CRLA/417/1997 of BALDEO SINGH Vs STATE

IN THE HIGH COURT OF UTTARAKHAND AT

NAINITAL

Criminal Appeal No. 660/2001[Old No. 417/1997]

Baldeo Singh

State

Versus

… Appellant.

… Respondent.

Mr.Pankaj Purohit and Mr. R.P. Nautiyal, Advocatesfor the appellant. Mr. Nandan Arya, learned A.G.A. for the State.

Coram: Hon’ble B.C. Kandpal, J.Hon’ble Nirmal Yadav, J.

[Per: Hon’ble B.C. Kandpal, J.]

This appeal, U/S 374(2) of Cr.P.C. has beenpreferred against the judgment and order dated9.12.1996, passed by Sessions Judge, Uttarkashi,in S.T. No. 8 of 1994, State vs. Baldeo Singh,convicting accused Baldeo Singh U/S 302 I.P.C.and sentencing him to imprisonment for life.

2-The brief facts of the prosecution case arethat one Narain Puri lodged first informationreport on 26.12.1993, at P.S. Kotwali Uttarkashimentioning therein that on 26.12.1993 at about 9.45 P.M. Bhanu Pratap Singh came to his houseand informed him that his daughter Savitri wife ofBaldeo Singh has been burnt and the villagers havetaken her to District Hospital, Uttarkashi. On thisinformation, he reached District Hospital,Uttarkashi, and saw that whole body of hisdaughter was burnt and she was crying. She told

him that her husband came in drunken condition tohis house and when she expressed her opinion as towhy he was wasting his money, her husbandstarted beating her. At that time she was sitting inthe kitchen where her husband poured kerosene oilupon her body and set her on fire. She further toldhim that earlier also Baldeo Singh used to beat her.On the basis of said report, Ext. Ka.1, chick F.I.R.Ext. Ka.7 was prepared and case was registeredagainst the accused in G.D. report No. 41, at 11.30 P.M. on 26.12.1993, carbon copy of which is Ext.Ka.8. The investigation of the case was entrusted to S.I. Jashwalal. On 27.12.1993 he recorded thestatement of Smt. Savitri Devi in the hospital andseized the burnt clothes of the victim and ironjeriken, half filled with kerosene oil along with amatchbox from the place of occurrence andprepared recovery memo, Ext. Ka.10. He alsoprepared site-plan, ext. Ka.11, of the place ofoccurrence. He conducted inquest on the dead bodyof Smt. Savitri Devi on 28.12.1993 and preparedinquest report Ext. Ka.12. The I.O. also preparedSketch dead body, Ext. Ka.13, Police Form No. 13,Ext. Ka.14, letters to C.M.O. Ext. Ka.15, and Ext.Ka.16.

3-The dying declaration of the victim Smt.Savitri Devi, Ext. Ka.5, was recorded by Sri ChhoteyLal Pasi, S.D.M. on 26.12.1993, at 11.15 P.M.

4-Dr. Y.S. Rana, Medical Officer, DistrictHospital, Uttarkashi treated Smt. Savitri Devi.According to him whole body of the victim was

burnt and it was burnt about 90% from foot tohead. She was in critical condition, but she was insense. He also found that there was acute shortageof water in the body and swelling has started.Information was sent to P.S. Kotwali, Uttarkashithrough memo, Ext. Ka.2. The doctor preparedinjury report Ext. Ka.3. After the death of the victimDr. Rajeev Banswal held autopsy on her dead bodyon 28.2.1993, at 1.20 P.M. and found the followingante mortem injuries on her body-

(1)Lacerated wound 2cm x 1cm on lower portionof right leg. of right leg.

(2)There were 90% burn injury marks on thewhole body. whole body.

(3)There were intensive burnt injuries exceptlower front portion. The lower abdomen wasalso burnt. Hair of head were also burnt. lower front portion. The lower abdomen wasalso burnt. Hair of head were also burnt.

In the opinion of the doctor the death wascaused due to 90% burn injuries. Dr. J.K. Singhwas also present at the time of post mortemexamination and he proved the signatures of Dr. J.K. Singh and also proved the post mortemreport, Ext. Ka.4.

5-After completion of investigation, the I.O.submitted charge sheet, Ext. Ka.6, against theaccused.

6-The Chief Judicial Magistrate Uttarkashi,vide his order dated 22.2.1994, committed the caseto the court of Sessions.

7-The learned Sessions Judge, Uttarkashiframed charge U/S 302 I.P.C. against the accused,to which he pleaded not guilty and claimed to betried.

8-The prosecution, in support of its case,examined P.W.1, Narain Puri, P.W.2, Kripal Singh,P.W.3, Vinod Panwar, P.W.4, Budhi Singh, P.W.5,Dr. Y.S. Rana, P.W.6, Dr. Rajeev Banswal, P.W.7,Chhotey Lal, P.W.8, Ashok Kumar, and P.W.9, S.I.Jashawalal.

9-The accused in his statement U/S 313Cr.P.C. has alleged that on 26.12.1993 at about 8 P.M. he and his children after taking meal went intheir room and after about 15-20 minutes he heardshrieks. At this they went in the kitchen and sawthat fire was burning there. He brought blanketand covered Smt. Savitri with it and extinguishedthe fire. He further alleged that thereafter othervillagers had come there and hired taxi in orderto brought Smt. Savitri to the hospital. He alongwith other village people came upto the Chungi.Thereafter, he was sent back by Kripal Singh toleave the children at home and after leaving thechildren at his home when he was going to hospital,the police arrested him in the way. The accuseddenied the prosecution allegations and alleged thathe has been falsely implicated in the case.

10-The accused also examined Sri B.N.Bahuguna, D.W.1 and Sri Hari Om Singh, D.W.2, inhis defence.

11-The learned Sessions Judge, after hearinglearned counsel for the parties and considering theentire material available on record, found theaccused guilty of offence U/S 302 I.P.C. andaccordingly sentenced him to undergo lifeimprisonment vide impugned judgment.

12-Feeling aggrieved, the accused/appellanthas preferred this appeal.

13-We have heard Mr. Pankaj Purohit and Mr. R.P. Nautiyal, learned counsel for the appellant andMr. Nandan Arya, learned A.G.A. for the State andperused the record.

14-At the outset, it is to be noted here that outof the witnesses of fact examined by theprosecution, P.W.2, Kripal Singh, P.W.3, VinodPanwar and P.W.4, Budhi Singh, did not supportthe prosecution case and they have been declaredhostile. Now there remains the testimony of P.W.1,Sri Narain Puri, the informant and father of thedeceased Smt. Savitri Devi, and P.W.7, Sri ChhoteyLal, S.D.M., who recorded the dying declaration ofthe victim. Besides it, there is dying declaration ofthe victim and other circumstances of the caseagainst the accused/appellant to prove the case ofthe prosecution.

15-Learned counsel for the accused/appellanthas submitted that the prosecution witnesses didnot support the case and the interested statementof P.W.1, Narain Puri, father of the deceased, is not

trustworthy. He also pointed out that the victimwas admitted in the hospital in critical conditionand she was not in position to give statement,therefore, the dying declaration recorded by the S.D.M. is also not trust-worthy, and under thesecircumstances the conviction of the appellant is nottenable in law.

16-On the other hand learned A.G.A. hasrefuted the submissions of the defence counsel andargued that the dying declaration of the victim istrue and free from any effort to induce the deceasedto make false statement and it is coherent andconsistent, therefore, the learned trial court hasrightly made it the basis of conviction. He alsosubmitted that the dying declaration of thedeceased is also corroborated by the evidence ofP.W.1, Narain Puri, before whom the victim hadnarrated the whole occurrence when he went to herhouse and inquired about the incident. LearnedA.G.A., therefore, argued that the learned trialcourt has rightly believed the dying declarationwhich also finds support from the deposition ofP.W.1, Narain Puri and other attendingcircumstances of the case. Learned A.G.A. insupport of his submissions has cited before us thecases of Sunder Lal vs. State of Rajasthan, reportedin (2007) 10 Supreme Court Cased 371, and RanjitSingh and others vs. State of Punjab reported in(2007) 2 Supreme Court Cases (cri) 604.

17-We have considered the rival submissions oflearned counsel and we are of the view that the

submissions of learned defence counsel have notsubstance.

18-Although, P.W.2, Kripal Singh, P.W.3, VinodPanwar and P.W.4, Budhi Singh, witnesses of fact,did not support the prosecution version, and itappears that they were won over by the defence, butthis fact does not affect the authenticity of theprosecution case. P.W.1, Narain Puri, who iscomplainant and father of the victim, has fullysupported the prosecution case. He has stated thataccused Baldeo Singh was his son-in-law anddeceased Savitri was married to him about 25 or 30years ago. He further stated that on 26.12.1993 hewas at his house at Gyansu when Bhanu PratapSingh came to him at about 9.30 or 9.45 P.M. andinformed that his daughter was admitted in thehospital in critical condition. He further deposedthat on receipt of above information, he and hisfamily members went to District Hospital where hesaw his daughter Savitri and on inquiry she toldthat Baldeo Singh came drunk and started beatingher and thereafter in the kitchen he pouredkerosene oil on her and set fire. When she criedvillage people came there and brought her to theHospital. She also stated that she had advised somany times to Baldeo Singh not to take liquor andnot to beat her. This witness further stated thatthereafter he got the report, Ext. Ka.1 written andhanded over it at Police Station. No reason hasbeen assigned to this witness as to why he willfalsely depose against his son-in-law. We find thatthe deposition of P.W.1, Narain Puri is natural and

trustworthy. It is settled principle of law that thestatement of close relation of the victim cannot bediscarded merely on the ground of his relationshipwith the victim and if it is found to be reliable andtrustworthy, then the same is safe for holding theculprit guilty of the offence.

19-The important piece of evidence available onrecord is the dying declaration of the deceased.P.W.6, Sri Chhotey Lal Pasi, S.D.M. Bhatwari hasrecorded the dying declaration on 26.12.1993. Hehad received information from Kotwali Uttarkashi.He came to District Hospital where Smt. Savitri wasadmitted. He inquired from the doctor whether shewas in fit position to give statement, then thedoctor told that she was in fit position to givestatement. This witness himself also found that shewas able to give statement. Therefore, he recordedher statement at 11.15 P.M. He also deposed thathe got certificate of Dr. Y.S. Rana on the statement,which was in his own handwriting. He provedstatement Ext. Ka.5. P.W.5, Dr. Y.S. Rana hasproved in his deposition that before recording thestatement of the victim he had examined her andfound her in fit condition to give statement. Acertificate to this effect has been noted in thebegging of the statement. After close of herstatement this witness also noted certificate at theend of the statement that the condition of thepatient Smt. Savitri Devi during recording herstatement remained general. Therefore, it is quiteclear that the victim was in fit condition to givestatement and she gave her statement in

conscious state, therefore, the dying declaration,Ext. Ka.5, recorded by the S.D.M. is an authenticdocument and the same can be made basis forrecording the conviction of the accused/appellant.

20-Perusal of dying declaration, shows thatSmt. Savitri Devi had stated that at the time ofincident her husband Baldeo Singh was drunk, hequarrelled with her and poured kerosene oil uponher and set fire. She further stated that he burnther at about 8.00 P.M. in the night. Two childrenwere at home. He pushed her in another room,poured kerosene oil upon her and set fire byburning matchstick. He used to take liquor daily.Quarrel takes place daily. Some time he used tobeat her and asked her to throw her out of thehouse. She also stated that village people havebrought her to hospital. Therefore, we find that theaccused/appellant Baldeo Singh has committed themurder of his wife Smt. Savitri Devi by pouringkerosene oil upon her and setting fire at her. Thedying declaration is fully supported by thedeposition of P.W.1, Narain Puri, before whom Smt.Savitri had narrated the whole incident.

21-We have also gone through the ruling citedon behalf of learned A.G.A. and found that theserulings are fully cover to the facts of present case.In the case of Sunder Lal vs. State of Rajasthan,reported in (2007) 10 Supreme Court Cased 371,(supra) the Hon’ble Apex Court in paragraph-8 hasheld as under-

8. “10. At this juncture, it is relevant to takenote of Section 32 of the Indian Evidence Act,1872 (in short “the Evidence Act”) which dealswith cases in which statement of relevant fact bya person who is dead or cannot be found, etc. isrelevant. The general rule is that all oral evidencemust be direct viz. if it refers to fact whichcould be seen, it must be the evidence of thewitness who says he saw it; if it refers to factwhich could be heard, it must be the evidence ofthe witness who says he heard it; if it refers to afact which could be perceived by any other sense,it must be the evidence of the witness who sayshe perceived it by that sense. Similar is the casewith opinion. These aspects are elaborated inSection 60 [of the Evidence Act]. The eightclauses of Section 32 are exceptions to thegeneral rule against hearsay just stated. Clause (1)of Section 32 makes relevant what is generallydescribed as dying declaration, though such anexpression has not been used in any statute. Itessentially means statements made by personas to the cause of his death or as to thecircumstances of the transaction resulting in hisdeath. The grounds of admission are: firstly,necessity for the victim being generally the onlyprincipal eyewitness to the crime, the exclusionof the statement might deflect the ends of justice;and secondly, the sense of impending death,which creates sanction equal to the obligationof an oath. The general principle on which thisspecies of evidence is admitted is that they aredeclarations made in extremity, when the party isat the point of death and when every hope of thisworld is gone, when every motive to falsehood issilenced, and the mind is induced by the mostpowerful considerations to speak the truth; asituation so solemn and so lawful is consideredby the law as creating an obligation equal to thatwhich is imposed by positive oath administeredin court of justice. These aspects have beeneloquently stated by Eyre, L.C.B. in R. v.Woodcock[1]. Shakespeare makes the woundedMelun, finding himself disbelieved whileannouncing the intended treachery of DauphinLewis explain:

This extract is taken from Sunder Lal v. State ofRajasthan,(2007) 10 SCC 371, at page 375 :

‘Have I met hideousdeath within my view, Retaining but quantity of life, Which bleeds awayeven as form of wax, Resolveth from his figureagainst the fire? What in the world shouldmake me now deceive, Since I must lose the use of all deceit?Why should I then be false Since it is true That I must die here,and live hence by truth?” (See King John, Act V, Scene iv.)

The principle on which dying declaration isadmitted in evidence is indicated in legal maxim‘nemo moriturus praesumitur mentire — manwill not meet his Maker with lie in his mouth’.

11.This is case where the basis of convictionof the accused is the dying declaration. Thesituation in which person is on the deathbed isso solemn and serene when he is dying that thegrave position in which he is placed, is the reasonin law to accept the veracity of his statement. It isfor this reason the requirements of oath andcross-examination are dispensed with. Besides,should the dying declaration be excluded it willresult in miscarriage of justice because the victimbeing generally the only eyewitness in seriouscrime, the exclusion of the statement would leavethe court without scrap of evidence.

12.Though dying declaration is entitled togreat weight, it is worthwhile to note that theaccused has no power of cross-examination.Such power is essential for eliciting the truth asan obligation of oath could be. This is the reasonthe court also insists that the dying declarationshould be of such nature as to inspire fullconfidence of the court in its correctness. Thecourt has to be on guard that the statement of

the deceased was not as result of eithertutoring, or prompting or product ofimagination. The court must be further satisfiedthat the deceased was in fit state of mindafter clear opportunity to observe and identifythe assailant. Once the court is satisfied that thedeclaration was true and voluntary, undoubtedly,it can base its conviction without any furthercorroboration. It cannot be laid down as anabsolute rule of law that the dying declarationcannot form the sole basis of conviction unless itis corroborated. The rule requiring corroborationis merely rule of prudence. This Court has laiddown in several judgments the principlesgoverning dying declaration, which could besummed up as under as indicated in Paniben v.State of Gujarat (SCC pp. 480-81, paras 18-19)

(i)There is neither rule of law nor ofprudence that dying declaration cannot beacted upon without corroboration. (See Munnuv. Raja State of M.P.)

(ii)If the court is satisfied that the dyingdeclaration is true and voluntary it can baseconviction on it, without corroboration. (SeeState of U.P. v. Ram Sagar Yadav andRamawati Devi v. State of Bihar)

(iii)The court has to scrutinize the dyingdeclaration carefully and must ensure that thedeclaration is not the result of tutoring,prompting or imagination. The deceased hadan opportunity to observe and identify theassailants and was in fit state to make thev.declaration. (See K. Ramachandra Reddy Public Prosecutor)

(iv)Where dying declaration is suspicious,it should not be acted upon withoutv.corroborative evidence. (See Rasheed Beg State of M.P.)

(v)Where the deceased was unconsciousand could never make any dying declarationthe evidence with regard to it is to be rejected.v. (See Kake Singh State of M.P.)

(vi)A dying declaration which suffers frominfirmity cannot form the basis of conviction.(See Ram Manorath v. State of U.P.)

(vii)Merely because dying declaration doesnot contain the details as to the occurrence, it

is not to be rejected. (See State of Maharashtrav. Krishnamurti Laxmipati Naidu)

(viii)Equally, merely because it is briefstatement, it is not to be discarded. On thecontrary, the shortness of the statement itselfguarantees truth. (See Surajdeo Ojha v. Stateof Bihar)

(ix)Normally, the court in order to satisfywhether the deceased was in fit mentalcondition to make the dying declaration looksup to the medical opinion. But where theeyewitness said that the deceased was in fitand conscious state to make the dyingdeclaration, the medical opinion cannotprevail. (See Nanhau Ram v. State of M.P.)

(x)Where the prosecution version differsfrom the version as given in the dyingdeclaration, the said declaration cannot beacted upon. (See State of U.P. v. Madan Mohan)

Where there are more than one(xi)statements in the nature of dying declaration,the one first in point of time must be preferred.Of course, if the plurality of the dyingdeclaration could be held to be trustworthyand reliable, it has to be accepted. (SeeMohanlal Gangaram Gehani v. State ofMaharashtra

13.In the light of the above principles, theacceptability of the alleged dying declaration inthe instant case has to be considered. Thedying declaration is only piece of untestedevidence and must, like any other evidence,satisfy the court that what is stated therein isthe unalloyed truth and that it is absolutelysafe to act upon it. If after careful scrutiny, thecourt is satisfied that it is true and free fromany effort to induce the deceased to make afalse statement and if it is coherent andconsistent, there shall be no legal impedimentto make it the basis of conviction, even if therev.is no corroboration. (See Gangotri Singh State of U.P., Goverdhan Raoji Ghyare v. Stateof Maharashtra, Meesala Ramakrishan v. Stateof A.P., State of Rajasthan v. Kishore andMuthu Kutty v. State)”[.]

In another above cited case of Ranjit Singh andothers vs. State of Punjab reported in (2007) 2

Supreme Court Cases (cri) 604, the Hon’ble ApexCourt in para-13, has held that-

“13. It is now well settled that convictioncan be recorded on the basis of dyingdeclaration alone, if same is wholly reliable,but in the event there exists any suspicion asregards correctness or otherwise of the saiddying declaration, the courts in arriving at thejudgment of conviction shall look for somecorroborating evidence. It is also well knownthat in case where inconsistencies in thedying declarations, in relation to the active roleplayed by one or the other accused persons,exist, the court shall lean more towards thefirst dying declaration that the second one.”

22-In the instant case we find the dyingdeclaration wholly reliable and there exists nosuspicion as regards its correctness. There is alsocorroborative evidence of P.W.1, Narain Puri, beforewhom Smt. Sabaitri had narrated the wholeincident when he had met her soon after theincident.

23-The other attending circumstances of thecase also fully corroborate the prosecution version.The incident is said to have taken place on26.12.1993 at about 8.00 P.M. and at about 9.45 P.M. father of the deceased was informed by BhanuPratap Singh about the incident. Thereafter hereached the District Hospital, where the victim wasadmitted and there she narrated the whole incidentto him. The informant lodged the F.I.R. of theincident in the night of incident at about 11.30 P.M.Therefore, it is quite clear that no delay has been

caused in lodging the F.I.R. Promptness of the F.I.R.rules out the possibility of false implication.

24-The another circumstance while givestrength to the dying declaration of the deceased isthat the deceased was married with the accusedabout 25-30 years ago and from their wedlock twochildren were born and the deceased has blamedher husband that he always used to drink liquorand do marpit with her and she often adviced himnot to waste money on the liquor. On the day ofoccurrence also the accused was drunk and whenthe deceased advised him not to take liquor andsave money, he did marpit with her and ended herlife by setting fire on her after pouring kerosene oilupon her. From the side of defence no reason hasbeen shown as to why deceased would falselyimplicate her husband. There is also no suggestionfrom the defence side as to why the deceased wouldhave ended her life by herself setting fire upon her,leaving behind her two children. This also not thecase of defence that some one else has set fire uponthe deceased. Therefore, the deceased had noreason as to why she would tell lie against herhusband and spoil. It is always assumed that ‘aman will not meet his maker with lie in hismouth’.

25-The medical evidence also fully corroboratesthe prosecution case. P.W.6, Dr. Rajeev Banswal,who conducted autopsy on the dead body has found90% burn injury marks on the whole body of the

deceased and in his opinion the cause of death wasdue to these burn injuries.

26-Learned counsel for the appellant alsoargued that the accused set fire upon the deceaseddue to the quarrel ensued at the spot and there wasno intention of the accused to commit the murder ofthe deceased. Therefore, the act done by theaccused/appellants comes under Section 304 Part-Iinstead of under Section 302 I.P.C. In support ofthis argument, learned counsel has cited before usthe case of Balkar Singh vs. State of Uttarakhand,reported in (2010) 2 Supreme Court Cases (Cri) 548.

27-We again do not find any force in the abovesubmission of learned counsel for the appellant. Thefacts of above cited case also do not apply to thefacts of instant case. In the cited case there was oldenmity between the accused and the deceased andsome conversation took place between the accusedand the deceased on the point of supply of wine bythe deceased to the accused and when the deceaseddid not pay any heed to the request of the accusedand the accused felt insulted then he fired first shotin the air and thereafter indiscriminately fired shotsupon the tractor moving at high speed. However,in the instant case the quarrel took place betweenhusband and wife and the wife was repeatedlymaking requests to the accused not to waste moneyon consuming liquor and at the time of occurrencealso she had requested the accused not to wastemoney on the liquor. Thereupon the accused beatedher and pushed her in another room where he first

poured kerosene oil upon her and then set fire at

her by burning matchstick. Theaccused/appellant had full knowledge that bysetting fire upon the deceased, she would be killed.There was not sudden quarrel between the accusedand the deceased, earlier also quarrel took placebetween them so many times on the point ofconsumption of liquor by the accused. Therefore,the deceased was an obstruction in the way ofaccused as she was preventing him for taking liquorhence accused wanted to remove the obstruction ofhis way forever. The accused was perturbed withthe deceased, therefore, he intentionally committedthe murder of the deceased by pouring kerosene oilupon her and then setting fire at her by burning amatchstick. In our opinion the offence committedby the accused is fully covered U/S 302 I.P.C. Wedo not find any infirmity in the view taken bylearned Trial Court.

28-Therefore, in view of the observations madeby Hon’ble Apex Court noted above, as well as thedying declaration of the deceased corroborated bythe evidence of P.W.1, Narain Puri and thecircumstances of the case, we are in full agreementwith the decision taken by the learned trial court,holding the accused/appellant Baldeo Singh guiltyof murder of his wife Smt. Savitri Devi. Hence, theappeal lacks merit and is liable to be dismissed.

29-The appeal is dismissed. The conviction andsentence awarded against the accused/appellant bythe trial court is upheld.

30-The accused/appellant is on bail. His bailbonds are cancelled and sureties discharged. He betaken into custody forthwith in order to serve outthe sentence awarded against him by the trial court.

31-Let the record be transmitted to the trialcourt for compliance.

(Nirmal Yadav, J.) (B.C. Kandpal, J.)

Dated: June 10, 2010

ISB