(1.)The appellants Laxman Kumar aged 25, Subhash Chander aged 28 and Smt. Shakuntala aged 53 were sent up for trial for an offence under section 302 of the Indian Penal Code. The charge against them was that on the 1st December, 1980 at about 9 p.m. they in furtherance of a common intention had caused the death of Sudha Goel (wife of the first accused). The learned Additional Sessions Judge,who tried the case found all the accused guilty of the offence charged with and has sentenced them to death. The accused have come in appeal. There is also the reference for confirmation of the death sentence. This judgment shall dispose of both the appeal and the reference. Laxman Kumar and Subhash Chander are brothers and Smt. Shakuntala their mother. The deceased Sudha was married to Laxman Kumar on 18th February 1980. After the marriage the couple started residing at 9 -B, Janta Flats, Ashok Vihar, Phase III. Subhash Chader is the eldest brother. He is married and has two Children, D.W. 5 Madhu Goel, is the wife of Subbash Chander. Laxman Kumar has two younger brothers, namely, Vinod and Ram Avtar. He further has two unmarried sisters who lived in Barot, Meerut District with the parents, that is, Shakuntala and Srinivas.
(2.)Subhash and his family and Laxman Kumar with his wife resided on the ground floor (9 -B) and Vinod and Ram Avtar resided on the first floor (9 -D). P.W.I. Jaspal Singh resided in. the adjoining house on the first floor (10 -C). Public Witness . 2 Satish Chopra resided in 7 -5. Public Witness .B. Tarsem Jain resided at 8 -A (adjoining to 9 -B). Two sisters of the deceased were married in Delhi. They are Smt. Gayatri Devi (D.W. 3) and Sneh Lata Gupta alias Shanno (P.W. 6) Public Witness . 3 with her husband Shri Pawan Kumar Goel resided at house No. 7376 Prem Nagar and Sneh Lata with her husband Shri Damodar Dass Gupta at C/48/B Janta Flats; Hari Nagar. The rest of the family of the deceased including the mother Public Witness . 7 Naraini Devi and the brother Dinesh Kumar (P.W. 8) resided at Calcutta. The deceased was in family way and she was expected to deliver a child within about a, week of the occurrence. Dr. Bharat Singh who performed post -mortem on the dead body .of Sudha had found in the uterus a full term male dead foetus without any abnormality. Prosecution version of the occurrence : The case for the prosecution as unfolded by Public Witness . 1 Jaspal Singh is that 1st December, 1980 at about 9 p.m. he was standing near the window in the back room of his house. He beared the cries of a female 'BACHAO BACHAO'. He peeped Out of the window which overlooks the courtyard of he house of the accused and he saw flames. He ran down the house. At the same time Tersem Jain, Satish Chopra, Gurcharan Singh Arora, etc. also came. He saw Laxman Kumar accused closing the door from inside. (Note: -the enterance door to the house opens outside the passage), that he and others opened the door and went inside the house, that he saw Subhash accused putting his hand on the latch of the door which opened in the courtyard (there is a door connecting the living room and the courtyard. The door leading to the courtyard opens inside the room), that he and other pushed Subhash and opened the door and went inside the courtyard, that he saw Sudha in standing Position a flame, that he first attempted to extinguish the fire by pulling the saree from the body of Sudha, that a gunny bag was lying nearby arid he and Tarseor Jain picked up the gunny bag and attempted to extinguish the fire by nibbing the gunny beg around the body of Sudha, that within a minute or two Satish Chopla brought a blanket and he and others wrapped the blanket around the body of Sudha and. extiogaisb the fire, that they brought Sudha in the room of the accused where Shankuntala, mother - in -law of Sudha was standing. On seeing Shakuntala Devi, Sudha shouted that she had sprinkled kerosene oil on her and she, along with Laxman and Subhash had set her on fire, that he and other brought Sudha outside the house where large number of people including Public Witness . 4 Iswari Devi (Bobby's mother) were standing, that Sudha immediately on seeing Bobby's mother shouted by pointing towards all the three accused that they had set her on fire to kill her. She also shouted that they had snatched all her ornaments and that her parents be informed. At that stage Laxman put his hand on the mouth of Sudha and said to her riot to name any one. The witness further deposed that a taxi was called and Sudha was put in the taxi, that the accused also sat in the car while leaving they said they were taking Sudha to Hindu Rao Hospital. M.W. 2 Satish Chopra and Public Witness . 5 Tarseem Jain substantially corroborated the statement of Jaspal Singh. Public Witness . 2 stated that he alongwith Prem Anand went to the house of S. Ajit Singh and informed the police control room of the occurrence. He further deposed that be and sonic others went on scooters to Hindu Rao hospital and made enquiries from the casualty about the admission of Sudha but were told that no one with born injeries had been admitted in the hospital, that waiting for sometime at Hindu Rao Hospital they returned to their house round about 12.30 in the night. P -.W. 4 Ishwari Devi supported the statement of Public Witness . 1,2 and 5. Ishwari Devi gave evidence that before shifting to 28 -D she was residing at 9 -D as a tenant of the accused and that on the day of the occurrence she was seeing: television at house No. 22 -A, situated opposite to the house of the accused, that on hearing the noise, 'AAG LAG GAYEE AAG LAG GAYEE she came out of the house and saw Sudha being brought out wrapped in blanket by Jaspal Singh and Tarseem Jain, that Sudha on. immediately seeing her said 'BOBBY KI MUMMY BOBBY KI MUMMY IN LOGON NE MUJHE MARR DALA HAL MERI SASS NE MARE UPAR METTIKE TEL DALA HAl AUR MERE PATI NE MUJHE AAG LAGAI HAI.. She further deposed that Laxman accused put his hand on the mouth of Sudha and told her not to speak l.ike that to go inside, that she removed the band of Laxman from the mouth of Sudha and Sudha said to them that if she was taken back they would not leave her alive. Public Witness .4 further deposed that with the help of a scissor pieces of clothes which were sticking to the body of Sudha were cut and removed by Tarseem Jain and Jaspal near the staircase of house No. 9 -B. She also deposed that after Laxman and Shakuntla had got into the taxi along with Sudha Subhash had tried to sli -away saying that he was set at, all conceraed, he, however, was forced to sit in the taxi and thereafter all of them left for hospital. We may notice here that the statements of the aforesaid witnesses were recorded by the investigating officer Surender Dev on 2nd December at about one in the afternoon. The statement of Ishwari Devi was recorded twice, first in the morning after the inquest and the second time along With the Statements of PWs. 1, 2 and 5. The prosecution case farther is that on the way to the hospital the accused went to the house of Gayatri Devi and took Gayatri and her husband along with them and went to St. Stephen "hospital Where Sudha was admitted at 9.45 p.m. Sudha is said to have stated before Dr, Vijay Kumar Tikka (Ext. PW. 17/B) that she got burnt ehile hearing milk over a kerosene oil stove about an hour ago. The deceased aigain at 10 p.m. is alleged to have stated that she was heating milk on a stove and the stove burst (the medical history sheet Ex. P.W.18/A4). Sub -Inspector Surender Dev. (P.W. 17) who was entrusted with the investigation reached the spot of occurrence at about 9.40 p.m. and on coming to know that the injured had been removed to the hospital reached St. Stephen hospital at about 11.20 p.m. Public Witness . 17 made an application to the doctor to find out if Sudha was in a condtion to make a statement. Dr. Joseph (D.W.1) certifiad that Sudha was in a fit condition to make a statement. Surender Dev is then alleged to have recorded the statement Ex. 9/D1 of Sudha in the presence of D.W.1 Dr. Joseph. Sudha is alleged to have stated before the investigating officer that..she was boiling the milk at home and when she lit the stove it flam es leapt up (Bhupka utha) .all of a sudden and her clothes caught fire as a result of which she )got burnt. The aforesaid statement is attested by Dr. Joseph. Sudha succembed to the injuries at 6.10 a.m. on 2nd December, 1980. P.W. 17 held an inquest and .recorded the statement of Damodar Das husband Sneh Lata (P.W. 6), and Pramod Kumar husband of Gayatri Devi (P.W. 3). The irvestigating officer wanted to record the statements of Gayatri Devi and of Sneh Lata but they were not willing to make a statement. Public Witness . 17 has recorded that Smt. Sneh Lata is cursing the in -laws of Sudha for her untimely death and from her utterings .it seems that she suspects foul play in death of Sudha (Ext.P.W. 17/BN). The scene of crime was inspected and some burnt clothes, partly burnt gunny bag, a blanket, a stove with a Pateela lying over it were taken into possession. According to the report of the crime team the burnt clothes, the gunny bag and the blanket were smelling of kerosene oil. A tin containing about one and half litre of kerosene oil was found near the stove. A 16 litre tin full of kerosene oil was seen lying in the corner of the courtyard and an empty bottle smelling of kerosene oil was found on a cemented still along the window in the courtyard. on chemical analysis kerosene oil was detected in the clothes and gunny bag but no kerosene oil was found in the blanket. Dr. Bharat Singh performed autopsy on the dead body of Sudha. The doctor found first to second degree fire burns over the fore -head, face, neck, both shoulders, chest, adomen and external genitalia, both thighs, buttocks and upper third of both legs on all sides. Patches of second degree fire burns on left foot. The doctor found no smell of kerosene oil or petrol from the hair of the skull which were partially signed. Eyebrows and lashes were burnt. Pubic hair were also burnt. Stomach was found to contain semi digested food about 4 ounces,in quantity. Uterus contained a full term male dead foetus without any abnormality - The doctor gave the opinion that the death was due to shock resulting from burn injuries. The doctor further opined that the small of kerosene oil persists for 36 hours in case it had been out in the scalp and the hairs are not .fully .burnt. The version of the occurrence as given by Subhash accused is that he with his family and his younger -brother Laxman and his wife resided at 9 -D. The wife of Laxman was expecting a baby and day before the occurrence he left his wife at Baroat where his parents resided and brought his mother Shakuntala Devi. As regards the actual occurrence Subhash stated : "I am innocent". Laxman accused denied his presence in the house at the time of the occurrence and stated that Gayatri Devi had come to meet Sudha and at about 8.45 p.m. he had gone to leave Gayatri at the bus stop.
(3.)I am innocent. I was permanently residing at Barot, U.P. A day earlier, my son Subhash had gone to fetch me to Delhi. I came because Sudha was expecting a child any day. I had no grievance against anybody, nor I was expecting anything from the side of inlaws of my son. I am too old to expect any such thing and normally I am not keeping well and I am so heavy and bulky that I find it difficult to move properly. My eyesight is also very weak. I was sitting inside a room of the house with a child who was sitting on my lap at that time. I heard cries and after hearing cries, I also shouted. My son Subhash was in the bathroom at that time. He came out after hearing our cries. We became totally upset and nervous after seeing flames of fire. My son rushed for blanket and put in an Sudha and extinguished the fire. She was immediately taken to Hospital and an our way, we also informed the relations of Sudha. 7 he accused in support of their defence examined D.W.I Dr. Joseph of St. Stephen hospital, D.W. 2 Nelson incharge, Medical record branch, St. Stephen hospital, Rakesh Sharma (D.W. 3), Jaswant Singh (D.W. 4) and Madhu Goel (D.W.5) (wife of Subbash accused). Before discussing the evidence we may say that it is an admitted case that P.W.3 Gayatri Devi had come to meet the deceased Sudha on 1st December at 7 p.m. and they were together till about 8.35 when she left. Public Witness . 2and Public Witness . 4 had seen Sudha seeing off her sister outside the house. Laxman accused claims that he had gone with Gayatri Devi to see her off at the bus stop. Gayatri Devi denies that Laxman had accompanied her to the bus stop to see her off. Public Witness .4 Ishwari Devi gave evidence that she saw Sudha taking to Gayatri Devi out of the house. She deposed that she did not see Laxman. Public Witness . 2 deposed that at about 8.35 p.m. he had passed by the deceased and Gayatri Devi, and Laxman we net there. Motive