Rama Shankar alias Dhunnu vs State of U.P.

S.K. Phaujdar and Onkareshwar Bhatt, JJ.—The Appellant stood convicted u/s 302, I.P.C. and was sentenced to life imprisonment by an order dated 30.7.80 recorded by Sessions Judge, Banda, in S.T. No. 76 of 1980. Upon presentation of the instant appeal, he was directed to be released on bail by an order of this High Court dated 8.8.1980.

The alleged murder took place around 8 p.m. on 20.2.1979 and report was made at Kotwali police station in the district of Banda on 22.2.1979 at about 1 p.m., initially for an offence u/s 307 I.P.C.

In the F.I.R. alleged by Pt. Shiv Kumar Tiwari of village Mawai Bujurg, district Banda, it was stated that his daughter Urmila was married to the present Appellant and she was assaulted on her chest by her husband with a hammer and subsequently the Appellant had sprinkled kerosene oil on her person and lit fire. Urmila was badly burnt. She was taken to the hospital by Ashok and Ors. and only when she regained senses, she told about the incident to her father. A dying declaration was also made by Urmila on 22.2.1979 at 5.30 p.m. which was recorded by a Magistrate in presence of the doctor.

The prosecution had examined 10 witnesses at the trial.P.W. 1 was Shiv Kumar, the father of the victim and the maker of F.I.R.P.W. 2 was Ashok Kumar who helped the girl in taking her to the hospital.P.W. 3 was Sub-Inspector, Mitan Ram who conducted the investigation in part.P.W. 4, Dr. P.C. Chandel had initially examined the burnt injuries of Urmila.P.W. 5, Dr. Gopal Ji Gupta was Anr. doctor in whose presence the dying declaration of Urmila was recorded.P.W. 6 was Sub-Inspector Abdul Hashim who had conducted the inquest on the dead body of Urmila and had sent the dead body for post-mortem examination.P.W. 7, Dr. R.K. Mehrotra, had held the post-mortem examination on the dead body of Urmila.P.W. 8, Shiv Kumar Tiwari, was the Tehsildar at Sadar in the district of Banda and was an Executive Magistrate. He had recorded the dying declaration of Urmila on 20.2.1979. P.W. 9, Brij Nath Sahu was a constable at Kotwali police station who had taken the dead body for post-mortem examination.P.W. 10 was the writer constable at Kotwali police station who had recorded the F.I.R. and he spoke of conversion of the case to one u/s 302, I.P.C. after the death of Urmila.

The accused was examined u/s 313, Code of Criminal Procedure and he gave out his age as 20 years on 17.7.1980 which was estimated to be correct by the trial Judge. He took up a defence that Urmila had set fire to herself as she was forced to live with the grand-mother of her husband against her (Urmila�s) wishes. He also stated that on the date of occurrence, he was at Rae Bareilly.

The trial Judge had discussed the evidence on record and had considered the defence as well. No defence witness was examined in proof of alibi taken by the Appellant. The trial Judge had given reasons why the plea of alibi was not accepted and why the dying declaration could be acted upon and he found the Appellant guilty of offence u/s 302, I.P.C. In consideration of his young age and in consideration of the �submission that the deceased was a girl of annoying nature, a sentence of life imprisonment was thought to be an adequate punishment.

The instant case solely rests on the dying declaration of Urmila and we are to see if this dying declaration could be acted upon. It was stated that the dying declaration was made three days after the incident and, admittedly, the father and other relatives of the girl had the chance to talk to her and, as such, the possibility of tutoring her cannot be ruled out. It was further argued that reference to statement of P.W. 2, Ashok Kumar that at the initial stage, Urmila had not stated about her husband burning her.

We may take up the statement of P.W. 2, Ashok Kumar, as he was a person who saw the injured almost immediately after the incident. According to him, when Urmila caught fire and she made a scream, he reached the house of Rama Shanker. By that time, Urmila had come out of the house and her clothes were afire. One Udai Shanker had also reached the spot. One Bhagwati Deen had his house near the house of Rama Shanker. The wife of Bhagwati Deen lifted Urmila into her house and could put off fire by covering her clothes. Thereafter, Urmila was taken on a bullock-cart to Banda. They were passing through the village Mawai and the father of Urmila was also informed. He also accompanied them to the hospital. Initially, she was taken to Dr. Singh who advised that she should be taken to the district hospital (Bare Aspatal). She was admitted there. Ashok had definitely stated that Rama Shankar was in his house when the incident had taken place, and although Ashok requested Rama Shanker to accompany them, he simply refused. Ashok stated that Urmila was shouting that she had caught fire and was pleading for help. She did not state at that time as to how she caught fire. His cross-examination indicates existence of criminal cases against him and his brother Bhola was accused in a case of murder of one Rajulia, an aunt of Rama Shanker but further examination indicates that this incident of murder was subsequent to the burning of Urmila. The statement of Ashok appears to be true because had he been inspired by enmity, he would have stated that Urmila had named Rama Shanker as the person who had set fire to her. The conduct of Ashok as a neighbour is most unnatural and one very significant fact has come from his evidence that despite request Rama Shanker did not accompany Urmila to hospital.

P.W. 1 got the information of burn-injuries to Urmila from Ashok and he also accompanied her to the hospital. According to him, Urmila regained consciousness on the third day and made a statement to him and Ors. that her husband Rama Shanker had at first beat her with hammer and then sprinkled kerosene oil on her and set her on fire. Only after this definite information, the F.I.R. was lodged. His cross-examination does not divulge any fact that would cause any doubt in the story stated by him. His cross-examination rather indicates that before Dr. Singh also he had simply stated that Urmila caught burnt injuries. Had this witness any intention to implicate Rama Shanker falsely, he could have done on the very first day and would not have waited for three days.

The evidence of the doctors clearly indicates that when Urmila was admitted in the hospital, she was drowsy and was not able to make any statement. But, subsequently, on 22.2.1979. Dr. Gopal Ji Gupta certified that she was in a condition to make statement and she really made a statement before the Magistrate and the Magistrate had proved the statement. The doctor who held the post-mortem examination clearly indicated that death was due to the burn injuries.

The dying declaration has been marked Ext. Ka-16 and it is stated in this dying declaration that there was some altercation between the grandmother-in-law and the deceased and upon this her husband had given a hammer blow in her chest and thereafter poured kerosene oil on her and lit fire to her clothes. Both the husband and the grandmother-in-law were present. She shouted for help but they did not help. Then, she ran out of the house and went to the house of the neighbour Sri Pandey where the fire was put off. She was taken to the hospital by Udai Shanker and Ors..

The Investigating Officer had seized a glass smelling kerosene oil as also a small clamp (kuppi). Doctor who had examined Urmila at the first instance had also smelt kerosene oil from the burnt dresses of Urmila. The evidence of the doctor indicates that at the time of statement by Urmila to the Magistrate, her in-laws were present.

The facts of the case indicate that Urmila was badly burnt and was not in a position to speak for the first few days. This is corroborated by the doctor and the father of Urmila. Only on 22nd February she could make a statement and had stated how Rama Shanker had burnt her. The statement was made not only before her father upon which the F.I.R. was lodged but also before a Magistrate. The dying declaration recorded by the Magistrate is thus corroborated by the oral dying declaration made to her father which was indicated in the F.I.R. There was no reason for Urmila to have falsely implicated her husband and no material which is there on record to suggest that Urmila was tutored by her father or other relatives. We must, therefore, place reliance on the dying declaration of Urmila. Once we rely on it, we must uphold the order of conviction and sentence.

The appeal accordingly fails and is dismissed. The Appellant must surrender before the C.J.M. concerned immediately to undergo the sentences. The C.J.M., Banda, will also take all steps as are necessary to compel the attendance of the Appellant and to see that he serves out the sentence. His bail bonds stand cancelled.