JUDGMENT
J.S. Khehar, J.
1. The instant appeal has been filed against the judgment rendered by the Additional Sessions Judge, Rohtak, dated 9.4.2002, whereby the accused/appellant – Sumitra has been held guilty of having committed the murder of Sunita, under Section 302 of the Indian Penal Code. By a separate order dated 11.4.2002, the accused/appellant Sumitra, after being heard on the question of sentence, has been sentenced to undergo life imprisonment and to pay a fine of Rs. 500/-. In default of payment of fine, she has been ordered to further undergo rigorous imprisonment for one month.
2. The prosecution version of the incident is based on the sequence of events emerging out of the death of Ishwar Singh, his wife Sunita and their two daughters Renu and Reetu. Deceased Ishwar Singh is stated to be employed in the army. Ishwar Singh deceased is stated to have returned to his village Ajaib on 18.12.1998 on 15 days leave from the army. Although, the parental family of Ishwar Singh lives at village Ajaib, his wife Sunita always stays with her own parents during the period Ishwar Singh is away. On 18.12.1998, in order to collect his wife from Jai Jai Wanti i.e. the village where the parents of his wife reside, Ishwar Singh is alleged to have proceeded towards village Jai Jai Wanti before going to his own village Ajaib. Having taken his wife Sunita and children, Renu and Reetu from village Jai Jai Wanti, he is alleged to have reached the village of his parents Ajaib, on 18.12.1998 itself. During the intervening night of 18/19.12.1998, some persons from village Ajaib reached village Jai Jai Wanti and contacted Sunita’s brother Jagbir PW 13 and informed him, that Ishwar Singh, Sunita, and their two daughters Renu and Reetu had been burnt. They also informed him, that while Ishwar Singh and the two daughters Renu and Reetu had succumbed to their burn injuries, Sunita was still alive, and that, she had been admitted at the Post-graduate Institute of Medical Sciences and Research, Rohtak (hereinafter referred to as the PGIMS, Rohtak). On receipt of the aforesaid information, Jagbir PW 13, his wife Anita and uncle Ram Bhagat PW 14, alongwith several other persons of the village, proceeded towards Rohtak. On the way, when they had reached village Lakhan Majra, they were told by certain persons belonging to village Ajaib, that Sunita had not been taken to Rohtak, and that, she was still at village Ajaib. Jagbir PW 13, his wife Anita and uncle Ram Bhagat PW 14 then proceeded towards village Ajaib. Having reached village Ajaib, they found that the eyes of Sunita had been burnt, and as such, she was not able to see, but she had recognised them and others on the basis of their voices. On meeting Sunita, Jagbir PW 13 asked her as to what had happened. Whereupon, Sunita informed them, that Sumitra, wife of Ratan (younger brother of her husband Ishwar Singh) had poured kerosene oil on all the members of her family while they were sleeping, and then put them on fire. According to the narration of Sunita to Jagbir PW 13, despite being engulfed in fire, she had followed Sumitra, who had gone down stairs, and that, Sunita had seen Sumitra entering the main house. In the middle of the stair case, however, Sunita explained that she having been fully engulfed in the flames of fire, became helpless and fell down. After listening her version of the incident, Jagbir PW 13 i.e. the brother of Sunita, wanted to immediately shift his sister to the PGIMS, Rohtak. However, he was not allowed to do so by 100/150 persons of village Ajaib, unless Sunita took the blame of the fire on herself. In order to get his sister medically treated without any further delay, Jagbir PW 13 is stated to have agreed to the suggestion. Whereupon, Sunita, as well as, the dead bodies of Ishwar Singh, Renu and Reetu were taken to the PGIMS, Rohtak. On the same day i.e. on 19.12.1998, Sunita was medically examined. Her medical examination revealed, that she had suffered 75-80% burn injuries. On the following day i.e. on 20.12.1998, Sunita was declared fit to make a statement. ASI Kamlesh Kumar PW 16, accordingly, approached the Chief Judicial Magistrate, Rohtak, for recording her statement. Although, Sunita had been declared fit to make a statement at 3.15 PM, however, when Mr. Bhupinder Nath, Judicial Magistrate Ist Class, Rohtak, was to commence to record her statement, she lost her senses, and on her re-examination she was declared unfit to make a statement. On 21.12.1998, Sunita was again declared fit to make a statement. Whereupon, at the instance of the investigating officer, Ms. Sunita Goyal, Judicial Magistrate Ist Class, Rohtak, reached the PGIMS, Rohtak to record her statement. Prior to recording her statement, the doctor on duty declared Sunita fit to make a statement at 4.15 PM. Ms. Sunita Goyal, Judicial Magistrate Ist Class, Rohtak, then proceeded to record the statement of Sunita. After the statement of Sunita had been fully recorded, another opinion in respect of her fitness was sought. Yet again, at 4.40 PM, Sunita was again declared fit. While making her statement, Sunita asserted, that the wife of the younger brother of her husband, Sumitra had burnt her. According to the narration of Sunita, when every body had gone to sleep, Sumitra had come to their room. Whilst they were sleeping, she sprinkled kerosene oil on them and then lit the same with a match stick. After having put them on fire, Sumitra was proceeding to leave. At that juncture, Sunita having woken up raised an alarm. Neighbours from the vicinity rescued her by covering her with a quilt and by throwing ash on her. She also stated, that in the incident, Ishwar Singh her husband and both her daughters, Renu and Reetu had died. After Sunita’s statement was recorded by the Judicial Magistrate Ist Class, Rohtak, on 21.12.1998, a First Information Report bearing No.455 was registered at Police Station, Meham in district Rohtak, on 21.12.1998 at 6.30 PM under Section 302 of the Indian Penal Code.
3. After the registration of the aforesaid First Information Report, the Investigating Officer ASI Kamlesh Kumar PW 16, having gone to the place of occurrence, inspected the same and prepared a rough site plan. From the place of occurrence, he recovered an empty bottle smelling of liquor, glass pieces, ash, some burnt letters and parts of some burnt door planks. He prepared parcels of the aforesaid objects, except the semi burnt door planks. They were sealed and taken into possession. He had also prepared the inquest report and recorded the statements of Jagbir PW 13 (Sunita’s brother) and Ram Bhagat PW 14 (Sunita’s uncle). He also stated, that the aforesaid statements were made to him voluntarily. In so far as, the statement of Sunita which was recorded by Ms. Sunita Goyal, Judicial Magistrate Ist Class, Rohtak on 21.12.1998, is concerned, he noted that no one other than the Magistrate was with Sunita at the time when the same was recorded. On the completion of investigation, a challan was presented on 3.7.1999 before the Judicial Magistrate Ist Class, Rohtak. By an order dated 30.7.1999, the Judicial Magistrate Ist Class, Rohtak, concluded that a prima-facie case punishable under Section 302 of the Indian Penal Code was made out against the accused. Since the offence under Section 302 of the Indian Penal Code is exclusively triable by the Court of Session, the Judicial Magistrate Ist Class, Rohtak by his order dated 30.7.1999 committed the case to the Court of Session for trial. On 8.9.1999, the Additional Sessions Judge, Rohtak, charged the accused/appellant Sumitra for having committed the murder of Ishwar Singh, his wife Sunita, and their daughters Renu, aged 3 years and Reetu (Dhauli) aged 8 months, under Section 302 of the Indian Penal Code. The accused when confronted with the charge level against her, pleaded not guilty and claimed trial.
4. During the course of the trial, the prosecution examined a number of witnesses. A brief description of the statement of witnesses produced by the prosecution, is being summarised hereunder. The prosecution, first of all, examined Gian Chand, Ahlmed in the Court of Ms. Sunita Goyal, Judicial Magistrate Ist Class, Rohtak, as PW 1. Gian Chand PW 1 produced the envelop containing the statement of the deceased Sunita recorded under Section 164 of the Criminal Procedure Code. SI Jai Parkash was produced by the prosecution as PW 2. SI Jai Parkash PW 2 had partly investigated the case and recorded some statements under Section 161 of the Criminal Procedure Code. Constable Radhey Sham was produced as PW 3. He is stated to have prepared the scaled site plan Ex.PA, of the place of occurrence alongwith its marginal notes. The statement of Ravinder Kumar was recorded as PW 4. Ravinder Kumar PW 4 tendered into evidence his affidavit Ex.PB. A perusal of his affidavit reveals, that he had delivered the special report to the Ilaqa Magistrate, Rohtak at 1.30 PM. The statement of Mr. Bhupinder Nath, Judicial Magistrate Ist Class, Rohtak, was recorded as PW 5. As per his statement, he had received an application from ASI Kamlesh Kumar PW 16, to record the statement of Sunita. He had, accordingly, proceeded to the PGIMS, Rohtak to record her statement. Although, the doctor at the hospital initially opined, that Sunita was fit to make a statement, but she had collapsed in the meantime and, therefore, her statement could not recorded. The statement of Dr. R.P. Verma was recorded as PW 6. Dr. R.P. Verma PW 6 had medico-legally examined Sunita when she was brought to the hospital with burn injuries. According to Dr. R.P. Verma PW 6, Sunita had suffered 75-80% burn injuries. The statement of Dr. Asha Goyal was recorded as PW 7. Dr. Asha Goyal had conducted the postmortem examination on the dead bodies of Ishwar Singh, Renu and Reetu on 19.12.1998. In the opinion of Dr. Asha Goyal PW 7, the cause of death of Ishwar Singh, Renu and Reetu was on account of shock as a result of 100% burn injuries, which were ante-mortem in nature, and were sufficient to cause death in the ordinary course of nature. The statement of Ms. Sunita Goyal, Judicial Magistrate Ist Class, Rohtak was recorded as PW 8. She deposed, that an application had been made to her by ASI Kamlesh Kumar PW 16 to record the statement of Sunita. She also stated, that the doctor on duty at the PGIMS, Rohtak, had given his opinion Ex.PT to the effect, that Sunita was fit to make her statement. She also asserted, that she had recorded the statement of Sunita correctly without any addition or omission. She proved in Court the statement of Sunita Ex. PV which had been in hand written by her, and which also bore her signatures. After the statement of Sunita had been recorded, Dr. Hari Singh Saini PW 21 certified, that Sunita had remained fit during the recording of her statement. Ms. Sunita Goyal PW 8 also stated, that Dr. Hari Singh Saini had remained present with her all the time whilst she had recorded the statement of Sunita. She also affirmed, that the attendants of other patients had been asked to leave the room when the statement of Sunita was recorded. At the time of recording the statement of Sunita, ASI Kamlesh Kumar PW 16 had been asked to stand outside the room. The prosecution then produced Head Constable Phool Singh as PW 9. He tendered into evidence his affidavit Ex.PAA. A perusal of Ex.PAA reveals, that HC Phool Singh PW 9 had deposited certain samples taken from the place of occurrence in the Malkhana of Police Station, Meham, and subsequently he had handed over those samples to Constable Krishan Kumar for delivering them to the Forensic Science Laboratory, Madhuban. Head Constable Sube Singh appeared as PW 10. He deposed that he had recorded the formal First Information Report consequent upon the receipt of the statement of Sunita, despatched to the police station by ASI Kamlesh Kumar PW 16. The statement of Dr. Pinaki from the PGIMS, Rohtak, was recorded as PW 11. Dr. Pinaki PW 16 affirmed that an application was made by the police on 20.12.1998 requiring him to opine, whether or not, Sunita was fit to make a statement. He had given his opinion at 3.15 PM on 20.12.1998 to the effect, that Sunita was fit to make a statement. However, by the time the judicial officer had reached the hospital to record the statement of Sunita, he had recorded another statement at 3.30 PM, that Sunita was not fit to make a statement. Sukhbir Singh appeared as PW 12. He produced the original record enclosed with bed head ticket of Sunita from the PGIMS, Rohtak. The prosecution examined Jagbir as PW 13. Jagbir PW 13 is none other than the brother of deceased Sunita. During the course of his deposition, he asserted, that his sister Sunita was married to Ishwar Singh. He also confirmed, that Ishwar Singh was employed in the Indian Army, and that, Sunita remained with her parental family while her husband Ishwar Singh was on duty. However, whenever he returned to his village on leave, she used to accompany him to her in-laws house. Sunita is stated to have two daughters Renu and Reetu. On 18.12.1998, when Ishwar Singh had come on leave, he had taken his wife (Sunita) to her in-laws house. Sunita had also taken her daughters to her matrimonial home on 18.12.1998. On the following day i.e. on 19.12.1998, at 4.30/5.00 AM, 4/5 persons from village Ajaib had informed Jagbir PW 13 that Sunita, her husband Ishwar Singh and their daughters Renu and Reetu had suffered burn injuries. They informed them, that Ishwar Singh, Renu and Reetu had died, whereas Sunita was struggling with her life at the PGIMS, Rohtak. Accordingly, Jagbir PW 13, his wife Anita and his uncle Ram Bhagat PW 14, besides Ranbir, Sarpanch of the village and 3/4 other persons proceeded towards Rohtak. However, when they had reached village Lakhan Majra, they were informed that Sunita was still at village Ajaib. Accordingly, they had proceeded to village Ajaib. At village Ajaib, according to the statement of Jagbir PW 13, he had found that his sister Sunita was in proper senses, despite the fact, that her eyes had been burnt, she was able to identify them by their voices. Sunita’s uncle Ram Bhagat PW 14 enquired from her how it had all happened. Sunita informed them that Sumitra had entered their room and poured kerosene oil on her husband, her daughters. At that stage, Sunita had woken up. However, before she could raise an alarm, Sumitra had set them on fire. Despite having been put on fire, Sunita claimed that she had followed Sumitra. However, on account of being engulfed by the flames, she had collapsed and had fallen down. However, Sunita stated that she had seen Sumitra entering the house at the ground floor and closing the door. Jagbir PW 13 also asserted, that about 150 people of the village Ajaib had collected there and prevented them from taking Sunita to the PGIMS, Rohtak, till Sunita took upon herself the responsibility of the incident. Since Sunita needed medical treatment immediately, they had agreed to the demand of the villagers. Thereafter, Sunita alongwith the dead bodies of Ishwar Singh, Renu and Reetu were taken to the PGIMS, Rohtak. At the hospital, Sunita insisted on making a truthful statement. Before her death on 22.12.1998, she recorded her statement on 21.12.1998. The factual position depicted by Jagir PW 13 was reiterated by the uncle of deceased Sunita i.e Ram Bhagat PW 14. The statement of Constable Krishan Kumar was recorded as PW 15. He affirmed that he had taken two sealed parcels and delivered them at the Forensic Science Laboratory, Madhuban. The statement of the Investigating Officer Kamlesh Kumar was recorded as PW 16. He affirmed that he was the Investigating Officer of the case and recorded the formalities required to be conducted by him during the course of the investigation of this case. The statement of Dr. Ajay Kumar Goel, Medical Officer, T.B. Centre, Rohtak was recorded as PW 17. He had conducted the postmortem examination on the dead body of Sunita on 22.12.1998. According to his opinion, the cause of death of Sunita was due to extensive burns and consequential complications thereof. He opined, that the burn injuries were ante-mortem in nature, and were sufficient to cause death in the ordinary course of nature. The statement of Dr. S.S. Dahiya was recorded as PW 18. He asserted, that on 19.12.1998, Sunita was admitted to his ward with burn injuries. The police had asked him to give his opinion, whether or not, she was fit to make a statement. On 19.12.1998 at 2.45 PM, he had opined, that she was not fit to make a statement. The statement of Gian Singh was recorded as PW 19. His statement is formal relating to the arrest of the accused/appellant Sumitra. The statement of SI Ramphal Singh was recorded as PW 20. His statement was also formal in nature as he had partly investigated the case by recording the statements of Jagbir PW 13, Anita wife of Jagbir, and Ram Bhagat PW 14 under Section 161 of the Criminal Procedure Code. Last of all, the prosecution examined Dr. Hari Singh Saini, Medical Officer, Civil Hospital, Kaithal as PW 21. He affirmed, that he had recorded the certificate Ex.PT/1 on 21.12.1998, that Sunita was fit to make a statement. He also asserted, that he had remained present with Ms. Sunita Goyal, Judicial Magistrate Ist Class, Rohtak, when the statement of Sunita was recorded by the Magistrate. Having examined the aforesaid witnesses, the prosecution evidence was closed on 28.3.2002.
5. The statement of accused Sumitra was recorded under Section 313 of the Code of Criminal Procedure, on 2.4.2002. The incriminating evidence appearing on record was put to the accused/appellant Sumitra. She denied the same. In her statement, she claimed that she was sleeping on the ground floor of her house with her husband and her mother-in-law and the other members of the family were sleeping adjoining to the main gate, and that, she could not have gone out from her room unnoticed by her mother-in-law and other members of family. She also stated, that she has been falsely implicated in the case. In her defence, accused Sumitra produced Gunwati as DW1. Gunwati DW1 is the mother of deceased Ishwar Singh and the mother-inlaw of accused Sumitra. According to the statement of Gunwati DW1, deceased Ishwar Singh, his wife Sunita and daughters Renu and Reetu were sleeping in the chabutra of their house. On the said night, Sumitra was sleeping on the ground floor inside the room, whereas she herself i.e. Gunwati PW 1 was sleeping outside the room near the main gate of her house. She also asserted, that the accused/appellant Sumitra did not go out of the house at night on the fateful day; as she would have definitely seen her going outside, if she had done so since she was sleeping near the main gate. She also asserted, that when she saw Sunita on the date of occurrence, she was on fire and Ranbir DW2 was trying to put out the flames. Ranbir appeared as DW2. He is living in the vicinity of the house where the occurrence took place. On the night of 18.12.1998 between 3/3.15 AM, he claims that he heard dogs’ barking and had resultantly woken up. Having come out of the cattle shed, he had seen flames in the chabutra of the house where the alleged occurrence under reference had taken place. He claims to have rushed towards the house where he met the deceased Sunita i.e., the wife of Ishwar Singh, who was engulfed in flames. He also disclosed the various efforts made by him to put out the flames. Having done so, he knocked at the door of the ground floor. However, no one came out. Whereupon, he went to the chabutra and noticed Ishwar Singh lying dead in front of the stair case. According to Ranbir DW 2, the chabutra was still on fire, and therefore, he could not enter the same. He also asserted, that he had asked Sunita as to how all this had happened. She had informed him, that it had happened on account of her own mistake. Thereafter, he came down from the chabutra and saw that the entire family had come out of the house. He claims to have narrated the incident, as has been recorded in his statement, to the police. Having recorded the statement of the aforesaid two witnesses in her defence, the accused/appellant Sumitra closed her defence evidence on 6.4.2002. The Additional Sessions Judge, Rohtak, delivered the judgment in Sessions Case No. 29 of 1999, on 9.4.2002. The accused Sumitra was held guilty of having committed the murder of Ishwar Singh, Sunita and their two daughters Renu and Reetu, and was accordingly, convicted under Section 302 of the Indian Penal Code. The Additional Sessions Judge, Rohtak, then heard the accused on the question of sentence. By his order dated 11.4.2002, the accused Sumitra was sentenced to undergo imprisonment for life and to pay a fine of Rs. 500/-, under Section 302 of the Indian Penal Code. In default of payment of fine, she was ordered to undergo further rigorous imprisonment for a period of one month.
6. The judgment of the Additional Sessions Judge, Rohtak, dated 9.4.2002, and the order of sentence dated 11.4.2002, are subject matter of challenge at the hands of appellant Sumitra, through the instant appeal. A perusal of the evidence produced by the prosecution, as well as, the judgment rendered by the Additional Sessions Judge, Rohtak, reveal that the statement made by the deceased Sunita to her brother Jagbir PW 13 and to her uncle Ram Bhagat PW 14 on 19.12.1998, as well as, the dying declaration of deceased Sunita, recorded by Ms. Sunita Goyal, Judicial Magistrate Ist Class, Rohtak PW 8 on 21.12.1998, constituted the foundation of her conviction. Reliance was also placed on the statements of Jagbir PW 13 and Ram Bhagat PW 14 so as to explain away the statement made at village Ajaib that the deceased Sumitra had told the members of her paternal family that she was not aware about the manner in which the room had caught fire, as also, the statement made at village Ajaib, before Sunita was taken to PGIMS, Rohtak, that no one was at fault for the occurrence. It would be pertinent to mention that the statement referred to above, was recorded by the investigating officer ASI Kamlesh Kumar PW 16 at the time of preparation of the inquest report Ex.PJ. Besides the aforesaid ocular evidence, the prosecution heavily relied on expert medical evidence produced by way of the statements of Dr. R.P. Verma PW 6, Dr. Asha Goyal PW 7, Dr. Pinaki PW 11, Dr. Ajay Kumar Goyal PW 17, Dr. S.S. Dahiya PW 18 and Dr. Hari Singh Saini PW 21. Since the dying declaration of Sunita Ex.PV has been the primary basis of the determination rendered by the trial Court alongwith the endorsement thereon (pertaining to her fitness to make her statement) the translated version of the said dying declaration made on 21.12.1998, alongwith its endorsements, is being extracted hereunder:
Statement of Sunita w/o Ishwar Singh Jat r/o Not given now admitted in Ward No. 6 Unit 6 Bed No. 35.
Certified that patient Sunita w/o Ishwar Singh is fit to make her statement.
Sd/-Doctor 21.12.98
At 4.15 P.M.
Sunita w/o Ishwar Singh aged 25 years r/o Ajaib on SA 80% burns.
My Devrani has burnt me. Her name is Sumitra. It became night. (We) talked and laughed in the night upto 12/00 O’clock. I have eight months daughter. Male members then went to sleep. I started feeding the child. Then she went to sleep. There was no chain but there was a staple attached to a door. Devrani came to the room. (She) came with oil. The baby was sleeping separately. One was five years old and other was eight months old. Devrani started splashing oil. Devrani lighted a match stick. After putting on fire, she started going out. She went out. I raised alarm. My husband could not save me due to heavy flames. The neighbourers had put GUDRE (patched quilts) and ashes. They rescued. The neighbourers rescued. Ishwar Singh and both the children, all of them died. My devrani had burnt us. Her name is Sumitra.
RTI of Sunita. Sd/- Sunita Goel
JMIC, Rohtak 21.12.98.
I certify Sunita w/o Ishwar Singh r/o Ajaib aged 25 years.
Sd/-Kamlesh Kumar, ASI
P.S. Meham.
7. Mr. Rajbir Shehrawat, learned Counsel representing the appellant, in order to assail the conclusion drawn by the Additional Sessions Judge, Rohtak, in the impugned judgment dated 9.4.2002, states that there are various reasons for discarding the dying declaration of deceased Sunita recorded on 21.12.1998. In this behalf, it is the submission of the learned Counsel for the accused/appellant Sumitra, that the dying declaration should be viewed with suspicion, firstly, on account of the fact, that the author of the statement had died, and there is no way, that the said statement can be tested on the touch stone of cross-examination. It is the, second, contention of learned Counsel for the appellant, that it is a misnomer in the world today, that a person in the shadow of death, would not lie. In so far as the present controversy is concerned, it is the contention of the learned Counsel for the appellant, that the behaviour of deceased Sunita was not normal, and as such, it would be extremely dangerous to solely rely on the statement of Sunita to hold accused/appellant Sumitra guilty of the charge of having committed the murder of the entire family comprising of Ishwar Singh, Sunita, and their two daughters Renu and Reetu. In so far as the abnormal behaviour of the deceased Sunita is concerned, it is pointed out that she did not live in her matrimonial home even for a single day beyond the duration of leave of her husband Ishwar Singh. It is submitted, that the prosecution version acknowledges that Sunita always lived with her parents at village Jai Jai Wanti whilst her husband Ishwar Singh was on duty. It is only when her husband Ishwar came home on leave, that she used to accompany him to her matrimonial home so as to be able to fulfil her matrimonial desires. It is also submitted, that Sunita was a clever lady, inasmuch as, she continued to pursue her matrimonial relationship with her husband Ishwar, and at the same time, continued to live in her parental house whilst he was on duty. According to the learned Counsel, the deceased Sunita must be deemed to have entertained a grudge ever since her marriage in March, 1991 till her death in 1998, against the family of her inlaws, and that could be the only reason for her to live with her parental family during the absence of her husband Ishwar Singh. It is, accordingly, sought to be concluded, that the deceased Sunita had named the accused/appellant Sumitra on account of the grudge entertained by her.
8. The first submission of the learned Counsel for the accused/appellant Sumitra, as has been noticed in the foregoing paragraph, was forcefully repudiated on behalf of the respondent. It was pointed out that the rival parties are in unison, as the evidence produced in the case reveals, that there was no dispute or rivalry between Sunita and the rest of the family of her in-laws, and that, there was no rivalry between Sunita and the accused/appellant Sumitra. In fact, learned Counsel for the respondent, Mr. J.S. Toor, Additional Advocate General, Haryana, states that the submissions advanced by the learned Counsel for the accused/appellant Sumitra, are a matter of his own imagination. Had there been a rivalry between the deceased Sunita with the members of the family of her in-laws, she would have named many more persons from the family of her in-laws and not the accused/appellant Sumitra alone. It is submitted that the deceased Sunita named only the accused/appellant Sumitra, not only in the dying declaration recorded by her on 21.12.1998, under Section 164 of the Code of Criminal Procedure in the presence of Ms. Sunita Goyal, Judicial Magistrate Ist Class, Rohtak PW 8, but also at the time of her inter-action with the members of her family, namely, with her brother Jagbir PW 13 and her uncle Ram Bhagat PW 14 on the date of the occurrence i.e. on 19.12.1998. It is also the contention of the learned Counsel for respondent, that matrimonial relationship between the parties, was normal and stands established from the fact, that on his return from leave, her husband Ishwar Singh, first went to the residence of his wife Sunita at village Jai Jai Wanti, and in the company of his wife and two daughters, proceeded to his own village Ajaib, on the same day.
9. We find substance in the contention of the learned Counsel for respondent. Each one of his submissions noticed in the foregoing paragraph repudiates the very basis of the first contention advanced by the learned Counsel for the appellant. The same are not being incorporated herein again by us for reasons of brevity. In view of the contention of the learned Counsel for the respondent, that the evidence on the file shows an amicable relationship of the deceased with the family of her in-laws, and the fact that in case there was bad blood she would have named more persons from the family of her in-laws and not just the accused/appellant Sumitra, cannot be over-looked. It is, therefore, not possible for us to accept the first contention of the learned Counsel for the accused/appellant.
10. The second contention of the learned Counsel for the appellant is, that besides the fact, that the deceased Sunita named the accused Sumitra in her dying declaration, she disclosed no further information in her dying declaration. It is the submission of the learned Counsel for the accused/appellant Sumitra, that the deceased Sunita did not disclose in her dying declaration why the accused Sumitra had taken the extreme step of committing the murder of the entire family of her brother-in-law Ishwar Singh. It is also his submission, that a shortened dying declaration was made by the deceased Sunita on account of her being tutored by her family members, or alternative because she was not mentally fit to record a statement at the time when her dying declaration was recorded. Having considered the aforesaid contention of the learned Counsel for the accused/appellant Sumitra, we are of the view, that it is futile to find fault with the dying declaration of Sunita in the background of the statement of Dr. R.P. Verma, Chief Medical Officer, PGIMS, Rohtak, who appeared as PW 6 before the trial Court, wherein he indicated that Sunita had burn injuries on her to the extent of 75-80%. The state of an individual who has suffered burn injuries to the aforesaid extent, is obvious and needs no further elaboration. Besides the aforesaid, it is evident from the statement of Dr. Pinaki, PGIMS, Rohtak, who appeared as PW 11, that the first attempt to record the statement of Sunita was made on 20.12.1998. However, after the arrival of the Magistrate at the PGIMS, Rohtak, to record her statement, she was considered unfit to record a statement. Her being unfit was based on her having been sedated during the course of her treatment. Her statement could thereafter only be recorded on 21.12.1998 when she was declared fit to record her statement. Her statement was recorded by Ms. Sunita Goyal, Judicial Magistrate Ist Class, Rohtak. The statement of Sunita was recorded in the presence of a medical expert, who further opined that during the entire period when her statement was being recorded, she had remained fit to make a statement. It has been asserted by Ms. Sunita Goyal, Judicial Magistrate Ist Class, Rohtak PW 8, that all other persons in the room, were asked to leave the room so as to ensure that the statement of Sunita was voluntary and without any pressure or coercion from any quarter. In the background of her medical status, certified by experts, and also on account of the fact that the dying declaration of Sunita was recorded by a responsible judicial officer, we are satisfied, that the submissions made by the learned Counsel for the accused/appellant Sumitra to discard the dying declaration made by Sunita, are inconsequential and deserve to be rejected.
11. The next contention of the learned Counsel for the accused/appellant Sumitra was in respect of the description of the incident at the hands of deceased Sunita, which shows the manner in which the crime was committed, was not within the scope of ordinary probabilities. In this behalf, it is the contention of the learned Counsel for the accused/appellant Sumitra, that the chabutra where the deceased – Ishwar Singh, Sunita, and their two daughters Renu and Reetu were found, was a small room measuring 8’x10′. It is the contention of the learned Counsel for the accused, that there would have hardly been any room for the accused Sumitra to sprinkle kerosene oil in the manner mentioned by the deceased Sunita as the beds in the room would cover most of the area of the room, leaving very little space for movement. In the aforesaid circumstances, it is submitted, that it cannot be accepted, that a large quantity of kerosene oil could have been sprinkled over the deceased – Ishwar Singh, Sunita and their daughters Renu and Reetu. On the contrary, it is submitted, that if the quantity of kerosene oil used in the crime was little, then the consequences would have been totally different. Little kerosene oil would have taken longer time to raise the entire room into flames, and in such circumstances, Ishwar Singh, who was employed in the army, would have definitely been in a position to get hold of the culprit.
12. Besides the aforesaid, it is the submission of the learned Counsel for the accused/appellant Sumitra, that it cannot be accepted, that Ishwar Singh and Sunita did not bolt the door of the chabutra from inside, when they had gone to sleep. This submission, according to the learned Counsel for the accused/appellant Sumitra, is obvious from the fact, that it was the first time when the husband and wife were spending a night together, on the return of the husband, on leave to his house, and as such, it could not be accepted, that the door would have been left open for all and sundry to enter therein. We have collectively considered the submissions advanced by the learned Counsel for the accused/appellant Sumitra, as have been noticed in the foregoing paragraph. It is not a matter of dispute, that Ishwar Singh had returned to the village on leave from the army on that very day i.e. on 18.12.1998. He had proceeded straight to village Jai Jai Wanti, so as to collected his wife Sunita and his two daughters Renu and Reetu, and then he had proceeded to village Ajaib on the same day. It is in the dying declaration of Sunita (extracted hereinabove) recorded on 21.12.1998, that the members of the family talked and laughed upto midnight i.e. till 12 O’ clock, whereafter, she fed her younger daughter Reetu and then went to sleep. In these circumstances, it is possible that on being tired on account of the days proceedings, and on account of their having slept late, the members of the family were too tired to bother about locking the door, and for he same reason, must have been in such deep sleep, that when kerosene oil was poured on their heavy winter bedding they remained sleeping. One must keep in mind, that the flames of the fire must have been so intensely devastating that Ishwar Singh a young man employed in the Indian Army, had no time to react to save himself or the other members of his family. The question, therefore, of apprehending the person, who had committed the crime, is unthinkable. The most interesting aspect of the matter, however, is that in her dying declaration, Sunita has not indicated any vindictiveness towards the members of the family of her husband. She could have named others as well. She, however, limited her accusation to the accused Sumitra. It is this aspect of the statement of the deceased Sunita that makes it most trust-worthy. In the absence of any earlier known rivalry between the deceased Sunita and the accused Sumitra, only the truth of the matter would have caused her to name Sumitra as the culprit of the crime. In fact, the statements of her family members, whom she had met soon after the incident i.e. her brother Jagbir PW 13 and her uncle Ram Bhagat PW 14, confirmed that the deceased Sunita had also narrated to them the same factual position as was disclosed by her in her dying declaration. In our view, there was no reason for Sunita to lie to her any family members. It is, therefore, not possible for us to accept the contention of the learned Counsel for the accused/appellant, that the crime could not have been committed in a cramped room as suggested; or that, the husband of the deceased Sunita Ishwar Singh was a young man employed in the army, and as such, would not have allowed the accused to escape; or that the deceased Sunita and her husband Ishwar Singh could not have gone to sleep with the door open. The truth of the matter is obvious that the fire on the side of the bed occupied by Ishwar Singh was so devastating that it did not permit any reaction time to Ishwar Singh to save himself or his daughters Renu and Reetu. Although the fire did not immediately engulf Sunita, but it did eventually cause extensive burn injuries to her, leading to her death, but not till she got up and followed the culprit in her effort to apprehend her. She did not succeed in apprehending her, but she did succeed in recognising the accused/appellant Sumitra as the person who was responsible for the entire occurrence.
13. The third contention of the learned Counsel for the accused/appellant Sumitra is, that the statement of Sunita reveals, that they had all gone to sleep. If the aforesaid factual position was correct, how could she have seen the accused Sumitra sprinkling kerosene oil on her, and in case, she had actually seen the accused Sumitra pouring kerosene oil, she would obviously have raised a hue and cry well before the accused Sumitra could have ignited the kerosene oil. For this reason also, it is submitted that the prosecution story is a total sham and as such deserves to be rejected.
14. It is not possible for us to accept the aforesaid contention of the learned Counsel for the appellant for exactly the same reasons as have been recorded by us in respect of the second contention advanced on behalf of the appellant. Accordingly, the third contention advanced by the learned Counsel for the appellant is hereby declined, on the same basis as have been recorded by us in response to the second contention.
15. The fourth contention of the learned Counsel for the accused/appellant Sumitra is, that Sumitra could not have come out of the house so as to reach the chabutra unnoticed. In this behalf, learned Counsel for the accused/appellant Sumitra, has placed reliance on the statement of the mother of Ishwar Singh i.e. Gunwati DW1, wherein she asserted, that accused Sumitra was sleeping in a room inside the house, on the ground floor, alongwith other members of the family, whereas she herself was sleeping close to the main gate, and in case, Sumitra had gone outside, she (Gunwanti DW1) would have known, as she (the accused Sumitra) would have had to go by her to reach the main gate. In her statement, Gunwati DW1 clearly expressed, that Sumitra had not gone out of the house during the night when the occurrence took place. It is, therefore, submitted that there was no question of the accused Sumitra having gone to the chabutra to commit the crime. It is also the contention of the learned Counsel for the appellant that there is no reason for anyone to disbelieve the own mother of the deceased Ishwar Singh for which he posed a question. Would a mother depose in a manner that the murderer of her son and grand-children go scot-free.
16. The fifth contention advanced by the learned Counsel for the accused/appellant is also devoid of any merit. The crime came to be committed when the winter season was at its peak. At that time, people sleep under heavy quilts. Most old people also tuck their faces inside their quilts. The time of occurrence was after midnight when the sleep is deepest. At that juncture, it would be within the realm of probabilities for Sumitra to sneak out of the house unnoticed to execute the crime in the manner suggested, even if it is accepted that Gunwanti DW1 was actually sleeping near the main entrance to the house on the ground floor. In so far as the query posed by the learned Counsel for the appellant is concerned, we are of the view that the answer to the same would depend on the facts and circumstances of each case. In so far as the instant case is concerned, it is apparent that in the occurrence Gunwanti DW1 had lost the entire family of one of her sons, namely. Ishwar Singh, his wife Sunita and her grand children Renu and Reetu. If she supports the prosecution version by not supporting the accused/appellant Sumitra, she would destroy the family of her second son as well, as she would then ensure that there would be no mother to look after the children of her second son Rattan Singh. Although the aforesaid inference is purely hypothetical yet it is sufficient to require us to examine the statement of Gunwanti DW1 with suspicion and caution. For the reasons aforesaid, we find no merit in the fifth contention of the learned Counsel for the accused/appellant.
17. The sixth contention of the learned Counsel for the accused/appellant Sumitra is, that the entire version is trumped up. It is also the contention of the learned Counsel for the accused/appellant Sumitra, that the statements of Jagbir PW 13 and her uncle Ram Bhagat PW 14 are totally unbelievable. In order to substantiate the instant contention, learned Counsel for the appellant has invited our attention to the statement of the Investigating Officer ASI Kamlesh Kumar PW 16, wherein during the course of his cross-examination, he stated that while preparing the inquest report, he had recorded the statement of Ram Bhagat PW 14 i.e., uncle of the deceased Sunita and Jagbir PW 13 i.e., brother of the deceased Sunita. According to the Investigating Officer, the aforesaid statements were made voluntarily and were signed by Ram Bhagat PW 14 and Jagbir PW 13 as a token of their correctness. A perusal of the inquest report where the statements of the aforesaid witnesses were recorded reveals that they had made enquiries but could not arrive at the conclusion that some body had intentionally caused the fire in the room, leading to the death of Ishwar Singh and his two daughters Renu and Reetu. During the course of his
statement, ASI Kamlesh Kumar PW 16, further stated that till the dead bodies of Ishwar Singh and his two daughters Renu and Reetu were cremated, there was no complaint from the family members of the deceased Sunita, that there was any unfairness in her death. It is, therefore, the submission of the learned Counsel for the accused/appellant Sumitra, that not only the story trumped up by the members of the family of deceased Sunita at a later juncture, but Sunita herself had also been tutored to make a statement to implicate the accused/appellant Sumitra.
18. In order to repudiate the sixth contention of the learned Counsel for the accused/appellant Sumitra, as has been noticed in the foregoing paragraph, learned Counsel for respondent has required us to closely examine the statements of Jagbir PW 13 and Ram Bhagat PW 14, as their statements fully explain the circumstances in which they had recorded their statements during the course of the preparation of the inquest report. Both Jagbir PW 13 and Ram Bhagat PW 14 have stated, that when a decision was taken to remove Sunita from village Ajaib to the PGIMS, Rohtak for treatment, they were not being allowed to do so by about 150 persons belonging to village Ajaib, till Sunita herself took responsibility of the incident on herself. It deserves to be noticed that despite the fact that Sunita suffered 75-80% burn injuries at around 3/3.15 AM (as per the statement of Ranbir DW2), she had still not been taken to hospital when the members of her family Jagbir Singh PW 13 and Ram Bhagat PW 14 reached village Ajaib, although as per the information communicated to them at village Jai Jai Wanti, Sunita had already been removed to the PGIMS, Rohtak. Sunita eventually reached PGIMS, Rohtak at 12.40 PM i.e. more than 9 hour after she had suffered the aforestated burn injuries. It is, therefore, that Jagbir Singh PW 13 and Ram Bhagat PW 14 had recorded their statements during the course of the preparation of the inquest report so as to be able to take Sunita, who had extensive burn injuries, to the PGIMS, Rohtak without any further delay. In their statements, they also asserted, that after the incident, on 24.12.1998, there was a meeting of the Panchayats of 24 villages in village Jai Jai Wanti. This kind of meeting is described as Meham Chaubisi. The Meham Chaubisi held in village Jai Jai Wanti on 24.12.1998, decided that all that had happened was on account of the mistake of Sunita herself, and that, she had falsely implicated Sumitra.
19. The assertion at the hands of the two witnesses, namely, Jagbir PW 13 and Ram Bhagat PW 14 to the effect, that there was extensive pressure on them not to blame the accused/appellant Sumitra, stand
established from the fact that Sunita was not removed to the the PGIMS, Rohtak for many hours for treatment despite the fact that she had extensive burn injuries till her relations recorded the aforesaid statements at village Ajaib. Further pressure on them is also clear from the meeting of the Meham Chaubisi held at village Jai Jai Wanti. Yet both Jagbir P13 and Ram Bhagat PW 14 stuck to their guns inspite of insurmountable social pressure. They remained unshaken even after extensive cross-examination was conducted on them. Since the fact, that villagers were preventing the relations of Sunita, namely, Jagbir PW 13 and Ram Bhagat PW 14 from taking her to the PGIMS, Rohtak, it was natural for them to make any statement so as to ensure early treatment to Sunita. The aforesaid statements, therefore, deserve to be discarded. One cannot also lose sight of the fact, that according to the statement of the deceased Sunita, the incident took place after midnight on the intervening night between of 18 and 19.12.1998. According to Ranbir DW2, he had rushed to the spot and had helped in putting out the fire from the body of Sunita between 3.00 and 3.15 AM, yet Sunita who had suffered 75-80% burn injuries on her body was not taken to the hospital for treatment for hours and hours. It is only when the members of the family on the side of Sunita, including Jagbir PW 13 and Ram Bhagat PW 14 reached the spot and got recorded statements to the satisfaction of the members of the family of Ishwar Singh, that she was allowed to be taken to the PGIMS, Rohtak. It would be pertinent to mention, that Sunita reached the PGIMS, Rohtak on 19.12.1998 at 12.40 PM i.e more than 9 hours after the incident had taken place, although the distance between village Ajaib and Rohtak is a mere 35 kms. Keeping the emergent situation in mind, it should have taken, at the most, 30/35 minutes to reach Rohtak. This factor also, in conjunction with the factual position noticed hereinabove, has persuaded us to accept the veracity of the statements made by Jagbir PW 13 and Ram Bhagat PW 14, that the statements recorded by them at the time of preparation of the inquest report, was not voluntary because they had no other alternative but to make the said statement if they desired to take Sunita to hospital. We are of the view that the earlier statements of Jagbir PW 13 and Ram Bhagat PW 14 should not be taken into consideration while examining the merits of the contentions advanced by the rival parties. And, therefore, the trial Court was fully justified in not taking into consideration the statements recorded by Jagbir PW 13 and Ram Bhagat PW 14 at village Ajaib on the date of the occurrence. No other contention besides the ones noticed hereinabove, was advanced on behalf of the appellant.
20. For the reasons recorded hereinabove, we find no merit in the instant appeal, and the same is, accordingly, dismissed.