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2005 DIGILAW 892 (ALL)

PRATAP NARAIN MISRA v. STATE OF U P

2005-05-06

P.K.CHATTERJI

body2005
P. K. CHATTERJI, J. This criminal appeal has been filed against the judgment & order dated 1-10-1990, passed by Special Addl. Sessions Judge Pratapgarh in Sessions Trial No. 161 of 1987 whereby the appellant is convicted under Section 304 Part-I, IPC, and sentenced to undergo ten years R. I. and a fine of Rs. 1000/- and in default of payment of fine further imprisonment for one year was awarded. 2. Facts of the case, in brief, are that one Ramadhar lodged a report at Police Station Kohdor that in the night of 18/19-5-1987 at about 2 p. m. his son Pratap Narain has set fire on his wife, namely, Shail Kumari by sprinkling kerosene oil on her. On noise Kedar Nath, Ramfer and others came there. The complainant Ramadhar was sleeping at Tubewell who also came at the spot and saw that his wife and daughter were extinguishing the fire of Shail Kumari. He had asked Shail Kumari regarding the incident then she told that her husband wanted to re-marry leaving her and two children and on her objection he has set fire upon her. After investigation charge-sheet was submitted against the accused appellant under Section 304 (1), IPC. He was tried by the learned Sessions Judge and was convicted and sentenced accordingly. 3. In statement under Section 313, Cr. P. C. the accused appellant has admitted that the deceased was his wife. She was medically examined at District Hospital, Pratapgarh. Later on she was admitted in a Nursing Home at Allahabad where she died on 15-6-1987. He further stated that the deceased was sleeping with her son Manoj aged about two and half years who has asked for water from her mother and when the deceased was taking water, the lamp which was lightening, fell down and she caught the fire. He further stated that about one year before the incident he had met with an accident due to which his leg was broken and he cannot walk without medical shoe and clutches. He has been falsely implicated in the case. 4. Heard learned Counsel for the appellant as well as for the State and perused the record. 5. It was argued by the learned Counsel for the appellant that none of the prosecution witness has supported the prosecution case. He has been falsely implicated in the case. 4. Heard learned Counsel for the appellant as well as for the State and perused the record. 5. It was argued by the learned Counsel for the appellant that none of the prosecution witness has supported the prosecution case. There is solitary Dying Declaration of deceased Shail Kumari which was recorded in District Hospital, Pratapgarh by PW 4 on 19-5-1997 at 9. 05 a. m. In her dying declaration she named her husband, accused appellant that he had set fire on her as he wanted to re-marry. He further argued that it was an incident as the deceased had caught fire with a burning lamp which had fallen while she awoke to bring water for her son. 6. At least one thing is clear from the evidence on record as well as from Dying Declaration that when the fire was set on, the deceased was not awaken. Therefore, prior to set on fire she had not seen her husband. No specific question has been asked on this point. Her testimony has been recorded under the Evidence Act. The injury report shows that she had burn injuries over her ankle to the extent of her breast. It was also suggested that the deceased caught fire from a burning lamp as in rural areas the lamp (Dhibri) used to burn throughout the night. 7. From the above circumstances, it is apparent that her husband was present when the fire was set on. There is also evidence on record that her sister-in-law has rushed to save her. The second point that her husband wanted to re-marry and that is why he set fire on her, is not proved. Under Section 313, Cr. P. C. the accused has accepted his presence in his house. He has stated that his wife was sleeping alongwith his son Manoj who was two and half years old at the time of occurrence. He had asked water from his mother. She woke up to bring water. The chirag was burning as usual and sari of his wife caught fire from that chirag. He further stated that about one year back from the incident and had broken his leg and due to which he is unable to have a walk. 8. He had asked water from his mother. She woke up to bring water. The chirag was burning as usual and sari of his wife caught fire from that chirag. He further stated that about one year back from the incident and had broken his leg and due to which he is unable to have a walk. 8. The learned trial Court has ignored the statement of deceased under dying declaration that her husband had set fire at her stomach when was asleep and when she felt hot only then she came to know that the fire has been set by her husband. This clearly goes to show that she had not seen her husband setting fire on her and she gave this statement on presumption that it must have been set by her husband. 9. The order aspect which the trial Court has not touched, is that the deceased under dying declaration has not told the name of any lady with whom her husband wanted to re-marry which is said to be cause of setting fire after a long period of peaceful married life. Her husband, the appellant is a disabled person and can walk only with the help of clutches. The trial Court has also not considered this fact that he cannot walk on his both legs. The trial Court further failed to consider another aspect of dying declaration as to why the deceased blamed her husband only. The deceased at the time of dying declaration was in the state of metal agony and pain of burning and it was duty of the person who recorded dying declaration to record a finding regarding mental state of the deceased. 10. Sri Ram Bhujhawan Pandey (PW 4) who is retired Tahsildar, has recorded the dying declaration of the deceased. He is neither a judicial officer nor a Magistrate and was not having any experience of recording dying declaration, that too of a burnt lady. He has not put any question to know the mental state of the deceased and, as such, it cannot be ascertained as to whether the deceased was fit enough to understand the questions and answers consciously. The deceased was also not made aware that her statement may be used against her husband. He has not put any question to know the mental state of the deceased and, as such, it cannot be ascertained as to whether the deceased was fit enough to understand the questions and answers consciously. The deceased was also not made aware that her statement may be used against her husband. He further stated that he had obtained certificate from the doctor regarding her mental state on dying declaration itself that the deceased was in a fit mental state. However, there is nothing on record to show as to how the doctor came to this conclusion. Therefore, the text of the dying declaration regarding evidence against accused appellant is over the dying declaration itself is self contrary regarding the setting fire by the accused-appellant. Hence, the dying declaration has no substance. 11. The other circumstance is that the deceased herself while she alive, admitted that at the time of occurrence she was sleeping with her child but no injury has been caused to her child. After setting fire she ran here and there to save herself. It means that the fire has raised to serious dimensions that she was incapable to extinguish it. She has not stated that her husband has sprinkled kerosene oil upon her to blaze the fire. Therefore, her dying declaration can be safely rejected on account of her evidence that her husband had set fire by aid of a match stick. 12. In the present society the death of daughter-in-law or wife is always seen with suspicious eyes and in burn cases nobody believes that in may be an accidental case. In these circumstances it cannot be inferred that there is sufficient evidence on record to prove that the accused had set fire on deceased. As such, at the most the accused appellant may be convicted and sentenced only under Section 304-A, IPC for his negligence causing death of the deceased. 13. Accordingly, the appeal is partly allowed. The conviction and sentence of the accused-appellant recorded under Section 304-Part I, IPC is set aside and he is convicted under Section 304-A, IPC and is sentenced to undergo two years R. I. with a fine of Rs. 1000/- (as sentenced by the trial Court) and in case of default of payment of fine he shall further undergo one years R. I. 14. The appellant is in jail. He will serve out his sentence accordingly. 1000/- (as sentenced by the trial Court) and in case of default of payment of fine he shall further undergo one years R. I. 14. The appellant is in jail. He will serve out his sentence accordingly. Appeal partly allowed. .