AFR

Reserved

Jail Criminal Appeal No.6365 of 2008

Sukh Ram.................................Appellant

Versus

State of U.P..........................Opposite Party.

Hon'ble Vinod Prasad, J.

Hon'ble Rajesh Chandra, J.

(Delivered by Hon'ble Vinod Prasad, J.)

Appellant Sukh Ram has preferred instant Jail

appeal challenging his conviction under Section 302

I.P.C. with imposed sentence of life imprisonment with

fine of Rs.5000/- recorded by Additional Sessions

Judge, Court No. 2,Hamirpur, vide his impugned

judgement and order dated 29.8.2003 passed in S.T.

No.110 of 2000, State Vs. Sukh Ram, relating to Crime

No.175 of 2000,Under section 302 I.P.C., police station

Kotwali District Hamirpur.

Shorn of unnecessarily details and stated briefly,

prosecution case is that informant Dulichand P.W.1 and

his wife Smt. Sarju Devi P.W.2, both resident of

Neutralt:itationtNogtct-w/wMqH:Mjw9W7c%L

2

Khalepur locality, Police Station Kotwali, District

Hamirpur had four issues including Santosh and Munni

Devi, deceased, their third child. She was married to

appellant Sukh Ram and had two daughters Sudha

and Monu from him. Since the appellant Sukh Ram

had developed living relationship with one Guddi,

daughter of Kandhi and had two issues from that extra-

marital relationship, therefore three or four years prior

to the foul incident of her murder, deceased Munni

Devi had renounced appellant's house in District Banda

and was living with the informant in his house at

Hamirpur, in an adjacent room from that of the

informant. A month earlier to her murder, appellant

Sukh Ram united with her at his in-laws house.

Appellant was also demanding Rs.50,000/- from the

deceased and was desirous to separate from her as

well. In the night of 5.6.2000 at 2 a.m. appellant set

ablaze Munni Devi, after pouring kerosene oil upon her

inside their room and thereafter, bolted the door from

3

outside and rushed to the Police Station Kotwali.

Shrieks of Munni Devi attracted her parents Sukh Ram

and Sarju Devi(PW1 and PW2), who unbolted the

door, doused the fire and rushed her to the hospital

with the help of neighbours. Doctor P.N. Pariya P.W.6,

hospitalised her at 2.15 a.m. and also informed

Inspector Kotwali, Hamirpur vide paper number 9-Ka,

Ext. Ka-5. Same day informant came to the District

court, Hamirpur where he dictated and got typed his

written report, Ext. Ka-1, through Balak Ram Pandey,

typist and then lodged it at Police Station Kotwali,

Hamirpur at 3.10 p.m.

Head Constable Ram Avtar, P.W.7 registered the

offences under sections 498A/ 307 I.P.C., prepared the

Chik F.I.R. Ext. Ka-7 and relevant GD entry Ext. Ka-8.

Investigation of the crime was commenced by S.I.

Jiledar Singh P.W.9,who firstly interrogated Head

Constable and the informant and then, reaching at the

spot, conducted spot inspection and prepared the site

4

plan Ext. Ka-10.Appellant was arrested same day vide

arrest memo Ext. Ka 11, and was lodged in the lock

up at 7.45 p.m. Other witnesses, including the mother

of the deceased, were interrogated by the I.O. on the

following day. Munni Devi lost the battle of her life on

10.6.2000 at 3.15 a.m and therefore doctor S.K.

Gupta, at 6.45 a.m. same day informed the police vide

Ext. Ka 6, and consequently offences were altered to

498A/304B I.P.C. Subsequently, vide GD no.31,

offence was further altered U/S 302 IPC under the

orders of the Circle Officer of police. During

investigation I.O. had also interrogated Naib Tehsildar,

Shiv Charan Singh P.W.4, who had recorded deceased

dying declaration, Ext. Ka-3, on 5.6.2000 from 5.10

a.m. to 5.25 a.m. and had made it a part of the case

diary which he has proved as Ext. Ka-13. Concluding

investigation I.O. charge sheeted appellant on

17.7.2000 vide Ext. Ka-12.

Autopsy on the dead body of the deceased was

5

conducted on 10.6.2000 at 2.45 p.m. by doctor Prem

Kumar Gupta P.W.3, who had proved his autopsy

report as Ext. Ka-2. The deceased was 30 years of age

having an average built body, her eyes were closed

and mouth open. Rigor mortis had passed off from

head, neck and upper extremities and was present in

lower extremities. Skin had peeled off and pus

discharge was present at burnt places, membarain,

brain, spleen, gallbladder,both the kidneys, all were

congested with both lungs having pus discharge oozing

out. Chambers of heart contained clotted blood.

Stomach contained food materials whereas pasty

material and gases were present in the small intestine.

Large intestine contained faecal matter and gases.

Following ante-mortem burn injuries were detected on

the corpse of the deceased:-

"Superficial to deep burnt of grade I to V present all

over the body including scalp, soles and hands. Burnt

100%. The skin peeled off at places. Line of redness

6

present. The scalp hair singed and pus present at

places.”

In doctor's opinion death was due to septicaemia

as a result of ante-mortem burn injuries.

Appellant Sukh Ram was also medically examined

vide Ext. Ka-4, by Doctor H.S. Verma P.W.5, on

5.6.2000 at 8.20 p.m., who was brought to him by CP

Hriday Kumar Singh of P.S. Kotwali, district Hamirpur.

Following injuries were detected on appellant's body:-

"Superficial burnt on the right side face over the

dorsal surface of wrist right hand,over the dorsal of

thumb and index finger, over the right knee joint over

the inner aspect of upper part of left leg. Blister

present at places containing serum fluid.

Area of burnt about 15%

All injury caused by dry flame duration about one day.

On the basis of charge sheet, Ext. Ka-12, Chief

Judicial Magistrate, Hamirpur summoned the appellant

and finding his committed offence Session's triable,

7

committed the case to the court of Session's ,where it

was registered as S.T. No.110 of 2000, State Vs. Sukh

Ram.

Sessions Judge, Hamirpur, on 14.12.2000, charged

the appellant for offences under Section 302 I.P.C. and,

in alternative, under Section 304B/498A I.P.C. Since

appellant abjured those charges, therefore trial

proceeded against him.

In order to cement the charge and establish

appellant's guilt, prosecution in all examined nine

witnesses, out of whom informant Dulichand P.W.1, his

wife Sarju Devi P.W.2 and Jalil P.W.8 were fact

witnesses. Rest of formal witnesses included doctor

Prem Kumar Gupta P.W.3 (Autopsy doctor),Naib

Tahsildar Shiv Charan Singh (who had recorded dying

declaration and had got the inquest conducted) P.W.4,

Doctor H.S. Verma (Doctor who had medically

examined the appellant) P.W.5, Dr. P.N. Paiya (who

had admitted the deceased in the hospital and had

8

appended certificate on the dying declaration) P.W.6,

Head Moharrir Ram Avtar(who had registered the FIR

and prepared the GD entry) P.W.7,and S.I.Jiledar

Singh I.O.P.W.9.

During trial informant Dulichand P.W.1,

Sarju Devi P.W.2, both parents of the deceased,

besides narrating their allegations contained in the

written report Ext. Ka-1 further testified that the

appellant had an illicit extra marital relationship with

Guddi with whom he had two children. They also

testified that the appellant had come to reside in their

house at Hamirpur a month prior to the incident. They

further deposed that the incident is of 2 a.m. and after

hearing the shrieks of their daughter when they

reached the spot, they had witnessed appellant

bolting the latch of the door from outside.PW1,

informant further testified that the room in which the

deceased and the informant were residing was adjacent

to his bed room. He also deposed that he is a

9

vegetable grocer and had a meagre earning. His

further deposition is that the deceased Munni Devi was

residing with him since 2-4 years prior to the incident

and Guddi was appellant's concubine. In his cross-

examination he had testified that when Dying

declaration was being penned down by Naib Tehsildar

Shiv Charan Singh P.W.4, then only doctor and PW4

were present inside the ward. It was further deposed

that at the time when the incident occurred they were

sleeping in Aagan(court yard) whereas deceased and

the appellant were inside their room. Prior to the

incident they had dinned together at 8.00 p.m. and

had some chat. It was further narrated by the

informant that he had got the FIR typed and thereafter

had lodged it. He also disclosed that the body of the

deceased was badly burnt. He has further testified

that, at the time of interrogation of the deceased by

the I.O., he was sent outside of the ward where the

deceased was fighting for her life. He further deposed

10

that the two daughters of the deceased Sudha and

Monu were aged about four and three years. He has

further deposed that no conversation took place

between him and the deceased while she was admitted

in the hospital. His further deposition is that he did not

endeavour to apprehend the appellant, as he was

attempting to douse the flames to save the life of his

daughter. He has also stated that the room where the

incident occurred had caught fire and he has sustained

a loss of Rs. Fifteen thousand because of that. He also

testified that the appellant used to assault the

deceased many a times because of rapacity. This

witness categorically denied the suggestion that the

deceased had committed suicide and, in an endeavour

to rescue her, appellant had also sustained burn

injuries.

PW 2 Smt. Sarju, who is the mother of the

deceased, also testified those very facts as were stated

by her husband PW1 on all material aspects of the

11

incident. Avoiding repetition and for the sake of

brievity, we eschew referring them again and only

observe this much that from her cross examination

defence has not been able to shake her testimony at all

and has failed to elicit any contradiction in her

statement from that of PW 1 but for the suggestion

given to her wherein it was suggested that a loan was

advanced by the appellant to his brother -in-law

Santosh(brother of the deceased), which was not being

returned by him, inspite of demand being raised by the

appellant, and therefore there was fued between

brother and sister which resulted in deceased

committing suicide by setting herself to fire and, in an

attempt to save her, that the appellant had also

sustained burn injuries. It was also suggested to her

that all the money and ornaments of the appellant

were kept with the informant and, pervaded with the

intention to usurp it, that the appellant was falsely

implicated by them. Both these suggestions have been

12

emphatically denied by this witness. But for this, as

has been recorded above, in respect of all other

aspects of prosecution allegations, P.W.2 has fully

corroborated the testimony of her husband informant

Dulichand P.W.1.

Jalil P.W.8, another witness of fact, has fully

supported the couple fact witnesses in all material

aspects of the incident. He has deposed that on the

date of the incident he had seen the deceased standing

in a badly burnt condition and the flames were doused

by the witnesses. Because of the inferno, even the

room of the house of the informant had caught fire. He

further testified that, on inquiry being made by him,

deceased had informed him that appellant had set her

a blaze. He further deposed that P.W.1 Dulichand and

other relatives had carried Munni Devi to the hospital

where she was treated but expired. He had further

deposed that he is a witness of inquest on the dead

body of the deceased, which was conducted in his

13

presence, and he had signed the inquest memo, which

signature he has proved as Ext. Ka-9. From his cross-

examination accused has not been able to bring out

any significant contradiction or any fact which can

diminish credibility of prosecution version. This witness

withstood the test of cross-examination and has

remained intact.

All the formal witnesses have given supporting

evidences as has been referred to above. Doctor Prem

Kumar Gupta P.W.3, who had conducted the autopsy

had testified the facts found by him and had proved

post-mortem examination report,Ext. Ka-2. He was

cross-examined but no material has been brought on

record to make his testimonies suspect and

unbelievable.

Naib Tahsildar Shiv Charan Singh P.W.4 has

deposed regarding recording of dying declaration by

him and, according to his testimony, he was ordered by

SDM to record it, which order was received to him at 4-

14

4.30 a.m. He had further deposed that he had met the

doctor after reaching the hospital at 5 a.m. and he had

started recording dying declaration at 5.10 a.m. and

finished it 5.25 a.m. He further deposed that he had

questioned the injured/deceased but had recorded her

answers in a narrative form and not in question answer

form. He has further testified that the deceased had

informed him that at 2 a.m. appellant had set her to

fire after pouring kerosene oil and thereafter had shut

the door and had gone out. On shrieks being raised by

her, Dulichand P.W.1 and neighbours had saved her

and had transported her to the hospital. She had

further deposed that the immediate motive of torching

her body by the appellant was the illicit extra marital

relationship with Guddi. PW4 has proved the dying

declaration as Ext. Ka-3. He has also testified that he

had taken the certificate of the doctor while recording

the dying declaration. He had also narrated that during

recording of declaration injured was fully conscious. His

15

testimony lend credence to the deposition of first

informant, when he has testified that, at the time of

recording of D/D statement, P.W.1 Dulichand was not

present inside the ward. He had denied the suggestion

that he had manipulated the dying declaration in

connivance with the parental relatives of the deceased

and the certificate of the doctor was obtained

subsequent to the recording. PW4 has further deposed

that he had got the inquest report and other papers of

the deceased transcribed through S.I R.C. Verma which

papers he has proved as Ext. Ka-9 and other relevant

papers prepared simultaneously as Ext. Ka-20 to Ka-

23. He has further deposed that after sealing the dead

body he had dispatched it for post-mortem

examination through Head Constable Brij Pal Singh at

10.30 a.m. He has stated that he had started the

inquest on the dead body at 9.30 a.m.

Doctor H.S. Verma P.W.5, who had medically

examined the appellant,has testified that he had

16

examined him on 5.6.2000 at 8.20 p.m. and had

mentioned the same injuries as has already been

noted above. He has proved the appellant's injury

report, as Ext. Ka-4. In his cross-examination he has

said that these injuries can be sustained by the

appellant while saving an inflamed person.

Doctor P.N. Pariya P.W.6, who had admitted

injured Munni Devi in the hospital and has given the

certificate on the dying declaration has testified the

said facts and had further deposed that on 10.6.2000

at 6.45.a.m. her death intimation, Ext. Ka-6, was sent

by doctor S.K. Gupta to Inspector Kotwali, Hamirpur.

P.W.6 has also deposed that on 5.6.2000 at 2 a.m. he

was on emergency duty, when the deceased was

brought to the hospital in a burnt condition by her

mother. He has stated nature of burn injuries

sustained by the deceased as noted by him in Ext. Ka

19, which were fresh and 100%. Her condition was

poor, pulse rate was 80 per minutes and blood

17

pressure was not recordable. Smell of kerosene oil was

emanating from her body. Skin had peeled off and

there was excessive loss of water inside the body. He

has further deposed that he had sent the message for

recording of dying declaration in the night itself and

Naib Tehsildar had reached the hospital at 5.00 a.m.

when he was on duty and he had appended the

certificate prior to the recording of dying declaration.

He had denied the suggestion that he had appended

the certificate in the column after recording of

declaration.

Head Moharrir, Ram Avtar P.W.7 has testified

regarding registration of first information report lodged

by the informant on 5.6.2000 at 3.10 pm vide Ext. ka 7

and preparation of GD Ext. Ka 8. Nothing material has

come out in his cross-examination, which can create

suspicion regarding prosecution allegations. He had

further deposed that informant had reached the police

station alone to lodge the F.I.R. when I.O. Jiledar

18

Singh, S.I. was present. He has also admitted that at

2.40 a.m. an intimation was received from the hospital

regarding admission of Munni Devi in a burnt condition.

I.O Jiledar Singh, S.I. P.W.9 has disclosed various

investigatory steps taken by him as has already been

inked above in the earlier part of this judgement and

therefore we do not repeat the same. He has also

proved Ext. Ka 17, conversion GD from 498A/307 to

498A/304B I.P.C. prepared by clerk Vishwanath and

Ext. ka 18, GD of conversion of crime under section

302 from 498A/304B I.P.C. prepared by him on

11.6.2000. He has also deposed that he had recorded

the interrogatory statement of the injured/ deceased,

under section 161 Cr.P.C., on 6.6.2000. He has further

testified that C.O. had ordered on 10.6.2000 to make

further investigation vide Ext. Ka 14.He had denied the

suggestion that he had not conducted a fair

investigation and had wrongly converted the offence.

He has also deposed that the appellant had burn

19

injuries at the time of his arrest. He has proved his

charge sheet Ext. Ka 12 and other relevant

documents. This witness was subjected to searching

cross-examination but nothing material has come out

of the same.

In his statement under Section 313 Cr.P.C.,

accused took the plea of total denial and had stated

that Santosh had taken Rs.2000/- and, because of the

fight between brother and sister, deceased had set

herself ablaze. In his defence appellant has examined

doctor P.N. Pariya(PW6) as DW1 and got the BHT(Bed

Head Ticket )of the deceased proved as Ext. Kha-1.

DW1 has testified that the deceased had died on

10.6.2000 at 3.15a.m. On being questioned by the

court he has informed that when the dying declaration

was being recorded then the patient was in a fit mental

state and he has appended the certificate in that

respect.

Additional Sessions Judge, court no.2, before

20

whom Session's Trial was transferred meanwhile,

believed prosecution case in it's entirety and finding

guilt of the appellant established beyond all reasonable

doubt convicted him vide his order dated 29.8.2003 for

committing offence under Section 302 I.P.C. and

sentenced him to imprisonment for life with fine of

Rs.5000/-. Hence, the present Jail Appeal in this court

by the appellant challenging his conviction and

sentence.

Sri V.S. Shrinet was appointed Amicus Curie to

argue the appeal on behalf of the appellant and we

have heard him at a great length and have perused the

entire trial court as well as the record of this appeal.

We have also heard Sri Raghuraj Kishore Mishra and

Sri Manoj Kumar Dwivedi, learned AGA in opposition.

Assailing the impugned judgement of conviction

and sentence it was contended by learned Amicus

Curie that the conviction of the appellant is bad in law,

as initially the FIR was registered under Section

21

498A/307 I.P.C., which was altered to 498A/304B

I.P.C. and subsequently was further altered under

Section 302 I.P.C. Learned counsel submitted that

when charge of causing of dowry death failed and was

found to be false then the I.O., in connivance with

Circle Officer, implicated appellant in a charge of

murder and trial court wrongly disbelieved defence

theory and passed the impugned judgement and

order which is indefensible. It is submitted that the

prosecution witnesses are not reliable and they have

embellished the allegations by levelling a false charge

of causing deceased death and therefore all the fact

witnesses cannot be relied upon being wholly

untruthful. It was further argued that because the

marriage was solemnized more than seven years ago,

therefore, charge under Section 304 B I.P.C. could not

have been framed against the appellant. It was further

suggested that F.I.R. is the outcome of manipulation,

consultation and fabrication and is delayed, therefore,

22

it has got no corroborative value at all. It was also

argued that there was no eye-witness account of the

actual putting to fire of the deceased, therefore,

testimonies of three fact witnesses cannot be believed.

It was further argued that the deceased had committed

suicide because of the fight between brother and sister

and appellant has been falsely implicated. Much

argument was harangued on the injuries sustained by

the appellant and it was canvassed vehemently that

the appellant, in an endevour to save the deceased,

had also sustained burn injuries, which unerringly is

suggestive of his innocence and falsifies prosecution

allegations. It was contended that P.W.1 Dulichand has

admitted that when he had reached the police station

appellant was already present there, which fact

conspicuously supports defence case that appellant had

gone to the police station to lodge his report regarding

committing of suicide by the deceased but his FIR was

not taken down and the police in connivance with the

23

informant implicated him falsely in a charge of murder.

It was further argued that the dying declaration is a

sham document and was manipulated in conspiracy

with the informant to implicate the appellant in the

crime. It was lastly contended that the offence of the

appellant will not be covered under Section 302 I.P.C.

and since appellant had remained in jail for nine years,

since 5.6.2000, therefore, if an order of clean acquittal

is not registered, then the charge under Section 302

I.P.C. be altered to one under Section 304 part 1 I.P.C.

and sentence be commuted to the period of

imprisonment already undergone. It was concludingly

submitted that the present jail appeal be allowed and

appellant be acquitted of the charge and be set at

liberty.

Refuting the harangued contentions by learned

amicus curie learned AGA retorted that it is case of

blatant murder of his spouse by the appellant because

of his lustrous character, all the fact witnesses are

24

reliable and they have no motive to falsely implicate

the appellant. It was further submitted that the

incident occurred inside the room where deceased and

appellants were residing in the house of the informant

and conduct of the appellant itself is indicative of his

guilt and establish that but for him nobody else could

have committed the murder. Defence of the appellant

is so palpably false and absurd that it cannot be given

any heed to at all submitted state counsel. It was next

contended that when PW-1 was in the witness box no

such suggestion was thrown to him that, because of

discord with the brother, deceased had committed

suicide and, the fact that the defence had no definite

plea to raise during trial procedure,is a circumstance

against the appellant and consequently trial judge has

rightly rejected defence version. Inconsistent defence

plea does not inspire any confidence and totality of

proven facts surfaced appellant alone to be the

perpetrator of the murder. Evidences further indicate

25

that the appellant at different stages was trying to fish

out a defence when he himself was the murderer.

Drawing the curtain of the argument it was pleaded by

the state counsel that the Jail appeal lacks merits, as

the guilt of the appellant is established beyound any

shadow of doubt, and therefore appeal of the

appellants being without substance be dismissed.

We have cogitated over rival submissions and in

that light have perused the entire record and our

findings and conclusions are as follows.

The first and foremost aspect of the case set up by

the rival sides admit almost entire actual incident of

deceased catching fire in the presence of the

appellant,inside the room where she was residing with

the appellant in informant's house .It is the defence

case itself that the appellant was present at the time of

the incident occurred and he endeavoured to save the

deceased and in that process burnt himself. Since the

law in this respect is very clear that the facts admitted

26

need not be proved , which has also been statutory

provided under section 58 of The Evidence Act,

therefore we have no hitch is concluding that the

appellant alone was present inside the room at the

time when the deceased caught fire. Further, time,

place and date of the incident is also not disputed by

the defence and therefore we take those facts also to

be proved beyond any pale of doubt. Deceased was

soaked with kerosene oil prior to lighting fire is also not

disputed and therefore is an established fact. It is also

not in disputed that the deceased died due to burn

injuries. On such evidences, since major portion of the

prosecution case is admitted to both the sides, what

remains for us to be determined is only the contentious

issue as to whether the deceased was set a blaze by

the appellant because of his unchaste character and

therefore she was caused homicidal death or that it is

a suicide by her because of dispute with her brother

over assets of the appellant.

27

On summation of evidence critically on

contentious issue, we find that the two fact witnesses

informant- Dulichand PW-1 and Sarju Devi PW-2 are

the parents of the deceased. Their presence at the time

of the incident in their house is most natural and highly

probable. They have supported each other on all

important aspects of prosecution allegations. Defence

suggestion to the informant that he was not present at

the spot at the time of the incident happened is hollow,

without any preceding circumstance and therefore can

not be believed. These witnesses had no enimous with

the appellant to such an extent as to exonerate real

culprit and falsely implicate him. Other wise also in the

dead hour of night in the closed walls of a house only

inmates can be present. Evidences of father and

mother corroborate each other without any significant

contradiction to discredit their testimonies. Both have

been tested by the defence by searching and lengthy

cross examinations but it has failed to elicit any thing

28

favourable to it. Both have deposed that when they

reached the room, after hearing shrieks of their

daughter, they witnessed appellant bolting the door

from out side and seeing them he rushed out of the

house. We have no reason to doubt this version by the

parents who have lost their daughter in their own

house. Such a conduct by the appellant is incompatible

with his innocence, as it can not be a conduct of a

husband , who according to his own version, attempted

to save life of his wife. Evidence of PW 8 Jalil further

lend credence to the prosecution version and supports

our conclusion, as his deposition that the deceased, on

inquiry being made by him, soon after the incident,

when she was standing out side the room in a burnt

physical condition, had informed him that appellant

had set her to fire remains un-controverted. This

disclosure by the deceased is in the nature of her oral

dying declaration soon after the incident and is

admissible under section 32(1) Of The Evidence Act

29

and can even be relied upon without corroboration, if

believed, which we do. Since we find that the

evidences of eye witnesses are unshaky, reliable and

inspire confidence, we have no reason to discard it.

Another pointer of appellant's guilt is sustaining

of injury by him in that very incident in which deceased

has lost her life. Injury report of the appellant indicates

that he had sustained dry flame injuries on his right

face, right wrist joint, and hand, thumb, index finger

and right knee. All these dry flame burns were

superficial in nature being on outer surface of skin,

may be on dermises. This establish appellant's

presence inside the room where incident occurred. Why

then appellant did not desist deceased from pouring

kerosene oil on her and why he did not attempted to

call house inmates and why after fire did not open the

room immediately and pulled the deceased out to

douse her fire are all circumstances indicating

appellants involvement in the crime. It seems that in

30

an attempt to burn the deceased he got flame burns

because of spurt of flame from kerosene combustibility.

When we peep inside actual happening of the incident,

to separate the grain from the chaff, we find that

prosecution version of homicidal death is the likely

outcome and defence of the appellant does not stand

the test of scrutiny, which, to us, is palpably false. It is

because of this reason that in his statement under

section 313 Cr.P.C., appellant intentionally eschewed

making a statement that he endeavoured to save the

deceased when she had caught fire, albeit he made a

vain attempt to probablise his such a defence by

examining DW1, in which tryst he failed.

Another significant feature of the trial is that

defence has failed to bring out any circumstance which

may created doubt in our mind regarding the

genuineness of the prosecution allegations. The

deposition by PW1 and PW2, that they did not attempt

to apprehend appellant but immediately open the door

31

to save life of their daughter is very natural and

consistent with human conduct, and makes them

natural and truthful witnesses. It was PW2, who had

carried the deceased to the hospital. We, thus, find

that because of lustrous attitude and extra marital

relationship deceased had renounced appellant's

company in district Banda and had returned to her

parental house in district Hamirpur but the destiny

shortened her life even there as well. The prosecution

evidence clearly indicates that the parents PW-1 and

PW-2 must be apprehending danger to the life of the

deceased and therefore, they had given a room besides

their own bedroom for her safety in their house. Their

apprehensive cogitation must have multiplied also

because of the fact that the deceased has two small

daughters to foster. In such a view, we find that the

deposition and the story set up by the prosecution is

convincing and confidence inspiring.

Another important aspect of the prosecution case

32

is that the defence has not seriously challenged the

existence of Guddi and her concubine relations with the

appellant. When PW1 and PW 2 were in the witness

box defence could not muster any courage to seriously

challenge this part of prosecution story and it remains

unchallenged. This gives a strong motive to the

appellant to commit the charged offence.

Now turning towards dying declaration and

criticism levelled against it we find that the evidence of

PW-4 Shiv Charan Singh is unblemished. Although

dying declaration is not in question answer form,for

which it has been criticised by the learned amicus

curie, but we find that the same is a silly mistake

committed by PW-4 Shiv Charan Singh, who in no

uncertain terms has testified that he had questioned

the deceased and then had noted her replies. No

suggestion was given by the defence to him that the

dying declaration was not recorded by him. The case of

the appellant is that the dying declaration is a

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manipulated one. This suggestion by the appellant

accused is bereft of any merit. Even the doctor DW1,

who is an independent witness having no axe to grind

against the appellant has supported PW-4 Shiv Charan

Singh in respect of recording of D/D. He has negated

defence suggestion of it being not recorded. He has

deposed that during recording of said declaration

deceased was in a fit state of mind. Further deposition

by Naib Tahsildar is countenanced by evidence of PW 8,

Jalil, who is also an independent witness belonging to

another caste. He too had no motive to depose against

the appellant. His evidence that the deceased informed

him that the appellant had set her to fire goes

unchallenged. More over statement of the deceased

recorded by the I.O. under section 161 Cr.P.C. is also

her D/D and by virtue of her death is admissible as

such under section 32(1) Of The Evidence Act without

formal proof. Thus even if PW 4 did not note deceased

dying declaration in question answer form and got the

34

certificate by the doctor in column, that does not

discredit prosecution version at all as there are other

relevant admissible convincing evidences in that

respect on the record. Criticism of Dying declaration

recorded by PW4, it seems, was harangued by the

learned amicus curie only to be repelled. We also

believe the narration of facts mentioned in the dying

declaration because the Doctor, who had appended

certificate and who according to prosecution case was

present at the time of recording of dying declaration by

Naib Tahsildar was examined as DW1 and he has

cemented prosecution allegation of recording of such a

declaration by Naib Tahsildar. Thus testimonies of PW

4 coupled with those of PW 6, who is also DW 1, goes

a long way to anoint charge of murder on the

appellant. The contents of the dying declaration further

lend credence to the prosecution allegation and

indicate that the same is truthful narration of facts.

Some criticism was also levelled by the learned

35

amicus curie by pointing out that doctor had noted

100% burnt and therefore, thumb impression of the

deceased on the dying declaration is a sham

impression. This criticism by the learned amicus curie

is demolished by his own witness DW-1. The doctor,

PW6/ DW1 who had admitted the deceased in the

hospital and was present in the ward at the time of

recording of Dying declaration had clearly deposed

that at the time of making the declaration deceased

was in a fit state of mental condition. Defence did not

question the doctor on thumb impression of the

deceased on the dying declaration at all when he was

examined as a prosecution witness. Thus we are not

impressed by the argument of learned Amicus Curie

that the dying declaration is a sham evidence.

Concluding argument by appellant's counsel

regarding dilution of offence and sentence is wholly

unmerited. Appellant had burnt alive his own spouse

by pouring kerosene oil because of his unchaste

36

character and then bolted the room door from outside

so that the deceased meets her instantaneous

death,therefore, his crime can not be diluted to a lesser

offence and consequently the last submission of

amicus-curie is hereby repelled.

We also reject the argument that charge in

alternative cannot be framed. It is trite law that a

charge in alternative can always be framed. This aspect

of the matter has been cemented by the judgement of

the Apex Court, where it has been laid down

categorically that a charge in alternative under section

304B/302 IPC can always be framed. More over we find

that no prejudice has been caused to the appellant by

convicting him of the charge of murder. He knew the

allegations against him from the very inception of the

trial. When charge was framed in alternative he did not

raise any grievance in that respect nor challenged that

order in higher forum. Since we find that no prejudice

has been caused to the appellant by framing

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alternative charge we can not throw entire prosecution

case overboard. In this respect we refer and rely upon

a representative decision of the apex court in Balbir

Singh and Anr. v. State of Punjab:AIR 2006

SUPREME COURT 3221 wherein it has been held as

follows:-

“39. The said decision has also no application

in the instant case. As the Appellants had the requisite

knowledge of the charges against them, it may or may

not be justifiable for the learned Trial Judge to frame

an alternative charge, but from what we have noticed

herein before evidently they were not prejudiced in any

manner whatsoever.

40. Effect of framing of alternative charges vary from

case to case. In the peculiar facts of present case, we

are of the opinion that Appellants having not raised

any grievance at any stage in that behalf, they cannot

be allowed to do so at this stage.”

Another argument by learned amicus-curie is that

38

there is no eye-witness account of the incident and the

deceased committed suicide is wholly unappealing. We

reject it out right as being wholly unmerited. Incident

had occurred inside a room where the deceased was

present only with the appellant and, since we have

come to the conclusion that it is a homicidal death, the

only inescapable result is that it was the appellant who

had ablazed the deceased. There was no ostensible

reason for the deceased to commit suicide, as the

suggestion of lending the money and the discord

between the brother and the sister is without any

prefix and suffix. The bolting of the door from outside

is indicative of appellant's guilty mind. He had rushed

to the police station to save his skin,if , caught at the

spot which also indicates his guilty intention, as he

also wanted to feign a defence for his guilt.

On an overall consideration, we find that the

recorded conviction of the appellant does not call for

any interference by us and therefore, we affirm trial

39

court's judgement of conviction and sentence. How

ever we find that the trial court has committed an error

in not passing any sentence to be under gone by the

appellant in case of default in payment of fine and

therefore we order that besides sentence of life

imprisonment to be under gone by the appellant for

offence under section 302 I.P.C. he shall under go six

months further imprisonment in case of default in

payment of fine.

The appeal lacks merit. It is dismissed with above

modification in his sentence. Appellant is in jail. He

shall remain in jail to serve out remaining part of his

sentence.

Let a copy of this judgement be certified to the

trial court for it's intimation.

Dt.15.3.2010

Rk/ 6365/08.