Kumar Vs. State of U.P  INSC 843 (21 November 1997)
PUNCHHI, M. SRINIVASAN
21ST DAY OF NOVEMBER, 1997 Present:
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
following Judgment of the Court was delivered:
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.
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
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.
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 the hospital along with the other members of the family.
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.
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.
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.
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
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.
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.
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
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 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.
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