- (1.) THIS appeal stems from the judgment dated August 2, 2004 whereby dying declaration of Smt. Yashwanti, (now deceased) who sustained hundred percent burn injuries, was accepted by learned Additional Sessions Judge Khetri in convicting and sentencing the appellant (father in law of Yashwanti) under Section 302 IPC to suffer imprisonment of life and fine of Rs. 5,000/- in default to further suffer six months simple imprisonment.
(2.) THE prosecution story is woven like this:- On June 18, 2002 Smt. Yashwanti of village Bhaloth PS Buhana having serious burn injuries on her body was admitted that in Emergency ward of General Hospital Narnol. Zulfikar Ali, SHO Police Station Singhana recorded parcha bayan (Exhibit P-18) of Smt. Yashwanti at 8:40 PM. In the parcha bayan Yashwanti stated that four years ago she got married with Surat Singh who was serving in the Army. She gave birth to Sachin, whose age was three years. Her father in law (appellant) and mother in law used to harass and humiliate her for the demand of dowry. THEy used to pursuade her to bring from her parents Scooter and Gandasa Chakki (flour mill ). On the date of incident around 4:00 PM her mother in law poured kerosene oil on her and her father in law (appellant) set her ablaze. THEreafter Suraj Bhan took her to Hospital Narnaul (Haryana) and got her admitted. Smt. Yashwanti put her left thumb impression on parcha bayan. PMO. City Narnaul certified that statement was recorded in his presence and Constable Mool Chand of PS Singhana (Haryana) took parcha bayan to Police Station Buhana (Rajasthan) where a case under Section 498a and 307 IPC was registered. At Narnaul Magistrate recorded the statement of Smt. Yashwanti. After few hours Smt. Yashwanti died and the case was converted into one under Section 304b and 498a IPC. After usual investigation charge sheet was filed and in due course the case came up for trial before the Learned Additional Sessions Judge Khetri. Charge under Section 304b and 498a IPC was framed against the appellant, who denied the charge and claimed trial. THE prosecution in support of its case examined as many as 20 witnesses. In the statement under Section 313 Cr. P. C. , the appellant claimed innocence. No witness in defence was however examined. When the case was posted for final hearing charge under Section 302 IPC was framed. THE said charge was also denied by the appellant. Since, the Counsel for the appellant declined to further cross examine the witnesses the final arguments were heard. Learned Additional Sessions Judge vide impugned judgment even though acquitted the appellant of the charge under Section 304b and 498a IPC, convicted and sentenced him as indicated herein above. Having closely scrutinised the record we notice that Suraj Bhan (PW. 12) who got Smt. Yashwanti admitted in the General Hospital Narnaul, did not support the prosecution case and was declared hostile. In his deposition Suraj Bhan stated that on hearing that Yashwanti got burnt, he rushed to her house and saw her lying in the chowk having burn injuries on her body. She was not speaking. He then took her to the General Hospital Narnaul and got her admitted. The doctor then asked him to bring medicines and when he came back with medicines Yashwanti was no more and police had arrived. Hanuman (PW. 1), the father of Yashwanti deposed that in-laws of Yashwanti never demanded dowry and it was Yashwanti who put herself in fire. Hanuman too was declared hostile. In his cross examination Hanuman stated that Yashwanti was obstinate by nature. After her marriage she used to live with her husband in the family quarter but after the transfer of her husband to border, she had no option but to live in her in-laws house. When her demand to live with her husband was not fulfilled she committed suicide. Other witnesses viz. Sardar Singh (PW. 2), Rohtash (PW. 3), Nihal Singh (PW. 4), Saj Kaur (PW. 5), Vinod Kumar (PW. 6), Mahesh (PW. 7), Pratap (PW. 8), Sanjay (PW. 9), Mahipal (PW. 10) and Hava Singh (PW. 11) also toed the line of Hanuman and all of them were declared hostile. The prosecution case rests only on the dying declaration of Yashwanti. As already noticed parcha bayan of Yashwanti was recorded by Zulfikar Ali, SHO PS Singhana (Haryana) at 8:40 PM on June 18, 2002. A look at the endorsment made on parcha bayan (Exhibit P-18) at 10:00 PM by Mahipal Singh (PW. 14) Head Constable Police Station Buhana (Rajasthan) demonstrates that initially case under Section 498a and 304b IPC was registered but `304b' was afterwards substituted by `307'. It is significant to note that as per Bed Head Ticket (Exhibit P-24a) Yashwanti was admitted to the Hospital Narnaul at 6:15 PM on June 18, 2002 and died after few hours at 9:10 PM. She had sustained 100% burns and her treatment was started forthwith. Needles containing with ICCOCEL, IMMUNOX, AMIKATIAL, EFFCORLIS, DEXOCORA and ELDERVIt were injected to her body. After Yashwanti admitted to the Hospital, Jagdish Lal ASI of Police Station City Narnaul made a written request to Duty Magistrate Narnaul to record the dying declaration of Yashwanti vide letter Exhibit P-20. Pursuant to it Ramesh Kumar Sharma (PW. 18) ACJM Narnaul reached the Hospital at 7:30 PM and recorded the statement of Yashwanti.
(3.) IT is however inexplicable that after the statement of Yashwanti were recorded by the Magistrate then why Zulfikar Ali SHO again noted her parcha bayan at 8:40 PM. IT appears that two parallel investigation were on. One commenced by Jagdish Lal ASI and another by Zulfikar Ali (PW. 16) who in his deposition stated that on June 18, 2002 while he was posted as SHO Police Station Singhana (Haryana) he received telephone call of Circle Officer Khetri (Rajasthan) to the effect that Smt. Yashwanti w/o Surat Singh Jat R/o Bhaloth was admitted to the Civil Hospital Narnaul, after sustaining burn injuries. On the direction of Circle Officer Khetri Zulfikar Ali reached the Hospital and noted the statement of Yashwanti at 8:40 P. M. in the presence of Duty Doctor. He then handed over parcha bayan to Constable Mool Chand for delivering it to the Police Station Buhana (Rajasthan ). In the cross examination Zulfikar Ali, stated that when he reached the Hospital he found an unknown woman sitting by the side of Yashwanti. Rajendra Kumar Dy. S. P. Khetri (PW. 15) deposed that on June 19, 2002 after receiving the case file for investigation he proceeded to Civil Hospital Narnaul and drew inquest report. He then obtained certified copy of dying declaration of Yashwanti from the Court of Additional Chief Judicial Magistrate Narnaul (PW. 18) in his cross examination stated that he met Yashwanti for the first time and recorded the statement in the presence of Dr. Alok Jain. He then forthwith forwarded in the sealed cover the dying declaration of Yashwanti (Exhibit P-22) to the Chief Judicial Magistrate Jhunjhunu. Yashwanti put her left thumb impression on the dying declaration. Dr. Alok Jain (PW. 19) deposed that although Yashwanti sustained 100% burns she was fit to give statement. In his cross examination Dr. Alok Jain stated that both the hands of Yashwanti were burnt. Dr. Brij Pal Gupta (PW. 20) deposed that on June 18, 2002 at 8:40 PM the SHO P. S. Singhana recorded the statement of Yashwanti who was fit to give statement. In his cross examination Dr. Brij Pal Gupta deposed that Yashwanti was admitted to the Hospital at 6:15 PM although he kept her in his observation continuously upto one hour he did not ask her as to how the incident occurred. He again examined Yashwanti from 8 PM onwards till her death i. e. , 9:10 PM. Dr. Brij Pal Gupta categorically stated that in his presence neither police nor ACJM Narnaul did approach Yashwanti. According to Dr. Brij Pal Gupta upper part of neck of Yashwanti became paralysed. Dr. Rakesh Sharma performed autopsy on the dead body of Yashwanti at 3:40 PM on June 19, 2002 vide postmortem report (Exhibit P-17) wherein it was stated that the tongue was protruded out and there were superficial and deep burns present all over the body. The scalp and hair got burnt. Carynx, trachia and both the lungs were congested. Cause of death was shock due to burn injuries. In his explanation under Section 313 Cr. P. C. the appellant stated that since his son was transferred to border he could not keep his wife Yashwanti with him. Yashwanti was obstinate by nature and she kept asking to live with her husband. At the time of incident he and his wife both were at the well. They neither demanded dowry nor burnt Yashwanti. ;