K.S.SIDHU, J. - (1.) THIS judgment will deal with a Reference (No. 3 of 1982) for confirmation of a sentence of death, D.B. Criminal Appeal No. 112 of 1982, and D.B. Criminal (Jail) Appeal No. 113 of 1982, all thereof which arise from a judgment and order, dated February 25, 1982, by the Sessions Judge, Jhunjhunu, convicting Geega Ram and Bajranglal under Sec. ion 302 IPC and sentencing the former to death and the latter to imprisonment for life and a fine of Rs 100/- and, in default, to further rigorous imprisonment for one month.
(2.) THE case of the prosecution may be shortly stated here. Chanda Devi deceased, who is said to have been killed by her father-in-law Geega Ram, and his nephew Bajrang Lal, was a widow, residing with her father-in-law at Jhunjhunu at the time of her murder. Her husband Chhaju Ram Kumhar, who was working abroad in United Arab Emirates, has died there of an accident on September 20, 1980. He had taken an insurance policy with accident benefit from the Life Insurance Corporation of India in August, 1979. Chanda Devi, who was the nominee, specified as such in the documents of insurance, by her deceased husband, was entitled to receive payment of a sum of about Rs. 30,000/- from the insurer. It is alleged that Geega Ram and Bajrang Lal Sprinkled Kerosene on her in her sleep during the night on September 27, 1981, set her ablaze and thus killed her so that Geega Ram could realize payment of the amount of insurance as the surviving legal heir of his deceased son. The prosecution story goes that on September 27, 1981, at about 2 A.M., Geega Ram's neighbours heard the cries of his daughter-in-law, rushed to his house, and saw Chanda ablaze in Mala Ram's Dhara (open enclosure) infront of Geega Ram's house. They saw her desperately convulsing in sand in trying to extinguish the fire. They heard cursing her father-in-law (Geega Ram) and Jeth (Bajrang Lal) saying they had set her ablaze. They saw that Geega Ram and Bajrang Lal were present there. They heard Geega Ram saying that it would be good riddance if she is burnt to death. The neighbours extinguished the fire, lifted Chanda from the ground and put her in a cot. She requested them to take her to a hospital. They immediately took her to B.D.K. Hospital Jhunjhunu. Dr. K.K. Sharma (PW5) who was on night duty admitted her and found her whole body, except the scalp of the head, having extensive burn injuries. He started the necessary treatment and informed the police about her admission and condition. He also called a medical jurist who examined her and prepared the injury report at 2.45 A.M. The medical jurist described the injuries to be grievous and fresh. ASI Rang Lal (PW 11) of police station Jhunjhunu rushed to the hospital after recording a report (Ex. P 23) in the roznamcha at 2.14 A M. He recorded the statement, Ex. P. 5, of Chanda in the presence of Dr. K.K. Sharma. She told Rang Lal,inter alia, that her father-in-law and Jeth had sprinkled kero-sene on and set fire to her while she was asleep in her room, that she had run out crying and had fallen on the ground trying to extinguish the fire, that the residents of the mohalla had reached there on hearing her cries and that they had brought her to the hospital. Dr. K.K. Sharma also signed this statement in token of its correctness. ASI Rang Lal went back to the police station and recorded the F.I.R :Ex. P. 24) on the basis of Ex. P. 5 at 3.15 A.M. that very night. Chanda succumbed to her injuries at 8.20 A.M. in the morning. Dr. N. Hussain PW6) conducted the post mortem and prepared the post mortem report (Ex.P7) at 10.55 A.M. stating that she had died on shock as a result of extensive burns on her body. Asi Rang Lal took up investigation and arrested both Geega Ram and Bajrang Lal on September 27, 1981, itself. He inspected the scene of crime in house of Geega Ram accused and prepared the rough sketck plan Ex. P/14. He took into possession from the spot partially burnt matrass, pillow, cot, kerosene tin containing some oil and a match box and prepared the recovery memo Ex. P/15. He recorded the statements of the witnesses under section 161 Cr.P.C. On completion of the investigation Geega Ram and Bajrang Lal were forwarded to the court for proceedings for their commitment for trial under section 302 I.P.C. They were committed to the Court of Sessions in due course. They were tried by the Sessions Judge, Jhunjhunu on the charge of murder of Chanda Devi punishable under section 302 I.P.C. They denied the charge. During the trial, the prosecution examined, among others, Girdhari, Shanker, Sagar, Sanwal Ram, Dr. K.K. Sharma, Dr. N. Hussain, A.N. Jaitely, Mahavir, Mohanlal and Rang Lal as witnesses in support of its case. PW Gir-dhari deposed that he was one of the neighbours who had gone to the house of Geega Ram on the fateful night after hearing the cries of Chanda Devi and that he had seen her burn injuries. He however denied that Chanda Devi had told them as to who had set fire on her. He even denied that he had seen Geega Ram and Bajrang Lal around them. Similarly PW Shanker, a neighbour and nephew of Geega Ram, also turned hostile to the prosecution and denied that Chanda had said anything in criminatory of Geega Ram and Bajrang Lal. He went so far as to deny that Chanda was crying at that time. He would have us believe that on seeing Chanda burning he was so frightened that he immediately turned back and ran away. PW Sagar admitted this much that he had heard cries of Chanda and that on reaching there he had seen her burning and heard her uttering the words' 'baal dia re bal dia." He too denied that she had named her father-in-law Geega Ram and Jeth Bajrang Lal as the culprits who had set fire to her. PW Mahavir Prasad also admitted that Chanda was burning and imploring them to take her to hospital. He stated that, they had extinguished the fire and removed Chanda to the hospital. All the four witnesses, namely, Girdhari, Shanker, Sagar and Mahavir Prasad were declared hostile at the instance of the Public Prosecutor and allowed to be cross-examined by him. Each of them was confronted with his statement recorded under section 161 Cr.P.C. They had fully supported the prosecution case during the investigation, but resiled from those statements during the trial. They do not appear to be reliable witnesses. Their evidence must therefore be ignored.
(3.) PW Sanwal Ram is the only witness from among the neighbours of Geega Ram who rose above his sympathies as a neighbour and made bold to tell truth. He recalled that he had heard the cries of Chanda Devi on the fateful night and gone to the house of her father-in-law to see what had happened. He deposed that Chanda was convulsing on the ground and cursing that she had been set ablaze by her father-in-law and Jeth. He added in this context that both Geega Ram and Bajranglal, father-in-law and Jeth, respectively, of the deceased were present there at the time when she was, in a manner of a speak-ing, pointing her accusing finger to them. Asl Rang Lal (PW 11) deposed that he had recorded the dying decl-aration,Ex. P.5 of deceased truly and faithfully and that the deceased had named both Geega Ram and Bajrang Lal as the culprits who had sprinkled kerosene on her and set fire to her in her sleep. Pw A.N. Jaitely of L.I.C. deposed with reference to documents of insurance that the husband of Chanda deceased had taken out an insurance policy giving the name of Chanda Devi as his nominee in August 1979 and that since he had died of an accident. Chanda was entitled to receive an amount of over Rs. 30,000/- from the L.I.C. Mohanlal (Pw 10) the unfortunate father of Chanda deceased testified that Geega Ram and Bajrang Lal were having an eye on the insurance money payable to Chanda Devi and which would have become payable to Geega Ram on her death. He recalled the mistreatment of his daughter at the hands of Geega Ram and his wife. The application, Ex. P/22, made by Geega Ram's wife before the District Judge for a succession certificate in respect of the insurance amount would show that notwithstanding the deceased having been specified by her husband as the only nominee entitled to receive the amount, Geega Ram's wife was claiming an equal share from that amount as one of the heirs of her deceased son. ;