Smt. Kanta and Others vs State of Rajasthan

N.N. Mathur, J.—This appeal is directed against the judgment dated 23.2.1998 passed by the Additional Sessions Judge, Bali convicting the appellant Rikhab Chand of offence u/s 302, I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of Rs. 2,000/- and in default of payment to further undergo one year''s simple imprisonment. Smt. Kanku and Smt. Kanta had been convicted of offence under Sections 302/109, I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,000/- and in default of payment to further undergo six months'' simple imprisonment.

Briefly stated that prosecution case as disclosed during the trial is as follows :

The appellant Rikhab Chand, his mother Smt. Kanku and sister Smt. Kanta were put to trial on the charge of murder of Smt. Kanchan. In the year 1975, appellant Rikhab Chand married to the victim Smt. Kanchan but soon she was turned out. In the year 1977, he contracted second marriage with P.W. 14 Smt. Kamla. Out of the said relation, second wife bore four children. Fed up with the ill-treatment, Smt. Kamla left the accused Rikhab Chand. The appellant reverted to his first wife deceased Smt. Kanchan and brought her back. On 10.3.1995, Rikhab Chand presented himself at the Police Out Post, Sevadi and reported that his wife Smt. Kanchan was burning at his residence. P.W. 10 Head Constable Khiyaram made an entry of the information in the Rojnamcha vide Exhibit P7 and proceeded to the spot along with P.W. 18 Swai Singh, P.W. 23 Devi Singh and Constable Sevapuri. Smt. Kanchan was found sitting in burnt condition covered by blanket at some distance from the house of the appellant Rikhab Chand. She disclosed that her husband on the instigation of his mother and sister poured kerosene and set her to fire. Rikhab Chand was asked to arrange a jeep. Mst. Kanchan was brought to Police Station, Bali in jeep. The information was also given to the incharge of the Police Station. P.W. 10 Khiyaram made an entry of the incident in duty register Exhibit P18. Injured Smt. Kanchan was taken to the hospital at Bali. The Doctor examined Smt. Kanchan and prepared injured Report at 8.40 a.m. The statement of Smt. Kanchan was recorded by P.W. 25 Bakhtawar Singh vide Exhibit P32 at 8.50 a.m. in presence of P.W. 8 Dr. Kailash Singh Deora wherein she stated that on being abetted by mother-in-law and sister-in-law, the appellant poured kerosene and lit fire to her. A letter of request Exhibit P15 was sent to the Additional Chief Judicial Magistrate, Bali for recording dying declaration of Smt. Kanchan. P.W. 9 Kailash Chandra Meena, A.C.J.M., Bali recorded the dying declaration of Smt. Kanchan vide Exhibit P16 at 9.20 a.m. On the basis of the first dying declaration Exhibit P32 First Information Report was registered at Police Station Bali at 11.00 a.m. vide Exhibit P33. As the condition of Smt. Kanchan was deteriorating she was shifted to Government hospital at Bali. Another dying declaration was recorded by the police in the hospital at Bali vide Exhibit P39. Appellant Rikhab Chand was arrested on 12.3.1995 vide Exhibit P5. On 14.3.1995, Smt. Kanchan died and as such offence u/s 302, I.P.C. was added. The police prepared the inquest report. On 15.3.1995, post-mortem of the dead body of the deceased Kanchan was conducted by P.W. 26 Dr. K.N. Mathur vide Exhibit P39. After usual investigation police laid charge-sheet against appellants for offence under Sections 302, 302/109, I.P.C.

The appellants denied the charges levelled against them and claimed trial. The prosecution in support of the case examined 26 witnesses and produced certain documents. In statement u/s 313, Cr. P.C, appellants denied the correctness of the prosecution evidence appearing against them. It was pleaded by Rikhab Chand that it was a case of accidental fire or suicide. He also pleaded alibi. The Trial Court relying on the dying declaration Exhibit P16 corroborated by two other dying declarations Exhibits P32 and P39 found the charges levelled against the appellants proved. Accordingly, the learned Judge convicted and sentenced the appellants as noticed above.

Assailing the conviction, it is contended by Mr. Doongar Singh, learned Counsel for the appellants that the learned Trial Court has committed error in recording the convictions of the appellants solely on the basis of dying declaration Exhibit P16 which suffers from number of infirmities. It is submitted that the dying declaration recorded by the Magistrate and the other two statements recorded by the police are contradictory and are in variance on the material particulars. It is vehemently argued that two ladies namely Smt. Kanta and Smt. Kanku have been convicted for offence under Sections 302/109, I.P.C. inspite of the fact that there is not an iota of evidence against them. It is also submitted that Smt. Kanku was aged 75 years at the time of incident. Even according to the prosecution Smt. Kanku and Smt. Kanta were living separately. On the other hand, learned Public Prosecutor has supported the judgment of the Trial Court.

We have scanned, scrutinised and evaluated the prosecution evidence exhaustively and considered the rival contentions. It is true that entire case rests on the dying declaration Exhibit P16. Before we deal with dying declaration, we consider it appropriate to refer to medical evidence. P.W. 26 Dr. K.N. Mathur has stated that Smt. Kanchan before her death was admitted in burn unit. The kerosene smell was present on various parts of the body particularly on the neck. In his opinion, the cause of death was shock due to extensive ante-mortem burn. In the cross-examination, he admitted that there were 90% burn on the body of deceased.

P.W. 25 Bakhtawar Singh, S.H.O. Police Station Bali was has stated that he along with Khiyaram, Swai Singh and Devi Singh of Out Post, Sevadi brought Smt. Kanchan in seriously burnt condition in hospital at Bali. He recorded the statement of Smt. Kanchan vide Exhibit P32. Before the statement was recorded, it was certified by P.W. 8 Dr. Kailash Singh that she was in a fit condition to give statement. Exhibit P32 bears the endorsement to the said effect made by P.W. 8 Dr. Kailash Singh. P.W. 8 Dr. Kailash Singh has also stated that Smt. Kanchan was brought to the hospital in seriously burnt condition. It was from degree 1 to degree 3, but she was conscious. He gave in writing that she was ''in a fit condition to give statement''. She stated that in the morning on the instigation of mother-in-law and sister-in-law her husband pushed her in the kitchen and poured kerosene from a bottle and then set her ablaze. He also uttered that he will not allow her to go to her parent'' house. She also stated that earlier she used to reside at the parents'' house. A day after Shivratri she was brought to her in-laws'' house, by her husband. He assured that he will keep her well. She also stated that when she was set to ablaze there was nobody near her. She disclosed the name of her sister-in-law as Kanta. On the basis of the sarid statement Exhibit P32, a First Information Report was registered for offence under Sections 307, 307/109, I.P.C. at Police Station, Bali.

P.W. 25 Bakhtawar Singh sent a letter of request to the A.C.J.M., Bali vide Exhibit P15 to record the dying declaration of Smt. Kanchan. On his request, P.W. 8 Dr. Kailash Singh opined that Smt. Kanchan was in a fit condition to give statement. He made endorsement on the application Exhibit P15 to the effect that the patient was in fit condition to give statement. P.W. 9 Kailash Chandra Meena, A.C.J.M., Bali recorded the dying declaration Exhibit P16 in question answer form. She disclosed the name of her mother-in-law as Smt. Kanku and sister-in-law as Smt. Kanta. She stated that at the instance of mother-in-law and sister-in-law her husband Rikhab Chand set her to fire. She also stated that she was burned by pouring kerosene on her in kitchen. She also stated that nobody came to save her life. She also stated that her husband used to beat and pressurize her to bring money from her parents. The statement was read over to Mst. Kanchan. She put her thumb impression on the said dying declaration. The main citicism against the dying declaration Exhibit P16 is that the learned Additional Chief Judicial Magistrate before recording the statement did not obtain the opinion from the Doctor, if she was in fit condition to give statement. Another citicism is that dying declaration is cryptic. As far as the first criticism is concerned, P.W. 9 Kailash Chandra Meena has stated that he did not consider it necessary to enquire from the Doctor about the fitness of Smt. Kanchan as on the application Exhibit P15 the Doctor had already made an endorsement about the fitness of the patient for giving statement. We have seen the Exhibit P15. There is endorsement made about the condition of Smt. Kanchan by P.W. 8 Dr. Kailash Singh. It bears time 9.20 a.m. at the same time her statement has been recorded by P.W. 9 Kailash Chandra Meena. Thus, there is an endorsement with respect to the fit condition of Smt. Kanchan to give statement. It does not make difference, if the endorsement with respect to fit condition of deponent was on dying declaration Exhibit PI6 instead of requisition letter Exhibit P15. P.W. 8 Kailash Singh has also stated in the Court that Mst. Kanchan was in a fit condition to give statement. In view of this, the first criticism levelled by the Counsel for the appellant does not survive and the same is rejected.

As regards the second criticism, a look at the document Exhibit P16 shows that deponent has answered all the questions put to her and has given information on the material particulars. The very brevity of the dying declaration, in the circumstances of the case, from being suspicious circumstances, is an index of its being true and free from the taint of tutoring. The substratum of the dying declaration is fully consistent with the ocular account consisting with earlier statements before P.W. 10 Khiyaram. P.W. 18 Swai Singh, P.W. 23 Devi Singh and P.W. 25 Bakhtawar Singh. The law does not require that maker of dying declaration must cover the whole incident or narrate the case fully. The Apex Court in Jayaraj Vs. State of Tamil Nadu, repelling such contention observed as follows :

"When the deponent was in severe bodily pain, and words were scarce, his natural impulse would be to tell the Magistrate, without wasting his breath on details, as to who had stabbed him."

Thus, the second criticism also deserves to be rejected.

P.W. 25 Bakhtawar Singh recorded the statement of Mst. Kanchan on 12.3.1995 which has been exhibited as Exhibit P39. After her death, the statement u/s 161, Cr. P.C. has been taken as her dying declaration. In Exhibit P39 Mst. Kanchan has given the complete details. She stated that her husband Rikhab Chand used to harass and beat her and, therefore, she deserted him 15 years back. Since then she was residing with her parents. Rikhab Chand contracted a second marriage. The second wife was also turned out from the house. About a year back Rikhab Chand visited the village Sevadi and took her back to her in-laws, house. He used to make a demand to bring money from her parents. He wanted to establish some business at Bombay for which he was in need of money. She also stated that he had lent some money to her sister Kanta that led to some quarrel between them. She also stated that in the morning while she was preparing tea her husband took out kerosene oil from the stove in a plastic bottle. He poured the entire kerosene on her and then lit fire. Rikhab Chand put lock on the house and went out. She somehow managed to come out.

P.W. 14 Smt. Kamla, the second wife of the appellant Rikhab Chand has also come in the witness box. She stated that about 30 years back she was married with one Bagdaram. She was turned out from the house by Bagdaram. Thereafter, she contracted nata with appellant Rikhab Chand. She stayed with him for about 18 years and gave birth to four children. She also stated that at the time of marriage Rikhab Chand did not disclose that he was married. She also stated that the appellant Rikhab Chand used to beat her. Similar is the statement of P.W. 15 Amraram, father of Smt. Kamla. P.W. 19 Achal Prakash is the son of appellant Rikhab Chand. He has stated that his father used to beat her mother after consuming liquor. P.W. 17 Smt. Pabu, the mother of the deceased Mst. Kanchan stated that appellant Rikhab Chand used to harass her daughter deceased Kanchan. She also stated that for some time he was making demand for money. Similar is the statement of the brother of deceased P.W. 20 Chhagan Lal. The previous conduct of appellant provides sufficient assurance to the truthful version given in the dying declaration Exhibit P. 16. We are satisfied that as far as the appellant Rikhab Chand is concerned, his conviction has been rightly recorded on the basis of dying declaration Exhibit P. 16.

As regards two ladies Smt. Kanku and Smt. Kanta, there is short of evidence on record to show that appellant Rikhab Chand burnt Smt. Kanchan on being instigated by smt. Kanku and Smt. Kanta. Mere fact that deceased carried some impression that her husband was instigated by his mother or sister is not sufficient to prove the charge of abetment. Thus, the conviction of appellants Smt. Kanku and Smt. Kanta for offence under Sections 302/109, IPC cannot be sustained.

Consequently, this appeal is partly allowed. The appellants Smt. Kanta and Smt. Kanku are acquitted of the offence under Sections 302/109 IPC. They are on bail. Their bail bonds stands discharged. The conviction and sentence of appellants Rikhab Chand for offence u/s 302 is maintained. He is in jail. He shall undergo the remaining part of the sentence.