Punjab-Haryana High Court
Jagwanti And Others vs State Of Haryana on 18 August, 2009
Author: Ashutosh Mohunta
Bench: Ashutosh Mohunta, Mohinder Pal
Crl.A No.458-DB of 2004 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl.A No.458-DB of 2004
DATE OF DECISION: August 18, 2009
JAGWANTI AND OTHERS ...APPELLANTS
VERSUS
STATE OF HARYANA ...RESPONDENT
CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA.
HON'BLE MR. JUSTICE MOHINDER PAL.
PRESENT: DR. DEIPA SINGH, ADVOCATE, AMICUS CURAIE
WITH MR. PAWAN DABLA, ADVOCATE
FOR THE APPELLANTS.
MR. PRADEEP SINGH PUNIA, ADDL.A.G., HARYANA.
ASHUTOSH MOHUNTA, J.
This judgement shall dispose of Crl.A. No.458-DB of 2004 and Crl.A. No.797-SB of 2004, as both these appeals arise out of a common judgement of conviction and order of sentence dated 28.2.2004, passed by Addl. Sessions Judge, Rohtak.
The appellants have filed this appeal against the judgement of conviction and order of sentence passed by the Addl. Sessions Judge, Rohtak dated 28.2.2004, vide which they have been convicted under Section 304-B and have been sentenced to undergo R.I. for life and to pay a fine of Rs.10,000/- each and in default of payment to further undergo imprisonment for 3 years. The appellants except Lata have further been convicted for the offence punishable under Section 316 read with Section 34 IPC and have been sentenced to undergo R.I. for 5 years and to pay a fine of Rs.5,000/- Crl.A No.458-DB of 2004 -2- each and in default of payment to further undergo imprisonment for 1 year. All the accused have also been convicted for the offence punishable under Section 498-A/34 IPC and have been sentenced to undergo R.I. for 2 years and to pay a fine of Rs.2000/- each and in default of payment to further undergo imprisonment for 6 months. All the sentences have been ordered to run concurrently.
Briefly the case of the prosecution is that on 6.8.2003, at about 9.45 p.m. a V.T. Message (Ex.PN) was received in Police Post, Sabzi Mandi, Rohtak regarding admission of Usha (since deceased) wife of accused Jaggu with burn injuries. On receipt of said message, S.I. Ram Niwas (PW-14) reached Police Post PGIMS, Rohtak and collected a copy of MLR (Ex.PA) and medical ruqqa Ex.PB. In the MLR Dr. Sanjeev Sharma (PW2) had noted that Usha had suffered 100% superficial deep burns all over her body. S.I. Ram Niwas moved an application (Ex.PC/8) on 6.8.2003, requesting the attending Doctor to opine whether the patient was fit to make a statement or not. Dr. Vijender Singh Gaur declared Usha to be unfit to make a statement.
On the next date, i.e on 7.8.2003, S.I. Ram Niwas again asked the Doctor to opine whether the patient was fit to make the statement or not. The Doctor declared Usha "fit" to make a statement. Accordingly, S.I. Ram Niwas then made a request (Ex.PC) to the Chief Judicial Magistrate Sh.Mewa Singh PW4 for recording the statement of Usha in hospital. Sh.Mewa Singh reached the hospital and recorded the statement (Ex.PC/3) of Usha in the presence of Dr. Joginder Singh (PW5) on 7.8.2003. The statement made by Usha is as under:-
"Q.:- What are you doing?Crl.A No.458-DB of 2004 -3-
A.- Nothing.
Q.:- How many children have you?
A.- I have a son namely Aakash and second issue is in my loin.
Q.:- What statement you want to be got recorded?
Ans.:-Yesterday at about 5 P.M., I was sitting in the courtyard of my house. Rohtash my Jeth (husband's elder brother), Jaggu my husband, Satish my dewar (husband's younger brother), Surje my Dewar sprinkled kerosene oil on me taking out from the stove and set me on fire. My NANAD (husband's sister) named Lata and my Jethani Chhalin (both) sprinkled kerosene oil on me. My husband used to take liquor and beat me with lathies. Before my marriage, they had killed first wife of my husband. Now they are doing like that. Dalipa, Dhanpati (old persons) & Rohtash Jeth saved me. They have set me on fire, as they demanded money and dowry from me. But my father being a poor person is not in a position to give money. What have they done with me, they should be dealt with the same process.
Question:- What have you to say?
Answer:- My son should be handed over to my parents, otherwise these persons would kill my son. They give beatings to my son also (at this stage, the deponent, started weapings). My husband takes liquor, Supha and play gambling.Crl.A No.458-DB of 2004 -4-
Question:- Have you given this statement without any fear, and greed?
Ans:- Yes, I have no fear at all.
Question:- Any thing else have you to say?
Ans:- No, Sir.
Sd/- Mewa Singh
CJM, Rohtak
RO&AC 7.8.03
RTI of Usha 12.20 P.M.
Point 'A' Place- Bed No.35
Ward No.6 Unit III
PGIMS, Rohtak
Statement recorded in my presence. It has been made by
Smt.Usha voluntarily.
Sd/-
Dr. Joginder Singh JR
5/III
PGIMS, Rohtak."
On the basis of the aforesaid statement made by Usha, a formal FIR (Ex.PD) was registered by ASI Dalel Singh PW6 for offence punishable under Section 498-A, 307 read with Section 34 IPC. On 10.8.2003, Usha gave birth to a still female feotus of about 6 months, for which the Doctor sent a ruqqa Ex.PQ to the Police. Usha succumbed to burn injuries on 11.8.2008. Her dead body was sent for post mortem examination and in the opinion of the Doctor, the cause of her death was due to burn injuries which were sufficient to cause death in the ordinary course of nature.
After the death of Usha and giving birth to a still child by her, offence punishable under Section 304-B and 316 IPC were added.
After completion of the investigation, challan under Section Crl.A No.458-DB of 2004 -5- 173 Cr.P.C. was submitted against all the appellants as well as one Lata. Charge against the accused-appellants was framed to which they pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined as many as 14 witnesses and thereafter closed its evidence.
All the accused persons in their respective statements under Section 313 Cr.P.C. denied the allegations against them and pleaded innocence. It was stated by them that they have been falsely implicated in the case at the instance of PW Balbir Singh, father of the deceased and his family members. It was further stated by the accused that they had never raised any demand of dowry either from the deceased or from her parents and that the deceased was never harassed or tortured in her matrimonial home. The accused also stated that the deceased had suffered injuries because the kerosene stove had burst. The accused Lata stated that she was residing at her matrimonial home in village Kakrana and on the date of occurrence, she was not present at Rohtak. The accused also examined 6 witnesses in their defence.
The trial Court by placing reliance on the dying declaration Ex.PC/3 of the deceased Usha and also by placing reliance on the statements of Balbir Singh PW9 and Suman PW10, who are the father and mother respectively, of the deceased, convicted and sentenced the accused as mentioned in the opening paragraph.
Counsel for the appellants has contended that as far as the accused Rohtas is concerned, he has been absolved by the deceased herself in her dying declaration. It has been argued that Usha, in her dying declaration had stated that an attempt was made to save her by her in-laws as well as by Rohtas and hence Rohtas deserves to be given the benefit of Crl.A No.458-DB of 2004 -6- doubt. It has also been contended that Usha died as a result of bursting of kerosene stove and that she was never maltreated by the accused. Counsel for the appellants also raised some weak arguments, like Usha was not in a position to append her thumb impression on her statement and that she did not give a dying declaration to the Magistrate. It has also been argued by the accused that Satish, Rohtas and Jagwanti were residing separately from the accused Jaggu, husband of the deceased and hence the allegation that they were also demanding dowry from the deceased and her parents, is a concocted story and thus, the accused are liable to be given the benefit of doubt.
The arguments raised by the counsel for the appellants have been strongly controverted by the counsel for the State. Mr. Punia, learned counsel for the State has submitted that the deceased Usha had given a voluntary statement before Sh. Mewa Singh, Chief Judicial Magistrate, Rohtak. The Magistrate had recorded her statement in the presence of Dr.Joginder Singh PW5. The deceased has categorically stated that all the accused had poured kerosene oil on her and had set her on fire. It has further been argued by the counsel for the State that PW9 Balbir Singh and PW10 Suman have both stated that the accused used to beat the deceased Usha for bringing inadequate dowry and the accused were constantly demanding more dowry. It has also been argued by the counsel for the State that Rohtas and his wife and the accused Sunil and Satish were residing in the same house in which Jaggu was residing with his parents and hence these accused were not living separately.
We have heard learned counsel for the parties at length and have perused the record.Crl.A No.458-DB of 2004 -7-
A perusal of the facts in this case shows that Usha had made the dying declaration on 7.8.2003, before Sh. Mewa Singh, CJM, Rohtak. The CJM had put various questions to Usha who had answered them voluntarily. The CJM had recorded that Smt. Usha had deposed before him without any fear or pressure. It has also been recorded that Usha was conscious throughout her deposition and her thumb impressions of right hand have been obtained. It has been observed by the CJM that none except Dr.Joginder Singh was present at the time when Usha gave her dying declaration.
As per dying declaration, Usha had specifically stated that the appellants alongwith Lata had sprinkled kerosene oil on her and had set her on fire. She had, however, stated that Dalip, Dhanpati (father-in-law and mother-in-law, respectively) and Rohtas had tried to save her. She had given a statement before the CJM voluntarily. There was no pressure on her from any person.
Her dying declaration speaks volumes of the manner in which she was set on fire by the accused persons. She had also stated that the accused used to demand money and dowry from her, but as her father was a poor person, he was not in a position to meet the demands of the accused.
The statements of PW9 Balbir Singh, PW10 Suman who are the father and mother of the deceased also show that the deceased used to be beaten up by her husband Jaggu and there was a constant demand of dowry by him and other accused. Dalip, father-in-law of the deceased had also tendered apology and had assured Balbir Singh that Usha would not be harassed in future. Balbir Singh has also deposed that the deceased told him categorically that she had been given beatings by the accused and thereafter Crl.A No.458-DB of 2004 -8- kerosene was poured on her and she was set on fire. The statement of Balbir Singh has also been corroborated by PW10 Suman who has deposed on the same lines. Apart from the above, a perusal of the facts in the present case shows that first wife of accused Jaggu had also died because of hanging.
It has also come in evidence that the accused Rohtas alongwith his wife Sunil and brother Satish were residing in the premises alongwith Jaggu and his parents Dalip and Dhanpati. No evidence was led by any of the accused that they were living separately.
In view of the evidence led in this case, it is clear that as far as appellant No.5 Rohtas is concerned, the deceased in her dying declaration had categorically stated that he had tried to save her alongwith her parents- in-law. Thus, in view of the statement of the deceased, we are inclined to give benefit of doubt to appellant No.5 Rohtas and we acquit him of all the charges. As far as all the other accused are concerned, the prosecution has successfully brought home its case against all these persons beyond reasonable doubt and therefore, they have rightly been convicted under Section 304-B, 316 read with Section 34 IPC and Section 498-A IPC read with Section 34 IPC and have been sentenced.
We find no merit in the appeal filed by Jagwanti, Sunil, Satish, Jaggu and accordingly, the appeal filed by them is dismissed.
As far as Lata is concerned who has filed Crl.A. No.797-SB of 2004, it has come in evidence that she was married and was living in her matrimonial home away from the deceased. There is not enough evidence against her to sustain her conviction under Section 498-A IPC and therefore, we accept the appeal filed by her and acquit her of the charges under Section 498-A read with Section 34 IPC.Crl.A No.458-DB of 2004 -9-
In case the accused-appellants are on bail, their bail bonds are cancelled and they be taken into custody forthwith to serve out the remaining period of their sentence.
(ASHUTOSH MOHUNTA)
JUDGE
August 18, 2009 (MOHINDER PAL)
Gulati JUDGE