AMAR SINGH Vs. STATE OF U.P.

JUDGEMENT

(1.) BY this appeal, the appellant Amar Singh seeks to challenge the judgment and order dated 25.11.1997 passed by the learned Vth Additional Sessions Judge, Aligarh in Sessions Trial No. 388 of 1995 holding him guilty of the charge under Section 302 IPC for the murder of Smt. Son Devi (hereafter referred to as 'deceased') and the order sentencing him to undergo imprisonment for life. Thumbnail sketch of the facts of the case is as mentioned herein below: The complainant Kishan Lal resident of village Piwari Police Station Bharhara District Etah,father of the deceased lodged an FIR at Police Station Sikandra Rao District Aligarh on 07.04.1994 at 18.10 hrs. to the effect that deceased was married to Sri Pal Singh resident of village Chhonkara Police Station Sikandrarao District Aligarh about eleven years back. The deceased had two daughters. His daughter's father-in-law appellant Amar Singh who was widower, had an evil eye upon her and since his daughter did not succumb to the desire of her father-in-law he often use to harass her. On 07.04.1994 at about 7-8 am. when his son-in-law Sri Pal Singh was sitting with his daughter (complainant's grand daughter) outside the house, his daughter's father-in-law set his daughter on fire by sprinkling kerosene oil on her body with the intention to kill her. On raising alarm by his daughter, his son-in-law Sri Pal Singh and other neighbors of the village rushed in the house and extinguished the fire. On the fateful day at about 13.00 hours on getting information of the incident from one Ram Ji Lal, he alongwith Lokpal Singh, Ramesh Chandra, Pokhpal and Parchan Singh reached village Chhonkara and found that his daughter was lying in the house in a very critical burnt condition and his son-in-law Sri Pal Singh and appellant Amar Singh were not present there. He went to the Police Station Sikandrarao carrying his daughter (deceased) from where she was sent to Sikandrarao Hospital for her medical examination and treatment. Her dying declaration was recorded by Sri B.N. Chaudhary S.D.M., Sikandrarao at 18.50 hrs. Later on, she was referred to Malkhan Singh District Hospital, Aligarh for medical treatment. During treatment she died in the hospital on 10.04.1994. Initially the F.IR. at Crime No. 98 of 1994 was registered under Section 307 IPC. On receiving information regarding her death the case was converted into Section 302 I.P.C. After investigation the chargesheet under Section 302 IPC was filed against the appellant- Amar Singh and his son (co-accused) Sri Pal Singh. On the basis of aforesaid chargesheet, the trial court framed charge under Section 302/34 IPC and 176/34 IPC, to which the appellant Amar Singh and co-accused Sri Pal Singh pleaded not guilty and claimed trial. Having denied the charge the appellant and his son co-accused Sri Pal Singh faced trial.

(2.) DURING the trial the prosecution examined in all ten witnesses. In the defence two witnesses were examined. The prosecution, in support of its case examined PW-1 Kishan Lal (complainant), PW-2 Ramesh, PW-3 Ram Ji Lal, PW-4 Dr. Yogendra Singh, PW-5 Sri B.N. Chaudhary S.D.M., PW-6 Sri P.C. Lal, PW-7 Sri Atar Singh, PW-8 Dr. Ashok Kumar, PW-9 Sri M.R. Diwan S.D.M. and PW-10 Kaushlendra Singh. PW-1 Kishan Lal, the father of the deceased, supported the prosecution version and proved the FIR (Exhibit Ka-1). PW-2 Ramesh stated that Kishan Lal had told him that his daughter was set on fire. He along with Kishan Lal and other persons of the village came to her daughter's in law's house and saw that the deceased was lying in a burnt condition. They took her to Police Station Sikandrarao from where she was sent to Hospital for medical treatment. PW-3 Ram Ji Lal did not support the prosecution case and he was declared hostile. PW.4 Dr. Yogendra Kumar Medical Officer stated that on 07.04.1994 he was posted at Malkhan Singh Hospital, Aligarh and on the said date at about 20.45 hrs. he examined the deceased and found superficial to deep burn injuries all over her body except head, neck, face, some portion of upper part of chest and upper half of the left upper arm. The skin peeled up at places, blisters were present, about 85% of her body was burnt. The injuries were half day old. She was admitted in the hospital and her injury report was prepared by him, which he proved (Exhibit Ka-2). PW-5 Sri B.N. Chaudhary, stated that on 07.04.1994 he was posted as Sub Divisional Magistrate, Sikandrarao District Aligarh. On that day, at about 18.50 hrs. he recorded the dying declaration of the deceased aged about 26 years, in the Government Hospital Sikandrarao. Before recording of her statement he had ensured that she was in a mentally fit condition to give her statement and the certificate to that effect was issued by Dr. P.C. Gupta. He has proved the said dying declaration of the deceased (Exhibit Ka-3). PW-6 Dr. P.C. Gupta Medical Officer, Ursila Hospital, Kanpur City stated that on 07.04.1994 he was posted at Primary Health Center, Sikandrarao. On that day, Sri B.N. Chaudhary S.D.M. (PW-5) had recorded the dying declaration of the deceased in the hospital. Before recording her statement he had ensured, by examining the deceased, that she was conscious and was in a fit mental condition to give her statement. During the entire period when her statement was being recorded, she remained conscious. He had appended the certificate on the dying declaration that the patient was fully conscious and remained conscious till the end of recording of the statement. He proved his said endorsement on the dying declaration of the deceased as (Exhibit Ka-4). PW-7 Sub-Inspector, Police Sri Atar Singh proved G.D. No. 35 at 18.00 pm. dated 07.04.1994 of Police Station Sikandrarao as (Exhibit Ka-5) site plan (Exhibit Ka-6) and chargesheet (Exhibit Ka-7) prepared by the Investigating Officer. PW-8 Dr. Ashok Kumar, Medical Officer stated that on 11.04.1994 he was posted at Malkhan Singh Hospital, Aligarh and was on postmortem duty. On that date at 15.30 hrs. he had conducted the autopsy on the dead body of the deceased. He found second and third degree burn injuries on her entire body except face, neck, head and part of chest. Her skin was peeled off at different places and 85% of her body was found burnt. The postmortem report was prepared by him, which he proved as Exhibit Ka-8. The cause of death is due to shock as a result of extensive burn. The postmortem was conducted under the direction of Dr. R.P.Singh, Senior Medical Officer and he was agreed with the findings. PW-9 Sri M.R. Diwan stated that on 11.04.1994 he was posted as Additional City Magistrate, Aligarh. On that day he got prepared the inquest report of the deceased. He had also expressed his opinion on the inquest report. He proved the inquest report (Exhibit Ka-10). PW-10 Constable Kaushlendra Singh proved the G.D. No. 14 dated 02.12.1994, time 11.30 of Police Station Sikandrarao as Exhibit Ka-16.

(3.) Sri Karuna Nand Bajpai, learned Additional Government Advocate on behalf of the State has rebutted the arguments advanced on behalf of the appellant. Learned Additional Government Advocate argued that it is the settled law that the dying declaration of the deceased very well constitutes the sole basis to convict the accused provided it is found to be voluntary, truthful and untwittered one; that there is no rule of prudence, much less than law, which require corroboration of an authorized persuadely dying declaration. It has also been submitted on behalf of State that a dying declaration which has been reduced in writing is on a higher footing than the oral dying declaration as the scope of error in the exact words of the deceased gets minimized. The evidentiary value of a written dying declaration reduced in writing is further augmented if it is recorded by a Magistrate who is a high ranking officer. It becomes even more authentic when it contains a due certificate given by the doctor about the mental fitness of the deceased to give the dying declaration. Learned Additional Government Advocate Sri Bajpai further argued that there is nothing on record to show that any tutoring was done or that there was any attempt by any one to influence or coerce the deceased to give the statement which she actually gave. Learned Additional Government Advocate has placed reliance on the cases of Khushal Rao Vs. State of Bombay AIR 1958 SC 22 (V 45 C4) Lallubhai V. State of Gujarat 1972 CRI L.J. 828 (V 78 C 207), Munu Raj V. State of M.P. 1976 AIR SC 2199, State of U.P. V. Ramsagar Yadav AIR 1985 SC 416, Paniben V. State of Gujarat AIR 1992 SC 1817 and Jai Karan Vs. State of (N.C.T. Delhi) reported in AIR 1999 SC 3512.