State of Rajasthan vs Badri Lal

This appeal has been filed by the State against the order dated 15.2.1993 passed by learned Sessions Judge, Jodhpur (hereinafter referred to as ''the trial court'') whereby the learned trial court has acquitted the accused respondent for the offence punishable under Section 302 I.P.C.

Brief facts of the case are that in the intervening night of 28th and 29th July, 1992 at about 1:35 AM, PW 14 Bagta Ram submitted a written report Exhibit P/9 at Police Station Sursagar, Jodhpur while stating that at about 12:30 AM Babu Lal S/o Gena Ram was crying in front of house of Harchand Ram that he is burning. He immediately went there and found that Babu Lal''s mother, brother and Dungarram were sitting there. It is stated in the complaint that as there was no conveyance available to take Babu Lal to hospital, he reached the police station to report the matter.

In the same night at about 2:45 Harchand Ram (PW-10) had given his statement to the A.S.I., Bajrang Singh while stating that in the night, he woke up upon hearing the cries of his mother Babli (PW-9) and saw his brother Babu Lal burning, who coming from the house of accused Badri Lal and Dungar Ram (PW-3) had doused the fire by putting mattress on him. When he reached near deceased Babu Lal he told him that accused Badri Lal poured kerosene on him and thereafter lit the fire. On the basis of said statement, the Police Station, Sursagar registered FIR No. 17/1992 for the offences punishable under Sections 307 and 326 I.P.C. Dying declaration of Babu Lal was recorded by the Judicial Magistrate as Exhibit P/7 wherein deceased Babu Lal had stated that Sharvan Ram''s son lit the fire after pouring kerosene on him. He has also stated that accused-respondent Badri Lal had asked him to provide liquor, but he refused, he asked him that why he is naming him for killing his brother and when he denied, he poured kerosene from the lamp on him and lit the fire and thereupon his brothers rescued him. After 7-8 days i.e. on 5.8.1992 Babu Lal died. As per post mortem report, the cause of death was burn injuries. After completing investigation, the police filed charge sheet against the accused respondent for the offence punishable under Section 302 I.P.C. The matter was committed to the trial court wherein charges were framed against the accused-respondent for the offence punishable under Section 302 I.P.C. He denied the charge and claimed trial.

To prove the charge against the accused respondent, the prosecution had produced as many as 17 witnesses. The statements of accused respondent were recorded under Section 313 Cr.P.C. and his wife Smt. Sattu was produced as defence witness. As per defence, the deceased himself lit the fire and prior to that, he threatened that he would commit suicide by inflaming himself.

The learned trial court, after hearing learned counsel for the parties and after pondering over the evidence, has acquitted the accused-respondent for the offence punishable under Section 302 I.P.C. by the impugned judgment.

The learned Public Prosecutor has argued that by exhibiting the post mortem report Exp.13 and by producing PW-16 Dr. V.K. Malhotra, the prosecution has proved beyond doubt that Babu Lal died on account of burn injuries. It is further argued that by producing eye witnesses namely PW-8 Gena Ram, PW-9 Babli, PW-10 Harchand and PW-11 Smt. Chidi, the prosecution has also proved that the accused-respondent had poured kerosene upon Babu Lal in the intervening night of 28.7.1992 and 29.7.1992 and thereafter lit fire and on account of that the deceased Babu Lal received severe burn injuries. It is submitted that despite clear evidence, the learned trial court has grossly erred in acquitting the accused-respondent for the offence punishable under Section 302 I.P.C. It is contended that apart from that as per dying declaration of deceased Babu Lal, the accused poured kerosene on him and thereafter lit the fire and the said dying declaration was fully proved by PW-7, who recorded the same. It is argued that PW-7, in his statement, has specifically stated that before recording dying declaration, the Doctor had certified that the deceased was fit to give his statement and there is no reason to disbelieve the testimony of PW-7, however, the learned trial court without giving any cogent reason has disbelieved the testimony of PW-7. Learned Public Prosecutor has, therefore, argued that despite this clinching evidence, the learned trial court has grossly erred in acquitting the accused-respondent for the offence punishable under Section 302 I.P.C.

On the strength of above arguments, learned Public Prosecutor has argued that the impugned judgment is liable to be set aside and the accused-respondent is liable to be convicted and punished for the offence punishable under Section 302 I.P.C.

Heard learned Public Prosecutor and scrutinized the record of the case.

As per the prosecution story, PW-14 Bagta Ram was the first person, who had informed the police about the incident by submitting Exhibit P/9 at about 1:35 AM on 28.7.1992. In the written report, it is mentioned that he does not know how Babu Lal received the burn injuries. After receiving the written report, the S.H.O., Police Station, Sursagar made a report that the information given by PW 14 Bakta Ram is incomplete, therefore, Bajrang Singh, A.S.I. was directed to visit the scene of crime and take necessary action. Thereafter on 28.7.1992 at about 3:35 AM, A.S.I. Bajrang Singh recorded the statement of brother of deceased, Harchand on the basis of which, the FIR Exp.P/10 was registered. The brother of deceased, Harchand, in his statement recorded by the police, has stated that Babu Lal informed him that accused-respondent poured kerosene on him and lit the fire. He has also stated in his statement that Durga Ram and Bakta Ram were present and were asked by him to report the matter to the police. It is noticed that Durga Ram was not produced as witness by the prosecution, however, PW-14 Bakta in his statement recorded before the trial court has specifically stated that the deceased Babu Lal was lying in front of house of PW-10 Harchand and was waving his hand but was not speaking anything. He further stated that in front of him, no conversion took place between deceased Babu Lal and his brother Harchand.

If we go through the police statement of PW-8 Gena Ram, PW-9 Babli, PW-10 Harchand and PW-11 Chidi which are available on record as Exhibits D/1, D/2, D/3 and D/4, we find that the said witnesses have contradicted their stand taken before the police while deposing before the Court. It is also noticed that none of the independent witnesses namely PW-1 Lichhman, PW-2 Bhiya Ram, PW-3 Dungar Ram and PW-4 Moti Lal, has stated in his statement that the deceased told him that accused Badri Lal lit the fire after pouring kerosene on him. The presence of above independent witnesses is not in dispute as PW-8 Gena Ram, PW-9 Babli, PW-10 Harchand have also stated in their statements that all the above named persons were present at the scene of crime at the time of incident. It is also noticed that out of said independent witnesses, only PW-3 Dungar Ram was declared hostile, however, the other witnesses were not declared hostile. As per the statement of PW-2 Bhiya Ram and DW-1 Smt. Sattu, just some time before the incident, the deceased in drunken state had stated that he would inflame himself.

Looking to the above piece of evidence, we are of the opinion that the learned trial court has rightly disbelieved the testimonies of PW-8 Gena Ram, PW 9 Babli, PW-10 Harchand and PW-11 Smt. Chidi because they are the near relatives of deceased and their version has not been corroborated by any of independent witnesses. The statements of above witnesses are also contradictory to their statements recorded by the police.

So far as dying declaration Exhibit P/7 of the deceased is concerned, after perusing the statement of PW-7 Umesh Kumar, we are in agreement with the learned trial court that PW-7 has failed to disclose the name of Doctor who has certified that the deceased was fit to give his statement. The learned trial court has also rightly observed that in dying declaration, the deceased has said that Savan Ram lit the fire on him wherein the name of father of accused-respondent is Chavand Ram and not Savan Ram. The learned trial court has rightly observed that the prosecution has failed to prove that the accused-respondent Badri Lal is the same person, who was named by the deceased in his dying declaration.

After going through the prosecution evidence in its entirety, we are of the opinion that the prosecution has failed to connect the accused respondent with the commission of crime by producing cogent and reliable evidence and, therefore, the learned trial court has not committed any illegality in acquitting the accused-respondent.

Hence, there is no force in this appeal. The same is hereby dismissed.