RATTAN CHAND Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) -Rattan Chand is the sole appellant herein. He was a teacher. He was charge -sheeted and tried alongwith his nephew Nirmal Kumar for an offence under section 120 -B read with section 302 of the Indian Penal Code Appellant was also charge sheeted and tried for an offence under section 302, I. P. C for causing the death of his wife Jagdambo Devi alias Kiran Verma the deceased in this case, by pouring petrol on her clothes and setting fire. The occurrence is said to have taken place on 1 -6 -1992 at about 2.30 p.m. at place known as Mangarh. The Sessions Judge, Sirmour District at Nahan acquitted the appellant and co -accused under section 120 -B read with section 302 of the Indian Penal Code However, the Sessions Judge convicted the appellant under section 302 of the Indian Penal Code on November 1, 1993 He was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 500. In default of payment of fine, the appellant shall suffer rigorous imprisonment for a further period of one year Through this appeal he has questioned his conviction and sentence The prosecution case briefly stated is as follows :

(2.) Deceased Jagdambo Devi alias Kiran Verma was married to appellant in the year 1979. Three children were born out of the wedlock. Two are alive while one died soon after the birth. The behaviour of the appellant towards the deceased was not good from the very beginning. He used to ill treated her and subjected her to physical and mental torture. She was fed up with the attitude of the appellant. Once she left the matrimonial home and started living with her sister at a place called Amb in Una District. Appellant accompanied by his brother, brothers wife and some other persons went there and tried to bring her back by use of force. The Police was brought to the scene by the neighbour of the deceaseds sister and the appellant was taken into custody and finally a case under sections 107/151 of the Criminal Procedure Code was instituted against him in the Court of Executive Magistrate at Amb. A petition for divorce under section 13 of the Hindu Marriage Act was also filed by the deceased in the Court of District Judge, Una which was returned to her with the order that the said Court did not have the territorial jurisdiction. The deceased then filed another petition in the Court of District Judge, Hamirpur and during the pendency of that petition, the appellant managed to win over the deceased by use of oily tongue and took her back to his place of posting. The said petition was not prosecuted and the same was dismissed on account of non -appearance of the deceased. A petition under section 9 of the Hindu Marriage Act for the restitution of conjugal rights had also been filed by the appellant. That too was dismissed for want of appearance of the appellant, because it appeared that during the pendency of that petition, the deceased had joined his society.

(3.) In the year 1992 appellant and the deceased alongwith their two male children used to live in a village Mangarh, Tehsil Pachhad, District Sirmour where the appellant was employed as a Language Teacher in the Government High School. Nirmal Kumar cousin of the appellant had been staying with the appellant and the deceased in Mangarh for about a month prior to 1 -6 -1992 when the deceased suffered burn injuries to the extent of 60% which ultimately resulted in her death on 18 -61992. Two accused are alleged to have hatched a conspiracy to eliminate deceased Jagdambo Devi because appellant was not having good relations with the deceased and also because he suspected her fidelity. Appellant sought the permission of the Headmaster High School, Mangarh to leave the school around 10.30 a m on 1 -6 -1992 on the pretext that he wanted to go to village Daro Deveria to borrow money from a colleague employed there in a Government School. The Headmaster told the appellant that he could leave the school either by giving a leave application or he could go after the school hours, but the appellant left the school before 11 a m. The appellant and his nephew went to his house. Around 11 am, they left the house with a scooter belonging to appellant Thereafter the deceased went to sleep on a mat which she spread on the floor on one of the two rooms of a rented house taken from one Narinder Singh of village Maugarh. Around 2.30 p.m. the deceased felt that something cold had been sprinkled on her body and soon she felt the heat of fire and when she woke up she spotted the appellant going out of the room through the back door which opened in the verandah in front of the kitchen Soon she was in flames. She cried for help. On hearing her cries, her landlords son Vinod Kumar (PW -1) who was present in his shop situated in the ground floor of the same building in which the occurrence took place rushed to the scene. His three friends namely Gopal, Han Mohan (PW -13) -and Ram Singh who happened to be in the shop at that time also went with him. All of them threw upon the deceased water which they collected from the kitchen and extinguished the fire. The fire spread rapidly with strong flames on account of pouring of combustible liquid due to which the clothes which the deceased was wearing were completely burnt. The deceased had become almost naked when fire was extinguished. On inquiry by persons who extinguished the fire, the deceased told them that she had been set on fire by her husband, who after causing the fire disappeared through back door which opened in the verandah PW Vinod Kumar then went to the school where the appellant was employed. He went to the Headmaster and enquired about the appellant, Shri Jagat Singh (PW -3) the Headmaster told him that the appellant was absent from the school PW Vinod Kumar then informed the Headmaster that the appellants wife had caught lire and according to her declaration she had been set on fire by her husband. PW Vinod Kumar then went to the Primary Health Centre where only a Female Health Worker namely Nalini Vaidya (PW -9) was present, He brought that Female Health Worker to the scene who helped the deceased to wear another set of clothes to cover her naked body. PW Naliui Vaidya was informed by the deceased that she had been set on fire by her husband, PW Vinod Kumar then gave a telephonic call to the Police at Sarahan. The S. H. O. of Police Station, Pachhad Shri Garka Ram (PW -23) reached the spot around 5.30 p.m. He recorded the statement of the deceased (Ex. PCC). The statement was sent to the Police Station on the basis of which F L R. No, 17 of 1992 (Ex. POD) was registered at Police Station Pachhad, Injured Jagdambo Devi was sent to the Primary Health Centre Sarahan under the care of PW Ms. Nalini Vaidya for her medical treatment. The Investigating Officer started investigation. He took into possession a plastic can containing four litres of petrol from the room in which the injured was found lying with burn injuries. In the verandah behind that room an empty glass botle smelling of petrol was spotted which was also taken into possession. A sample was filled from the contents of the can in a nip and thereafter the can and the nip were sealed From the room partly burnt mat, a woollen blanket, a piece of burnt shirt, a piece of burnt salwar, partly burnt brassier and an underwear of the deceased were taken into possession. A match box lying on the backside of the house just close to the verandah was also taken into possession. At the Primary Health Centre, Sarahan a dying declaration (Ex. PJ) of Ms. Jagdambo was recorded on 2 6 -1992 in the presence of Executive Magistrate Ramesh Kumar Sharma (PW -4). The declaration was signed by the deceased herself as well as Executive Magistrate. The Doctor recorded a certificate that the said statement had been made in his presence and the maker of the statement was conscious and fit to make it. The same day, the deceased was shifted to the District Hospital, Nahan as better medical facilities were available where she succumbed to burn injuries on 18 -6992. The inquest was conducted by the Police and thereafter on the request of the police autopsy on the dead body was conducted by Doctor Ajay Kumar Gupta (PW -12). On completion of the investigation, challan was presented against the appellant and his nephew for the aforementioned offences in the Court of Chief Judicial Magistrate, Sirmour at Nahan who committed the case to the Sessions Judge for trial. 4 The prosecution with a view to connect the appellant and co -accused with the crime relied upon the following pieces of evidence :