Honble QUADRI, J.–On October 8, 1987, the learned VII Additional Sessions Judge, Dhanbad convicted the appellant, in S.C. No. 80 of 1986, for an offence punishable under Section 302, IPC for committing the murder of his wife, Smt. Shivratri Devi, by causing burn injuries and sentenced him to imprisonment for life after trying him for offences under Section 377 IPC, for committing sodomy with PW-2, and under Section 302, IPC for intentionally causing death of his wife on November 13, 1985. The conviction of the appellant was upheld by the Division Bench of Patna High Court in Criminal Appeal No. 207 of 1987(R) on August 5, 1988. Against that judgment of the High Court, he filed this appeal by special leave.

(2). The appellant was working as the Officer-in-charge, Tisra P.S. in November, 1985 but was residing with his family in the quarters allotted to him at his former place of posting within the compound of Jharia P.S. He had a servant, Narsingh Kumar (PW- 2), aged about 16 years, with whom he was indulging in carnal intercourse which led to strained relations between him and his wife. At ab- out 8.00 A.M., on November 13, 1985, after throwing kerosene oil on her person, he set fire to her and thus caused burn injuries. Thereafter, he went to the house of Dr.Mohan Kanaujiya (PW-8) who was residing behind the Jharia P.S. and informed him that his wife had suffered burn injuries. Dr.Kanaujiya proceeded to his house. Hearing about this, the neighbours, Tribhuban Jha (PW3) and Anirudh Prasad Singh (PW-4) also came to the quarters of the appellant. PW-3 and PW-4, found, among other things, the main gate of the quarters locked and when PW-6 could not get the keys from the appellant, the door of the house was broken and they entered the house. After securing the car of S.1.Kanhaiya Upadhyay (PW-6), they sent her for treatment to Sadar Hospital, Dhanbad, where she was admitted as an in-patient. On 16.11.1985, the Inspector P.N.Ram (PW-11) could find PW-2 to record his statement and F.I.R. was got lodged through him. On the same day, PW-11 requested Sub Divisional Judicial Magistrate, Dhanbad, to record the statement of Smt.Shivratri Devi. At about 1.00 P.M., on that day, Shri L.K.Sharma, II Class Judicial Magistrate (PW-7) went to the Sadar hospital and recorded her dying declaration (Exh.2) wherein she stated that her husband had burnt her. On the following day she succumbed to the injuries. Dr. Roy Sudhir Prasad (PW-5) assisted by Dr. D.K. Dhiraj (PW-9) conducted postmortem examination on her dead body. PW-5 has stated that the scalp hair of the deceased was burnt upto the roots in both parietal areas in 6" x 3-1/2" and faint smell of kerosene oil was present on the scalp. He opi- ned that the burn injuries were of first degree and were cause of her death and that the death was homicidal but not accidental. He issued postmortem report (Exh.1). PWs.2 and 6, however, turned hostile at the trial of the appellant.

(3). His defence was one of denial; however, he took the plea that when Shivratri Devi went for igniting the oven inside the kitchen, she caught fire acciden- tally. He examined three witnesses, DWs.1 to 3. Paridhan Yadav (DW-1) is the appellants father-in-law and Rajnath Yadav (DW-2) is appellants brother-in-law. DW-1 spoke that the relations between the deceased and the appellant were cordial. DW-2 also said about their cordial relations and added that he and the appellant poured water on the body of the deceased when she caught fire.

(4). Shri D.D. Thakur, the learned senior counsel and Shri Kalra, appearing for the appellant, have contended that there are no eye-witnesses to the occurrence- and that the conviction was based solely on the- dying declaration of the deceased (Exh.2) by both the courts and when the deceased had given two dying declarations - the first being Exh.5/4, recorded by Shri R.B. Singh, A.S.I. and the second being Exh.2, recorded by the learned II Class Judicial Magistrate, Dhanbad (PW-7) which are incons

Click Here to Read the rest of this document