Radhey Singh vs State of Haryana

J.B. Garg, J.

Radhey Singh aged 36 a Naik in the Indian Army, posted at Ambala Cantt. has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and also required to pay a fine of Rs. 500/ and in default of payment of fine to undergo R.I. for a further period of one year. He was also convicted under Section 498A of the Indian Penal Code and sentenced to R.I. for a period of. three years. It was ordered that the sentences shall run concurrently. Aggrieved against it the present appeal has been preferred.

Briefly, the story of the prosecution is that Radhey Singh originally belongs to village Salimpur, District Etawah (U.P.). The accused lost his first wife leaving behind three children and he became a widower. About 6 or 7 years prior to the occurrence Krishna Devi was married to Radhey Singh. One son was born from the second marriage which was about two years old at the time of this occurrence. At about 8.00 a.m. on 29.1.1992 Radhey Singh allegedly sprinkled kerosene on his wife Krishna Devi and she received extensive burns and on hearing her cries Parvati and her husband arrived from the neighbourhood in village Jandli where this couple was living. Thereafter, Krishna Devi was brought to the army hospital at 9.00. a.m. where she was first of all examined by Dr. M. Bhardwaj who was incharge of the casualty ward in the military hospital Ambala Cantt. Her statement was recorded by Shri Phul Singh, A.S.I of Police Station Sadar Ambala Cantt. at 3.25 p.m. on 29.1.1992 and the case was originally registered for offences under Sections 307 and 498A of the Indian Penal Code. At 3.25 a.m. on 2.2.1992 Krishna Devi died on account of the aforesaid burns. The postmortem examination was performed by Dr. Anil Kumar Mittal Medical Officer of Civil Hospital, Ambala Cantt. on 4.2.1992 who found that the burns were superficial to deep all over the body, except hair and the face. The case was mainly investigated by Shri Phool Singh A.S.I. (P.W.10) who had first of all recorded the statement of Krishna Devi as seen above. The accused was ultimately arrested on 14.2.1992. The Commanding Officer declined the trial of Naik Radhey Singh by the Court Martial and intimation in this regard was received in the trial Court at Ambala.

PW1 Dr. Anil Kumar Mittal, conducted postmortem examination on the dead body of Krishna Devi aged 26 on 4.21.1992 at Civil Hospital, Ambala Cantt. and he noticed superficial to deep burns all over the body except the hair and the face. He opined that as per standard calculations the area of burns was about ninety per cent and this was the cause of death.

PW2 Dr. M. Bhardwaj who was in the casualty ward in the military hospital, Ambala Cantt admitted Krishna Devi with burn injuries at 9.00 a.m. on 29.1.1992. She was brought there by her husband Radhey Singh. She had verified on telephone from a nurse about the fitness of the patient to make a statement before it was recorded by the police official.

PW6 Lt. Col. G.S. Saluja, a Surgeon in the Army Hospital Ambala Cantt examined Krishna Devi at 9 a.m. on 29.1.1992. He came to know from the patient that she was set on fire by her husband. He did not record her statement. He did not contact any Magistrate for getting the statement of Krishna Devi recorded.

PW9 Dr. Tapas Rai, Medical Officer of Army Hospital, Ambala Cantt. told that he attested the statement of Krishna Devi recorded by the A.S.I. However, he did not certify in his own hand that Krishna Devi was fit to make a statement.

PW3 Udey Bhan, Draftsman prepared the siteplan Ex.P.F. PW4 Hukam Chand constable received the rukka Ex. PG on 2.2.1992 from the army hospital regarding death of Krishna Devi.

PW5 Subedar, Narain Singh was a formal witness and identified the dead body of Krishna Devi. He knew Krishna Devi and she had also been visiting the family welfare centre of the army like other ladies and she never made any complaint against her husband.

PW7 Amar Singh Sepoy is also a formal witness who identified the dead body. PW8 Shri Joginder Singh Inspector was also a formal witness.

PW10 Phul Singh ASI of Police Station Sadar Ambala on receipt of rukka reached the Military Hospital at Ambala Cantt and firstly she was declared unfit to make a statement but later on she declared fit and he then recorded the statement Ex. PK in the presence of Dr. Tapas Rai. In village Jandli he recorded the statements of Parvati and her husband Parbhakar who lived in the neighbourhood of the accused. He has denied that he himself recorded a statement purported to be that of Krishna Devi and got it attested from the Medical Officer. No child from the first wife of the accused was present in the house. He denied that Krishna Devi committed suicide because she could not feed three children from the first wife of the husband.

The statement of Radhey Singh accused was recorded under Section 313 of the Code of Criminal Procedure and he told that his wife did not make the statement Ex.PK to the ASI purported to have been made by her and that he was innocent.

DW1 Lochan Singh father of Krishna Devi an agriculturist of Uttar Pradesh told that the appellant never demanded any dowry or any article nor Krishna Devi made any complaint to him during her visits from Meerut, Pathankot and Ambala where the accused remained posted. He told that his daughter did not like the stay of three children from the first wife of her husband. The important part of his statement is reproduced as under :

"At the time of marriage, the accused was in Army posted at Meerut. The accused is now posted at Ambala. Neither any demand was made for dowry articles by the accused and his family member nor did I give as I was not in a position to do so. The accused remained at Pathankot and Ambala after the marriage. My daughter used to visit us during this period, whenever the accused obtained the leave.

My daughter used to get angry as she was short tempered. She would also say that she would finish her life. My daughter never complained to me or my wife about any maltreatment to my daughter at the hands of the accused on account of not meeting demand of dowry articles. After coming to know the death of my daughter I had come here along with my wife and my son. I had made a statement before the police stating above facts narrated today in Court."

The husband was an ordinary Naik in the Army. He had three children from his first wife and the eldest of them was a daughter aged 15, the second a son aged 12 and third daughter aged 9. Krishna Devi was married to the appellant about 6 or 7 years prior to this occurrence and the appellant was also blessed with a son aged about 21/2 years at the time of occurrence. It was not a case that the husband demanded or accepted any dowry from the parents of this second wife. PW5 Subedar Narain Singh specifically deposed in the trial Court that Krishna Devi never complained to him that the accused ever harassed her for having brought insufficient dowry. This aspect has further been fortified by DW 1 Lochan Singh father of the deceased wife. This was the reason that the trial Court acquitted the appellant for the offence under Section 304B of the Indian Penal Code and there was no justification for recording conviction under Section 498A of the Indian Penal Code and we are of the view that this too cannot be sustained and it is hereby set aside.

As regards the commission of the offence Section 302 of the Indian Penal Code for which as well a charge was framed the dying declaration of Krishna Devi which was originally recorded in the shape of an FIR by PW10 Phool Singh ASI remained totally uncorroborated. In this statement Krishna Devi specifically alleged to have mentioned that Parvati and her husband from the neighbourhood arrived at the spot and put a blanket on her to put out the fire. Neither Parvati nor her husband Prabhakar were examined in the trial Court to corroborate this dying declaration. There is nothing on record to show that they were won over by the accused and even if such was the position the prosecution was expected to bring such important witnesses to box to discharge its own onus especially where the only evidence now relied upon or referred to is the dying declaration in the form of the FIR recorded by the investigating officer.

The learned Deputy Advocate General, Haryana made an attempt to stress as if the oral evidence of PW2 Dr. M. Bhardwaj that she issued a certificate that the patient was fit to make a statement should be sufficient to hold that the dying declaration recorded by Shri Phul Singh ASI was voluntary and worth reliance. The crossexamination of this Medical Officer shows that she herself did not visit the intensive care unit personally to see the patient when she issued the certificate declaring the patient fit and it was issued after she had satisfied herself telephonically from intensive care unit about fitness of the patient to make a statement. This evidence throws considerable doubt about the fact pertaining to fitness of the patient. PW9 Dr. Tapas Rai also told that he did not certify in his own hand in the statement Ex.PK that Krishna Devi was fit to make a statement. No attempt was made to approach any local Judicial Magistrate for recording the statement of Krishna Devi though she survived till 5.20 a.m. on 2.2.1992.

Shri R.S. Ghai, the learned counsel for the appellant has pointed out that if the husband had set his wife Krishna Devi on fire with a match stick as mentioned in the statement Ex. PK/2 it was never expected that he would carry the wife himself to the army hospital. PW2 Dr. M. Bhardwaj told that Radhey Singh the husband had brought Krishna Devi to the hospital. The husband required the second wife and that is why he married Krishna Devi. No surprise that Krishna Devi committed suicide and this finds support from the evidence of her own father DW1 Lochan Singh. This is a unique case where instead of some corroboration available to a dying declaration the evidence of DW1 Lochan Singh the father goes against the aforesaid dying declaration

Thus, in view of the evidence and reasons given above, we are of the view that the charge could not be established beyond doubt and the finding of guilt under Section 302 of the Indian Penal Code arrived at by the leanred trial Court is set aside and the appellant is hereby acquitted.