Punjab-Haryana High Court
Karam Pal Singh vs The State Of Punjab on 10 December, 2009
Author: Mahesh Grover
Bench: Mahesh Grover
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl. Appeal No.363-SB of 1997
Date of Decision: 10.12.2009
Karam Pal Singh.
....... Appellant through Shri
S.K.Chopra, Advocate.
Versus
The State of Punjab.
....... Respondent through Shri
Gaurav Dhuriwala, Assistant
Advocate General.
CORAM: HON'BLE MR.JUSTICE MAHESH GROVER
....
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
....
Mahesh Grover,J.
This appeal is directed against judgment of conviction and order of sentence dated 22.4.1997 passed by the Additional Sessions Judge, Patiala (hereinafter described as `the trial Court') vide which the appellant has been convicted under Section 304-B of the Indian Penal Code,1860 (for short, `the I.P.C.') and sentenced to undergo rigorous imprisonment for seven years and to a fine of Rs.500/- and in default of payment of fine, he has further been directed to suffer rigorous imprisonment for two months.
The appellant is the husband of deceased-Renu, who sustained Crl.Appeal No.363-SB of 1997 -2- .....
burn injuries on 24.4.1990 and breathed her last on 25.4.1990. she was said to have been married barely three years prior to the date of incident. According to the material on record, she was also having strained relations with the appellant.
If the F.I.R. and the case of the prosecution is to be referred in brief, then it transpires that the allegations against him are that on the fateful day, deceased-Renu was present in her matrimonial home along with her mother-in-law -Smt. Kamlesh, who was having 1-1/4 years old maternal grand-son in her lap when Renu came out from another room aflame. She thereafter embraced Smt.Kamlesh, as a result of which both had suffered serious burn injuries and in the process, all the three lost their lives. Smt.Kamlesh is said to have died on 30.5.1990, whereas Mukesh, her maternal grand-son died on the same day.
It is the case of the prosecution that a dying declaration of deceased-Renu was recorded on 24.4.1990 itself on the basis of which the F.I.R. was recorded. According to this dying declaration, the deceased is said to have alleged that she was subjected to demands of dowry and that Smt.Kamlesh and the appellant poured kerosene after getting enraged on account of non-fulfilment of their demand of Rs.50,000/- and set her on fire. She also stated that her `Devar' -Hira Lal alias Gorkha used to say that she be burnt.
After completion of investigation, the appellant and his brother Hira Lal alias Gorkha were sent up to face trial. They were charged accordingly to they pleaded not guilty and claimed trial.
Crl.Appeal No.363-SB of 1997 -3- .....
In order to establish its case against the accused persons, the prosecution examined as many as ten witnesses including the doctor, who had conducted post mortem examination on the dead body of deceased- Renu.
Thereafter, the trial Court recorded the statements of the appellant and Hira Lal under Section 313 of the Cr.P.C. in which they claimed innocence and alleged false implication.
The appellant took up the plea that on 24.4.1990, his sister- Jaiton, who is married with Naresh Chand of village Rongla, had come to Patiala along with her son Mukesh Kumar alias Bilu in order to get medicines; that he had left the house along with his sister after leaving Mukesh with his mother-Kamlesh; that they received message that his wife caught accidental fire and his mother tried to save her and also caught fire when Mukesh was also in the lap of his mother; that they rushed to Rajindra Hospital, Patiala where Balbir Kaur wife of Nishabar Singh, Surjit Kaur wife of Hakam Singh, both residents of Anand Nagar, Patiala met them; and that he and Hira Lal were not present in the house at the time of incident.
Similar plea was taken by Hira Lal alias Gorkha.
In their defence, the appellant and Hira Lal examined DW1- Smt.Balbir Kaur, who stated that after marriage, the relations of the appellant and deceased-Renu remained cordial for a period of about 1-1/2 years; that then there used to be altercations between the two because deceased-Renu wanted to live separately from her in-laws and that the appellant should give his income to her, whereas the appellant resisted this Crl.Appeal No.363-SB of 1997 -4- .....
on account of the fact that his father had died and his younger brother was dependent upon him; that the matter inter se between the couple was settled on 21.8.1989 and they started living together and there was no quarrel thereafter; that on 24.4.1990 at about 10/11.00 A.M., she was present in her house when she heard shrieks; that she went to the house of the appellant and found that Renu and her mother-in-law, Kamlesh and Bilu son of the daughter of Kamlesh had caught fire and Renu was lying unconscious.
To similar effect is the statement of DW2-Nachhawar Singh, who is husband of Balbir Kaur-DW1.
One Dewan K.S.Puri, Finger Print and Document Expert was also examined as DW3 on 20.1.1995. However, he was not cross-examined on that day and thereafter, he died. In his place, Shri Navdeep Gupta, an associate of Dewan K.S.Puri was produced. He stated that he had examined the disputed thumb impressions of Smt.Asha on affidavit dated 21.5.1990 and in his opinion, the same had tallied with her specimen thumb impressions.
It may be mentioned here that Smt.Asha had appeared as PW6 and supported the prosecution version, but subsequently she submitted affidavit dated 21.5.1990 stating therein that she was not present at the time of the occurrence.
Smt. Jaiton (mentioned as Jainta in the statement) appeared as DW4 and supported the plea as taken by her brothers, i.e., appellant and Hira Lal.
Constable Inderjit Singh was examined as DW5. He had Crl.Appeal No.363-SB of 1997 -5- .....
brought the original file of the enquiry which was conducted by Superintendent of Police (D), Patiala and proved the report, Exhibit DW5/A. After appraisal of the entire material on record, the trial Court came to the conclusion that Hira Lal alias Gorkha was innocent and acquitted him accordingly, whereas the appellant was convicted and sentenced, the details of which have been given hereinabove.
While recording the conviction and awarding sentence to the appellant, the trial Court relied upon a portion of the dying declaration of deceased-Renu, but at the same time, another portion thereof was disbelieved to award acquittal to Hira Lal alias Gorkha.
Learned counsel for the appellant has assailed the impugned judgment and has contended that the same is erroneous and deserves to be set aside. He further contended that the dying declaration on the basis of which the entire case of the prosecution rests cannot be believed for the reason that the investigating officer is said to have visited the hospital twice over in order to record the statement of the deceased, but in the first instance, he was told by the doctor that she was not fit to make statement, however, subsequently the statement of the deceased was recorded in complete violation of the law as neither the signatures of the doctor were obtained on it nor was it recorded in the presence of a Magistrate. He, thus, submitted that keeping in view the fact that the deceased died on 25.4.1990, the recording of dying declaration is shrouded with suspicious circumstances.
Crl.Appeal No.363-SB of 1997 -6- .....
Learned counsel for the appellant argued that another reason why the dying declaration of the deceased and the entire prosecution version should be discarded is that there is no material on record to infer that the demands of dowry were raised on the family of the deceased, so much so, father of the deceased never made any complaint to the police and it was only after a lapse of substantial period of time that such allegations were levelled. He contended that demands of dowry were never raised and, therefore, the prosecution case on that count deserves to be discarded.
On the strength of the above, learned counsel for the appellant urged that since the demands of dowry were not established, the appellant cannot be convicted under Section 304-B of the I.P.C. even if the presumption of law is attracted.
To support his contentions/ submissions, learned counsel for the appellant placed reliance on Emperor Versus Premananda Dutt, AIR 1925 Calcutta 876; Thurukanni Pompiah and another Versus State of Mysore, AIR 1965 S.C. 939; State of Punjab Versus Gian Kaur and another, AIR 1998 S.C. 2809; Kamalakar Nadram Bhavsar and Ors. Versus State of Maharashtra, 2004(1) R.C.R. (Criminal) 228 (S.C.); Arun Bhanudas Pawar Versus State of Maharashtra, (2009) 1 S.C.C. (Cri) 112; and Rangaiah Versus State of Karnataka, 2009(1) R.C.R. (Criminal) 923.
On the other hand, learned counsel for the respondent-State contended with reference to Exhibit PW4/A, which is a resolution passed by the Panchayat, that the deceased was being harassed by the family of the appellant and having regard to this and the fact which has been conceded Crl.Appeal No.363-SB of 1997 -7- .....
before this Court as well that there were strained relations between the appellant and the deceased, the provisions of Section 304-B of the I.P.C. are straight-away attracted to the facts of this case. He made strenuous attempt to argue that threats were being given to the deceased to be burnt and this evil design was carried out on 24.4.1990 by the appellant and his mother.
To support his submissions, learned counsel for the State placed reliance on a judgment of the Supreme Court in Baljeet Singh and another Versus State of Haryana, AIR 2004 S.C. 1714.
I have thoughtfully considered the rival contentions and have perused the impugned judgment, as also the record.
The fore-most question that has to be determined is as to whether the dying declaration of the deceased can be believed in the given set of circumstances of the case or not.
In Muthu Kutty and another Versus State by Inspector Police, Tamil Nadu, 2005(1) R.C.R.(Criminal) 639 and Kalawati Versus State of Maharasthra, 2009(3) R.C.R. (Criminal) 486 (S.C.), their Lordships of the Supreme Court and in Joginder Singh Versus State of Haryana, 2005(3) R.C.R.(Criminal) 135 (P&H), a Division Bench of this Court, have observed that the dying declaration of a deceased can be accepted even if it is not recorded in the presence of a Magistrate or not recorded in accordance with the procedure laid down, provided it inspires confidence.
If the evidence on record is to be seen, then the Investigating Officer stated that in the first instance when he went to record the statement of the deceased, she was not fit to make a statement. Thereafter, he is said to Crl.Appeal No.363-SB of 1997 -8- .....
have recorded the statement of the deceased at 9.15 P.M. The deceased had died on the next day, i.e., 25.4.1990, in the morning. There is absolutely no material on record to show as to whether the doctor had given a go-ahead for recording of the statement of the deceased after opining that she was fit to make statement. There is nothing on the record to that effect nor the signatures of the doctor appears on the dying declaration. Therefore, the dying declaration comes within the grey area where it cannot be conclusively said that the deceased was fit to make a statement or conscious enough to state whatever has been recorded therein. In the absence of any further authenticity lent to it by the signatures of the doctor, this Court is constrained to observe that the dying declaration of the deceased cannot be believed. This further finds support from the evidence which the prosecution has brought on record.
It is the consistent case of the prosecution that the deceased died on account of burn injuries because the appellant and his mother- Kamlesh had poured kerosene on her and set on fire, but if this fact of the matter is tested on the basis of the material on record, then PW1-Dr.Jatinder Kumar Sadana, who had conducted post mortem on the dead body of the deceased, categorically stated that there was no smell of kerosene oil from the body of Renu. He also stated that had there been any smell of kerosene, he would have mentioned the same in the post mortem report. In this view of the matter, the question whether kerosene was at all poured on the deceased by the appellant and Smt.Kamlesh becomes doubtful and consequently, the entire case of the prosecution enters into the domain of Crl.Appeal No.363-SB of 1997 -9- .....
ambiguity.
The next question that is to be seen is as to whether the appellant can be burdened with the presumption of law where an unnatural death of a married woman takes place within seven years of marriage at the house of her in-laws and can be convicted on this score or not.
If the provisions of Section 304-B of the I.P.C. are to be perused, then there is, indeed, no doubt that a strong presumption arises qua a husband, who is confronted therewith, but the same can be set off by cogent evidence to be brought on record by the person so accused.
In the instant case, a scrutiny of the entire evidence on record reveals that the element of demand of dowry is absent. Exhibits DB and PW4/A show some differences between the couple, but the same were not on account of demands of dowry. A strong reference was made by the learned counsel for the State to Exhibit PW4/A, particularly to its portion, which when translated into English reads as under:-
"We have agreed for sending the girl to her in-laws and the girl is ready to go there but she had some difficulties. The boy gives beating and threats to the girl that she should sign the blank paper so that he may get the divorce and he also threaten to burn her."
This, in the opinion of the Court, per se does not mean anything because in the entire document, Exhibit PW4/A, as also the compromise which was effected between the parties, there is no reference to any demand of dowry having been made, so much so, that the father of the deceased also Crl.Appeal No.363-SB of 1997 -10- .....
in the first instance when he was confronted with the unfortunate incident of his daughter being burnt, had not made any complaint to the police that demands of dowry were being made. In this eventuality, the Court cannot conclude positively as to whether the deceased has been done to death on account of non-fulfilment of the demands of dowry, which were being raised by the appellant upon her or upon her family.
Another aspect which has to be considered in favour of the appellant is that it was for the prosecution to establish conclusively as to how the deceased had died, but except for reiterating that she had died because she was set on fire by the appellant and deceased-Kamlesh, there is no other material brought on record and if this is to be reconciled with the statement of deceased-Kamlesh, who had herself perished in the incident, then it transpires that she, in a straight-forward way, put across the manner in which the incident took place. She died after four weeks of the incident and in the process, had suffered a horrible tragedy of losing her maternal grand-son, who was barely one year and three months old. This statement of hers which was recorded on 25.4.1990 itself and since no further statement was recorded thereafter, it can be treated to be the first authentic version of the incident and even if it does not explain as to how the deceased caught fire, but it sufficiently explains that the appellant, in any way, was not involved in the commission of the offence.
For the aforestated reasons, this Court is of the opinion that the prosecution has failed to establish the guilt of the appellant beyond reasonable doubt and accordingly, this appeal is accepted, the impugned Crl.Appeal No.363-SB of 1997 -11- .....
judgment and order are set aside and the appellant is acquitted of the charge against him.
December 10,2009 ( Mahesh Grover ) "SCM" Judge