Ishwar Singh vs State of Haryana

S.D. Bajaj, J.

Inside Civil Hospital, Sonepat, Smt Shanti Devi (now deceased) made the following statement at Sh. Dharam Pal at 11.50 AM on 17th September, 1988, " I am a resident of Sonepat. Originally, I belong to Bhadani, P.S. Jhajjar and am a daughter of Shri Ram Swarup Jat. About 20 years ago I was married to Krishan S/o Sher Singh Jat r/o Brahi. My husband Sh. Krishan had died 15 years ago. Therafter I had contracted a court marrige with Shri Amar Singh S/o Bhim Singh Harijan r/o Brahi. After that had been living at Sonepat with Sh. Amar Singh for the last eight years, Sh. Ishwar, elder brother of my first husband Krishan had ill will against me on account of the fact that as to why I had got married with a Harijan boy. Due to this reason he wanted to kill me. Today it was about 9.15 A.M. I was cleaning the utensils at my residence when my Jeth (elder brother of first husband) Ishwar all of a sudden came the court yard (Sahara) of my house. Immediately on coming there he sprinkled kerosene on me and set on the fire with the help of matchstick. My clothes caught fire and my body got burnt. Ishwar Singh ran away. At that time many persons of Mohalla had come whose names I do not know. Thereafter I myself came to C.H. Sonepat for treatment by a rickshaw. Statement had been heard. It is correct". On its basis formal FIR No 559 was registered against the accused in Police Station City, Sonepat Smt Shanti Devi was referred to Medical College Hospital at Rohtak vide reference sheet Ex. PM on 17th September, 1988 itself. She breathed her last inside Medical College Hospital at Rohtak on 25th September, 1988. Thereafter, the offence was changed from Section 307 of the Indian Penal Code to Section 302 of the Indian Penal Code. Special report of the occurrence was received by the learned Ilaqa Magistrate at 2.55 PM on 28th September, 1988.

On being charged with the commission of the offence under section 302 of the Indian Penal Code for having intentionally/knowing caused the death of Smt. Shanti Devi on 17th September, 1988, accused Ishwar Sigh pleaded `not guilty'' thereto and claimed to be tried. Vide its impugned judgment dated 29th May, 1989 learned trial court convicted the accused to the commission of the offence under section 302 of the Indian Penal Code and sentence him to undergo life imprisonment and to pay Rs. 200/ as fine. In default of payment for a further period of three months. Feeling aggrieved therefrom convicted accused Ishwar Singh h as filed Criminal Appeal No. 254 DB of 1989 in this Court.

We have heard Shri P.S. Mann Advocate, with Sarav Shri T.P.S. Mann and Navdeep Singh, Advocates, for the appellant, Sh. J.C. Sethi, Additional Advocate General, Haryana with Sh. D.R. Trikha and D.S. Bishnoi, Deputy Advocate Generals, Haryana for the State and have perused the relevant record very carefully.

Smt Shanti Devi was killed year Jeth Ishwar Singh because after the death of her former husband Krishan (younger Brother of the accused) she had married a Harijan constable named Amar Singh. The cause of her death, disclosed by Smt. Shanti Devi in her statement Ex. PE made to the police in the presence of Dr. V.K. Gupta, PW8, has been duly supported by Dr. S.C. Bhateja Medical Officer, Civil Hospital, Rohtak PW 1 who conducted postmortem examination on her dead body at 5.30 PM on 26th September, 1988. The witness states: "In my opinion the death and been caused on account of shock due to extensive burnsd and consequent complications on account of burns. The burns were antemortem and were sufficient to cause death in the ordinary course of nature. The time between injuries and death was within 5 to 7 days and between death had postmortem examination the time was 18 to 36 hours". Dying declaration of the deceased was made by Smt. Shanti Devi (now deceased) to S.I. Dharam Pal Singh PW 9 in the presence of Dr. V.K. Gupta PW8; after the doctor had certified to injured, vide his report Ex. PK/I on police application Ex. PK, to be fit to make a statement to the police. Dying declaration Ex. PE had also been attested by Dr. V.K. Gupta, PW8 who states, "Since there were bandages on the thumbs of the hands of Shanti so the right thumb impression of the foot of Shanti was obtained on Ex. PE". Dying declaration has, therefore, the ring of truth in it. It was held in Khushal Rao v. State of Bombay, AIR 1988 SC 22>; Tara Chand Damu Sutar v. State of Maharashtra, AIR 1962 SC 130; Maniappan v. State of Madras, AIR 1962 SC 1252 and Gopal Singh and another v. State of M.P. and another, AIR 1972 SC 1557 :

"A Court is entitled to convict on the sole basis of a dying declaration if it is such that in the circumstances of the case it can be regarded as truthful. There can be conviction on the basis of duying declaration and it is not at all necessary to have a corroboration provided the Court is satisfied that the dying declaration is a truthful dying declaration and not vitiated in any other manner."

In this view of the matter the finding of `guilty'' returned by the learned trial court against the accused/appellant is affirmed.

In the course of his statement under section 313 of the Code of Criminal Procedure accused Ishwar Singh stated. "My brother Krishan Chand who was husband of Shanti had committed suicide because of the loose character of Shanti. Thereafter Shanti had shifted to Rohtak and in 1978 she had started living in Sonepat with Amar Singh constable. The mutation of inheritance regarding the estate of Krishan Chand was sanctioned in the name of his sons named Pritam Singh and Pakesh. It was not sanctioned in favour of Shanti. Shanti had a grievance on that account.

On 2.9.1988 Shanti had moved an application in Police Station, Bahadurgarh alleging that her son Rakesh was missing and she had placed her suspicion upon me. On the next day a Panchayat was held in the Police State, Bahadurgarh and in the Panchayat she stated that Rakesh had come to the house. The allegations made by Shanti in that application against me were false. She wanted to harass me.

On 12.9.1988 Shanti alongwith 4.5 persons had come to village Brahi in a car in order to kill me. The residents of the village had gathered and thereafter Shanti and her companions had gone away. I had lodged report regarding this with the police.

Some epidemic had spread in the village and the cattle had stated dying. In order to prevent that disease a ceremony is celled `Ekta'' was held in the village on 17.9.1988. When such a ceremony in held then nobody can leave the village and no outsider is allowed to enter in the village. I was present in my village on 17.9.1988 and so there was no question of my having come to Sonepat on that day.

Shanti and Amar Singh had been attested by the Rohtak Police in the year 1980 in a case under section 323 and 506 IPC.

Shanti was having a grievance against me because the mutation of inheritance was not sanctioned in her favour and she had been making all efforts to harass me. I have been falsely implicated in this case." A cumulative reading of documents Ex. DB to Ex. DF indicates that the dispute of succession to the landed estate of Krishan first husband of Shanti (now deceased) had been settled and the inheritance and actual possession of the landed estate had gone to Pritam Singh son of Krishan through Smt Shanit having admittedly remarried could not get it herself. Assertion made by the accused of Smt Shanti being aggrieved against him on this score is, therefore, without basis. In result the allegation of false inculpation of the accused by Smt Shanit gets devoid of any factual basis.

The plea of alibi on the basis of resolution Ex. DG is again not tangible because `Ekta'' was not a function arranged by the village Panchayat. There was thus no occasion for the Panchayat to pass resolution Ex. DG in this regard and paste it in the Panchayat register on 14th October, 1988 much after the occurrence. Selfserving suggestion made by the accused are thus not plausible not have these suggestion been substantiated from the statements of the two defence witnesses.

Burn injuries were caused by the accused to the deceased on 17th September, 1988. Smt Shanti Devi breathed her last in the Medical College Hospital at Rohtak on 25th September, 1988; eight days thereafter. Dr. S.C. Bhateja . PW1 states, "In my opinion the death had been caused on account of shock due to extensive burns and consequent complications on burns." Since something more beside the burn injuries caused by the accused to the deceased, also contributed to the death of the deceased which occurred eight days after the occurrence the offence committed by accused Ishwar Singh falls under section 304 Part I of the Indian Penal Code. In this view of the matter conviction of accusedappellant is altered from Section 302 of the Indian Penal Code (as ordered by the learned trial Court) to Section 304 Part 1 of the Indian Penal Code. For his altered conviction the accused shall undergo rigorous imprisonment for a period of ten years and pay Rs. 200/ as fine. In default of payment of fine, the convicted accused shall undergo rigorous imprisonment for a further period of three months.

Subject to alteration of conviction and sentence as ordered above, we see no merit in Cr. Appeal No. 254DB of 1989. The same is accordingly dismissed.