HANS RAJ Vs. STATE

JUDGEMENT

(1.) The appeal is directed against the judgment of the Additional Sessions Judge (in short `ASJ') dated 24/11/1992 whereby he convicted the appellant No.1, Hans Raj, under section 302 of Indian Penal Code (in short `IPC') and appellant No.2,Manbhari (since deceased), under section 506 part-I of IPC. Vide sentence dated 25/11/1992, the appellant No.1, the only surviving appellant, was sentenced to imprisonment for life and fine of Rs.2,000/- and in default to undergo further R.I. for a period of two years. The incident over which the FIR in question, namely, FIR No.12/91 P.S. Hauz Qazi was registered took place at 1873, Gali Behram Beg, Delhi at around 11.30 p.m. on 10/1/1991, i.e., in the intervening night of 10/1/1991 and 11/1/1991. In the incident in question Madhu wife of the appellant No.1, Hans Raj, received burn injuries. She was first taken to St. Stephens Hospital and from there to Tirath Ram Hospital and then to JPN Hospital. She expired four days later on 15/1/1991 but not before she made two dying declarations; one before a police officer and the other before the SDM. Madhu (hereinafter referred to as `the deceased') died of septicaemia caused by the burn injuries. How she got the burn injuries is the sole question for determination in the case.

(2.) The trial court accepted the dying declaration given to the SDM which implicated appellant Nos.1 and 2 as well as two other accused, Rajesh Kumar and Ramesh Kumar, who were acquitted by the impugned judgment. The other dying declaration which was earlier in point of time described the incident as an accident caused while heating food, exonerates all the accused. This dying declaration was found by the trial court to have been given under threat extended by appellant No.2 as well as two persons named Bengali and Pehalwan. The trial court found the second dying declaration given to the SDM, in which she described the incident as a deliberate act on the part of appellant No.1 to burn her after pouring kerosene oil on her, to be a reliable dying declaration. Apart from this the trial court found other evidence in support of the prosecution case. The trial court eventually acquitted Rajesh Kumar and Ramesh Kumar who were accused of extending threat to the deceased on account of the doubt of their identity. Appellant No.2,Manbhari, was convicted for having extended threat to the deceased while in the hospital which prevented the deceased from speaking the truth when she made the first dying declaration. Appellant No.1 who was charged not only under section 302 IPC but also under section 498A IPC was convicted for murder as the trial court opined that offence of section 498A, i.e., cruelty, was included in the offence under section 302 IPC.

(3.) The main ground for challenging the trial court verdict is the plea that the second dying declaration implicating the appellants is unreliable. In the first place this dying declaration does not carry the signature or thumb mark of the deceased. In the second place the mother and other relatives of the deceased were at the hospital from the early morning of 11/1/1991 till her death and they had ample opportunity to tutor the deceased.