# Jaswant Singh & Anr v. State of U.P

- **Citation:** (2022) 5 ILRA 92
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-29
- **Case number:** Criminal Appeal No. 1834 of 2008
- **Bench:** Mrs. Sunita Agarwal, Subhash Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jaswant-singh-anr-v-state-of-u-p-48610
- **Pages:** 16

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal
Code,
1860-Section
302/34challenge to-conviction-A dispute related
to land property was going on between
four brothers-on account of the said
dispute, informant's wife was burnt alive
by the appellants-as per statement of PW2, deceased was admitted in hospital in
burnt state and died-PW-3, however,
turned hostile but he stated that she was
admitted into the hospital but he did not
know how she got burnt-the statement of
PW-4, a child witness, the daughter of the
deceased has been found credit worthy, as
no
inconsistency,
improbability
and
embellishment could be found thereinPW-6 doctor opined that she was deep
burnt and appearance was pugilisticevidence led by the prosecution add
weight to the prosecution story.(Para 1 to
52)

The appeal is dismissed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,560 of 54,420. This is a partial read: ask again with offset=39560 for what follows._

92 INDIAN LAW REPORTS ALLAHABAD SERIES

14. Considering the aforesaid and the
law propounded by the apex court, I am of
the view that 10 months' additional simple
imprisonment is reduced to 5 months'
simple imprisionment. Thus, the appeal is
partly allowed.

15. If the appellant has undergone
substantive
sentence
of
rigorous
imprisonment for ten years as also simple
imprisonment of five months as modified
by this Court in default of payment of fine,
the appellant be set at liberty forthwith
unless he is required in any other offence.

16. Thus, the appeal is dismissed on
the point of conviction and partly
allowed on the point of sentence.

17. Office is directed to communicate
this order to the court concerned and send
back the lower court record, if already
received.
----------
(2022)05ILR A92
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.04.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE SUBHASH CHANDRA
SHARMA, J.

Criminal Appeal No. 1834 of 2008

Jaswant Singh & Anr. ...Appellants
Versus
State of U.P. ...Respondents

Counsel for the Appellants:
Sri Rajeev Sisodia, Sri Ajay Kumar Barnwal,
Sri Atul Sisodia, Sri C.V.S. Raghuvanshi, Sri
J.P.S. Chauhan, Sri R.K. Shukla, Sri Ramesh
Kumar Shukla, Sri S.A., Sri V. Singh, Sri
Kamal Krishna (Senior Adv.), Sri Gaurav
Singh

Counsel for the Respondents:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal
Code,
1860-Section
302/34challenge to-conviction-A dispute related
to land property was going on between
four brothers-on account of the said
dispute, informant's wife was burnt alive
by the appellants-as per statement of PW2, deceased was admitted in hospital in
burnt state and died-PW-3, however,
turned hostile but he stated that she was
admitted into the hospital but he did not
know how she got burnt-the statement of
PW-4, a child witness, the daughter of the
deceased has been found credit worthy, as
no
inconsistency,
improbability
and
embellishment could be found thereinPW-6 doctor opined that she was deep
burnt and appearance was pugilisticevidence led by the prosecution add
weight to the prosecution story.(Para 1 to
52)

The appeal is dismissed. (E-6)

List of Cases cited:
1. Janardan Dube & ors. Vs St. of U.P. (2019) 4
ADJ 307

2. Gura Singh Vs St. of Raj. (2001) 2 SCC 205

3. Bhagwan Singh Vs St. of Har. (1976) AIR 202

4. Ramesh Harijan Vs St. of U.P. (2012) 5 SCC
777

5. Haradhan Das Vs St. of W.B. (2013) 2 SCC
197

6. Lahu Kamlakar Patil & anr.. Vs St. of Mah.
(2013) 6 SCC 417

7. Maheshwar Tigga Vs St. of Jharkand (2020)
10 SCC 108
5 All. Jaswant Singh & Anr. Vs. State of U.P.
93
8. Naval Kishore Vs St. of Bih.(2004) 7 SCC 502

(Delivered by Hon'ble Mrs. Sunita
Agarwal, J.)

1. Heard Sri Kamal Krishna learned
Senior Advocate assisted by Sri Ramesh
Kumar Shukla learned counsel for the
appellants and learned A.G.A. for the Staterespondents.

2. This appeal is directed against the
judgment and order dated 29.02.2008
passed by the Additional Sessions Judge,
Court no.6 Bijnor whereby two appellants
herein namely Jaswant Singh and Resham
Singh have been convicted for the offence
under Section 302 read with Section 34 IPC
and sentenced for imprisonment for life and
fine of Rs.15,000/- each. The default
punishment
is
one
year
rigorous
imprisonment for each appellant. The
appellant no.1-Jaswant Singh had died.
Only surviving appellant Resham Singh is
represented by the learned senior counsel.

3. The first information report of the
incident occurred on 01.08.2006 at about
11.30 a.m was lodged by Charan Singh S/o
Jagir Singh, husband of deceased Chhindra
Pal Kaur on 01.08.2008, at about 8.30 p.m.
The assertion in the written report given by
Charan Singh (P.W-1) is that the first
informant was four brothers. Out of whom,
the eldest one Bagshish Singh was living in
Punjab.
The
entire
landed
property
(agricultural field) of the father of the first
informant was given to his two elder
brothers
namely
Jaswant
Singh
and
Resham Singh. The first informant stated
that he did not get any share in the property
of his father and was doing Majduri (labour
work) to feed his family. A dispute related
to the landed property was going on
between him and his two brothers Jaswant
and Resham (the appellants herein). A case
under Section 107/116 Cr.P.C was pending
before the S.D.M., Dhampur. On account of
the said dispute, his wife Chhindra Pal
Kaur was burnt to death by pouring
kerosene on her by the appellants at about
11.30 a.m on the fateful day. At that point
of time, the first informant was out of his
house as he went to bring fodder for his
cattle. The deceased was admitted in the
Government Hospital by the Gram Pradhan
Sri Chatar Singh s/o Sri Aidal Singh and
other villagers and died at about 4.00 p.m
in the hospital. After getting information,
the first informant also went to the hospital
and brought home the dead body of his
wife with the help of villagers. While
keeping the body at his house, he went to
lodge the first information report.

4. On presentation of the written
report, check FIR and G.D entry were
made, which were copied in the case diary
by the Investigating Officer, who had
entered in the witness box as P.W-7. The
Investigating Officer stated that he was
posted at the police station-Afjalgarh as
S.H.O on 01.08.2006. The investigation
was accepted by him on the information
received from the hospital. He had reached
at the house of the first informant prior to
lodging of the FIR. The Head constable
Bhagwan Sharan Pandey handed over the
copy of the check report, and the written
report on the spot and the investigation was
then commenced. The statement of the first
informant Charan Singh was recorded on
the spot. The inquest of the body of the
deceased kept on a cot in the Varandah of
the house of first informant Charan Singh
was conducted on 02.08.2006 and the body
was sealed and sent for post-mortem
alongwith relevant papers. The site plan on
inspection of the site of the incident was
prepared, which was proved as Exhibit-Ka-
94 INDIAN LAW REPORTS ALLAHABAD SERIES
5. From the place of the incident, the burnt
clothes of deceased Chhindra Pal were
collected and a memo was prepared, which
was proved as Exhibit-Ka-6. P.W-7 gave
the details of the clothes collected in the
memo of recovery. The statement of other
witness and that of Gram Pradhan Chatar
Singh were recorded and the appellant
Resham
Singh
was
arrested.
On
05.08.2006,
the
statement
of
other
witnesses were recorded. The appellant
Jaswant Singh was arrested on 07.08.2006.

5. On completion of the investigation,
chargesheet was filed in the Court which
was proved as Exhibit Ka-'7' being in hand
writing and signature of P.W-7. P.W-8, the
constable clerk had proved the inquest as
Exhibit Ka-'8' being in the handwriting of
Constable Ramji lal carrying his signature
and that of another police personnel. He
stated that the body was sealed and sent
with relevant police papers and handed
over in the Mortuary. After post mortem,
body was brought from the Mortuary and
handed over to the relatives of the
deceased. P.W-8 stated that no one had
touched the dead body from the place of
the inquest till it was kept safe in the
Mortuary. In cross, P.W-8 stated that the
body
was
straightway
taken
to
the
Mortuary and they left the place of the
incident at about 8.00 a.m and reached at
the Mortuary in about two hours. The
inquest was done in his presence and his
signature also finds place therein. Total
eight papers were given to the Chief
Medical Officer including inquest report,
photo lash etc.

6. P.W-5, doctor-Shamim Ahmad
Ansari was posted in the P.H.C Kadrabad
District-Bijnor as Medical Officer. On
01.08.2006, the date of the incident, he
stated that deceased Chhindra Kaur was
brought to the hospital at about 1.00 p.m in
the burnt state upto 60-70%. She was
brought by Gram Pradhan-Chatar Singh
and the admission in emergency register
was made by the pharmacist. After
examination of the deceased, it was found
that her general condition was poor and
pulse rate was feeble, i.e very slow. Blood
pressure of the patient could not be
recorded as her hands were burnt. The first
aid was given to the deceased at the
hospital and at that point of time Chatar
Singh, Baldev Singh and the pharmacist
was present. In the presence of these
persons, deceased Chhindra Kaur told that
she was burnt by pouring kerosene by two
brothers of her husband, namely Jaswant
Singh and Resham Singh. The said fact was
noted by the doctor (P.W-5) in the
emergency register of the hospital. The
entry of the said statement bears signature
of P.W-5, Chatar Singh and Baldev Singh
present there. P.W-5 stated that he had
transcribed whatever was stated by the
deceased. The original register was brought
in the Court to prove the said fact. The
attested photocopy of the said register was
given to the police which was available on
record. The signatures on the attestation
had been proved by P.W-5 being his own
and being correct as per the original
register. The photocopy of the extract of
emergency register was exhibited as
Exhibit Ka-2. P.W-5 kept on to tell that
looking to the critical condition of the
patient she was referred to a higher centre.

Besides that a letter was sent to
the Station House Officer Afjalgarh that
Smt Chhindar Kaur w/o Charan Singh was
brought to PHC in 60-70% burnt state by
Gram Pradhan Chatar Singh and she had
been referred to higher centre after first aid.
The original copy of the said letter was sent
to the police station whereas the carbon
5 All. Jaswant Singh & Anr. Vs. State of U.P.
95
copy was pasted on the emergency register
which was prepared in the same process.
The receipt of the report from the police
station in the carbon copy, at about 16.00
hours on 01.08.2006, was proved by P.W-5
with his signature on the carbon copy and
by filing a certified copy of the same in the
Court, as Exhibit Ka-3. It was stated by
P.W-5 that after some time he came to
know the deceased Chhindra Pal could not
be taken to higher centre and she had died
in the hospital itself and her family
members took her home. The name of the
person who brought the deceased to the
hospital was mentioned in the register as
Sri Chatar Singh, Pradhan.

7. It was reiterated by P.W-5 in the
examination in chief that the deceased had
told her name as Chhindra Kaur and
narrated the incident on his asking and the
said details were entered in the emergency
register. In cross, he stated that he did not
prepare any medico legal report of the
deceased as she was critical and he referred
her to a higher centre for treatment. He
further stated that he did not talk to other
people who brought the deceased to the
hospital and only Gram Pradhan-Baldev
was present in his chamber with whom he
talked. It was reiterated by P.W-5, in cross,
that he transcribed the statement of the
deceased as was told to him. No certificate
was given by him to certify the condition of
the deceased that she was fit to make the
statement and stated that the statement was
written by him personally. He did not
consult any other doctor. A suggestion that
the deceased was not in the condition to
make the statement was emphatically
denied by P.W-5 who had reiterated that
she was fit enough to make the statement.
P.W-5 categorically stated that the deceased
had narrated the whole story herself.
However, the register on which the
statement
was
written,
the
thumb
impression of the deceased was not taken.
The smell of kerosene oil was not coming
from the body of the deceased.

8. On a suggestion, P.W-5 stated that
after getting 95% of burnt injuries a patient
would not be in a condition to speak. As
per his own assessment, the deceased was
burnt to the extent of 60-70%. Lastly, P.W5 denied that he did not record the
statement of the deceased and it was
written on the narration of other people
accompanying her.

9. P.W-6 is the doctor who had proved
the post-mortem report as Exhibit Ka-'4'
being in his signature and handwriting. The
external and internal condition of the dead
body as described in the post-mortem are:-

"External examination- average
body built female, pugilistic appearance,
redness present, eyes closed, mouth closed.

Ante time injuries-

Superficial to deep burn all over
the body except both soles, Perineum and
some part of right leg skin peeled off at
places, scorched hair. Burnt area about
95%.

Internal examination-

Brain congested, Trachea coAnte
time
injuries-
ngested
with
carbon
particles, both lungs congested, right heart
full, left empty (100 gm), stomach empty,
gall bladder congested, spleen congested,
both kidney congested, bladder empty.

The estimated time of death was
about one day."

10. In the opinion of the doctor, death
was caused due to shock on account of
burnt injuries and the proximate time of
death was one day ago. P.W-6 stated that he
had given two sealed envelop, postmortem
96 INDIAN LAW REPORTS ALLAHABAD SERIES
report, papers of inquest and a sealed
bundle of clothes to Constable CP 1257
Tejpal
Singh,
P.S-Afjalgarh.
The
appearance of the body mentioned as
'pugilistic' with redness was explained by
P.W-6 to be a condition on the body which
occur when some one is burnt alive. On a
suggestion, P.W-6 stated that even on
getting such burnt injuries it was possible
that the deceased was not unconscious, she,
however, could be unconscious also. Most
of the part of the body including neck was
burnt and it was possible to have difficulty
in talking clearly. He further stated that he
did not write in the report that the smell of
kerosene oil was coming from the body. In
cross, P.W-6 stated that it was possible that
the deceased had suffered burn injuries at
about 9.00 p.m on 01.08.2006.

11. The recovery memo dated
02.08.2006 (Exhibit Ka-6) describes the
burnt clothes of the deceased as: (i) one
shirt yellow colour having designs in green
etc (in the burnt state); (ii) slip ((baniyan)
colour faded (in burnt state); and (iii) one
underwear (kachha) grey colour in burnt
state, which were siezed from the spot.
They were kept in a blue colour polythene
and sealed.

12.

The
post-mortem
contains
description of clothes and jewellery found
on the dead body sealed and sent for
postmortem, which is as follows:

1. Salwar -one

2. Dupatta-four

3. broken pieces of glass bangles

4. one metal kada

5. one metal nose pin

6. one braid

(total six items)

All these items were sealed in a
cloth bundle and stamped as noted above.
The sealed bundle of clothes of the
deceased recovered from the place of the
incident was opened in the Court and P.W7, the Investigating Officer had identified
them which were marked as Material
Exhibit-'1' to '4'.

13. Amongst the witnesses of fact
(three witnesses) Charan Singh, P.W-1, the
first informant, the husband of the
deceased, had been declared hostile as he
did not support the prosecution version
about the involvement of the accused
persons.
He,
however,
proved
his
signatures on the written report which was
exhibited as Exhibit Ka-1. As to the
contents of the written report, P.W-1 stated
that whatever was written in the said report
was not in his knowledge. He further stated
that the scribe of the written report was
known to him being his neighbour. In cross
by the prosecution he stated that he did not
know as to how it was written in the report
that his brother had killed his wife by
burning her. The other contents of the
report had also been denied not being in his
knowledge. P.W-1 had denied his statement
under Section 161 Cr.P.C by saying that the
Investigating Officer did not record his
statement and when the said statement was
put to him he replied that he did not know
as to how it was written. He had denied the
enmity between him and his brother about
the landed property as also the proceedings
under Section 107/116 Cr.P.C. In cross, on
a suggestion by the prosecution, P.W-1
admitted that a compromise had been
arrived
with
his
brothers.
But
the
suggestion that he was making a wrong
statement
on
account
of
the
said
compromise was denied by P.W-1. He also
denied that the written report was got
scribed by him in his senses. In cross for
defence,
P.W-1
stated
that
his
two
daughters Balvindra Kaur and Rajvindra
5 All. Jaswant Singh & Anr. Vs. State of U.P.
97
Kaur were not at home and they were at the
house of their maternal grand father. His
wife before becoming unconscious told him
that she caught fire while cooking food.
Lastly, P.W-1, though admitted that his wife
was not unconscious during treatment but
in the same breath stated that she was
unconscious and died in that state.

14. Another hostile witness is P.W-2
who was an acquaintance of the deceased.
In her examination in chief she had denied
the involvement of the accused persons in
the occurrence and stated that she went to
the
hospital
and
the
deceased
was
unconscious and she did not name anyone
as accused. In cross by the prosecution,
P.W-2 reiterated that when she reached the
hospital, the deceased was unconscious.
She had denied any relationship with the
accused person or the first informant
Charan Singh and further retracted from
her previous statement recorded under
Section 161 Cr.P.C. In cross for the
prosecution, P.W-2 again stated that the
deceased was unconscious before she died
and was referred by the doctor to the
Government Hospital while she was in
unconscious state.

15. P.W-3 Chatar Singh (a hostile
witness) stated that he got information on
01.08.2006
that
Chhindra
Pal
Kaur
(deceased) got burnt. The said information
was given in the police station by him. He
denied having gone to the house of the
deceased and witnessing her in the burnt
state therein but admitted that he brought
the deceased to the Government Hospital,
Kadrabad and got her admitted therein. He
then stated that Chhindra Pal was taking
names of her brothers-in-law. On the
asking, he stated that the deceased had two
brothers-in-law and he did not remember as
to whose name was mentioned by her. P.W3, further stated that Chhindra Pal was
saying that her brothers-in-law had burnt
her but he did not know as to how it
happened.
P.W-3
further
stated
that
Amarjeet Kaur (P.W-2) and one Seema
were present when statement was made by
Chhindra Pal Kaur and then he stated that
she did not take name of any of the
accused. In cross by the prosecution, P.W-3
stated that the Investigating Officer had
recorded his statement in the hospital but
he could not tell the time when it was
recorded. He had denied his previous
version in the statement under Section 161
Cr.P.C saying that it was wrong and further
stated that the deceased was alive for about
2-3 hours in the hospital and doctors made
all efforts to save her. When doctor referred
her to Bijnor, he went to arrange a vehicle
and in the meantime she died. In cross for
the defence, P.W-3 stated that the deceased
was repeating the word "jeth" as if she was
calling her jeth. Two daughters of the
deceased were in the village and he did not
know as to whether they were present at the
time of the incident. He stated that when
deceased Chhindra Pal was admitted in the
hospital she was unconscious and was not
in a condition to speak. No paper work was
made by the doctor in the hospital in his
presence.

16. P.W-4 is an important witness of
fact, who is daughter of the deceased. She
was aged about thirteen years on the date
when her statement was recorded. Before
recording her statement, the Court had
satisfied itself that she was in a position to
understand and give reasonable answers to
the questions put to her. In her examination
in chief, P.W-4 stated that on the fateful
day, her younger sister Balvindra Kaur and
her mother Chhindra Pal Kaur were in the
house. Her mother was cooking food and
her father Charan Singh went to jungle to
98 INDIAN LAW REPORTS ALLAHABAD SERIES
bring fodder. Her two Uncles Jaswant and
Resham and Aunt started quarreling (oral)
with her mother. Her uncle Jaswant and
Resham (appellants) then stated that "this
bitch used to quarrel daily, let her finish
today." Jaswant then brought kerosene Can
(kantari) from his room and poured
kerosene on her mother. Her another Uncle
Resham lit the fire through a match stick in
the clothes of the deceased. Her mother
started burning and when both the sisters
tried to save her, her uncles frowned that
they should also be burnt. Out of fear they
kept mum. P.W-4 stated that they had seen
that their mother was turning over and over.
The incident had occurred in the kitchen
outside the Varandah while the deceased
was cooking food and the deceased kept on
turning over and over in the empty place at
the Varandah. Both the sisters went out of
the house out of fear and later when lots of
people were collected, they came back to
the house. Before they came back, the
villagers took their mother to the hospital
and in the evening she was brought back
dead. The police came in the night and took
away the body for postmortem. Their father
came back to the house in the night and
they met him and told him everything
truthfully. P.W-4 further stated that their
uncles had killed their mother because of
the land dispute and now they were
residing with their maternal grand father as
they still had fear for life from their uncles.

17. In cross, P.W-4 reiterated that she
was residing with her maternal grand father
and came to the Court alongwith him. The
topography of the place of the incident has
been narrated by P.W-4 stating that there
was one varandah in front of two rooms
and there was no construction in front of
the Varandah. She then stated that she had
no idea of the directions, but stated that
there was no boundary wall around the
house and no Main gate was also there. Her
mother was cooking food in the Sehan and
they were using wood stove to cook food.
The incident had occurred at around 11.00
a.m to 12.00 noon. Her Aunt was present in
the house and arguments between her
mother and her Aunt were going on since
morning. When her father went to jungle
her uncles were present in the house. P.W-4
then stated that they were not beaten by
their uncles and when they were threatened
orally they went out of the house and came
back after sometime. P.W-4 had specified
her relationship with appellants-Jaswant
and Resham by saying that they were her
uncles. On a suggestion by the defence,
P.W-4 stated that their neighbours did not
reach at the place of the incident when
quarrel was going on and they came later.
Her mother was wearing salwar-kurta. She
had denied the suggestion that her mother
became unconscious and stated that she
was screaming, before her mother was
taken to the hospital, they went out of the
house. When the deceased was taken to the
hospital she was speaking and that fact was
told to her by other people.

18. P.W-4 further goes on to say that
the dead body of her mother reached home
from the hospital at around 4.00-5.00 p.m
on the same day and the police reached at
around 8.00-9.00 p.m. Her statement was
not recorded by the police on the same day,
rather it was taken after 4-5 days of the
incident. She had denied the suggestion of
giving false testimony under the pressure of
her maternal grand father with whom she
was residing and stated that it was wrong to
say that the incident did not occur in the
manner in which it was described by her
and that her mother caught fire while
cooking food and her uncle did not put her
to fire. She has also denied the suggestion
that her uncles were not at home and that
5 All. Jaswant Singh & Anr. Vs. State of U.P.
99
on the date of the incident she was in the
house of her maternal grand father and did
not watch the incident.

19. Placing the testimony of the three
hostile witnesses and the statement of the
doctors (P.W-5 and P.W-6), it was argued
by the learned counsel for the appellant that
it was an accident and in view of admission
of P.W-4 that the deceased was cooking
food, it is established that the occurrence
was in fact an accident. The deceased
caught fire while cooking food through her
clothes and for this reason, smell of
kerosene could not be found by two doctors
namely P.W-5 and P.W-6, who had treated
the victim and conducted post mortem of
the dead body; respectively.

20. It is vehemently argued that
considering the pungent nature of smell of
kerosene, it is impossible that smell of it
could not be found from the body of the
deceased. Both the doctors namely P.W-5
and P.W-6, in cross, categorically stated
that they could not smell kerosene from
the
person
of
the
deceased.
The
Investigating
Officer
who
collected
clothes of the deceased from the spot
marked as Exhibit ka-6, also stated that no
smell of kerosene was coming from the
burnt clothes of the deceased. He also
admitted that the 'Can' of kerosene Oil was
not confiscated as it could not be found on
the spot. Moreover, the clothes of the
deceased
were
not
sent
for
FSL
examination to ascertain whether the
kerosene was poured on the deceased.
Looking to the prosecution story, it is a
case of accidental fire and conviction of
the appellants is unjustified. Reference has
been made to the decision in case of
Janardan Dube and ors vs State of Uttar
Pradesh reported in 2019 (4) ADJ 307.

21. Learned A.G.A in rebuttal, argued
that PW-3-Chatar Singh though had turned
hostile but proved that he brought the
deceased to the hospital in the burnt state
and admitted her for treatment. He also
proved that the deceased was taking names
of his brothers-in-law and was saying that
they had set her on fire. In the examinationin-chief P.W-3 had turned hostile but this
part of his testimony cannot be discarded.
Moreover, presence of P.W-4, daughter of
the deceased is corroborated by the
statement of P.W-3. There is no reason for
P.W-4, a girl of 13 years, to falsely
implicate her two uncles/appellants in the
crime. The evidence of P.W-4 cannot be
discarded. The doctor P.W-5 who had
examined the deceased on her admission in
the hospital proved that the deceased was
brought by Chatar Singh (P.W-3) in 6070% burnt state and she was conscious
when brought to the hospital. The statement
of the deceased giving description of the
incident had been recorded in the register
by him. The version of the prosecution
witnesses corroborate with the medical
evidence wherein superficial burn all over
the body of the deceased was found except
the sole (undersurface of the foot) and her
bronchea was found congested with the
presence of carbon particles therein. It is,
thus, argued that in the totality of facts and
circumstances of the case, the prosecution
evidence cannot be discarded for the mere
fact that three witnesses had turned hostile
and the fourth witness of the prosecution is
a child witness. The prosecution has proved
its case beyond all reasonable doubt and
appeal deserves dismissal.

22. In rejoinder, it is submitted that
appellant Resham Singh is 63 years old and
he is in jail for more than 16 years. His
remission may be recommended by the
100 INDIAN LAW REPORTS ALLAHABAD SERIES
Court, in case, it reaches at the conclusion
of the guilt of the appellant.

23. Having heard learned counsel for
the parties and perused the record.

24. At the outset, it may be noted that
appellant no.1-Jaswant Singh had died on
16.01.2021 while lodged in the Central Jail,
Bareilly. The report in this regard has been
sent by the Senior Superintendent, Central
Jail, Bareilly vide letter dated 20.01.2021.
The present appeal, therefore, stands abated
in so far as the appellant no.1-Jaswant Singh
is concerned. Only surviving appellant before
us is appellant no.2-Resham Singh. Coming
to the prosecution evidence, we may first
consider the statements of the hostile
witnesses to find out as to whether their
statements in any manner are consistent with
the case of the prosecution or the defence
version. It may be noted that it is well settled
principle for appreciation of evidence of a
hostile witness that the evidence of such a
witness must be subjected to close scrutiny.
Merely because a witness is declared hostile,
his entire testimony cannot be excluded from
consideration.

25.
 Any
portion
of
evidence
consistent with the case of the prosecution
or defence version can be relied upon. The
statement particularly examination-in-chief
in so far as it supports the case of the
prosecution is admissible and can be relied
upon by the Court. Reference: Gura Singh
vs State of Rajasthan reported in (2001) 2
SCC 205 ; Bhagwan Singh vs State of
Haryana reported in 1976 AIR 202;
Ramesh Harijan vs State of Uttar Pradesh
reported in (2012) 5 SCC 777; Haradhan
Das vs State of West Bengal reported in
(2013) 2 SCC 197; Lahu Kamlakar Patil
and another vs State of Maharashtra
reported in (2013) 6 SCC 417;

26. Keeping in mind the above
position of law, we proceed to examine the
statement of three hostile witnesses so as to
find as to what extent they support the
prosecution case or their testimony is in
favour of defence. P.W-1, husband of the
deceased is real brother of the appellants
Jaswant Singh and Resham Singh. This
witness though supported the defence that
the appellants did not pour kerosene or set
his wife on fire and stated that when he
returned from the fields, he found his wife
badly burnt, he took her to the hospital and
she was unconscious at that time. She died
during treatment in the hospital. In his
testimony P.W-1, however, proved the
written report which was marked as
Exhibit-Ka-1 having been lodged by him.
He also identified his signature on the said
report and stated that scribe of report was
his neighbour and acquaintance. He,
however, had denied the contents of the
written report by saying that he was not in
his senses and did not know as to what was
written therein. P.W-1 had also denied his
previous version under Section 161 Cr.P.C
and disputed the presence of his two
daughters Balvindra Kaur and Rajvindra
Kaur in the house at the time of the
incident. From the statement of P.W-1, thus
two facts are proved: firstly the lodging of
the first information report by submitting a
written report under his signature and,
secondly that the said report was scribed by
Harish Kumar s/o Kuvar Singh, his
neighbour. P.W-1 had also proved that the
deceased was found in a burnt state in her
house and she was admitted in Kadrabad
hospital and died there.

27. P.W-2, Amarjeet Kaur was an
acquaintance of the family of the deceased.
She did not support the prosecution case
that the deceased had disclosed names of
the appellants as assailants by saying that
5 All. Jaswant Singh & Anr. Vs. State of U.P.
101
she was unconscious throughout. P.W-2
also denied having knowledge as to who
had admitted the deceased in the hospital.
Nothing much could be elicited from the
statement of P.W-2 in favour of the defence
except that according to her the deceased
was unconscious when she reached the
hospital. It is, however, proved by P.W-2
that the deceased was admitted in the
hospital and died there and that the doctor
at Kadrabad hospital had referred the
deceased to the Government hospital Bijnor
for treatment.

28. P.W-3-Chatar Singh is an
important prosecution witness who though
had turned hostile but has supported the
prosecution case to the extent that the
deceased was admitted in the hospital
namely the Government hospital Kadrabad
by him in the burnt state and she was
treated therein. In the examination in chief,
P.W-3 also admitted that deceased namely
Chhindra Pal was taking the names of his
brothers-in-law
and
saying
that
her
brothers-in-law had set her on fire. It is,
thus, proved that the deceased was
conscious when admitted in the hospital.
P.W-3, however, had denied as to how she
was set at fire was not known and further
that the deceased did not take the names of
any of the accused appellants. In cross,
P.W-3 had admitted that there were only
two brothers-in-law of the deceased who
were the appellants namely Jaswant and
Resham. He also admitted that the deceased
was repeating "Jeth-Jeth". P.W-3 though
tried to explain this version by saying that
while deceased was saying "jeth-jeth", it
seemed to him that she was calling her
brothers-in-law
for
help.
P.W-2
also
admitted that two daughters of deceased
Chhindra Pal were in the village but he did
not know as to whether they were present
at the time of the incident. It is also proved
by P.W-3 that the deceased was referred to
Bijnor and she died in the hospital before
she could be taken to Bijnor. He was
confronted with his previous statement
under
Section
161
Cr.P.C
that
the
appellants Jaswant and Resham poured
kerosene on the deceased and set her on
fire which he refuted. He admitted that the
deceased was alive for 2-3 hours but stated
that when she was admitted in the hospital
she was unconscious and was not in a
position to speak. The doctor did not make
any paper work in his presence. From the
statement of P.W-3, it is established that the
deceased was talking when she was
admitted in the hospital by P.W-3, who was
the then Gram Pradhan of the village. She
was taking names of her brothers-in-law. It
is also admitted that the appellants were
only brothers-in-law of the deceased.

29. The version of P.W-3 that the
daughters of the deceased were present in
the village also supports the prosecution
case, though whether they were present at
the time of the incident may not be known
to him. It has come in the examination of
P.W-1 that a compromise had been arrived
between he and his two brothers. It seems
that P.W-1 had turned hostile in order to
save his brothers from the clutches of law
after getting his share in the landed
property with respect to which dispute was
earlier going on between them.

30. Having considered the evidence of
hostile witnesses, the testimony of the last
witness of fact, P.W-4 is also to be
considered as an important piece of
evidence.
P.W-4
Jasvindar
Kaur
@
Rajvindra Kaur is daughter of the deceased
and P.W-1. She was aged about 13 years at
the time of her deposition in the Court. The
Court had satisfied itself about the
competence of this witness looking to her
102 INDIAN LAW REPORTS ALLAHABAD SERIES
age. P.W-4 categorically stated in the
examination in chief that she and her
younger
sister
Balvindra
Kaur
and
deceased Chhindra Pal Kaur were at home.
Her mother was cooking food and her
father went to collect the fodder. Her two
uncles namely Jaswant and Resham (the
appellants) and her aunt, were arguing with
her mother and during the said argument,
the
appellants
Jaswant
and
Resham
exhorted each other to kill her. Jaswant
then brought kerosene from his room and
poured on her mother. Resham had set her
on fire. In the statement of P.W-4, it has
come that the deceased had tried to save
herself and in that effort she was turning
over and over on the floor of the Varandah
after she caught fire. She also stated that
when she and her sister tried to save their
mother, her uncles had threatened them. It
was repeatedly stated by P.W-4 that her
mother was turning over and over in the
Varandah in an empty place, which seems
to us was an effort to save herself from the
fire. However, on account of threat given
by their uncles both the sisters went out of
their house. In cross, P.W-4 categorically
stated that she was present in the house at
the time of the incident and since after the
incident both the sisters were residing with
their maternal grand father as they had a
threat of their life from her uncles. There is
a categorical denial of P.W-4 to the
suggestion that her mother caught fire
while cooking food and her uncles did not
set her on fire. The suggestion that both her
uncles were not present in the house was
also denied being false. It was categorically
denied that she did not witness the incident
or was in the house of her maternal grand
father at the time of incident.

31. From a careful reading of the
statement of P.W-4, no inconsistency or
infirmity could be found. Her presence in
the house at the time of the incident is
proved by the prosecution. The statement
of P.W-4 that while her mother was burning
she made all efforts to save her by turning
over and over in the empty place at
Varandah is to be considered in the context
of Exhibit-Ka-6 which is the recovery
memo of burnt clothes of the deceased. A
perusal of Exhibit Ka-6 shows that even
underclothes (underwear) of the deceased
was collected in the burnt state from the
site of the incident, which was the house of
the deceased.

32. A further perusal of the post
mortem report indicates that four dupattas
and one salwar was kept in the bundle by
the doctor but none of those clothes were
mentioned being in the burnt state. The
joint reading of the statement of P.W-4,
Exhibit Ka-6, the recovery memo of clothes
of the deceased and the postmortem report
indicates that in an effort to save herself,
the deceased had taken out her clothes
while burning and in the process she
became naked. The deceased was brought
to the hospital by P.W-3 who was the Gram
Pradhan. The clothes found on the dead
body during the postmortem were four
dupattas and one salwar which again show
that she was covered by the people who
brought her to the hospital.

33. This takes us to the argument of
the learned counsel for the appellant that
smell of kerosene oil was not found from
the clothes of the deceased and neither the
autopsy surgeon had noticed the smell of
kerosene oil nor the doctor P.W-5 who
treated her. As noticed above it is evident
from the record that the clothes on which
kerosene oil was poured when the deceased
was burnt were removed by her in an effort
to save herself from the fire and they were
collected by the Investigating Officer. The
5 All. Jaswant Singh & Anr. Vs. State of U.P.
103
statement of P.W-4 that her mother was
turning over and over in the varandah, in an
empty place, is a proof of the said fact.
Further the clothes of the deceased found
on the spots were not burnt completely, as
she had taken them out, though her body
was burnt to the extent of 95% as per the
postmortem doctor and 60-70% as per P.W5, the doctor who treated her first. In the
situation like this, if smell of kerosene oil
could not be noticed by the P.W-6,
postmortem doctor on the body of the
deceased, nothing would turn in favour of
the defence, in as much as, once the skin
were burnt to the above extent in all
likelihood, there was no possibility of
presence of smell of kerosene on the naked
body.

34. At the cost of repetition, it may be
noted that the clothes noted in the
postmortem report four Dupattas and
shalwar were used to cover the naked body
of the deceased and, as such, there was no
question of finding smell of kerosene on
them.

35. As regards, clothes seized and
noticed in Exhibit Ka-6 (Recovery memo)
and the statement of the Investigating
Officer that he did not find smell of
kerosene oil in the clothes or did not seize
any such article which could prove that
kerosene oil was poured on the deceased,
would not be of any help to the defence, in
as much as, for any slackness on the part of
the Investigating Officer the defence would
not be benefited.