Kanwaljit Singh Ahluwalia, J.@mdashIn the instant case, Kailashi son of late Shri Nekram, aged about fifty-years on 21st November, 2004 was set on fire. As per prosecution case, Smt. Barfi Devi wife of Mangal Singh, accused-appellant handed over a can containing kerosene oil to Smt. Rajan Devi wife of Sunder Singh and she poured the same upon Kailashi, and Sunder Singh, accused-appellant had set Kailashi on fire after igniting match-stick. The prosecution case has emerged in the parcha-bayan/statement of Kailashi (Exhibit-P/4) recorded by A.S.I. Dharmendra Singh (PW-4), who was then posted at Police Station, Kotwali, Dholpur.
2. The above said parcha-bayan/statement of Kailashi has been termed as dying declaration and has been fully supported by the eye-witness account given by Bhagwan Singh (PW-1), brother of deceased, Rajkumar (PW-8), Vinod Kumar (PW-11), both the sons of the deceased, Smt. Hardevi, wife of deceased, Chhote (PW-14), uncle of the deceased and Pappu Singh (PW-22).
3. In the present case, three eye-witnesses, Dataram (PW-2), Kalawati (PW-3) and Sharda (PW-5) have not supported the prosecution case and were declared hostile.
4. The prosecution also examined Rameshwar (PW-6), the brother of deceased, who deposed that when he was attending Kailashi, deceased in the hospital, he had made an oral dying declaration.
5. On the basis of above evidence, the Investigating Agency, after submitting charge-sheet, had prosecuted Natholi son of Mangal Singh, Smt. Barfi Devi wife of Mangal Singh and Sunder Singh son of Maharaj Singh.
6. The prosecution agency, during trial, had examined twenty-five witnesses and proved on record twenty-two documents, being Exhibit-P/1 to Exhibit-P/22-A respectively.
7. The statement of accused were recorded under Section 313 of Code of Criminal Procedure, 1973. They denied all the incriminating evidence put to them and pleaded innocence.
8. In defence, accused had not examined any witness. However, they had placed reliance upon the statements of the witnesses recorded under Section 161 Cr.P.C., as Exhibit-D/1 to Exhibit-D/7 respectively.
9. The trial Court, relying upon the dying declaration and the eye-witness account given by the witnesses, held Natholi and Smt. Barfi Devi guilty for offences punishable under Sections 147 and 302/149 I.P.C. and Sunder Singh for offences punishable under Sections 147 and 302 I.P.C.
10. On the day when the judgment was pronounced and the sentence was to be awarded, Natholi S/o Mangal Singh absented and his non-bailable warrants were issued.
11. Smt. Barfi Devi and Sunder Singh were heard on the quantum of sentence and the trial Court, vide a separate order of even date, sentenced them as under:--
"Appellants : Smt. Barfi Devi & Sunder Singh
"For offence under Section 147 I.P.C. both the appellants were sentenced to undergo one year rigorous imprisonment and to pay a fine of Rs. 500/-. In default of payment of fine to further undergo one month additional simple imprisonment.
Appellant - Smt. Barfi Devi :
For offence under Section 302/149 I.P.C. was sentenced to undergo life imprisonment and to pay a fine of Rs. 3000/-. In default of payment of fine to further undergo one year additional simple imprisonment.
Appellant - Sunder Singh :
For offence under Section 302 I.P.C. he was sentenced to undergo life imprisonment and to pay a fine of Rs. 3000/-. In default of payment of fine to further undergo one year additional simple imprisonment."
12. The sentences awarded in both the counts were ordered to run concurrently.
13. Aggrieved against the conviction and sentence, Smt. Barfi Devi and Sunder Singh have instituted D.B. Criminal Appeal No. 781/2006 under Section 374 of Code of Criminal Procedure, 1973, praying inter alia that their conviction and sentence, be set aside, and they be acquitted of the charges leveled against them.
14. As stated earlier, the criminal proceedings were set into motion on the basis of the parcha-bayan/statement (Exhibit-P/4) made by deceased Kailashi before A.S.I. Dharmendra (PW-4), who was then posted as A.S.I. at Police Station, Kotwali, Dholpur. Kailashi, deceased made statement before A.S.I. Dharmendra Singh (PW-4) on 21.11.2004 at 07:45 P.M. when he was lying admitted at Bed No. 16, Male Surgical Ward at General Hospital, Dholpur.
15. The parchabayan/statement (Exhibit-P/4) made by deceased - Kailashi, when translated into English reads as under:--
"The statement of Kailashi son of late Shri Nekram, by caste Lodha, aged about fifty-years, resident of Solah Khamba, Ward No. 33, Dholpur, at present admitted Male Surgical Ward, Bed No. 16, General Hospital, Dholpur.
"Stated that today on 21.11.2004 at about 04:00 P.M., I was sitting at the Khokha of Chhotelal. Sunder S/o Maharaj Singh resident of Sayapura and Natholi S/o Mangal Singh Lodha resident of Solah Khamba, Police Station, Kotwali, Dholpur called me to their house. Raju S/o. Ramprasad and Prayage w/o Ramprasad Lodha were found sitting in the house of Natholi. Natholi told me that he will not pay the charges for ploughing his field with the tractor. Raju and Natholi caught hold of my hands. Barfi Devi wife of Mangal Singh Lodha brought a can of kerosene oil from her house and handed over the same to Rajandevi w/o of Sunder Singh. She poured kerosene oil upon me and then everybody encircled me. Sunder Singh had put me on fire in order to kill me. I screamed. In order to save me, Chhote Lal, Bhagwana, my wife - Smt. Hardevi, son -Rajkumar and other neighbourers arrived at the spot. They doused the fire. My whole body has been burnt due to the fire. After putting me on fire, Sunder, Natholi and Raju etc. had put their huts on fire and ran away.
Thumb impression of right foot has been appended.
Signed
A.S.I."
16. In the present case, occurrence had taken place on 21st November, 2004 at 04:00 P.M., the relatives of Kailashi got him admitted in the General Hospital at Dholpur, the statement of Kailashi was recorded at General Hospital, Dholpur on 21.11.2004 at 07:45 P.M., Kailashi remained under treatment at General Hospital, Dholpur and had expired on 27.11.2004 at 12:45 P.M. and his autopsy was conducted on the very same day at 05:00 P.M.
17. Dr. Pradeep Garg (PW-18) stated that on 21.11.2004 he was posted as Medical Officer in the General Hospital, Dholpur. He had examined Kailashi S/o. Nekram, who was lying admitted in the Bed No. 16, Male Surgical Ward, General Hospital, Dholpur. The patient was having 80% burns. This witness further stated that deceased was having burns on front and back. The burn injuries were present on the head, chest, abdomen, both the hands and left side of the back. The patient was badly burnt.
18. This witness (PW-18) had prepared medico-legally report (Exhibit-P/11) and had noted the following injuries on the person of Kailashi:--
"Burn 80% (flame burn) superficial as well as deep including head, chest, abdomen, both upper limb, left thigh and back. Remaining area is right leg with thigh and left leg."
19. Dr. Anil Bansal (PW-24) deposed in the Court that on 21.11.2004 at about 04:40 P.M. he had admitted Kailashi S/o. Nekram, resident of Solah Khamba, Ward No. 33, Dholpur in the Male Surgical Ward, General Hospital, Dholpur. At that time, the patient was fully conscious. His pulse rate was 90 per minutes. His blood pressure was 110/70. His body, face, both the hands and both the feet were having burn injuries. Deceased had told him that somebody had put him on fire. The witness proved outdoor prescription slip (Exhibit-P/21).
20. Dr. R.K. Goyal (PW-25) stated that on 21.11.2004 at 05: 00 P.M., after receiving a call he had attended patient Kailashi. This witness further stated that the patient disclosed him that somebody had put him on fire after pouring kerosene oil. Lastly, this witness stated that at the time of examination, deceased was fully conscious, having pulse rate 90 per minute and having blood pressure 110/70.
21. In cross-examination, this witness (PW-25) admitted that Kailashi had not disclosed the name of the person as to who had poured kerosene oil or had set him on fire.
22. Dr. Vikram Singh (PW-20) had conducted autopsy on the dead-body of deceased - Kailashi. This witness noted that the patient had suffered 2nd to 3rd degree burns with yellowish infection. The burns were present on thorax, both the hands, forearms, left thigh and left scapula. On internal examination, this witness (PW-20) had found that the brain of the deceased was congested. Both the lungs were congested. Left side of the heart was empty and the right side was having blood.
23. As stated earlier, Bhagwan Singh (PW-1), brother of the deceased, Rajkumar (PW-8) and Vinod Kumar (PW-11), both the sons of the deceased, Smt. Hardevi (PW-13), wife of deceased and Chhote (PW-14) uncle of deceased and Pappu (PW-22) had testified before the Court that after Kailashi had accompanied, Natholi and Sunder Singh had gone to their house, they followed him and saw that Smt. Barfi Devi brought a can of kerosene oil and handed over the same to Rajan Devi. Rajan Devi poured the same on Kailashi and Sunder Singh had set him on fire after igniting match-stick.
24. We have heard the learned counsel appearing for the accused-appellants, as well as, the learned Public Prosecutor for the State and perused the relevant material available on the record.
25. Mr. Mahesh Gupta, the learned counsel appearing for the accused-appellants, at the out set, has submitted that it is not safe to rely upon the dying declaration (Exhibit-P/4) as the said dying declaration has been neither recorded by the Magistrate or was attested by the attending doctor. It has been further submitted by the learned counsel that no opinion had been obtained by A.S.I. Dharmendra Singh (PW-4) that Kailashi, who had suffered 80% and 2nd to 3rd degree of burns was fit to make the statement.
26. Counsel appearing for the accused-appellants has contended that Dataram (PW-2), Kalawati (PW-3) and Sharda (PW-5), who are independent witnesses, have not supported the prosecution case and, therefore, no reliance should be placed upon the testimony of Bhagwan Singh (Pw-1), brother, Rajkumar (PW-8), Vinod Kumar (PW-11), two sons of the deceased, Smt. Hardevi (PW-13), wife and Chhote (PW-14), uncle of the deceased, as they being relatives are the interested witnesses to depose against the appellants.
27. We have given our thoughtful consideration to the rival submissions advanced by the learned counsel appearing for the parties.
28. Even though it is correct that A.S.I. Dharmendra Singh (PW-4) before recording statement (Exhibit-P/4) of deceased, Kailashi had not obtained opinion of the attending doctor and furthermore, the dying declaration (Exhibit-P/4) was not attested by the attending doctor or by any independent witness. Yet we agree with the finding given by the trial Court that in the present case, the dying declaration itself cannot be a sole basis for conviction, but same is to be conjointly read with the testimony of eye-witnesses. The trial Court has rightly said that the dying declaration and the testimony of eye-witnesses corroborate each other and in totality are sufficient to record the conviction of the accused.
29. It will be pertinent to mention here that Dr. Anil Bansal (PW-24), who had admitted deceased - Kailashi on 21.11.2004 i.e. on the day of occurrence at 04:40 P.M., has specifically stated that deceased was fully conscious. His pulse rate was 90 per minute. His blood pressure was 110/70. We also cannot ignore the fact that in the present case, the burn injuries later had developed infection. Dr. Anil Bansal (PW-24) had noted the condition of the patient on out door slip (Exhibit-P/21).
30. Thus, taking into consideration the medical condition of the deceased at the time of admission, his pluse rate and the blood pressure, we are of the view that he was in a position to speak and was competent to make the statement (Exhibit-P/4) before the A.S.I. Dharmendra Singh (PW-4).
31. Furthermore, except the minor discrepancies, nothing has been brought on record to impeach the credibility of witnesses, who are relatives of the deceased. Merely because, the witnesses are relatives, they cannot said to be the interested witnesses as they have no animus against Sunder Singh, appellant.
32. Thus, we are of the view that implicit reliance can be placed upon the testimony of Bhagwan Singh (PW-1), Rajkumar (PW-8), Vinod Kumar (PW-11), Smt. Hardevi (PW-13) and Pappu (PW-22) respectively, qua Sunder Singh, appellant. Pappu (PW-22) is not related to the deceased and can be accepted as independent witness.
33. Having held that the dying declaration (Exhibit-P/4) and the testimony of the witnesses are reliable, qua Sunder Singh, accused-appellant, we are of the view that still as a matter of abundant caution the benefit of doubt can be extended to Smt. Barfi Devi (appellant No. 1 herein). Smt. Barfi Devi is a lady and she gave her age as seventy-years on the date of recording of statement under Section 313 Cr.P.C. In the statement recorded under Section 313 Cr.P.C. on 02.01.2006, trial Court had noted her age as fifty-six years, even though she had given her age as seventy-years. It is case of prosecution that Smt. Barfi Devi had brought a can of kerosene oil, which was handed over to Rajni Devi. Rajni Devi had poured the kerosene oil, to the petitioner, only role assigned is bringing of kerosene oil.
34. In the facts and circumstances, we are of the view that it is a case of over implication where the number of accused have been inflated. As per prosecution case, Rajkumar and Natholi caught hold of the hands of the deceased. Barfi Devi brought a can of kerosene oil. Rajan Devi wife of Sunder Singh poured the same and Sunder Singh had set deceased on fire. Once, Rajan Devi had poured kerosene oil, to us, there was no occasion for Smt. Barfi Devi to bring the can of kerosene oil.
35. As stated earlier, as a matter of abundant caution, we shall extend the benefit of doubt to Smt. Barfi Devi; and uphold the conviction and sentence of Sunder Singh.
36. As a result of above discussions, the present appeal is accepted, qua Smt. Barfi Devi by granting benefit of doubt. The conviction and sentence awarded, qua her is set aside and she is acquitted of the charges levelled against her. The appeal, qua Sunder Singh is dismissed, by affirming the conviction and sentence recorded by the trial Court.
