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PETITIONER: RAJENDRA KUMAR

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT:       21/11/1997

BENCH: M.M. PUNCHHI, M. SRINIVASAN

ACT:

HEADNOTE:

JUDGMENT:                THE 21ST DAY OF NOVEMBER, 1997 Present:               Hon’ble Mr. Justice M.M. Punchhi               Hon’ble Mr. Justice M. Srinivasan R.K. Jain,  Sr. Adv.,  P.K. Jain,  Adv.  with  him  for  the appellant Vishwajit  Singh,   Adv.  for   A.S.Pundir,  Adv.   for  the Respondent                       J U D G M E N T      The following Judgment of the Court was delivered: M. SRINIVASAN, J. The appellant  married one  Asha Devi  in 1976.  He  used to beat his  wife off  and on and was threatening to throw acid on her  fare. Once  he tied  a Dhoti  in her neck and hanged her. When  her tongue  protruded out,  he put  her down.  On 17.10.1979 she  requested him to get fuel wood from the Tand (rack) so  that she  could cook  food  for  the  family.  He refused to do so. she had herself taken the wood and started preparing food in the oven at about 8.0 AM. Apparently being annoyed with  the delay  in the  preparation of  the food he took a  burning piece of wood and touched her check with it. He took  her to  the adjoining  room and poured kerosene oil over her  and set  her on  fire. He  also prevented her from running out of the room whereby he incurred burn injuries in some parts  of her body. She ran out when her brother-in-law extinguished the  fire by  placing a  blanket around her and tearing the  saree. Her mother-in-law wrapped her with a wet cloth to  extinguish the fire. She was taken to the hospital for treatment  as she  had received  burn  injuries  to  the extent of  95%. She died on 18.10.1979. Her father had given a complaint  to the  police on  17.10.1979. Four  statements were made  by her  which were treated as dying declarations. The first  was to  her father  son after  the incident,  the second was to the investigating Officer on the next day, the third was to the Magistrate on 18.10.1979 and the fourth was her mother when she was in the hospital. 2. The  above was the prosecution case. The appellant denied the same and contended that his wife sustained burn injuries while cooking  and when  he tried to extinguish the fire, he also sustained  injuries. According  to hem,  he took her to

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the hospital along with the other members of the family. 3. The  Court of  Sessions  found  that  the  appellant  was quilty, convicted  him under  Section 302  IPC and sentenced him under  Section 302 IPC and sentenced him to imprisonment for life.  On appeal,  the High Court of Allahabad confirmed the conviction  and sentence. This appeal has been preferred by the appellant on obtaining Special Leave. 4. The  learned counsel  for the  appellant  has  vehemently reiterated the contentions put forward before the High Court by his  counter Part.  It is  argued that  there ar material discrepancies between  the various  statements given  by the deceased in the hospital. Considerable reliance is placed on the entry  found in the bed head-ticket in the hospital made at t  he time  of her  admission. PW  11 Dr. H.C. Prasad has stated that  the entry  was made by him which read ""alleged to have  sustained burn  injuries during cooking". According to   PW 11  he must have written the note on the information given by  the injured  but he did not remember it correctly. The Courts  below were  therefore justified in not attaching any importance  to the entry in the bed-ticket, particularly in view  of the  detailed statements  made by her. We do not find any error in the view taken by the Courts below. 5. It  is next  argued that  in the four statements given by the deceased  which are  treated as dying declarations there are several  discrepancies. In  the statement  made  by  the deceased to  her father  at about 1.30 PM on 17.10.1979 when he went  to the hospital to see her she had merely said that "Hamare ghar walon ne jala diya" " (I am burnt by our family members). It  is argued  that if the case of the prosecution is true she would not have stated like that and it being her very first statement after the incident should be given more weight than  her subsequent  statements. We  are  unable  to accept this  contention. At  that stage  she was  not  in  a position to  speak for  long. She  made a short statement to her father  to convey  to him that she was burnt by somebody in the  house which  showed clearly  that  he  did  not  get herself burnt when she was cooking. 6. We  have gone  through the statements given by her to the Investigating Officer, the Magistrate and her mother who was examined as  PW 2. we do not find any material discrepancies therein. It  is clear  from the  said  statements  that  the appellant poured kerosene oil over her and set fire. 7. It  is next  contended that the only eye witness, namely, Manju, a  sister of  the appellant  was not  interrogated or examined and  therefore the  case of  the prosecution should not be  accepted. There  is no substance in this contention. No adverse  inference can  be drawn  against the prosecution from the  non-examination of  the appellant’s younger sister who was  aged only  about 1.  When the evidence on record is sufficient  to   prove  beyond   doubt  the   case  of   the prosecution, the  failure to  examine another person does no affect the credibility of the prosecution. 8. The  factual circumstances established by the prosecution in this  case and  adverted  to  by  the  courts  below  are sufficient to  old that  the charge against the appellant is proved beyond  doubt.  Learned  counsel  for  the  appellant contends that  the injuries  suffered by  the  appellant  as spoken to by CW-1 Dr. Nafisul Hasan prove that the appellant attempted to put off the fire to save his wife. According to the learned  counsel if  the appellant  had set  fire to his wife, he  would not  have attempted  to  save  her  and  get injured  in   the  process.   There  is  no  merit  in  this contention. The said doctor has opined that the location and nature of injuries found on the body of the accused were not consistent with  the claim  that he  had tried to extinguish

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the fire  of the deceased but on the other hand he had tried to hold  her by  his hands and prevent her from going out of the room.  The High  Court has  found that the appellant had three opportunities  after the  Court  Witness  Dr.  Nafisul Hasan was  examined. The  appellant, however,  stated  under Section 313  Cr. P.C.  that he  had nothing  to say,  nor to adduce any evidence in defence. 9. On  a perusal of the entire record in the case we have no hesitation to  agree with  the concurrent  findings  of  the Courts below  and hold  that the appellant was quilty of the offence under  Section 302  IPC. In  the result  the  appeal fails and is dismissed.