JUDGMENT Amar Saran, J.
1. This Criminal Jail Appeal has been preferred against the judgment passed by the IVth Additional Sessions Judge, Kanpur Nagar dated 30.10.1999, whereby the appellant has been convicted to undergo imprisonment for life under Section 302 IPC and two years R.I. under Section 498A IPC. The two sentences were ordered to run concurrently.
2. The prosecution version was that the deceased Smt. Suman Shukla was married to the appellant in the year 1989. However, the appellant used to beat up his wife as he wanted to extract Rs. 20,000/-as additional dowry from her parents and had threatened to kill her otherwise. Smt. Suman had been taken to her father's home two years earlier, but 2 or 3 months before the fateful incident she had been sent back to her Sasural, the appellant's house. On 10.6.1998 the fateful day, the informant Raj Kishore Trivedi, the father of the deceased received information from the appellant's brother that his daughter had got burnt. The incident took place at about 12 noon when the informant arrived at the son in-law's (appellant's place) in Pokarpurwa, he saw his daughter Suman lying burnt and in a naked condition. He was told by his grand daughter Km. Rajni that her father had sprinkled kerosene oil on her mother and burnt her. Smt. Suman had two other daughters and one son Arun Kumar Shukla. The latter used to reside with the informant Raj Kishore.
3. Raj Kishore had lodged a report of this incident at P.S. Chakeri on 10.6.1998 at 2.10 p.m. under Sections 498A, 302B I.P.C. Initially on 10.6.1998 the investigation of this case was conducted by the C.O. Cantonment Sri Ashok Jain. He recorded the statement of the Constable Clerk Jai-Jairam P.W.3, who prepared the Chik F.I.R. and made the relevant G.D. entries. C.C. Jai-Jairam also sent the papers to the A.S.P. Cantt for getting the investigation done and informed A.C.M. for getting the inquest done.
4. Later on the case was converted from 304B IPC to 498A/302 IPC. The investigation was transferred to P.W.7 Sri R.K. Dixit, S.O. P.S. Chakeri on 12.6.1998, who thereafter investigated the case. He recorded the statements of the informant Raj Kishore Trivedi and went to the place of incident, inspected the site and prepared the site plan (Ext. Ka-6). He recorded the statements of the neighbours and the sister-in-law of the appellant Smt. Santoshi Devi. On 24.6.1998 he recorded the statement of Mohni Devi (P.W.6) another sister-in-law of the appellant and the daughter of the appellant Km. Rajni (P.W.I) and submitted the charge sheet (Ext. Ka-7).
5. After completing other formalities, P.W.4 Dr. O.N. Trivedi, Surgeon, U.H.M. Hospital, Kanpur, conducted the postmortem on the dead body of Smt. Suman at 4 p.m. on 11.6.1998. The deceased was 28 years in age. She had died one day back. Kerosene oil was present in the body, which was of average built. The body was in a pugilistic posture, skull hairs burnt with pieces of burnt cloth. Eyes were closed, mouth was half open, blood mixed froth was coming out from mouth and nostril. There was superficial to deep burns all over the body. Skin had peeled off. At places line of redness was present. Membranes were congested and the brain was congested. Trachea was congested with carbon particles. Right and left lungs were congested. Stomach had 2 oz. watery fluid. Small intestine was half full of gases. The large intestine contained faecal matter and gases. The liver, spleen and kidneys were congested. In the opinion of the doctor, the death was due to shock as a result of the ante mortem burn injuries. There were no other marks of injury apart from the burn injuries of the deceased.
6. Apart from the three witnesses, Constable Jai-Jairam (P.W.3), P.W.4 Dr. O.N. Trivedi and P.W.7 S.K. Dixit, who were the formal witnesses, whose testimony has been mentioned above, four witnesses of fact, P.W.I Km. Rajni, the daughter of the appellant and the deceased aged 7 years, P.W. 2 Raj Kishore, the informant and father of the deceased, P.W.5 Smt. Santosh Kumari, P.W.6 Smt. Mohni, who were the Bhabhis of the appellant have been examined to support the prosecution case.
7. P.W.1 Km. Rajni has supported the prosecution case. She has deposed that her mother had been murdered by her father after stuffing her mouth with some cloth, pouring kerosene oil on her arid thereafter by burning her. She claims to have seen the incident from the window. When she cried, then her father threatened to burn them also. It was evening time, when the incident took place and her mother had been burnt in the room.
8. P.W. 2 Raj Kishore, the father of the deceased states that he hat got his daughter married to the appellant in 1989. He was not satisfied with the dowry and he was demanding Rs. 20,000/- additionally as dowry. Initially his behaviour was all right, but later on he began to beat his daughter and used to ask her to bring Rs. 20,000/r from her parents otherwise he would kill her. As he could not meet his daughter's demand, when she came to his house, he kept her back in (us house for two years. After that as the appellant's brothers Satish and Nandu approached him and assured that Rajesh would not beat Smt. Suman, he sent his daughter to the appellant's house, but even, then the appellant behaved in a very cruel manner with his daughter, and kept beating her and demanding money. His daughter and appellant had three children, one of whom was a son and the others were two daughters. The boy was staying in his house and the girls were residing with the appellant. On 10.6.1998 he learnt from the appellant's elder brother Nandu "that his daughter Suman had got burnt. On receiving the news, he reached the appellant's house in Pokharpur. There he found his daughter lying in the room in a burnt condition. His grand daughter Rajni aged about 6 or 7 years old told him that her father had stuffed cloth in her mother's mouth and after pouring kerosene oil burnt her mother, Rajesh was absent at that time. His daughter was lying dead. Thereafter, he wrote an application and went to lodge an F.I.R. (Ext. Ka-1) at P.S. Chakeri and after that the I.O. and Magistrate arrived, who conducted inquest on the dead body on 11.6.1998. He was also made an inquest witness. Thereafter, the dead body was sealed and sent for postmortem.
9. P.W. 5 Smt. Santosh Kumari, who is the Bhabhi of the appellant Rajesh, states that Rajesh accused is her real devar. He was married to the daughter of Raj Kishore, Smt. Suman and Rajni was his daughter. The appellant was staying in the same house as this witness with his wife and children. Mohni who was her real jethani was also staying with her children in the same house, but their messing was separate. Rajesh, who was engaged in some work of being a halwai but his economic condition, was not very good. The incident took place one year three months back, Suman had died due to burns. Somebody had burnt her, but she could not say as to how she got burnt, as she was not an eyewitness, but she had seen flames coming out of the room. At that time, Suman was present in her room with her children and Rajesh. The time was about 11 or 12 a.m. She did not see Rajesh pouring kerosene oil on Suman. She denied that she was trying to save Rajesh and affirmed that no incident took place before her. According 1.0 this witness, the behaviour of the appellant with Suman was good and there was no demand of dowry. There was some dispute because son of the appellant and decease was staying with his maternal grand parents in their house. At that time, the witness; was declared hostile and cross-examined. She thereafter denied her 161 Cr. P. C. statement given to the police. She also denied that being the appellant's real Bhabhi she was deposing in his favour due to pressure.
10. The last eyewitness P.W.6 Smt. Mohni stated that Rajesh was her real devar. She was also residing in the same house, in which Rajesh was residing with his children and wife. She denied that Rajesh used to beat his wife for dowry. They used to quarrel over his son. On 10.6.1998 at about 12 or 1 in the noon she saw Suman in a burnt condition. Rajesh had not sprinkled kerosene oil or burnt her in her presence, therefore, there was no question his saving her. At that stage; this witness was declared hostile and cross examined. She denied her 161 Cr. P. C; statement given to the police. She could not explain why it had come to be written at the time of Incident. Rajesh was present in the house along with his children. She denied that she was falsely deposing because she happens to be the wife of other elder brother of Rajesh. The case of the appellant under Section 313 Cr. P. C. was of denial. He claimed that because Raj Kishore, who had no son, had kept his son, he had objected and out of anger the deceased had taken her own life.
11. We have heard Sri Vinay Saran, learned Amicus Curiae for the appellant and the learned A.G.A. for the State.
12. It is argued by Sri Saran that only a solitary 6 years old child witness Km. Rajni has come forward to support the prosecution case and that the other two eye witness of this case, P.W.5 Smt. Santosh Kumari and P.W.6 Smt. Mohni, who were the sisters-in-law of the appellant, have turned hostile. In the absence of corroboration, conviction should not be based on the solitary testimony of the child witness especially as she admits to have been tutored by her maternal grand parents with whom she was staying. Her statement has also been recorded under Section 161 Cr. P. C. alter 14 days and there is no explanation for this delay. There was no window in the house from where she claims to have witnessed the incident. The marriage had taken place 9 years earlier and the evidence of dowry demand was unreliable.
13. On a close analysis of the evidence of this case, we find that no challenge has been made about the time and place of incident. No dispute has been raised about the fact that Smt. Suman died in the appellant's house. So far as the child witness P.W.I Km. Rajni is concerned, she was first examined by the learned Sessions Judge who was satisfied about her capacity to understand the questions and to give evidence. In her evidence she has deposed that her father had stuffed cloth in her mother's mouth and thereafter poured kerosene oil on her and burnt her. She saw this incident from the window. She admits in cross-examination that she has been brought by her grand parents (Nana and Nani). She also admitted to the query that she did not know after how many days she left her home after the death of her mother. She also admitted having been told by her Nana and Nani how her mother had been murdered by her father. To the next question put to her as to how she had deposed about the incident, she answered that she had seen it. From these circumstances, it does appear that an attempt has been made to confuse this child witness, whose presence in this case at the time of occurrence is natural. She is the daughter of the appellant and the deceased. Moreover, we feel that she gave a spontaneous and forthright reply to the question as to how she had deposed that her father had murdered her mother, by replying that she had witnessed the incident.
14. This averment is corroborated by her version mentioned in the F.I.R., which came into existence within two hours of the incident, wherein the informant her Nana Raj Kishore had noted that Rajni had disclosed that her father had sprinkled kerosene oil on her mother and burnt her. The fact that the deceased had died of kerosene burns is also confirmed from the doctor's cross examination and the ante mortem superficial to deep burn injuries all over the body of the deceased which had caused the skin to peel off and at places lines of redness were present. In view of the oral version of the incident that is mentioned in the F.I.R. it is not material that her 161 Cr. P. C. statement was recorded by the I.O. P.W. 7 S.K. Dixit after 14 days on 24.6.1998. Moreover, no question was asked from the Investigating Officer as to why he had delayed in recording her 161 Cr. P. C. statement. In the case of Banti alias Guddu v. State of M.P., , it has been held by the Apex Court that when some advantage is sought to be taken from the fact that the child witness was examined after some delay, explanation is to be sought from the Investigating Officer as to why there was delay in interrogating the witness.
15. Likewise although, it is put to the Investigating Officer that no window was shown in the site plan, but no suggestion was given to him that there was no window in the room. As the house in which the appellant, the deceased and the other witnesses were residing appeared to be a large house, normally it was to be expected that there would be a window in the room which would give an opportunity to Km, Rajni to witness the incident.
16. In view of the aforesaid circumstances, it cannot be held that merely because only Km. Rajni has come forward to support the prosecution case, and she is a child witness, hence her testimony should ipso facto be discarded and not relied on. In this connection, it has been held in Ratansinh Dalsukhbhai Nayak v. State of Gujarat that if the testimony of the child witness appears to have an impress of truth on it, and the child witness is capable of understanding the questions put to her, there is no fetter relying on her solitary testimony, for recording a conviction. The following extract from paragraphs 7 and 8 of the law report may be usefully perused:
"7...Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and molded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.
8. The learned trial Judge has elaborately analyzed the evidence of the eyewitness. There is no reason as to why she would falsely implicate the accused. Nothing has been brought on record to show that she or her father had any animosity so far as the accused is concerned. The prosecution has been able to bring home its accusations beyond the shadow of a doubt. Further, the trial court on careful examination was satisfied about the child's capacity to understand and to give rational answers. That being the position, it cannot be said that the witness (PW 11) had no maturity to understand the import of the questions put or to give rational answers. This witness was cross-examined at length and in spite thereof she had described in detail the scenario implicating the accused to be the author of the crime. The answers given by the child witness would go to show that it was only repeating what somebody else asked her to say. The mere fact that the child was asked to say about the occurrence and as to what she saw, is no reason to jump to a conclusion that it amounted to tutoring and that she was deposing only as per tutoring what was not otherwise what she actually saw. The learned counsel for that accused-appellant has taken pains to point out certain discrepancies which are of very minor and trifle nature and in no way affect the credibility of the prosecution version."
17. Moreover, we find that in this ease even though P.W.5 Smt. Santosh Kumari and P.W. 6 Smt. Mohni, who were the Bhabhis of the appellant have turned hostile because of their relationship with the appellant, but significantly, Smt. Santosh Kumari states in her examination in chief that Smt. Suman had died due to burns one year and 3 months back. She further adds that somebody had burnt her, but it appears that for some reason she is not interested in coming out with the whole truth in the matter when she states that she could not see how Suman had died. But she admits having seen fire in the room. It is noteworthy that she admits that at that time Suman and her children were there, and Rajesh appellant was also present It is obvious that in the trial she has tried to help the appellant Rajesh, who is her Devar, and hence even though she admits that somebody had burnt Suman, but states that she has not seen Rajesh sprinkling kerosene oil on Suman. Even P.W.6 Mohni the other Bhabhi, who also tried to save the appellant, as he is her Devar, admits that at that time, the appellant was present in the house along with his children. 'In the present case as no outsider would normally be interested in taking the life of the deceased, the onus would fall on the appellant under Section 106 of the Evidence Act to explain as 'to how Smt. Suman was burnt. We think that the reason suggested by the appellant in his 313 Cr. P. C. statement that as the informant Raj Kishore who was his father-in-law, did not have any son, hence he wanted to keep the appellant's son and on the appellant's objection his wife Smt. Suman Committed suicide out of anger, is too far fetched to be acceptable. No woman would commit suicide in such circumstances especially when she had three little children. The statements of the two witnesses P. W.5 Smt. Santosh Kumari and P.W.6 Smt. Mohni to the effect that Rajesh was present in the house and the farther version of Smt. Santosh Kumari P.W.5 that some other person had burnt Suman and there being no allegation of Suman having taken her own fife and the absurd explanation of the appellant as to how Smt. Suman died constitute additional circumstances to the evidence furnished by Km. Rajni (P.W.I), the appellant's daughter.
18. The motive alleged against the appellant that he was demanding dowry and for this reason Smt. Suman had even gone to her father's house for two years is an additional circumstance for showing the involvement of the appellant in this case. It is further noteworthy that no utensils have been shown in the site plan and inspection memo, which could have supported the story that Smt. Suman committed suicide by pouring kerosene oil on herself. Further as the door of the room was open and the absence of injuries on the appellant and absence of any effort on his-part to save the deceased is also inconsistent with the version of Smt. Suman committing suicide. This legal position has been laid down by the Apex Court-in the case of Kundula Bhala Sbbrahmanyam and Ors. v. State of Andhra Pradesh, 1993, SCC (Criminal) 655 and in that case the absence of any injury to husband and other family members of the deceased in similar circumstances as the present case, the theory of suicide was labeled as an argument of despair.
19. In view of aforesaid discussions, the prosecution has succeeded in establishing the case against the appellant beyond reasonable doubt. The result is that the appeal fails and it is dismissed. The sentence of imprisonment for life under Section 302 IPC and two years R.I. under Section 498A IPC awarded by the learned Sessions Judge, which are running concurrently are affirmed. The appellant is in Custody. He shall remain in custody to serve out the sentence awarded to him.