Samunder Singh vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J—Samunder Singh Rawat aged 21 years, resident of Joharkheda, Police Station Beawar, District Ajmer, as per prosecution on 15.7.2006 at 6:30 PM, had burnt his aunt (chachi) Pushpa Devi in the common courtyard occupied by four brothers, namely Gokul Singh father of the appellant, Mahendra Singh husband of the deceased, Late Mota Singh husband of Smt. Geeta Devi (P.W.9) and Suraj Singh acquitted accused. Appellant, Samunder Singh along with his mother Smt. Pani, grandfather Harji Singh, Suraj Singh uncle (chacha) and Smt. Keli Devi wife of Suraj Singh were tried by the court of Additional Sessions Judge (Fast Track) No. 1, Beawar, District Ajmer.

The court of Additional Sessions Judge (Fast Track) No. 1, Beawar, District Ajmer, vide impugned judgment dated 22.8.2007, acquitted Smt. Pani Devi mother, Harji Singh grandfather, Suraj Singh uncle and Smt. Keli Devi aunt of the appellant Samunder Singh of offence under Sections 120-B and 302 IPC. The trial Judge acquitted the appellant Samunder Singh for the offence under Section 120-B IPC, however, the said court convicted the appellant Samunder Singh for the offence under Section 302 IPC and vide a separate order of even date sentenced him to undergo life imprisonment and to pay a fine of Rs. 2,000/-, in default of payment of fine to further undergo S.I. of three months.

Aggrieved against his conviction and sentence, the appellant Samunder Singh instituted the present appeal.

The occurrence in the present case had taken place on 15.7.2006 at 6:30 PM. On the day of occurrence itself, i.e. 15.7.2006, at 11:45 PM, statement (Exhibit-P/21) of Puspa Devi was recorded by ASI, Ramdayal (P.W.15) in presence of Mahendra Singh (P.W.8) husband of the deceased, Geeta Devi (P.W.9) Jethani (wife of elder brother of husband) and Dr. S.R. Gehlot (P.W.22). In the statement (Exhibit-P/21) made by Pushpa Devi, which was treated as dying declaration after her death, Pushpa Devi had stated that she caught fire accidentally while cooking meals. To this effect, Pushpa Devi had also made oral dying declaration to her husband Mahendra Singh (P.W.8) and other relations. She had also disclosed to Sardar Singh (P.W.4) his brother that she caught fire accidentally.

The case of the prosecution is that Narayan Singh (P.W.2) father of the deceased Pushpa Devi arrived at the Beawar Hospital on 16.7.2006 and then Pushpa Devi had made an oral dying declaration to her father that appellant Samunder Singh with aid of his mother Pani Devi, Harji Singh, Suraj Singh and Keli Devi had set her on fire.

On 20.7.2006, the dying declaration (Exhibit-P/3) of Pushpa Devi was recorded by Praveen Kumar Mishra (P.W.1) who was then posted as Judicial Magistrate, First Class, Beawar. In the said dying declaration (Exhibit-P/3) made after five days of the occurrence, Pushpa Devi has stated in categoric terms that she was set on fire by the present appellant Samunder Singh.

Mr. Vinay Pal Yadav, the learned counsel appearing for the appellant, has forcibly contended that it is a case of accidental fire and we should place implicit reliance on dying declaration (Exhibit-P/21) recorded by ASI, Ramdayal (P.W.15) in the presence of Mahendra Singh (P.W.8) husband of the deceased Pushpa Devi, Geeta Devi (P.W.9) Jethani of the deceased, and Dr. S.R. Gehlot (P.W.22). The learned counsel for the appellant further stated that on the date of occurrence, i.e. 15.7.2006, Sardar Singh (P.W.4) brother of the deceased Pushpa Devi had arrived at the hospital and at that time also Pushpa Devi had divulged to her brother that she caught fire accidentally. Thus, the learned counsel for the appellant has contended that we should ignore the dying declaration (Exhibit-P/3) recorded by Praveen Kumar Mishra (P.W.1), Judicial Magistrate, First Class, Beawar, District Ajmer, as the same is result of tutoring carried by Narayan Singh (P.W.2), father of the deceased Pushpa Devi, who was a police officer.

To determine whether we can ignore dying declaration Exhibit-P/3 recorded by Judicial Magistrate, holding that Pushpa Devi was tutored to change her version or not, it will be necessary for us to notice brief facts of the case and medical evidence.

First we shall take note of medical evidence.

Dr. S.R. Gehlot (P.W.22) on 15.7.2006 at 9:45 PM, being a Medical Jurist at A.K. Hospital, Beawar, examined Pushpa Devi wife of Mahendra Singh (P.W.8) aged 32 years and as per injury report (Exhibit-P/29) had noted following injuries on her person:-

"Extensive burn with oozing from all area with burnt, burn with exposing the raw area of body surface with dermis expose and all most 75% burn from face, neck, trunk."

As is evident, Pushpa had suffered 75% burns. In cross-examination, Dr. S.R. Gehlot (P.W.22) stated that Pushpa had disclosed to him that she had caught fire from the stove. She categorically stated that she has not been burnt by anybody. This witness further stated that in the Bed-Head Ticket (Exhibit-D/1) at point C to D, he had recorded "burn due to stove while cooking."

Dr. K.K. Chauhan (P.W.16) on 25.7.2006, at 10:15 AM, being member of Medical Board, had conducted autopsy on the dead body of Pushpa Devi wife of Mahendra Singh (P.W.8). Dr. K.K. Chauhan stated that they had found 80% burn and as per opinion of the Board, the cause of death was septicemia and the deceased Pushpa Devi as per Bed-Head Ticket (Exhibit-D/1) died on 25.07.2006 at 4:00 AM.

The statement (Exhibit-P/21) of deceased Pushpa Devi recorded first in time by ASI, Ramdayal (P.W.15) in presence of Mahendra Singh (P.W.8) husband of the deceased, Geeta Devi (P.W.9) her jethani when translated into English reads as under:

"Statement of Smt. Pushpa Devi wife of Mahendra Singh by caste Rawat, aged 34 years, R/o Joharkheda, at present admitted in Burn Ward No. 3, at AKH Beawar-

Stated that my husband as always had gone to his shop at Beawar city. On 15.7.2006 like everyday at about 6:30 PM, I was pouring kerosene oil in the Chulla (hearth) for cooking meals. Suddenly the fire flared up and caught hold of the lower portion of my tippet (Odhani) due to which my clothes caught fire. Major parts of my body have been burnt. I raised cries, then my Jethani, Geeta Devi came running to save me. After sometime, my husband also came. When I caught fire, then my handicapped daughter Arti was also present at the house. Thereafter, my husband Mahendra Singh and Jethani Geeta Devi brought me and got me admitted in Government Hospital, Beawar. I caught fire accidentally due to my tippet catching fire. Neither anybody has burnt me nor I have intentionally set myself on fire. I injured have made above statement in presence of my husband Mahendra Singh and Jethani Geeta Devi. I was married 12-13 years ago.

The above statement has been recorded thereafter it was read over to concerned, she accepted the same to be correct. Both the hands of injured are burnt, therefore, she is unable to append her thumb impressions. Her husband Mahendra Singh and Jethani Geeta Devi have appended their signatures.

Mahendra Singh (P.W.8) husband of deceased Pushpa Devi in the court stated that four families were living in one building having a common courtyard. His wife Pushpa Devi have died five/six months ago. On the day of occurrence, after leaving the vegetables at the house, this witness had gone to Ashram and was sitting along with Maharaj, when Ugam Singh (P.W.7) came. This witness returned to the house and saw that his wife had caught fire. This witness asked Pushpa Devi as to how she caught fire, upon which she informed that when she was igniting hearth her clothes caught fire and thus, she got burnt This witness brought her to the hospital. This witness further stated that he made a telephonic call to Sardar Singh (P.W.4) brother of his wife and informed him that while igniting hearth, Pushpa Devi had caught fire. Sardar Singh came and informed his father. Before arrival of the parents, police had already recorded the statement of Pushpa Devi. This witness further stated that at 7:00 PM, his father-in-law arrived and Pushpa Devi also informed her father that she had caught fire accidentally. This witness was declared hostile and was cross-examined by the learned public prosecutor.

Geeta (P.W.9) jethani of Pushpa Devi deceased, in the court stated that 6-7 months ago in the evening while cooking meals and igniting hearth, due to pouring of kerosene oil, Pushpa Devi caught fire. This witness further stated that no dispute had occurred between Samunder Singh and Pushpa Devi over making of Halwa and she had not seen Samunder Singh setting Pushpa Devi on fire. This witness stated that Samunder Singh was not present at the house. This witness was also declared hostile to the prosecution.

Gom Singh (P.W.10) stated that he knew Pushpa. She was wife of his nephew. Six-seven months ago, at 6:00-7:00 PM, he had gone to well. This witness had heard noises coming from inside the house. This witness went and saw that Pushpa had caught fire and quilt (Godari) was thrown upon her. This witness stated that she caught fire from the flames of hearth. This witness was also declared hostile to the prosecution.

Sardar Singh (P.W.4) brother of deceased Pushpa Devi in the court deposed that Pushpa was his sister. She was married with Mahendra Singh (P.W.8) 10-12 years ago. On 15.7.2006, in the night at about 1:15 - 1:30 AM, he received telephonic call from Mahendra Singh that Pushpa has been admitted in A.K. Hospital Beawar. Therefore, he should come at Beawar. After gathering family members, this witness reached at hospital Beawar at 4:00 AM. This witness stated that his jija (husband of sister) Mahendra Singh was standing outside the gate, when he went inside the ward, Pushpa was crying. On his asking, Pushpa informed that she received burn injuries while cooking meals. It will be apposite here to reproduce the exact words stated by the witness as under:-

In cross-examination Sardar Singh (P.W.4) admitted that his father was working in police since 1988. This witness further admitted that after his father arrived, Puran Singh Advocate used to visit his father at the hospital.

Ugam Singh (P.W.7) step son of Pushpa Devi also deposed in the court that Pushpa Devi was cooking meals and while pouring kerosene oil in hearth she caught fire from the flames. On the asking of family members, he had gone to call his father Mahendra Singh. This witness was also declared hostile to the prosecution.

Chhog Singh (P.W.11) in the court stated that Pushpa Devi was wife of Mahendra Singh and was residing in the neighbourhood. She had caught fire from the flames of hearth. This witness was attracted to the spot and saw that Gom Singh, Harjit Singh had put a quilt around her body and tried to douse the fire.

Hem Singh (P.W.12) in the court stated that while pouring kerosene oil in the hearth, Pushpa Devi had caught fire.

Kavita (P.W.13) wife of Sardar Singh in the court stated that Pushpa Devi was her Nanad (sister of husband). This witness stated that six months ago at about 1:30 AM in the night, a telephone came, which was attended by her husband Sardar Singh. The husband of Pushpa Devi informed that Pushpa Devi had received burn injuries. They again made a telephonic call and had talked with Pushpa. Pushpa stated that "brother, in case you want to see my face, you should come early" Then this witness along with her husband, mami saas Sugani Devi, Heera Singh and Badami went to the hospital. Then Pushpa Devi started weeping and stated that first she will have treatment and then she will disclose as to how she caught fire. This witness further stated that in the morning her father-in-law came and met Pushpa. Doctor referred her to Jaipur and stated that blood is to be administered to Pushpa. Mahendra Singh (P.W.8) stated that he has no facility available to take Pushpa to Jaipur. Mahendra Singh husband of Pushpa had also not donated blood. On 19th the condition of Pushpa had worsened. Then father-in-law of this witness asked Pushpa to tell the truth. At that stage Pushpa asked as to who will get her treated. Upon which, father stated that he will arrange treatment for her and in case, she is left by her husband, he will provide meals for whole time. Then Pushpa said to her father that in the morning she had a dispute with Samunder Singh. She also had a fight with him in the evening and Samunder Singh had poured kerosene oil and had ignited fire after lifting a burning wood from the hearth.

In cross-examination Kavita (P.W.13) stated that Pushpa was speaking coherently. Mahendra Singh (P.W.8) was not in the hospital for all the times. This witness further stated that Pushpa had told about the incident to her father in the evening of 19th when her father asked Pushpa to tell the truth. This witness stated that she cannot tell with whom Pushpa was earlier married.

Sugani (P.W.14) is maternal aunt of deceased Pushpa Devi. She stated in the court that on 15th telephone of Sardar Singh (P.W.4) came at her house. Sardar Singh informed her that telephone has been received from Mahendra Singh (P.W.8) that Pushpa had received injuries and she is admitted in hospital at Beawar. Then this witness along with her Jeth and nephew Sardar Singh (P.W.4) and his wife came to Beawar hospital. This witness stated that when she asked Pushpa as to what had happened, she stated that let treatment be completed, thereafter, she will tell the truth and on 19th father of Pushpa asked her to tell the truth and then Pushpa informed that Samunder Singh son of his Jeth had poured kerosene oil and set her on fire.

Narayan Singh (P.W.2) father of deceased Pushpa stated in the court that he was at Jaipur. On 16.7.2006 at 6:00 AM, he received a telephonic call from his son Sardar Singh (P.W.4), who informed that Pushpa has been burnt and is admitted in Beawar hospital and he should reach there along with mother. This witness along with wife reached at Government A.K. Hospital, Beawar, where Pushpa was admitted in Ward No. 3. Pushpa had received 75% burn injuries. This witness asked his daughter regarding as to how she had received burn injuries. Pushpa stated that let her treatment be completed and thereafter she will divulge the reasons. On 17th doctor at Beawar referred Pushpa to Jaipur but her in-laws had not taken her to Jaipur. On 19th blood was required for administering the same to Pushpa but nobody from her in-laws had donated blood. The condition of Pushpa became precarious. After she was given medicine and drip was administered, her condition became stable and she informed that on 15.7.2006, at about 6:30 PM, she was cooking meals when Samunder Singh son of her Jeth came and said that he will kill her. She thought that he was cracking joke. Then Samunder Singh went inside the kitchen, brought kerosene oil and poured the same on her and set her on fire after picking a burnt wood from hearth. Pani Devi had caught hold of the hands of her daughter Pushpa. At that time, father-in-law Harji Singh, Jeth Suraj Singh and Jethani Keli Devi were also present, but nobody made an effort to save her. Ugam Singh (P.W.7) called Mahendra Singh (P.W.8). Mahendra Singh on arrival said that whatever had happened had already happened and she should not disclose anything to police. Mahendra Singh further stated that she should tell the police that she caught fire while cooking meals. Pani Devi also threatened her not to disclose the same to the police otherwise, her children will be badly treated. This witness stated that everything happened due to planning made by Gokul Singh.

After the above facts were disclosed to this witness, the statement (Exhibit-P/3) of Pushpa was recorded by Praveen Kumar Mishra (P.W.1), who was then posted as Judicial Magistrate, First Class, Beawar in presence of Dr. Meenakshi Tak (P.W.3). In her statement before Magistrate, Pushpa disclosed her name, name of her father and husband. She further stated that on 20.7.2006 at 6:00 PM, incident took place in the house of in-laws. At that time, her father-in-law Harji Singh, Jethani Keli Devi, Jeth Suraj Singh and Jethani Pani Devi were present. She was cooking meals on hearth. Samunder Singh son of Jeth came and poured kerosene oil upon her. The kerosene can was having three liters of kerosene oil. Samunder Singh picked a burning wood from the hearth and put her tippet on fire. She raised cries. She took circles of boundary, but nobody saved her. After the fire had doused off, father-in-law Harji Singh had put bedding on her. Geeta wife of Mota Singh came forward to save her. She further stated that Samunder Singh had cooked Halwa. Her daughter Arti also demanded Halwa but she refused. In the evening at 5:00 PM she had cooked Halwa for her. When she was about to cook meals, then Samunder Singh poured kerosene oil upon her. In the afternoon of Saturday, she had a fight with Samunder Singh over the room which belong to her father-in-law. Samunder Singh was telling the room belong to his grandfather and he was saying that he will not permit anybody to come in the said room and due to that quarrel, he had said that he will either kill himself or will kill her. Her husband had gone to Shivji Mandir. When she was burnt, her son Ugam Singh went to call her husband. Husband brought her on motorcycle to the hospital. Thereafter, she further stated that three-four times earlier also, attempt was made to burn her. One time she was beaten with a stick. After her third delivery, when she had returned from hospital, she was given beating by Gokul Fauji.

Having heard the learned counsel for the parties, we find that initial version dated 15.7.2006, given by deceased Pushpa Devi to ASI Ramdayal (P.W.15) is that the deceased caught fire while cooking meals. The statement (Exhibit-P/21) was recorded by ASI Ramdayal (P.W.15) in the presence of attending doctor. In her dying declaration (Exhibit-P/3) also it is stated that Geeta (P.W.9) came forward to save her. Geeta had also attested dying declaration (Exhibit-P/21) recorded by ASI Ramdayal (P.W.15) on 15.7.2006 at 11:45 PM. Geeta (P.W.9) in the court also stated that Pushpa deceased caught fire accidentally.

Dr. S.R. Gehlot (P.W.22) who had attended Pushpa Devi and prepared her injury report, in the court has specifically stated that he was informed by deceased Pushpa Devi that she had caught fire accidentally and nobody is responsible for burn injuries received by her. The exact words stated by the witness are as under:-

It is to be further noted that in Bed-Head Ticket (Exhibit-D/1), at point C to D, it has also been recorded that she received burn injuries from stove while cooking meals. Mahendra Singh (P.W.8) husband of deceased Pushpa Devi also stated that his wife had informed that she had received burn injuries accidentally while cooking meals.

What is important for us is statement made by Sardar Singh (P.W.4) brother of the deceased Pushpa Devi. The portion of his testimony, we have already reproduced above. Thus, from 15.7.2006 till 19.7.2006, the version divulged by the deceased Pushpa was of accidental fire. Narayan Singh (P.W.2) father of the deceased had arrived in the hospital on 16.7.2006. On 19.7.2006, the prosecution case took twist and a new story was introduced that deceased Pushpa was telling her relations that she will tell the truth when her treatment is complete. Thereafter, on the assurance given by father, the deceased had told that the present appellant Samunder Singh had set her on fire. Narayan Singh (P.W.2) also introduced other four members of the family namely Harji Singh grandfather of the appellant, aged 80 years, Pani Devi mother of the present appellant, Suraj Singh another brother of the husband and jethani Keli Devi as accused. In the dying declaration made before Judicial Magistrate, First Class, Beawar, besides Samunder Singh, other four persons have been also introduced as accused. Involvement of four other persons reveal that the consultations and deliberations were on and deceased Pushpa had not only changed her version but had widened the net to involve five members of the family as accused. It has come in the statement of Sardar Singh (P.W.4) brother of the deceased Pushpa that Narayan Singh (P.W.2) is employed in the police. It has also come in the evidence that Puran Singh Advocate started visiting Narayan Singh (P.W.2) in the hospital.

We may notice here that the Bed-Head Ticket (Exhibit-D/1) at point A to B contains signatures of Sardar Singh (P.W.4), brother of the deceased. Sardar Singh has further stated in the court that deceased Pushpa had started talking incoherently like a mad person from 20th and not earlier thereto. We will reproduce the exact lines from the cross-examination of Sardar Singh (P.W.4) as under:-

The learned counsel for the appellant has relied upon the recent judgment of Hon''ble Apex Court in the case of Umakant Vs. State of Chhatisgarh, (2014) AIRSCW 4379 : (2014) 2 DMC 827 : (2014) 7 JT 543 : (2014) 3 RCR(Criminal) 674 : (2014) 8 SCALE 141 : (2014) 7 SCC 405 . The Hon''ble Apex Court by giving following reasoning had held as under:-

"24. When we look at the dying declaration, it is not inspiring confidence in the mind of this Court and throws serious doubt that the same is a product of tutoring by the family members of the deceased for the reason that, the sister of the deceased who was present when the deceased was admitted in the hospital had signed in Ext. P-2 wherein it is stated that it was an accident and nobody has burnt the deceased, but later she turned around and stated that unless she signed on that, they were told that the deceased would not be treated, and the High Court has taken this fact into consideration, whereas in the dying declaration, the deceased has stated that when her parents came to the hospital on 6-8-2003, she informed to the parents for the first time and she had not mentioned that she informed her sister or anybody before that, but according to the sister of the deceased, on 2-8-2003, she was aware of this, which shows that the evidence of the witness is not reliable and clouded with doubt.

The other circumstance which draws our attention is when the deceased informed her parents on 6-8-2003, it is quite natural that the parents will inform the police about the incident, because it is nobody''s case that they were restrained in any manner from informing the police. Even the deceased throughout the stay in the hospital for those 11 days had many an occasion to meet the doctors and staff of the hospital, but she had chosen not to given any complaint nor tried to share her agony with them, which throws a grave doubt on the genuineness of the dying declaration. We have gone through the judgment of the High Court, where PW7 has specifically deposed that they had tutored the deceased to state that she was burnt by the accused.

The High Court while considering Ext. P-2 has come to a conclusion that the statement given in that one line is contradictory to one another. In one line, it says that the injuries sustained by her are by accident. Nobody has burnt her and she burnt herself. Hence, the High Court discarded Ext. P-2. But, in our considered opinion, the High Court did not appreciate the same in its proper perspective and interpreted it in a wrong way. What Ext. P-2 states is that it is an accident, and nobody has pushed her and for that accident, only the deceased is responsible."

Thus, taking totality of circumstances, and the fact that from 16.7.2006 till 19.7.2006, even though father, mother and other relations of the deceased were present in the hospital, she had not changed the version struck to earlier version of accidental fire and no hue and cry was raised that police has recorded wrong dying declaration. We cannot rule out that the dying declaration (Exhibit-P/3) recorded by Judicial Magistrate, First Class, Beawar was result of tutoring by Narayan Singh (P.W.2), who happened to be police officer and was visited by an advocate, furthermore, while doing so, we cannot become oblivious of the fact that Sardar Singh (P.W.4) brother of the deceased, who had reached first at the hospital on the night of the occurrence, at 4:00 AM, has stated in categoric terms that he was informed by the deceased that she had caught accidental fire.

Thus, taking into consideration the earlier dying declaration (Exhibit-P/21) recorded by the police officer duly attested by the duty doctor and the oral dying declaration made by the deceased to her husband and his relations and giving due credence to the statement made by her brother Sardar Singh (P.W.4) in the court, we can safely say that from 15.7.2006 at 6:30 PM, till evening of 19.7.2006, consistent case of the deceased and her relations was of accidental fire. It was later due to visit of Advocate in the hospital, who was close associate of father of the deceased, a police officer, version has changed and same had surfaced in the dying declaration recorded by the Judicial Magistrate, First Class, Beawar. Thus, we are of the view that it is not safe to rely upon the dying declaration (Exhibit-P/3) recorded by the Judicial Magistrate.

Consequently, as a result of above discussion, and as matter of abundant caution, we shall grant benefit of doubt to the appellant who happen to be nephew of the husband of the deceased by accepting present appeal. Hence, the judgment of conviction and sentence recorded by the trial court is set aside and the appellant is acquitted of all the charges.

In view of the acceptance of the appeal, in above terms, we order that the appellant Samunder Singh be released forthwith, if in custody and not required in any other case.

Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellant Samunder Singh is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- and a surety bond in the like amount, before the trial court. The bonds so furnished shall be effective for a period of six months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellant on receipt of notice thereof, shall appear before the Hon''ble Apex Court.