Punjab-Haryana High Court
Deepak Sharma vs State Of Haryana on 5 April, 2013
Author: Inderjit Singh
Bench: Jasbir Singh, Inderjit Singh
In the High Court of Punjab and Haryana at Chandigarh
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Criminal Appeal No.D-295-DB of 2002
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Date of decision:5.4.2013
Deepak Sharma
...Appellant
v.
State of Haryana
...Respondent
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Coram: Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mr. Justice Inderjit Singh
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Present: Mr. R.S. Rai, Senior Advocate with Mr. Deepender Brar,
Advocate for the appellant.
Mr. Subhash Godara, Additional Advocate General, Haryana
for the respondent-State.
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Inderjit Singh, J.
Appellant Deepak Sharma has filed this appeal against the judgment of conviction and order of sentence dated 1.4.2002/3.4.2002 passed by Additional Sessions Judge, Karnal, whereby he has been held guilty and convicted for the offence punishable under Section 302 of the Indian Penal Code (hereinafter referred to as `IPC') and sentenced to undergo imprisonment for life and to pay a fine of `5,000/- and in default of payment of fine to further undergo rigorous imprisonment for six months for the offence under Section 302 IPC.
On 10.5.1998 ASI Jai Parkash, In-charge, Police Post, Taraori along with Rishi Parkash was on VIP duty when he received a V.T. message Cr. Appeal No.D-295-DB of 2002 [2] regarding burning of Seema, on which it was written that patient was referred to Civil Hospital, Karnal. On receipt of V.T. message, ASI Jai Parkash along with accompanying Constable reached Civil Hospital, Karnal, where ASI Prem Singh produced before him one application for obtaining statement and MLR of Seema dated 10.5.1998 and told him that Shri Nazar Singh, Duty Magistrate/Judicial Magistrate Ist Class, Karnal, had recorded the statement. Then the Investigating Officer reached at Court, Karnal and moved an application to the Judicial Magistrate for obtaining the copy of statement of Seema and the Steno to JMIC, Karnal supplied the copy of statement. From the above statement, writing was sent to the Police Station for registration of case. In the statement, Seema stated that her husband Deepak Sharma had set her on fire and he had also given beating to her. Deepak had set her on fire after sprinkling kerosene oil upon her. None except Deepak was guilty for this. Deepak used to give her beatings. When the Investigating Officer obtained copy of the dying declaration Ex.PL, at that time there was no overwriting or cutting. It is worth mentioning here that later on overwriting and cuttings were found in the record. The time given beneath the signatures on the endorsement of the Investigating Officer Ex.PL/1 was changed from 1.10 p.m. to 4.10 p.m. The date beneath the signature of Satya Parkash on Ex.PL/3 was mentioned as 12.5.1998 etc. regarding which a separate inquiry was directed in the lower Court. After the registration of the FIR, the Investigating Officer reached Taraori and went to the place of occurrence. He prepared rough site plan Ex.PN. Photographs were taken regarding the place of occurrence. A message was sent to the Director, FSL Madhuban for sending a team of experts for Cr. Appeal No.D-295-DB of 2002 [3] detecting the clue of offence and sealed the place of occurrence. The Investigating Officer again received a V.T. message Ex.PO/1 regarding the death of Seema. He again reached General Hospital, Karnal. Photographer was summoned and got the dead body photographed in the dead house. Inquest report Ex.PA/1 was prepared. Post-mortem examination was got conducted on the dead body of Seema. Statements of witnesses were recorded. On 11.5.1998, he handed over the dead body to the relatives of the deceased. At about 1.30 or 2.00 p.m. on 11.5.1998, the FSL team reached at the place of occurrence. The FSL team inspected the place of occurrence and took photographs of the place of occurrence. On the direction of the FSL team, he(I.O.) took into possession, vide recovery memo, some pieces of burnt clothes sticking on the wall. Thereafter, the investigation was handed over to Mahesh Parshad, Welfare Inspector, Karnal on 11.5.1998. The accused-appellant was produced before Inspector Mahesh Parshad by Prem Chand, Municipal Commissioner, Taraori. He was interrogated. During interrogation, he made disclosure statement that he had kept concealed one plastic cane wrapped in a plastic bag along with half burnt `Chunni' under a double bed in his bed room. In pursuance of his disclosure statement, he got recovered the articles which were taken into police possession after preparing sealed parcels. He prepared the rough site plan of the place of recovery. He recorded the statements of Prem Chand and ASI Bansi Lal. After necessary investigation, the challan was presented in Court.
On presentation of challan, the trial Court finding prima facie case against accused-appellant Deepak Sharma, framed charges for the Cr. Appeal No.D-295-DB of 2002 [4] offences under Sections 302 and 304-B IPC. The accused pleaded not guilty to above charges and claimed trial.
In support of its case, the prosecution examined PW-1 Dr. S.L. Verma, Medical Officer, General Hospital, Karnal, who along with Dr. S.L. Chandna conducted the post-mortem examination on the dead body of Seema on 11.5.1998. As per the opinion of the doctors, the cause of death in this case was due to shock as a result of extensive burns as described which were ante-mortem in nature and sufficient to cause death in normal course of life.
PW-2 Rajiv Sharma, brother of the deceased mainly deposed regarding marriage of Seema with Deepak Sharma on 19.11.1995. He also deposed regarding giving sufficient dowry in the marriage. He further stated that six months after the marriage, Seema was treated nicely. Thereafter, the accused started harassing and beating her for want of more dowry. He also deposed regarding giving of `Sofa' and colour TV etc. and also regarding the demand of dowry. He also deposed regarding harassment and beating given by the accused to Seema and also that she was turned out from the matrimonial house by the accused. He also deposed that 15/20 days prior to her death, the accused demanded a scooter from his sister. PW-3 Dr. Shashi Prabha, Medical Officer, Civil Hospital, Karnal mainly deposed regarding medico-legal examination of Seema conducted on 10.5.1995 at 10.30 a.m. and she proved the copy of MLR Ex.PF. She also deposed that it was a case of burn injuries and she sent a `Ruqa' Ex.PF/1 to the Police Post, General Hospital, Karnal regarding the admission of Seema. She also deposed that her endorsement on the `Ruqa' is Ex.PF/1, by which Cr. Appeal No.D-295-DB of 2002 [5] she directed the Police for making arrangements for recording of dying declaration. ASI Prem Singh on the same day moved an application Ex.PF/2, on which her endorsement was Ex.PF/3, by which she declared the patient fit for making statement. She had seen the original application Ex.PF/2, which was moved by ASI Prem Singh, upon which she made her endorsement Ex.PF/3 and she had seen the same and there was tampering on the time. The digit 10 had been converted into 40. She had given the time as 11.10 a.m. Shri Nazar Singh, JMIC, Karnal recorded the dying declaration of Seema and after recording the statement, the doctor gave her opinion to the effect that she was fit during the recording of statement at 11.30 a.m. Her endorsement was Ex.PF/4. On that day, she had seen the original and found that word `not' had been inserted in between `was and fit' and the date had been converted into 12 from 10. She had given the date as 10.5.1998. Her signatures had also been tampered with on her endorsement Ex.PF/4. PW-4 Inspector Mahesh Parshad mainly deposed regarding the investigation conducted by him in this case. PW-5 Shri Nazar Singh, Judicial Magistrate Ist Class deposed that on 10.5.1998, he was posted as Judicial Magistrate Ist Class, Karnal and was Duty Magistrate on that day. An application was moved by ASI Prem Singh for recording dying declaration of Seema wife of Deepak Sharma, who was admitted in Emergency Ward of General Hospital, Karnal on that day. He passed order Ex.PH which bears his signatures. In view of his order Ex.PH, ASI Prem Singh moved an application Ex.PF/2 to Medical Officer and the opinion of the doctor is Ex.PF/3 vide which he declared the patient fit to make statement. Even he found the patient as mentally fit to make a statement, Cr. Appeal No.D-295-DB of 2002 [6] thereafter he recorded her statement Ex.PJ. Till he recorded the statement of Mrs. Seema, she remained fit to make statement. He also deposed that thereafter, he gave an endorsement Ex.PJ/1 after recording statement Ex.PJ. He also issued certificate Ex.PH/1 to the extent that the dying declaration recorded after having obtained the opinion of the doctor. PW-5 further stated that he had seen the dying declaration Ex.PJ recorded by him and when he recorded the same on that day, in line no. first of the last answer, the word `Na' was not there in between the `Na Aag Lagai Hai'. It had also been inserted at subsequent stage. In his endorsement Ex.PJ/2 and PJ/1, he had written left foot thumb impression, but somebody had overwritten and rubbed out the word `foot' and the initial over it were also not in his hand. Similarly, in his endorsement Ex.PJ/1 in its second line date `10.5.1998' had been converted into `12.5.1998'. PW-5 further deposed regarding the tampering made in his order Ex.PH/1. There is tampering in para marked `A to A' as line mentioned therein had been overwritten and changed, but he did not remember as to what was written by him at this stage originally. PW-6 Sub Inspector Jai Parkash deposed regarding the investigation conducted by him in this case.
At the close of prosecution evidence, the accused was examined under Section 313 Cr.P.C. and was confronted with the evidence of the prosecution but he denied the correctness of the evidence and pleaded himself as innocent. He stated that he is innocent and highly unfortunate person who was double looser because firstly he lost his beloved wife and secondly he was facing the ordeal of trial that too with the allegations that he killed his own beloved wife. As a matter of fact he had no complaint Cr. Appeal No.D-295-DB of 2002 [7] from his matrimonial life since Seema was very devoted and cooperative but she had one complex which resulted her into depression as she could not conceive a child from their marriage. However, he had been counseling her so many times that it made no difference but she could not come out of this depression and ultimately she tried to finish her life by setting her ablaze inside the latrine after bolting the same from inside. Noticing the smoke and flames coming out he broke opened the door and extinguished the fire and thereafter immediately took Seema to PHC Taraori where the doctor concerned referred her to General Hospital, Karnal and he took her to General Hospital, Karnal where the doctor concerned made best efforts to save the life of Seema but his efforts and desire to save her life proved futile as she died in the same evening. He had been falsely implicated and fastened in the present case at the instance of parental side of Seema deceased who had reached General Hospital, Karnal as he conveyed the message of mishappening to them from Taraori itself.
In defence, the accused examined DW-1 Dr. Naresh Kaushal, Private Practitioner, Karnal, who mainly deposed that he is in practice since 1977, prior thereto he was working in Dayanand Medical College and Hospital, Ludhiana as Registrar. He also worked in PGI, Chandigarh as a Senior Resident. In his Nursing Home, he was having facility of Ultrasound and X-ray Plant, besides operation facility. He had seen Ex.DD. It pertained to Seema. The report Ex.DD had been written on the basis of X- ray Films Ex.DD/1 and Ex.DD/2. He had conducted X-ray to confirm whether the fallopian tubes of above named Seema were blocked or not, to ascertain whether she was competent to conceive and deliver a child or not.
Cr. Appeal No.D-295-DB of 2002 [8] According to the report Ex.DD, he observed that Uterus of Seema was abnormal and both the fallopian tubes of her were blocked. Under these conditions a lady could not conceive a child. A lady who could not conceive a child is generally called a barren woman.
The learned trial Court after going through the evidence and material on record, convicted and sentenced accused-appellant Deepak Sharma for the offence as mentioned above.
At the time of arguments, the learned senior counsel for the appellant argued that a reasonable doubt exists in the prosecution version and the prosecution has failed to prove its case beyond reasonable doubt. The material witness ASI Prem Singh, who moved an application before the doctor for seeking the opinion regarding fitness of the patient, has not been examined. ASI Prem Singh also moved an application before the Judicial Magistrate Ist Class for recording the dying declaration of Seema. Therefore, learned senior counsel for the appellant argued that non- examination of material witness creates doubt in the prosecution version. He further argued that it is in the evidence that expert team of FSL came and had also taken the photographs but no such photographs were placed on the record nor any report had been produced which further creates a doubt in the prosecution version. Learned senior counsel further argued that as per medico-legal report, it is stated that toe impression had been on the dying declaration but on the carbon copy no such impression was there. He further argued that no bed head ticket had been produced. The patient might have been given injections or strong pain killers. Therefore, Seema could not be held as fit to make statement especially when she died on the same Cr. Appeal No.D-295-DB of 2002 [9] day. He further argued that the statement of Judicial Magistrate Ist Class is also not reliable as he admitted in cross-examination that there is no toe impression on the dying declaration, though it is written as toe impression of Seema. He argued that in these circumstances, the dying declaration cannot be believed. The defence version is more probable. Seema could not conceive a child and she used to remain in depression and due to that she committed suicide. He also argued that bolt of the door from inside was found broken which also shows that she was brought out after breaking the door. Therefore, learned senior counsel for the appellant argued that there being merit in the appeal it should be allowed.
On the other hand, learned Additional Advocate General, Haryana appearing for the respondent-State argued that the case of the prosecution has been duly proved by the prosecution beyond reasonable doubt by bringing cogent evidence. Firstly, there is dying declaration. If Seema was having good relations with appellant Deepak Sharma, then why she made allegations against him. Again the occurrence took place in the house of the accused and these facts were especially within the knowledge of the appellant and he is to prove the same under Section 106 of the Evidence Act. Learned Additional Advocate General further argued that recovery of cane as per disclosure statement of the appellant and the FSL report regarding the same supports and corroborates the prosecution version. The tampering in the dying declaration and the other records also shows the conduct of the appellant that he got this tampering done in the record as he is the only beneficiary. The tampering has been duly proved by all the PWs. Therefore, he argued that this tampering in the record further Cr. Appeal No.D-295-DB of 2002 [10] supports and corroborates the prosecution version. Learned Additional Advocate General further argued that there is no evidence that Seema was brought out after breaking open the door. There is also possibility that she had concealed herself or she was in the bath room and after breaking open the bolt of the door kerosene oil was put on her. Therefore, he argued that there is no merit in the appeal and it should be dismissed.
We have heard learned senior counsel for the appellant and learned Additional Advocate General, Haryana appearing for the respondent-State and with their assistance have gone through the evidence on record minutely and carefully.
From the evidence on record, we find no merit in the contentions of the learned senior counsel for the appellant. It is admitted fact that occurrence took place in the house of the appellant in the morning hours on 10.5.1998. She reached hospital as per doctor at about 9.30 a.m. and she was medico-legally examined at 10.30 a.m. As the occurrence took place in the house of the appellant, these facts as to how the occurrence took place were especially in the knowledge of the appellant and he was to prove the same under Section 106 of the Evidence Act, but no defence evidence had been produced that Seema committed suicide as suggestions given to the witnesses or the appellant put in the statement recorded under Section 313 Cr.P.C. Neither any relative of the appellant nor any neighbour came to depose in favour of the defence version. The only witness examined in defence was DW-1 Dr. Naresh Kaushal, who deposed that there was some problem in conceiving the child but this fact itself will not prove that Seema ever remained under depression. DW-1 has given the report on the basis of Cr. Appeal No.D-295-DB of 2002 [11] some X-ray films Ex.DD/1 and Ex.DD/2 but he himself has deposed that he is not a Radiologist. No thumb impression or signatures of Seema were obtained on the report. The doctor also stated that such type of reports are generally handed over to the patient as soon as these are prepared. There is nothing on the record to show that these X-ray films belong to Seema. The doctor in cross-examination also stated that he did not maintain any record regarding receipt of payment from the patients for radiological treatment or other treatments. In cross-examination, he also stated that he is known Surgeon for fertility and with the latest technology, which had existed for the last two years, possibility of improving fertility in such like cases may be 15 to 20%. He also stated that no woman howsoever barren she may be, can be termed hundred present hopelessly. He also stated that he did not specifically advise her that she could be cured but she never turned-up for follow-up after 12.4.1998. He also stated in cross-examination that the family of the appellant is known to him and he is their family doctor. From the perusal of this cross-examination, it is clear that Seema was not suffering of a permanent disease. She could be cured with the treatment. No record has been produced and the record produced cannot be connected with her and from the statement of DW-1 only it cannot be held that she was under depression or committed suicide, especially in the absence of any other cogent evidence. Therefore, defence version is not probable and not believable.
As regards breaking open of the door, there is no evidence that who broke open the door and when? Whether the accused broke open the door before the occurrence for pouring kerosene oil or afterwards. Again if Cr. Appeal No.D-295-DB of 2002 [12] accused Deepak Sharma was having good relations why Seema made a dying declaration within just one to three hours of the occurrence and especially when it is in the evidence that her brother or other close relatives from parents side had not reached the hospital. The dying declaration Ex.PJ had been recorded by Judicial Magistrate Ist Class. The opinion of the doctor before recording the statement was taken. Otherwise also, the Magistrate has given the statement that the dying declaration is voluntary. The doctor has also deposed that she had declared patient fit to make statement before recording the statement by the Magistrate. Even the doctor as well as the Magistrate had deposed that she remained fit during recording of the statement. PW-5 Judicial Magistrate also deposed that she was mentally fit and give the statement voluntarily without any fear. In no way, this dying declaration can be held as a result of tutoring or given under any pressure nor, in any way, it is contradictory to the prosecution version. There is no exaggeration in the dying declaration. She had only named one accused Deepak Sharma. Otherwise by making exaggeration, she could implicate so many persons if she had to make false statement. Therefore, from the evidence on record we find that dying declaration can be safely relied upon. Further recovery of plastic cane and FSL report also supports and corroborates the prosecution version.
Next we find that there are so many cuttings and tampering in the record though the accused was in custody at that time and he himself had not done the same but the only beneficiary was the accused-appellant which infers that these documents were made at his instance for his benefit. This fact further shows the conduct of the appellant in the present case.
Cr. Appeal No.D-295-DB of 2002 [13] Though ASI Prem Singh filed an application seeking the opinion of the doctor regarding the fitness of the patient before recording the dying declaration by the Magistrate and he also filed an application before the Judicial Magistrate Ist Class for recording the statement. Both these facts have been duly proved by PW-3 Dr. Shashi Prabha and PW-5 Shri Nazar Singh, JMIC. These applications and the orders or the endorsements on these applications have been duly proved. Therefore, non-examination of ASI Prem Singh, in no way, creates doubt in the prosecution version. Similarly, it is admitted fact that the Expert Team visited the spot and photographs were taken. But there is nothing on the record that they gave any specific report in this case which may have been concealed. As per the statement of the Investigating Officer, the expert team told him to take in possession some pieces of clothes sticking to the wall of the bath room which were taken into possession by the Police. Therefore, non- examination of any person from the expert team, in no way, creates doubt in the prosecution case. The fact that tongue of Seema was burnt as per MLR, there is no evidence on the record that she could not speak at that time. Otherwise also, the doctor and the Magistrate are the independent persons having no personal interest in the case, why they will depose falsely or will create false evidence against the accused. They have no enmity or motive to depose falsely against the appellant. There is nothing in the record which may make statement of the Judicial Magistrate unreliable. The mere fact that he has not taken the toe impression on the dying declaration is no ground to disbelieve the whole statement. Again non-production of bed head ticket also does not create any reasonable doubt in the prosecution case Cr. Appeal No.D-295-DB of 2002 [14] especially in view of the opinion of the doctor on the application that the patient was fit to make the statement. The mere fact that there is no foot impression on the carbon copy, is also no ground to create doubt. The doctor had stated in the cross-examination that there was toe impression on the original.
Therefore, from the above discussion, we find that there is no merit in the arguments of the learned senior counsel for the appellant. The prosecution has duly proved its case by leading cogent evidence beyond any reasonable doubt. The dying declaration is duly supported by medical evidence and investigation conducted in the case. Therefore, having no merit in the appeal, the same is dismissed. The impugned judgment of conviction and order of sentence passed by the learned trial Court are upheld.
The sentence of imprisonment of appellant Deepak Sharma was suspended by this Court during the pendency of appeal and he was released on bail. As he is on bail, his bail/surety bonds stand cancelled. He is directed to surrender himself before the jail authorities immediately for completing remainder of sentence, failing which the concerned authority shall proceed against him in accordance with law.
(Jasbir Singh) (Inderjit Singh)
Judge Judge
April 5, 2013.
*hsp*