Bachcha Lal vs State of U.P.

S.I. Jafri, J.—Bachcha Lal resident of village Mehnagar Police Station Mehnagar, District Azamgarh has preferred this appeal against his conviction u/s 362 IPC and sentence of death awarded to him by Sri S.L. Adarsh, Ist Additional Sessions Judge, Azamgarh, by his judgment and order dated 31-10-1985 in Sessions Trial No. 51 of 1984.

The prosecution alleges that this was a case of bride burning on account of non-fulfilment of the demand of a Motor cycle and a golden chain made by the Appellant from his father-in-law Kedar Nath Seth. The defence asserted that this was a case of accidental fire which had caused burn-injuries to the deceased Smt. Durgawati while she was cooking food in the kitchen.

Smt. Durgawati was married to the Appellant about a year prior to the occurrence and she was resident in the house of her-in-laws in village Mehnagar Distt. Azamgarh. According to the prosecution case, about a month before the occurrence, Kanhaiyalal PW 6, the brother of the deceased, had visited the house of the Appellant in village Mehnagar and it was at that time that his sister had requested him to arrange for a Motor cycle and a golden chain as demanded by her-in-laws, otherwise, one day they would kill her. It was also alleged that eight or ten days prior to the occurrence, the Appellant himself went to his Sasural (father-in-law''s place) in village Jalalpur and put forth his demand for a Motor cycle and a golden chain before his father-in-law Kedar Nath Seth PW 4 in the presence of Rafiq Hussain PW 5, Ismail Khan and Asha Ram and on getting unsatisfactory response from his father-in-law, the Appellant had told Kedar Nath Seth in a threatening tone to see the fate of his daughter in the near future.

The case of the prosecution is that on 27/28-2-1983, sometime during the night, Kerosene was sprinkled on the cloths of Smt. Durgawati deceased by her-in-laws including the Appellant and she was set ablaze by means of a match-stick resulting burn-injuries to her. Thereafter, she was removed to S.S.P.G. Hospital Varanasi by her-in-laws from Mehnagar where she was admitted on 28-2-1983. It is also alleged that Kedar Nath Seth PW 4 on getting information from Ram Dayal in his village about the burning of his daughter, rushed to S.S.P.G. Hospital at Varanasi on 1st March 1983 and found her daughter in the hospital in an unconscious state. Smt. Durgawati regained consciousness on 2-3-1983 and told her father Kedar Nath Seth that Kerosene was sprinkled on her by the Appellant, his mother, sister-in law and Raja Ram brother-in-law and then she was set afire resulting burn-injuries to her. On knowing the narration of the occurrence by his daughter, Kedar Nath Seth went to the Police Station Kotwali, Varanasi with a typed report of the occurrence and handed it down to the Head Constable who prepared the chik report at 2 p.m. on 2-3-1983. The Head Constable registered a case u/s 307 IPC and also u/s 4 of Dowry Prohibition Act. Later on, the papers of the case were despatched to Police Station. Mehnagar, District Azamgarh and a case u/s 307 IPC was registered there at 4.10 p.m. on 4-3-83. Ram Sunder Tiwari, PW 7 took up the investigation of the case and he went to the place of occurrence on 6-5-83 where he recorded the statement of Kedar Nath Seth. He also recorded the statements of Rafiq Hussain PW 5 and Kanhaiya Lal PW 6 on 8-5-1983. With the assistance of the witnesses, he had prepared the site-plan Ex. Ka 5.

After the registration of the case on 2-3-1983 at police station Kotwali Varanasi, the dying declaration Ex. Ka 1 of the deceased was taken down on 2-3-1983 by Sri Ram Chander Sharma, Executive Magistrate, in S.S.P.G. Hospital Varanasi.

The deceased breathed her last on 5-3-1983 at 3.45 a. m. in the hospital. Dr. C.B. Tripathi PW 2 conducted autopsy on the dead body of the deceased on March 5, 1983 at 5 p.m. and found the following anti-mortem injuries on her person:

Healing burn wound 3-1/2 cm x 3/4 cm over right side cheek 2 cm below eye.

Healing burn wound 4 1/2 cm x 1 cm over left side cheek 3 cm below left eye.

Healing burn wound over both the lips.

Healing burn wound 5 cm x 7 cm over chin.

Healing burn wound 5 cm x 1 cm over front of neck in the mid line linear and vertically placed.

Healing burn wound 7 cm x 1 cm horizontally placed over left side neck 6 cm below right ear.

Healing burn wound 8 cm x 1 cm obliquely placed over front of neck.

Healing burn wound 2 cm x 32 cm over front of lower half of chest and adjoining part of abdomen.

Healing burn wound 4 cm x 25 cm over front of right side abdomen lower part 2 cm below umblicus.

Healing burn wounds in hatches over both the lower arms.

Healing burn wounds over both the buttocks and both the lower extremeties all around except feet. The wound covered with pus.

Internal Examination.

Both the lungs contained multiple focci of pus.

The Doctor opined that the death was caused due to septicaemia as a result of septic burn wounds.

After completing the investigation, the Investigating officer submitted charge-sheet against the Appellant.

The Appellant denied the charges framed against him and stated that the cloths of his wife Smt. Durgawati had caught fire in the process of cooking of food resulting burn injuries to her.

The defence examined Vinod Kumar DW 1, Radhey Shyam DW 2 and Ram Sewak DW 3 in support of its case.

After taking into account the entire evidence on record, the learned Sessions Judge came to the conclusion that the prosecution had successfully proved its case against the Appellant and the learned trial Court thereby convicted and sentenced the Appellant as stated above.

Kedar Nath Seth PW 4 is the father of Smt. Durgawati deceased. He deposed that his daughter was married to the Appellant about ore year before the occurrence and after the marriage, his daughter was living with her-in-laws in village Mehnagar. About ore month before the occurrence, his son Kanhiyalal PW 6 on return from the house of the Appellant, intimated him that Smt. Durgawati had solicited to arrange for a motor cycle and a golden chain since her husband, mother-in-law, brother-in-law and father-in-law are torturing her and pressurising her for motor cycle and golden chain. He further deposed that about 8 or 10 days prior to the occurrence, the Appellant himself had come to his village Jalalpur and reiterated the demand of motor cycle and golden chain from him whereupon he had assured the Appellant that he would arrange for the said articles in due course of time after raising money for the same whereupon Appellant said that if the demand was not met shortly, he would see the fate of her daughter in the near future and left his house without having food. According to him, he got information through Ram Dayal in his village regarding the burning of his daughter whereupon he rushed to S.S.P.G. Hospital, Varanasi immediately, on 1-3-1983 and found his daughter there in an unconscious state. He also found Ram Sewak, elder brother of the Appellant admitted in the hospital with burn injuries on his both hands. The witness further stated that Smt. Durgawati regained consciousness in the evening of 1-3-1983 and she had disclosed him that her cloths were set afire by sprinkling kerosene by her husband, mother-in-law, (sister-in-law (Jethani) and brother-in-law Raja Ram. Thereafter, he went to police station Kotwali Varanasi next day at 2 p.m. with a typed report of the occurrence and handed over the same to the Head constable on 2-3-1983. According to him, the dying declaration of his daughter Smt. Durgawati was recorded in the Hospital the same day after lodging of his report at the police station.

Kanhiyalal PW 6 is the son of Kedarnath Seth PW 4 and brother of Smt. Durgawati deceased. He stated that about one month prior to the occurrence, he had gone to the house of his sister Durgawati in village Mehnagar and there, his sister had pleaded with him to arrange for a motor cycle and a golden chain for her husband otherwise she would be killed. Thereafter, he came back to his village and intimated his father about the dowry demanded by his sister''s-in-laws. It is worthy to note that the statement of Kanhiyalal PW 6 was taken down on 8th May 1983 by the Investigating Officer.

Rafiq Hassan PW 5 deposed that about 8 or 10 days prior to the occurrence while he was on his way back to his house after seeing the noise between 9 and 10 p.m., he heard the voices in raised tone coming out from the house of Kedar Nath Seth PW 4. Thereupon, he went inside the house where he found Kedar Nath Seth, Bachcha lal Appellant, Ismail and Asharam and at that time the Appellant was insisting for a Motor cycle and golden chain from his father-in-law Kedar Nath Seth stating that the articles should he provided to him within 8 or ten days, failing which he would come to know the fate of his daughter. Thereupon Kedar Nath Seth replied that he would arrange for motor cycle and golden chain alter sometime. Thereafter, Bachcha lal left the house of Kedarnath Seth and went away. At this stage, it may be noted that the statement of Rafiq Hussain was recorded after about 2 1/2 months after the occurrence i.e. on 8-5-1983 by the Investigating Officer.

Sri Ram Chandra Sharma. Executive Magistrate Varanasi PW 1 deposed that he recorded the dying declaration of the deceased Durgawati in the S.S.P.G. Hospital Varanasi on 2-3-1983 and before recording the dying declaration, he had ensured all the precautions. The Doctor attending on the deceased had also certified that she was in a fit mental condition to make the statement.

Vinod Kumar DW 1 and Radhey Shyam DW 2 were examined to prove Ex. Kha. 2 to Ex. Kha. 6 and Ex. Kha. 11 to Ex. Kha 12 thereby showing that the receipts of medicines purchased and the prescription of the Doctor were issued from their shops.

Ram Sewak DW 3 is the elder brother of the Appellant. He deposed that her sister-in-law was cooking food in the kitchen on the day of occurrence between 9 and 9.30 p.m. on 27-2-1983 and she was wearing nylone saree when her cloths caught fire resulting in burn injuries to her accidently. He also deposed that he put his best efforts to put out the fire in order to save her and in the process his both hands sustained burn injuries. According to him, at the time of occurrence, Appellant Bachcha Lal was not present at the house and he was sent for from his shop and he immediately went to the Hospital at Mehnagar in search of the doctor but on return after about half an hour, he told that the doctor was nowhere available in the hospital The witness further stated that, burnol was administered on the wounds of Durgawati deceased and also in his hands and thereafter, a jeep was hired and both he and Smt. Durgawati were removed to the S.S.P.G. Hospital, Varanasi by the Appellant and his other relations where both were admitted as indoor patients. He further stated that next day his lather sent the Appellant Bachchalal and his uncle to the village Jalalpur for bringing Kedarnath Seth to the hospital and consequently Kedar Nath Seth came to the S.S.P.G. Hospital Varanasi alongwith his uncle and other family members by means of the same deep at about 4.30 p.m. on 1-3-1983. According to him, the dying declaration of Smt. Durgawati was taken down by the Magistrate on 2-3-1983 in the presence of Kedar Nath Seth and his wife and before recording the dying declaration, the Magistrate asked the in-laws of Smt. Durgawati to go outside

The medical report regarding the burn injuries in the hands of Ram Sewak were not proved by the defence as the same were admitted by Kedar Nath Seth PW 4.

In this case, the conviction of the Appellant has been founded on the two dying declarations made by the deceased, one to her father Kedar Nath Seth PW 4 and the other to Sri Ram Chandra Sharma, Executive Magistrate PW 1. The prosecution has also led the evidence of motive by the evidence of Kedar Nath. Seth PW 4, Rafiq Hussain PW 5 and Kanhiyalal PW 6. Before dealing with the two dying declarations, it would be proper to consider the evidence of motive adduced by the prosecution. It was alleged by Kedar Nath Seth that her daughter was burnt to death by her-in-Jaws as he failed to gratify their lust of dowry in the form of Motor cycle and golden chain. The corroborative evidence of Rafiq Hussain and Kanhiyalal in support OF the alleged motive does not appear to be reliable and unimpeachable. The statements of Rafiq Hussain and Kanhiyalal were recorded as late as 6th May 1983 i.e. after about 2 1/2 months of the occurrence Even the statement of Kedar Nath Seth was taken down by the Investigating Officer on 6th May 1983. Moreover, there is no mention of the demand of Motor cycle and golden chain in the dying declaration Ex. Kha. 1 recorded by the Magistrate, Besides, Rafiq Hussain is a chance witness and his evidence does not inspire confidence. Likewise Kanhiyalal is the son of Kedar Nath Seth PW 4 and his assertion that the deceased Smt. Durgawati had herself solicited him to arrange for Motor cycle and golden chain for her husband about a month prior to the occurrence at the house of the Appellant, is not corroborated by any other evidence on record. Under the circumstances, the motive alleged by the prosecution is not at all established.

It was contended by the learned Counsel for the Appellant that the two dying declarations given out by the deceased are inconsistent inasmuch as the alleged oral dying declaration of the deceased as contained in the First Information Report in the statement of Kedar Nath Seth PW 4 implicates four persons, namely, the Appellant, his mother, his lather, and his sister-in law as the persons who had sprinkled kerosene on the cloths of the deceased and set her afire by means of matchstick, whereas the dying declaration recorded by the Magistrate involves only the Appellant as the person who had sprinkled kerosene on the deceased and set her cloths afire. It is worthy to note at this stage that the report of the occurrence, which contained the oral dying declaration of the deceased was lodged at 2 p.m. at the Police Station on 2-3-83 and the same day thereafter, the dying declaration of the deceased was recorded by me Magistrate. Under these circumstance, when there is a glaring incongruity between the two dying declarations, it would not be at all sate to attach implicit reliance to either of the two dying declarations of the deceased for proving the charge against the Appellant. Even if we discard the alleged oral dying declaration of the deceased made to Kedar Nath Seth PW 4, we find it difficult to pace implicit credence on the dying declaration of the deceased recorded by the Magistrate because there are inherent glaring infirmities in the dying declaration itself. The dying declaration Ex. Ka. 1, recorded by the Magistrate is quoted below:

Bayan kiya ki mere Shadi huae karib ek sal se kam hua Kal raat 9 baje main apne kamre me soi the, Usi sumay koi mere kamre me aya aur mitti ka tel chirak kar aag laga diya. Mere Shauhar karib ek mahine se mujhe mara karte the Unho ne he tel chirak kar mujhe ghar me band karke jalaya. Jalne ke vakt main chillai aur darwaza khola to mere jeth Ram Sewak wahan aa gaye aur mujhko bachaya. Bachane me unka bhi dono haat jal gaya. Mere Shauhar pata nahin kyon mujhe mara karte hain. Mere Sasur mere Shauhar ko isliye marte bhi hain lekin unki adat nahi chuti. Mere Shauhar yahan nahi aye hain, ghar par hain. Mere Sasur ka naam Raja Ram hai, unki Sarrafi ki va bartan ki dukan hai. Bayan Sunkar tasdiq kiya.

A bare reading of the above dying declaration would indicate that the deceased Smt. Durgawati first slated that she was sleeping in her room at about 9 p.m. Yesterday (Kal) when some one came inside her room and sprinkled kerosene on her. It may be noted that the cloths of the deceased had caught fire on 27-2-1983 and her statement was recorded on 2-3-1983. Therefore, her reference for 27-2-1983 as yesterday (Kal) in her dying declaration clearly indicates that she was not in her full state of consciousness to such an extent that her capacity to narrate the facts was impaired. This state of her mind is further seen in her dying declaration that some unknown person had got entry into her room and had sprinkled kerosene on her cloths. Thereafter, she had stated in her dying declaration that her husband used to belabour her for the last about one month and then, she stated that her husband had sprinkled kerosene on her after locking her inside the house and she cried for help and on opening the door, her brother-in-law Ram Sewak rushed to save her and in extinguishing the fire, he sustained burn injuires in his hands. It may be noted that her dying declaration contained allegations which are quite contradictory and which cannot be reconciled for placing implicit reliance on her statement. In the beginning of her statement, she had accused some unknown person who had sprinkled kerosene on her person but subsequently in a different context while narrating atrocities on her committed by the Appellant, she all of a sudden had accused the Appellant who had sprinkled kerosene on her person after locking the door of the room from inside. Under the circumstance, it is very difficult and unsafe to ignore her earlier statement that the person who had sprinkled kerosene on her, was unknown and rely upon her subsequent statement that the Appellant was the person who had sprinkled kerosene on her person. We are, therefore, unable to discard her initial statement contained in the dying declaration and place reliance on her subsequent statement implicating the Appellant. It may further be noted that in her dying declaration she has said that she did not know as to why her husband used to beat her. Moreover it has nowhere come in her statement that demand for motor cycle and golden chain had been made by her-in-laws.

After devoting our anxious considerations, we come to the irresistible conclusion that the capacity of Smt. Durgawati deceased to remember the facts widely had been impaired when she made the statement before the Magistrate. For placing implicit reliance on a dying declaration, the Court must be satisfied that the deceased was in a lit state of mind to narrate the facts of the occurrence. If the capacity of the maker of the statement to narrate the facts had been found to be impaired, such a dying declaration deserves to be rejected as it would be highly unsafe to place reliance on it. A dying declaration which is found to be inherently contradictory in itself regarding the identity of the accused, such a dying declaration does not deserve to be implicitly relied upon.

Under the circumstances as shown above, we are unable to place reliance on the dying declaration Ex. Ka. 1. We have already held above that the evidence of motive alleged by the prosecution, has not been established.

It may further be noted that the prosecution has alleged that the burn injuries were caused to the deceased by sprinkling of kerosene oil but there is no evidence on record to indicate that injuries were of characteristic odour and had sooty blackening on the parts. It is admitted that the deceased was admitted in S.S.P.G. Hospital, Varanasi on 1-3-1983. She must have been examined by the Doctor in the said hospital but the prosecution did not examine the doctor to prove the injury report of the deceased to establish that the typical burns caused by Kerosene oil with characteristic odour and sooty blackening of the parts was found on the person of the deceased on examination. Modi''s Text Book of Medical Jurisprudence and Textology 20th Edition on page 187, mentions burns caused by kerosene which usually are very severe and are known from its characteristic odour and the sooty blackening of the parts. The prosecution has, therefore, failed to prove that the burn injuries sustained by the deceased were caused by kerosene oil. On the other hand, the accident thereby propounded by the defence is corroborated by the statement of Ram Sewak DW 3. He is the elder brother of Bachchalal Appellant. He is also injured. Kedar Nath Seth PW 4 has admitted that he had seen burn injuries in both the hands of Ram Sewak PW 3 in the Hospital. Ram Sewak deposed that on hearing the alarm coming from his house, he rushed inside and saw that his sister-in-law Smt. Durgawati was in flames and at that time besides Smt. Durgawati, his mother Premwati and wife Sheela was inside the house. He further stated that the cloths of Smt. Durgawati had caught fire while she was cooking food at about 9 or 9.30 p.m. on 27-2-1983 in his Angan beneath the tin-shed and at that time, she was wearing nylon Saree. He stated that he tried to extinguish the fire and in the process, he had sustained burn injuries in his hands. Smt. Durgawati had received burn injuries on account of the accident and at that time Bachcha Lal Appellant was at his shop and he was sent for thereafter. He further slated that his grand father and uncle had gone to Varanasi for taking dip in the Ganges. He deposed that he had relations at Varanasi. He further stated that as no doctor was in attendance at Mehnagar Hospital, he hired a Taxi for Varanasi on payment of Rs. 600/- and he alongwith Bachchalal, his mother and uncle Mewalal and Nandlal took Smt. Durgawati to Varanasi and on the way at Kukulganj, they picked up his father from his Bua''s house and, thereafter, both he and Smt. Durgawati were admitted in the S.S.P.G. Hospital. He deposed that Smt. Durgawati was conscious throughout in the hospital. He also deposed that they had reached S.S.P.G. Hospital at about 3 a. m. Next day, his brother Bachchalal Appellant and his uncle Mewalal went to Jalalpur in the district of Faizabad on a hired jeep to inform Kedar Nath Seth PW 4 about the happeing and they came back in the evening by the same jeep alongwith Kedar Nath Seth, his son Kanhiya Lal and his wife and daughter-in-law. Kedarnath Seth alongwith his family members remained in the hospital. He further stated that his father purchased medicines for his treatment and for Smt. Durgawati in the hospital. He denied that kerosene oil was sprinkled on her in her room in the said house and no kerosene odour was smelt from the body of Smt. Durgawati.

Ram Sewak DW 3 is injured witness and his presence at the time of occurrence is fully established. The prosecution has failed to show any infirmity in his evidence to discredit his testimony. His evidence also inspires confidence. It is abundantly clear from his evidence that Smt. Durgawati sustained burn injuries accidently while she was cooking food in the kitchen at about 9 or y.30 p.m. on 27-2-1983. It is, therefore, very difficult to hold that kerosene was sprinkled on Smt. Durgawati by the Appellant in the room of his house which resulted in burn injuries to Smt. Durgawati. There is one more circumstance which goes to indicate that the Appellant and his family members were not at all involved in setting fire to the cloths of the deceased Smt. Durgawati. It has come in the evidence that Smt. Durgawati after the occurrence was administered First Aid at the house itself and she was thereafter, removed to S.S.P.G. Hospital, Varanasi which lies at a distance of 70 miles from Mehnagar in order to provide her better treatment. If the in-laws of the deceased or the Appellant were at all involved in burning of the deceased, it is not understandable as to why Ram Sewak would have tried to put out the fire and to remove the deceased to S.S.P.G. Hospital for treatment Further, in case the in-laws of the deceased including Appellant had been involved in the commission of the offence, they must have borne in their mind, the risk involved in taking Smt. Durgawati to Varanasi for treatment, because there was chance of her survival and her statement might have been recorded by the Magistrate or the Doctor. Under the circumstance, there is much substance in the defence case that the deceased Smt. Durgawati sustained burn injuries on account of accident when she was cooking food in the kitchen inside her house and the possibility that the name of the Appellant found place in the dying declaration of the deceased by the tutoring done by complainant Kedarnath Seth cannot be ruled out in this case.

Having considered all the facts and circumstances of the case, we come to the irresistible conclusion that the prosecution has failed to prove its case against the Appellant and, therefore, the order of conviction and sentence recorded by the trial Court cannot be sustained.

In the result, the appeal succeeds. The conviction of the Appellant u/s 302 IPC and sentence of death awarded to him by the trial Court are set aside. The reference No. 5 for confirmation of death sentence is rejected. The Appellant is in Jail. He shall be released from Jail forthwith if not wanted in any other case.

Appeal rejected.