1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 44 of 2002 Ranjeet Singh, S/o Shri Hayyat Singh R/o Village Jawana Estate, Patwari Circle, Pinglo Tehsil & District Bageshwar …..…Appellant Versus State of Uttaranchal (Uttarakhand) ……….Opposite Party Alongwith Criminal Jail Appeal No. 40 of 2002 Ranjeet Singh, S/o Shri Hayyat Singh R/o Village Jawana Estate, Patwari Circle, Pinglo Tehsil & District Bageshwar …..…Appellant Versus State of Uttaranchal (Uttarakhand) ……….Opposite Party Shri S.S. Bhandari, Advocate (Amicus Curiae) present for the appellant. Shri Prabhakar Joshi, Brief Holder, present for the State. 2 Hon'ble Prafulla C. Pant, J. Hon'ble Servesh Kumar Gupta, J. Oral: Hon'ble Prafulla C. Pant,J. Both these appeals preferred by the same convict are directed against the judgment and order dated 10.01.2002, passed by Sessions Judge, Bageshwar, in Sessions Trial no. 01 of 2001,whereby said court has convicted accused / appellant Ranjeet Singh under section 302 Indian Penal Code, 1860 (for short IPC), and sentenced him to imprisonment for life, and also directed to pay fine of `5,,000/-. (One appeal was got filed through counsel while another one is got sent through the Superintendent of District Jail, Almora, as such both the appeals are disposed of by this judgment). 2. Heard learned Amicus Curiae for the appellant, and learned Brief holder for the State and perused the lower court record. 3. Prosecution story, in brief, is that Kamla Devi (deceased) got married to Ranjeet Singh (accused/appellant) in the year 1988. They had no issue. Both used to live in Village Sirkote of District Bageshwar. On 16.09.2000, at about 8:00 p.m., the couple quarreled after accused Ranjeet Singh 3 expressed suspicion on the character of his wife Kamla Devi. They exchanged heated words, and got enraged. In the heat of passion firstly Kamla Devi picked up a kerosene cane, which got sprinkled on herself and her husband Ranjeet Singh. Whereafter it was the husband Ranjeet Singh who lit a matchstick and set his wife on fire. After getting ablazed, wife embraced the husband. Thereafter, she came out of the house and went to the water tap in an attempt to extinguish the fire. However, by then she had already suffered substantial burn injury. She was immediately taken by the villagers to Primary Health Center, Baijnath from where she was referred to Base Hospital, Almora. P.W.3 Dr. Vipin Pant, who was on emergency duty admitted Kamla Devi at about 5:30 a.m (17.09.2000) in the hospital, and recorded 90% burn injury in the injury report (Ex. A2). The First Information Report (Ex. A1) was got lodged by P.W.2 Jaman Singh (brother of Kamla Devi) relating to offences punishable under section 504, 506, 307 IPC, with Patti Patwari Circle Pinglo, District Bageshwar. (In Uttarakhand hills, in certain areas, Revenue Officials are given police powers). On receiving information, P.W.1 Ganga Singh (cousin of the deceased), P.W.2 Jaman Singh (brother of the deceased) alongwith mother of the deceased came to the hospital and made enquiries from her as to the 4 cause of her injuries. She (Kamla) disclosed the incident as mentioned above to her her cousin P.W.1 Ganga Singh and others. On 17.09.2000, in the presence of Dr. R.S. Sahi (P.W.10), Naib Tehsildar Chandra Singh Martoliya (P.W.4) recorded dying declaration (Ex.A3) of Kamla Devi. In said statement also in substance she told that after the quarrel with her husband while snatching the kerosene cane the same (kerosene) sprinkled on both of them whereafter her husband set her on fire. Kamla Devi succumbed to burn injuries on 22.09.2000. P.W.9 S.I. Km. Pushpa Bist on receiving information from hospital about death of Kamla Devi went there and prepared inquest report (Ex. A7) at 8:30 A.M. (22.09.2000). She also got prepared other papers like sketch of the dead body (Ex. A5), police form no. 13 (Ex.A6), sample seal (Ex.A8), letter to Chief Medical Officer (Ex. A9) before the dead body was sent for post-mortem examination in a sealed condition. On 23.09.2000, at about 10:00 a.m., P.W.6 Dr. Gopal Singh Mahar conducted post- mortem examination on dead body of Kamla Devi. After recording the ante-mortem injuries he opined in the autopsy report (EX. A4) that the deceased had died of shock and septicimia as a result of extensive burn injuries. The investigation was done by P.W. 11 Gopal Singh (Patwari) who interrogated the witnesses, inspected the spot, recovered the burnt 5 items from the place of incident, arrested the accused and submitted charge sheet (Ex. A20) against the accused Ranjeet Singh for his trial in respect of offence punishable under section 302 IPC. 4. On receipt of the charge sheet, the Chief Judicial Magistrate, Bageshwar, after giving necessary copies to the accused as required under section 207 Cr.P.C., committed the case to the court of sessions for trial. On 07.08.2001, learned Sessions Judge, Bageshwar, after hearing the parties, framed charge of offence punishable under section 302 IPC, against accused Ranjeet Singh who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Ganga Singh (cousin of the deceased), P.W. 2 Jaman Singh (informant), P.W. 3 Dr. Vipin Pant (who admitted the deceased in the hospital in the injured condition), P.W.4 Naib Tehsildar Chandra Singh Martoliya (who recorded dying declaration), P.W.5 Darban Singh (who informed about the incident to the parental side of the deceased), P.W6 Gopal Singh Mahar (who conducted post-mortem examination), P.W.7 Lacchman Singh (declared hostile), P.W.8 Balwant Singh (who was one of the members who took Kamla to hospital), P.W.9 S.I. Km. Pushpa Bist (Who prepared inquest report), P.W. 10 Dr. R.S. Sahi(who certified the mental 6 condition of Kamla Devi at the time of her dying declaration), P.W. 11 Gopal Singh (Patwari, who investigated the crime) and P.W. 12 Pooran Giri Goswami (who prepared the recovery memos on instruction of the Investigating Officer). Oral and documentary evidence was put to the accused under section 313 Cr.P.C., in which he admitted that deceased was his wife but denied the rest of the allegations. It is pleaded by him that she had a quarrel with his wife on the day of incident whereafter his wife poured kerosene oil after getting enraged and set herself on fire. However, no evidence in defence was adduced. The trial court after hearing the parties found that prosecution has successfully proved charge of offence punishable under section 302 IPC, against accused Ranjeet Singh and convicted him accordingly. After hearing on sentence, the trial court sentenced the convict to imprisonment for life, and also directed him to pay fine of `5,,000/-. Aggrieved by said judgment and order dated 10.01.2002, passed by Sessions Judge, Bageshwar, in Sessions Trial No. 01 of 2001, these appeals are preferred by the convict. 5. Before further discussion, we think it just and proper to mention the burn injuries recorded by P.W.3 Dr. Vipin Pant on 17.09.2000, at about 5:30 a.m.,in Base Hospital, Almora, and prepared autopsy 7 report (Ex. A2). The same are being reproduced below:- Both superficial and deep burn area seen over face , neck, chest, abdomen both upper limbs on interior and posterior side, deep burn seen over genitals,thigh, superficial and deep burn seen over both legs, feet, interior and posterior side, disquamotion present all over the body. Verticulation present over thigh in some areas. Curling of hairs present, all cloths burn, smell of kerosene present. Burn area shown in a diagram.” According to the aforesaid medical officer (Vipin Pant) the duration of burn injuries was fresh in nature within about 12 hours. Percentage of burn injury was about 90% caused due to fire. It is also mentioned in the injury report that police and Magistrate were informed for taking dying declaration. 6. P.W.4 Naib Tehsildar Chandra Singh Martoliya has recorded dying declaration (Ex.A3) on 17.09.2000, at about 8:30 a.m., in the presence of P.W.10 Dr. R.S. Sahi. The English translation of dying declaration (Ex.A3) is mentioned below:- “Yesterday, on 16.09.2000, my husband was 8 quarreling with me right from morning. In the evening at about 8:00 p.m., on getting fed up I, in an attempt to commit suicide poured kerosene oil on myself but my husband attempted to snatch the cane of kerosene. In the process of snatching, kerosene got sprinkled on both of us. Once again we started quarreling, and hurling abuses. On this my husband lit a matchstick , and set me on fire due to which I got burnt. And my husband also suffered burn injury. Then villagers took me to Almora for medical treatment. My marriage is 12-13 years old, and I have no issue. My husband set by body on fire. This is my statement.” P.W. 10 Dr. R.S. Sahi, has proved that Kamla Devi was in a conscious condition when she made the above statement to the Naib Tehsildar (Chandra Singh Martoliya). 8. Now we have to examine whether the statement given by Kamla Devi in her dying declaration gets corroborated from other evidence on record or not. P.W.1 Ganga Singh is cousin of the deceased who has stated that on receiving information that Kamla Devi had suffered burn 9 injuries and taken to hospital he alongwith Jaman Singh (P.W.2) mother Devki Devi (mother of deceased) came to hospital and inquired from Kamla as to how she suffered burn injuries. In page 2-3 of the statement of said witness (P.W. 1 Ganga Singh) he has stated that Kamla told him that her husband made allegation on her character, and hurled abuses on her and slapped her. She further told to the witness that on sixteenth at about 8:00 p.m., her husband asked her to cook the food and she declined to obey. She further told him that she was fed up with everyday's quarrel, and wanted to set the house on fire. P.W. 1 Ganga Singh further states that Kamla told him that thereafter she picked up Jericane containing kerosene oil, and both husband and wife started snatching the same. This resulted in sprinkling of kerosene over both of them. The witness further narrates that Kamla told him that thereafter she was pushed by her husband who lit matchstick and set her on fire. It is also stated by this witness that Kamla lastly told that while coming out of the house and embraced her husband, and he too caught fire. 9. The statement of P.W. 1 Ganga Singh is consistent to the dying declaration made by Kamla Devi and if both of these statements are read with injury report and the post-mortem report we find that 10 the prosecution story cannot be disbelieved that it was accused Ranjeet Singh who set his wife on fire by lighting a matchstick and throwing at her. 10. It is argued before us by learned Amicus Curiae that even if the dying declaration and the statement of the witnesses are taken to be true, the act on the part of accused Ranjeet Singh is covered under exception 4 of section 300. Exception 4 of section 300 reads as under: “Exception 4 - Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel of unusual manner”. Explanation of above exception provides that it is immaterial in such cases which partly offers the provocation or commits the first assault. We are in agreement with learned Amicus Curiae that present case is a case of culpable homicide not amounting to murder punishable under para 1 of section 304 IPC and not culpable homicide amounting to murder under section 302 IPC. 11. Accordingly, the appeals are partly allowed. Accused/appellant Ranjeet Singh is acquitted of 11 charge of offence punishable under section 302 IPC, instead he is convicted under section 304 para 1 IPC. Considering the facts and circumstances, accused/appellant Ranjeet Singh is sentenced to rigorous imprisonment for a period of ten years under section 304 IPC. His conviction and sentence recorded by the the trial court under section 302 IPC stands set aside. He is on bail. His bail is cancelled. He shall undergo the sentence awarded by this Court under section 304 para 1 IPC. Period already undergone shall be adjusted from the sentence awarded by this Court. Lower court record be sent back. (Servesh Kumar Gupta, J.) (Prafulla C. Pant, J.) 18.07.2011 Parul