to be considered is whether the statement of the deceased noted by the doctor, P.W-5 in the emergency register can be relied as "dying declaration" in aid of the case of the prosecution. In this regard, it is pointed out by the learned counsel for the appellant Resham that the said statement though was exhibited as Exhibit Ka-'2' but was not put specifically to the accused Resham during his examination under Section 313 Cr.P.C.
39. The question no.5 has been placed before us to submit that it was perfunctory and in absence of a categorical question putting Exhibit Ka-'2' to the accused, the said document cannot be read in evidence as it would cause serious prejudice to the accused as he would be deprived of giving his explanation to the said version.
40. To consider the said submission, we may extract question no.'5' of the statement under Section 313 of the accused appellant-Resham Singh as under:
"प्रश्न नं०5: अभियोजन द्वारा प्रस्तुत की गई अभिलेखीय साक्ष्य तहरीर प्रदर्श क-1, इलाज से सम्बन्धित कागज की फोटो कापी प्रदर्श क-2, पी०एम०रिपोर्ट प्रदर्श क-4, नक्शा नजरी प्रदर्श क-5, फर्द कब्जे लेने कपड़े मृतका प्रदर्श क-6, आरोप पत्र प्रदर्श क-7, पंचायत-नामा प्रदर्श क-8, चालान लाश प्रदर्श क-9, फोटो लाश प्रदर्श क-10, चिट्ठी आर.आई.प्रदर्श क-11, चिट्ठी सी०एम०ओ० प्रदर्श क-12, प्रथम सूचना रिपोर्ट प्रदर्श क-13 आदि के सम्बन्ध में आपको क्या कहना है?
उत्तर नं०5: जी गलत है।"
41. A bare persual of the examination of the accused under Section 313 Cr.P.C reveals it to be perfunctory in nature. The statement of the deceased noted in the emergency register marked as Exhibit-Ka-'2' had been put to the accused as "इलाज से सम्बन्धित कागज की फोटो कापी प्रदर्श क-2". The incriminating circumstances reflecting in the documentary evidence (Exhibit Ka-'2') were not put to the accused. The substance of the accusation was not brought to the knowledge of the accused to enable the accused to explain the circumstances appearing in the evidence against him.
42. In a recent decision, the Apex Court in Maheshwar Tigga vs State of Jharkhand reported in (2020) 10 SCC 108 has held that the circumstances not put to an accused under Section 313 Cr.P.C cannot be used against him and must be excluded from consideration. Considering the importance of putting all relevant questions to the accused under Section 313 Cr.P.C., it was held therein to be an essential part of fair trial, basic to the principles of natural justice.
43. The observations in para-'8' of the decision are relevant to be noted herein under:
"It stands well settled that circumstances not put to an accused under Section 313 Cr.P.C. cannot be used against him, and must be excluded from consideration. In a criminal trial, the importance of the questions put to an accused are basic to the principles of natural justice as it provides him the opportunity not only to furnish his defence, but also to explain the incriminating circumstances against him. A probable defence raised by an accused is sufficient to rebut the accusation without the requirement of proof beyond reasonable doubt."
44. In para-'9' of the said decision, the Apex Court has emphasized the relevance of Section 313 Cr.P.C as noted in a previous decision in Naval Kishore vs State of Bihar reported in (2004) 7 SCC 502. In Naval Kishore (supra) the Apex Court had deprecated the practice of putting entire evidence against the accused in a single question. It was held in para-'5' that:
".......Under Section 313 Cr.P.C. the accused should have been given opportunity to explain any of the circumstances appearing in the evidence against him. At least, the various items of evidence, which had been produced by the prosecution, should have been put to the accused in the form of question and he should have been given opportunity to give his explanation. No such opportunity was given to the accused in the instant case. We deprecate the practice of putting the entire evidence against the accused put together in a single question and giving an opportunity to explain the same, as the accused may not be in a position to give a rational and intelligent explanation. The trial judge should have kept in mind the importance of giving an opportunity to the accused to explain the adverse circumstances in the evidence and the Section 313 examination shall not be carried out as an empty formality. It is only after the entire evidence is unfurled the accused would be in a position to articulate his defence and to give explanation to the circumstances appearing in evidence against him. Such an opportunity being given to the accused is part of a fair trial and if it is done in slipshop manner, it may result in imperfect appreciation of evidence.........."
45. Having considered the above legal position, we must consider in the facts of the present case as to whether, having regard to the question put to the accused, it can be said that the question no.5 was such as to transmit the knowledge of the incriminating circumstance against the accused clearly so as to give his defence.
46. A perusal of the question no.5 framed by the trial court indicates that all exhibited documentary evidence from Exhibit-Ka-'1' to Ka-'13' were put together to him in one question. Exhibit Ka-'2' the statement of the deceased noted by the doctor during her treatment is one of them. This documentary evidence has been put to the accused only with the detail that it was a paper relating to the treatment of the deceased together with all other papers of the prosecution. The substance of the said letter was neither extracted in the question nor it was put to the accused to the effect that the deceased recorded her last statement implicating the accused persons as perpetrators of the crime.
47. In the said scenario, the Court must eschew the incriminating circumstances which had not been clearly put to the accused, appearing in the evidence, from consideration. The answer to the last question posed by us, therefore, is in 'Negative'. Excluding the statement of the deceased Exhibit-Ka-'2', from consideration, the decision has to be taken on the basis of the remaining evidence.
48. As discussed above, the statement of P.W-4, a child witness, the daughter of the deceased has been found credit worthy, as no inconsistency, improbability and embelishement could be found therein. It cannot be said that the child witness was a tutored one and the sugggestion with regard to her absence at the place of the incident is found unworthy of acceptance. As regards the hostile witnesses, it has come in their evidence that the first information report of the incident was lodged on the same date i.e 01.08.2006 at about 20-30 hours, after the deceased had succumbed to her injuries at about 4.00 p.m. Two accused persons herein were named in the written report submitted in the police station by P.W-1, the husband of the deceased.
49. From the statement of P.W-2, it is proved that the deceased was admitted in the hospital in burnt state and she had died therein.
50. From the statement of P.W-3, the Gram Pradhan, it is proved that he took the deceased to the hospital in a burnt state and got her admitted therein. The deceased was talking while she was admitted in the hospital and was taking names of her brothers-in-law saying that they had set her on fire. It is further proved from the statement of the doctor namely P.W-5 that when the deceased was admitted in the hospital she was in a fit mental state to talk. From the statement of P.W-6 (autopsy surgeon), it is proved that the injuries found on the person of deceased was superficial to deep burn and as per the opinion of the doctor, the external condition of the body was "pugilistic" appearance and redness which appear when a person is burnt alive. From the recovery memo (Exhibit Ka-6) and the bundle of clothes prepared by the post mortem doctors, it seems that the deceased had removed all her clothes in an effort to save her from burning while she was turning over and over in the open place in the Varandah of the house. The appellant Resham Singh was a normal resident of the house alongwith another appellant (who had died during the pendency of the appeal). No plausible explanation is forthcoming from the appellant Resham Singh as to what had actually happened in the house on the fateful day. The burden laid on the appellants under Section 106 of the Evidence Act in view of the prosecution evidence had not been discharged by them.
51. In addition to the evidence led by the prosecution, this circumstance add weight to the prosecution story. In the totality of the facts and circumstances of the present case, it cannot be said that the prosecution has not been able to prove its case beyond all reasonable doubt.
52. No infirmity could be found in the decision of the trial court.
53. The judgment and order dated 29.02.2008 passed by the Additional Sessions Judge, Bijnor in Sessions Trial no.500 of 2006 (State vs Jaswant Singh and others) arising out of Case Crime no.674 of 2006 under Section 302/34 I.P.C. P.S-Afjalgarh, District-Bijnor for conviction and sentence of appellant no.2-Resham Singh is hereby affirmed.
54. The appeal is found devoid of merit and hence dismissed.
55. The appellant no.2-Resham Singh is in jail.
56. Certify this judgment to the court below immediately for necessary action.
57. The trial court record be sent back immediately.
(Hon'ble Subhash Chandra Sharma,J) (Hon'ble Mrs. Sunita Agarwal,J)
Order Date :- 29.04.2022
Harshita