Hari Singh vs State of Rajasthan

The present appeal is directed against the judgment dated 6.2.2007 rendered by Additional District and Sessions Judge, Sambhar Lake, Jaipur, whereby the appellant was convicted for the offence under Section 302 IPC for causing death of his wife, Mali Kanwar by pouring kerosene oil and putting her on fire.

The trial court having convicted the appellant, by a separate order of even date sentenced him to undergo life imprisonment and pay a fine of Rs. 2000/-, in default of payment of fine to further undergo three months'' S.I.

Criminal proceedings were set into motion upon statement (Exhibit P/12) made by the deceased Smt. Mali Kanwar; the same was recorded on 26.10.2003 at about 3:20 PM by ASI, Sangram Singh (P.W. 11). The said ASI before recording dying declaration (Exhibit P/12) had obtained opinion of the Doctor. It is to be noted that vide (Exhibit P/13), on 26.10.2003 at 2:15 PM, the doctor had declared patient fit to make statement.

Smt. Mali Kanwar was married with the appellant Hari Singh, seven to eight years before her death. The occurrence in the present case had taken place in the intervening night of 25.10.2003 and 26.10.2003. Subsequently, another dying declaration of the deceased (Exhibit P/14) was recorded by the Tehsildar cum Executive Magistrate, Hari Singh (P.W. 12).

Much has been said about contradictions and inconsistencies in the two dying declarations made by the deceased, one recorded by ASI Sangram Singh (P.W. 11) and another by Hari Singh, Tehsildar cum Executive Magistrate (P.W. 12). To appreciate the arguments raised, we shall refer to both the dying declarations.

First dying declaration was made by the deceased Smt. Mali Kanwar, while she was lying admitted at Bed No. 6 of Camp Yogya Narayan Hospital, Kishangarh. The statement (Exhibit P/12) made by deceased wife of the appellant before Sangram Singh, ASI, is reproduced below after the same is translated into English:

Statement made on asking by the police reads as "I am resident of Kariya Khurd. I was married 7/8 years ago with Hari Singh. I was residing with my in-laws. I had given birth to one daughter, who died at the time of birth. Earlier there was no quarrel between us. Thereafter, I had given birth to no child. My mother-in-law resides with me. My father-in-law had expired before my marriage. Two elder brothers of my husband namely, Onkar Singh and Mool Singh, reside separately. My husband was adopted by Kesar Singh, brother of my father-in-law. On 25.10.2003, Saturday on Diwali day, my husband Hari Singh was present in the house. At about 9/10 PM, my husband was bursting crackers. I was also bursting crackers. When I was doing so, my clothes caught fire. Seeing me on fire, my husband shouted and poured water over me. My husband tried to save me and also suffered burn injuries. My clothes caught fire due to bursting of crackers. Nobody has burnt me. My husband is alcoholic and used to doubt my character and also used to assault me and give beating. He is an idler and does no work. Few bighas of land which he had, was sold by my husband about 5/6 years ago. Now we do not have any land. My both hands, feet, face and entire body suffered burn injuries. Due to pouring of water, my hair have not caught fire. Then my husband and his elder brother brought Jeep of one Rajput and brought me to the Hospital. My entire body has been burnt. After having received assurance, I say that my husband used to level false allegations. What have stated earlier, I have said so on the asking of elder brother of my husband (Jeth), whereas, my husband wanted to kill me by pouring kerosene oil. There is dispute between us. My husband, for not giving birth to a child was annoyed with me. My husband used to come to me after taking liquor. He wanted to kill me by putting me on fire. I was married on 25.11.1996 and I came to my in-laws on that day. Today my husband Hari Singh have put me on fire after pouring kerosene oil as he wanted to kill me."

Perusal of above dying declaration, reveals that after the deceased received assurance, she stated in categorical terms that she was put to fire by her husband after he had poured kerosene oil upon her. The prosecutrix during recording of her statement changed her version and explained that earlier version given by her was on the asking of elder brother of husband (Jeth). After recording of above dying declaration, a case was registered against the appellant at police station Dudu.

In these circumstances, the Investigating Officer made request to Tehsildar cum Executive Magistrate, to record the statement of the deceased. The said Tehsildar cum Magistrate recorded the statement (Exhibit P/14) on 27.10.2003 at 11:45 AM, which has been termed as a subsequent dying declaration. In this statement, the deceased Smt. Mali Kanwar stated that she was put to fire by her husband Hari Singh after he had poured Kerosene oil upon her.

To consider the reliability of two dying declarations, we shall notice deposition of the witnesses examined by prosecution.

Bajrang Singh (P.W. 1), father of the deceased, also stated in examination-in-chief that on the next day when he reached the hospital, her daughter also informed that she was put to fire after kerosene oil was poured by the present appellant. He further stated that when he reached next day in the hospital, his brother-in-law (brother of his wife) Shaitan Singh, his wife Sita, and wife of another brother-in-law, were also present with the deceased. It is pertinent to mention that in cross-examination no suggestion has been given that the deceased was ever tutored, or asked to change her stand.

Smt. Mali Kanwar died on 4.11.2003, due to septicemia caused by burn injuries.

With the assistant rendered by Mr. Deepak Asopa, the learned counsel for the appellant and Mr. N.S. Dhakad, the learned Public Prosecutor, we have minutely examined the injuries on the person of the deceased, noted by Dr. P.C. Vyas (P.W. 10), who had conducted the autopsy. This witness stated that hairs in the front of face were singed. The face was totally burnt. The neck was also burnt. There were burn injuries on the chest and abdomen. What is to be noted is the Injury No. 7, which state that lower limbs were wholly burnt except soles. Toes of the feet from upper side were also burnt partially.

Having heard counsel for the parties, we agree with the learned Public Prosecutor that the kind of burn injuries suffered by the deceased cannot be due to catching of fire due to bursting of crackers. But it is a case of pouring of kerosene oil when the deceased was standing. This explains as to why the soles were not burnt.

It is to be noted that the present appellant, Hari Singh had also received injuries in the occurrence. The nature of burns belie the story that the clothes of the deceased caught fire due to bursting of crackers. Be that as it may, in the first dying declaration, in the concluding portion, the deceased after receiving assurance, had stated that she was put to fire by her husband. Therefore, second dying declaration in no way contradicts, the first dying declaration, but instead lends corroboration to the same. There is no suggestion given to the witnesses examined by the prosecution that after family members of the deceased had reached at the hospital due to tutoring, the deceased has shifted her stand.

Another material feature of this case is the testimony of Dashrath Singh (P.W. 14). Dashrath Singh, ply jeep from the village to the city. He is an independent person. Appearing in the court, he stated that he had carried the deceased in his Jeep along with Hari Singh and his elder brother to the hospital. This witness, considering that a lady of the village had caught fire, had also not accepted transportation charges. This witness had stated that Hari Singh, the present appellant confessed before him that he had put the deceased on fire. This witness further stated that the accused told him to tell everybody that the deceased had received burn injuries due to bursting of crackers.

We are firmly of the view that Dashrath Singh (P.W. 14) is an independent person and that extra-judicial confession made by the appellant before him in itself is sufficient to hold conviction of the appellant. Not only extra-judicial confession inspires confidence, we are of the view that the same also lends corroboration to the dying declaration.

The learned counsel for the appellant has stated that the first dying declaration should be believed by us by ignoring the later portion of the same. We are unable to agree with the contention raised by the learned counsel as we shall give precedence to the dying declaration recorded by the Tehsildar cum Executive Magistrate than to the dying declaration recorded by police officer. Furthermore, as we have already expressed second dying declaration lends corroboration to the last portion of first dying declaration.

The learned counsel for the appellant has further urged before us that the story of pouring kerosene oil is belied by the medical evidence as Dr. P.C. Vyas, who had conducted autopsy on the person of deceased on 4.11.2003, had observed and stated that from body of the deceased, no smell of kerosene oil was coming. We are not impressed with this argument, as the occurrence in the present case had taken place on 25.10.2003 and the post-mortem was conducted after nine days. By that time, the smell of kerosene oil will not remain, and it will wither away. Furthermore, the deceased remained admitted in the hospital for nine days, by that time medicines must have been applied to the burns. It is to be noted that as per opinion of the doctor who conducted autopsy, the cause of death was septicemic shock due to burns received by the deceased accompanied by infection.

Having given our thoughtful consideration and taking the entire gamut of evidence in view, we are of the opinion that the record of the case and its perusal leave no doubt for us but to uphold the conviction pronounced and sentence awarded upon the appellant Hari Singh by the learned trial court.

Consequently, we dismiss the present criminal appeal, being devoid of merit.