Sundar Das v. State of Rajasthan — 1986 DIGILAW 832 (RAJ)

SOBHAG MAL JAIN, J.—These appeals are directed against the judgment dated the 18th December, 1981 of the Sessions Judge, Jodhpur, convicting and sentencing the appellant Sunder Das for the offence under Section 302 I.P.C. to imprisonment for life and to a fine of 2000/-, in default of payment of fine to six months rigorous imprisonment and acquitting the accused respondent Navin Kumar of the offence under Sec. 302 read with Section 34 I.P.C. D.B. Criminal Appeal No. 57 of 1982 has been filed by accused Sunder Das against his conviction and sentence, while D.B. Criminal Appeal No. 436/82 has been filed by the State against the acquittal of Navin Kumar. 2. The case relates to the incident which took place on November 14, 1980 at about 8 p.m. at the house of accused Sunderdas situated at V-B road, Sardarpura, Jodhpur. Rijjumal son of Jiwan Ram Sindhi died of burn injuries which he sustained during the aforesaid incident. The prosecution case is that the burn injuries were caused by the accused Sunderdas. The prosecution rests its case on two dying declarations of the deceased : (i) made before Shri Deen Mohd., Sub-Inspector of Police in the hospital on November 15, 1980 at 11.30 A.M., and (ii) made before Shri Hanumana Ram, Judicial Magistrate, in the hospital at 7.15 P.M. the same day i.e. November 15, 1980. 3. Shortly stated, the prosecution story, unfolded by the dying declaration was that Rijumal deceased owed some money to accused Sunderdass. Accused Sunderdass with a view to recover that amount brought the deceased to his house and put hard pressure on him to repay the same. As Rijjumal could not arrange repayment the accused sprinkled kerosene and then petrol on the body of the deceased and set fire to it, causing extensive injuries. According to the prosecution, the part of accused Navin Kumar was that it was he who brought petrol and gave the same to Sunderdass. Rijjumal was taken to the hospital in an ambulance by accused Sunderdass and there his two dying declarations were recorded. Proceeding on the first dying declaration made by Rijjumal before the Sub-Inspector, a case under Section 307 read with S. 34 I.P.C. was registered at the police station, Sardarpura, on November 15, 1980. Rijjumal was taken to the hospital in an ambulance by accused Sunderdass and there his two dying declarations were recorded. Proceeding on the first dying declaration made by Rijjumal before the Sub-Inspector, a case under Section 307 read with S. 34 I.P.C. was registered at the police station, Sardarpura, on November 15, 1980. Rijjumal expired in the hospital on November 16, 1910 at 2.25 p.m. and after this the offence was changed to one under Section 302 I.P.C. The post-mortem examination of the dead body of Rijjumal was conducted by Dr. Prakash Dayal, Medical Jurist, Mahatma Gandhi Hospital, Jodhpur on November 16, 1980 at 4.00 p.m. The doctor opined that the cause of death was shock, a result of burns. He found superficial burns over the entire body except small area around serotum and penis and a 4 cm. wide irregular belt around the waist and both glideal region and interscapular region on the back and soles of both feet and dorsom of right foot. The doctor found that the blisters were peeling off and the hair on the scalp, eye brows and cyclashes and public region had been singed. The investigating officer, took in possession the clothes of the deceased, which according to him also smelt kerosene & petrol. He got the dying declaration of the deceased recorded before the Magistrate. Accused Navin Kumar was arrested on November 16,1980. On his information and at his instance, a motor - cycle RRG 6233 was recovered from the Solanki-Auto-Parts shop situated on the High Court Road and a bottle of kerosene, a glass smelling petrol and a match box was recovered from a store in the house of Sundar Dass. Sundar Dass was arrested and an attendant-card in respect of Rijjumal was found as a result of his personal search, at the time of arrest. He got recovered two pillows and beds-heets, used in carrying the deceased to the hospital. The clothes of the deceased were sent to the laboratory for chemical examination. After investigation, a charge-sheet against Sundardass, Navin Kumar and Hundaldas was filed in the court of Chief Judicial Magistrate, Jodhpur, who committed the accused Sundardass and Navin Kumar to the court of Sessions to stand trial for the offence under Section 302 and 302 read with Section 34 I. P. C. Hundal Das was then absconding. After investigation, a charge-sheet against Sundardass, Navin Kumar and Hundaldas was filed in the court of Chief Judicial Magistrate, Jodhpur, who committed the accused Sundardass and Navin Kumar to the court of Sessions to stand trial for the offence under Section 302 and 302 read with Section 34 I. P. C. Hundal Das was then absconding. He was arrested subsequently and a charge-sheet against him also was filed, but he was discharged by the Sessions Judge, by the order dated the 19th Sep., 1981. 4. The Sessions Judge charged accused Sundardass for the offence under Section 302 I. P. C. and Navin Kumar for the offence under Section 302, alternatively 302/34 I. P. C The plea of the accused was recorded. They pleaded not guilty and claimed to be tried. 5. The prosecution examined as many as 23 witnesses. None was examined as an eye witness and the prosecution has based its case on the two dying declarations mentioned above. In his statement recorded under Section 313 Cr. P. C. accused Sundardas admitted the Rijjumal received the burns at his house. But his case was that Rijjumal himself poured kerosene on his body and set fire to it. According to him it was a case of suicide. 6. Accused Navin Kumar denied the prosecution allegations and stated that he was wholly innocent. No witness was examined in defence, Smt. Sujata Devi wife of Sundardass was, however, examined as a court witness and she supported the version given by the accused. 7. By the judgment dated the 18th December, 1981 the Sessions Judge convicted and sentenced accused Sundardass for the offence under Section 302 I. P. C. to imprisonment for life and to a fine of Rs. 2000/- (in default of payment of fine to further rigorous imprisonment for six months). After elaborately discussing the two dying declarations and considering the criticism levelled against them by the counsel for the accused the learned Sessions Judge found the two dying declarations acceptable and held that it was accused Sundardass who sprinkled kerosene and petrol on the body of Rijjumal and set fire to it. This caused extensive burns to Rijjumal which resulted in his death. This caused extensive burns to Rijjumal which resulted in his death. The learned Sessions Judge, however, held that the prosecution has failed to establish that Navin Kumar was a party to the crime alongwith Sundardass He was, therefore, given the benefit of doubt and was acquitted of the offence charged against him. Aggrieved by the judgment of the Sessions Judge, accused Sundardass has filed D. B. Criminal appeal No. 57/82 against his conviction and sentence. The State has filed D. B. Criminal appeal No. 436/82 against the acquittal of Navin Kumar. 8. We have heard learned counsel for the accused and the Public Prosecutor for the State. Learned counsel for the appellant has urged that the two dying declarations are not credit worthy and conviction should not be based on them. Taking first the dying declaration Ex. P. 7 recorded by Shri Deen Mohd., Sub Inspector, learned counsel contended that the investigating officer before recording the above statement did not obtain a certificate of the doctor to the effect that the deceased was in a fit and proper condition to make the said statement. Neither any signature nor a thumb impression of the deceased was obtained on the dying declaration and a false explanation for not obtaining the same was given by the Sub-Inspector. Commenting on the second dying declaration Ex. P. 20 recorded by the learned Magistrate, counsel for the appellant has submitted that the relatives of the deceased had full access to him and had enough opportunity of tutoring. The dying declaration is a lengthy document, full of details, which ordinarily is not expected from a dying man. Learned counsel has urged that these dying declarations should not be made the basis of conviction. The Public Prosecutor has on the other hand contended that the dying declarations are true and wholly reliable and fully establish the case against the accused. 9. We have considered the above submissions made by the learned counsel for the appellant. The Sessions Judge has accepted the two dying declarations as reliable. We have ourselves gone through these dying declarations and the statements of Shri Deen Mohd , who recorded the first dying declaration and Shri Hanuman Ram, Judicial Magistrate, who recorded the second dying declaration and we feel convinced that the dying declarations proved by these witnesses are true and reliable. We have ourselves gone through these dying declarations and the statements of Shri Deen Mohd , who recorded the first dying declaration and Shri Hanuman Ram, Judicial Magistrate, who recorded the second dying declaration and we feel convinced that the dying declarations proved by these witnesses are true and reliable. The infirmities pointed out by the learned counsel for the appellants do not detract from their trust-worthiness and we hold that the learned Sessions Judge was right in accepting the same. The dying declarations establish the fact that it was Sunderdass who sprinkled kerosene & petrol on the clothes of the deceased and set fire to it, resulting in extensive burns on the body of the deceased. The fact that the deceased received burns at the house of the accused is admitted by Sunderdass himself in his statement under Section 313 Cr. P. C. The counter story put forward by the said accused that the deceased himself poured kerosene on his person and set fire to it is not at all probable and we are not prepared to accept the same. The suggestion that the deceased himself went to the house of the accused, procured kerosene from there and set fire to it himself appears on the face of it as absurd and we reject the defence version as wholly improbable. The two dying declarations also find corroboration from the evidence of the doctor who has proved extensive burn injuries on the body of the deceased and these are sufficient to prove the case against the petitioner. 10. Counsel for the appellant, however, contended that the intention of the appellant was not to cause the death of Rijjumal and, therefore, the case against him does not exceed 304 Pt. II I. P. C. 11. That it was a case of homicide is not a matter of any doubt. We have already rejected the story of suicide by Rijjumal himself. The doctor has proved that the deceased received extensive burns which led to his death by shock, the result of these burns. The question for our consideration, therefore, is, whether the offence would amount to murder or it merely falls within the category of culpable homicide not amounting to murder. The doctor has proved that the deceased received extensive burns which led to his death by shock, the result of these burns. The question for our consideration, therefore, is, whether the offence would amount to murder or it merely falls within the category of culpable homicide not amounting to murder. After bestowing our careful consideration to the facts and circumstances of the present case we are not satisfied that the offence was committed with the intention or knowledge requisite to bring the case within the four clauses of S. 300 I. P. C. The present case has its own special features. It appears that the accused and the deceased, both, were involved in shaddy transactions. Accused Sunderdass seems to be a man of tough character. The dying declarations reveal that the deceased owed money to the accused, which he was not able to pay and the deceased was pressing hard for its early payment. On the day of incident accused Sunderdass and the deceased were at the gambling den, situate at Tikri. The deceased was taken to the house of Sunderdass and it was there that the accused exercised pressure on the deceased to arrange payment of his dues. The accused allowed the deceased to have talks on phone with his wife and brothers, who appear to be financially better off but they did not heed to the requests of the deceased. The object of the accused in using tough methods against the deceased was to recover back the loan advanced to Rijjumal. The accused did not intend to do away with the deceased himself. After all the deceased was his own man. He wanted to put fear and used threats so that the deceased impress the urgency of the situation on his brothers and arrange for money. After the deceased received the burn injuries, he was immediately taken to the hospital. It was the accused Sunderdass himself who shifted the deceased to the hospital in ambulance. There is evidence on record to show that the accused also applied ghee on the burns of the deceased to soothe the injuries. Even in the hospital the accused attended to the deceased. At the time of arrest attendant slip was recovered from him. Looking to the overall circumstances of the case we are not prepared to hold that the intention of the accused was to kill the deceased. Even in the hospital the accused attended to the deceased. At the time of arrest attendant slip was recovered from him. Looking to the overall circumstances of the case we are not prepared to hold that the intention of the accused was to kill the deceased. However, in causing burn injuries to him accused Sunderdass must be imputed with the knowledge that the injuries were likely to cause his death. The offence against him would, therefore, be under section 304 part [I I. P. C. 12. Taking the case of Navin Kumar we are in agreement with the findings of the learned Sessions Judge that he cannot be imputed with the knowledge that accused Sunderdass was in fact going to use petrol for causing the death of Rijjumal. He cannot be held vicariously liable for the offence committed by the accused Sunderdass. We find no force in the appeal filed by the State against the acquittal of accused Navin Kumar. 13. On the question of sentence to be awarded to accused Sunderdass, we find that he has been in jail since November 16, 1980. It is about six years now. Added to it the period of remission which he must have earned in jail, his total period of sentence undergone would reach eight years approximately. The period of imprisonment undergone along with an appropriate fine would, therefore, meet the ends of justice for the offence under Section 304 Part II I.P.C. We, however, feel that the wife of the deceased who has been rendered helpless, having lost the sole broad earner, must be compensated. We put the suggestion to the counsel for the appellant who very frankly stated that his client would be prepared to arrange money to be paid over to the wife of the deceased and towards this he suggested a sum of Rs. 15,000/-. Taking into account the facts and circumstances of the case we feel that the amount of fine to be imposed on the accused in addition to the imprisonment already undergone by him should be Rs. 20, 000/-. to be paid over to the widow of deceased Rijjumal on realisation. 14. We accordingly allow appeal No. 57 of 1982 in part. Taking into account the facts and circumstances of the case we feel that the amount of fine to be imposed on the accused in addition to the imprisonment already undergone by him should be Rs. 20, 000/-. to be paid over to the widow of deceased Rijjumal on realisation. 14. We accordingly allow appeal No. 57 of 1982 in part. We alter the conviction of the accused appellant Sunderdass from Section 302 I. P. C. to section 304 Part II I. P. C. and reduce his sentence to the one already undergone but increase the amount of fine to Rs. 20, 000/-, in default of payment of fine to two years further R. I. The fine when realised shall be paid to the widow of the deceased Rijjumal. 15. Criminal Appeal No. 436 of 1982 filed by the State against Navin Kumar is hereby dismissed.