Punjab-Haryana High Court
Surinder @ Sundri Son Of Sohan Lal vs State Of Haryana on 23 January, 2014
Bench: Rajive Bhalla, Jaspal Singh
Criminal Appeal No.D-504-DB of 2002 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No.D-504-DB of 2002
Date of Order: 23.01.2014
Surinder @ Sundri son of Sohan Lal
...Appellant
Versus
State of Haryana
..Respondent
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE JASPAL SINGH
Present: Mr. Pankaj Midha, Advocate,
for the appellant.
Mr. Baldev Singh, Addl. A.G.,Haryana,
for the respondent-State.
RAJIVE BHALLA, J (Oral).
The appellant Surinder @ Sundri son of Sohan Lal, is before us in an appeal, challenging judgment dated 19.02.2002, convicting him under Section 302 of the Indian Penal Code and order dated 20.02.2002, sentencing him to imprisonment for life and to pay a fine of Rs.5,000/-, in default whereof, to further undergo RI for two years.
The case, as set up by the prosecution, is that on 15.10.2000, a ruqa accompanied by a copy of the MLR of Veeran Devi wife of the appellant was received in Police Station, Jind, informing the police that she has been admitted to Civil Hospital, Jind, with burn injuries. Shri Satpal Singh, SI, accompanied by other police officials reached Civil Hospital, Jind. In the meantime, Veeran Kumar Naresh N 2014.02.25 14:33 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.D-504-DB of 2002 -2- Devi, deceased, had been forwarded to PGIMS, Rohtak. Shri Satpal Singh, SI, reached PGIMS, Rohtak and enquired about her condition and filed an application before the Duty Magistrate, for recording the statement of Veera Devi. Shri K.K.Bali, the then Additional Chief Judicial Magistrate, Rohtak, recorded the statement of Veera Devi, while she was lying admitted in Ward No.5, PGIMS, Rohtak and before doing so, obtained the opinion of the doctor whether she is fit to make a statement. The doctor opined that Veera Devi is fit to make a statement. Veera Devi made a statement indicting her husband by stating that her husband had dragged her into the street and set her on fire after sprinkling oil. On the basis of the dying declaration, the police lodged an FIR. The appellant was arrested. Smt. Veera Devi passed away on 18.10.2000. The dead body was forwarded for post mortem. The post mortem report records that extensive burns suffered by Veeran Devi and its complications were sufficient to cause death in the ordinary course of nature. After completion of investigation, a final report was filed and the accused was committed to the court of Sessions. A charge was framed under Section 302 of the Indian Penal Code, but as the appellant pleaded not guilty and claimed trial, the prosecution was directed to prove the charge, so levelled. The prosecution, in order to prove its case, has examined the following witnesses:-
PW1-Dr. Dharminder Sharma, PW2-Dr.R.N.Bura, PW3- Dilbag Singh C No.851, PW4- Lal Singh, SI, PW5-Dr. Ajay Kumar Goel, PW6-Gulshan Kumar, PW7- Mulakh Kumar Naresh N Raj, PW8-SI Satpal Singh, PW9-Subhash Chander, 2014.02.25 14:33 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.D-504-DB of 2002 -3- PW10-Sh. K.K.Bali, ADJ, Kurukshetra, PW11-Inspector Balram.
Apart from the oral deposition, the prosecution also produced the following documentary evidence:-
Ex.PJ application for recording the statement of Veera Devi, Ex.PJ, PJ/1 application and order dated 16.10.2000, Ex.PJ/4 statement of Smt. Veera Devi, Ex.PJ/5- Certificate, Ex.PJ/6 order dated 16.10.2000, Ex.PB endorsement of doctor, Ex.PJ/4 Statement of Veera Devi, Ex.PJ/7 Sealed cover of parcel, Ex.PJ/8 forwarding letter, Ex.PC Copy of MLR of Veera Devi, Ex.PD Ruqa, Ex.PE Scaled site plan, Ex.PE translation of marginal note appearing on scaled site plan, Ex.PF police proceedings, Ex.PF/1 FIR, Ex.PG translation of application for conducting post mortem examination, Ex.PG/1 Inquest report, Ex.PH Copy of PMR of Veera Devi, Ex.PK translation of copy of statement of Veera Devi, Ex.PK/1 statement of veera Devi, Ex.PL marginal notes appearing on rough site plan, Ex.PM ruqa, Ex.PN translation of receipt of dead body, Ex.PQ translation of special report, Ex.PQ translation of disclosure statement of accused Surinder Kumar, Ex.PR translation of recovery memo of cane of kerosene oil and Ex.PS translation of marginal notes appearing on rough site plan.
The trial court, thereafter, put the incriminating circumstances appearing in the evidence to the appellant, who while Kumar Naresh N 2014.02.25 14:33 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.D-504-DB of 2002 -4- admitting that his relationship with his wife was strained, alleged that she was a short tempered lady, who had set herself on fire and made a statement against the appellant, so as to wreck vengeance.
After considering the evidence on record and arguments addressed by and on behalf of the prosecution and the defence, the trial court convicted the appellant and sentenced him in terms referred to in the opening paragraph of the judgment.
Counsel for the appellant submits that, though, the deceased is the wife of the appellant and has made a dying declaration, implicating the appellant by identifying him as the person, who dragged her into the street and set her on fire but the dying declaration should be ruled out of consideration as there is no evidence on record that before recording the dying declaration, Veera Devi was in a fit state of mind to understand questions put to her and record clear and cogent answers. The certificate, Ex.PA, dated 16.10.2000, furnished by the doctor records that Veeran Devi is fit to make a statement. The certificate does not record that Veeran Devi was mentally alert and capable of understanding the questions put to her. The certificate, Ex.PB, given after recording of the dying declaration suffers from the same defect. In support of this argument, counsel for the appellant relies upon the following judgments, namely, Paprambaka Rsamma v. State of Andhra Pradesh, 1999(4) RCR (Criminal) 104, Uka Ram v. State of Rajasthan 2001(2) RCR (Criminal), Panchdeo Singh v. State of Bihar, 2002(1) RCR(Criminal) 126 and Ramilaben Hasmukhbhai Khristi and Anr. Etc. v. State of Gujarat, 2002(3) Kumar Naresh N 2014.02.25 14:33 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.D-504-DB of 2002 -5- RCR (Criminal), 786 and submits that as there is no evidence on record that the deceased was in a fit state of mind during the recording of her dying declaration, it should be discarded and the appellant should be acquitted. It is further submitted that PW7 Mulakh Raj, cited as an eye witness, had no reason to be present at the spot. PW7 Mulakh Raj has deposed that he came to purchase vegetable. The statement is belied by his admission that the vegetable market at Rohtak, is closer to his village than the vegetable market at Jind. It is also contended that in her dying declaration, Veera Devi has clearly stated that after she was set on fire, she became unconscious. Veeran Devi, therefore, could not have told PW7 that she had been set on fire by the appellant. It is further contended that PW6 is a neighbour and PW9, a brother of the deceased, who have deposed with respect to the strained relationship between the parties. The depositions of PW6 and PW9 are irrelevant as they have not witnessed the occurrence. Admittedly, the appellant was present at PGIMS, Rohtak, thereby clearly proving that the appellant was looking after his wife. It is also contended that PW5, the doctor, who conducted the post mortem, opined that Veeran Devi had suffered 100% burn injuries, thereby rendering impossible the making of a dying declaration or her being conscious, much less mentally alert, to make a dying declaration. It is also contended that as Smt. Veeran had suffered 100% burns, it was not possible for her to affix her thumb impression on the dying declaration, thereby clearly proving that the police procured the dying declaration in connivance with the deceased's parents.
Kumar Naresh N The last 2014.02.25 14:33 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.D-504-DB of 2002 -6- argument is that while convicting the appellant, the testimony of DW1, who is the son of the deceased and the appellant has not been taken into consideration. DW1 while admitting a strained relationship between his parents has clearly deposed that his mother set herself on fire. The admission of a strained relationship reveals that DW1 has spoken the truth and, therefore, his deposition should have been accepted by the trial Court. The failure of the police to send the "can" recovered from the place of occurrence for forensic examination is another factor that weighs against the truth of the version set forth by the prosecution. It is prayed that in view of the above facts, the appellant being innocent of any offence, the appeal may be allowed and the appellant may be acquitted.
Counsel for the State of Haryana, submits that the dying declaration, Ex.P3/4, was recorded by a Judicial Magistrate after obtaining the opinion of a doctor, that Veeran Devi is fit to make a statement. Upon conclusion of the dying declaration, the doctor once again opined that Veeran Devi remained fit during recording of the dying declaration. The expressions "fit to make statement" and "fit during the statement", would include an opinion that the patient was fit in all respects and in a fit state of mind to make a statement. The judgments relied by counsel for the appellant relate to use of the word "conscious", by the doctor. The judgment, where the word "fit" was held to be insufficient to confer legitimacy upon a dying declaration was, where the deceased was mentally unfit prior to the occurrence and, therefore, required the doctor to certify the mental state of the deceased. It is further submitted that as the dying Kumar Naresh N 2014.02.25 14:33 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.D-504-DB of 2002 -7- declaration does not require corroboration, it is sufficient to prove the case against the appellant. The prosecution has produced PW7, who has deposed that Veeran Devi told him that the appellant had set her on fire. The prosecution has completed all other legal formalities, like preparing a site plan, proving the place of occurrence, proved the strained relationship between the parties, thereby leaving no ambiguity as to the guilt of the appellant. It is further submitted that as per the opinion of PW2-Dr.R.N.Bura, who was the first doctor, who examined the deceased, burns were smelling of kerosene. The appellant claims that the deceased suffered burn injuries after she doused herself with kerosene, rendering it unnecessary for the prosecution to send the "can" for forensic examination. It is further submitted that DW1, son of the appellant has admitted during his cross-examination that when he came to the spot his mother was already burnt, thereby rendering his statement made in favour of the appellant irrelevant.
We have heard counsel for the parties, perused the impugned judgment and the record.
The appellant has been convicted and sentenced for the murder of his wife. As per the prosecution version, based upon a dying declaration made on 16.10.2000 by Veeran Devi, before Shri Krishan Kumar Bali, the then Additional Chief Judicial Magistrate, Rohtak, she was set on fire by her husband. A translation of the dying declaration reads as follows:-
"Statement of Smt. Veera Devi wife of Surinder son of Sohan Lal, aged 25 years, resident of Patiala Kumar Naresh N Chowk, Jind. On SA 2014.02.25 14:33 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.D-504-DB of 2002 -8- Q. What is your name?
A. Veera Q. What is the name of your husband?
A. Surinder.
Q. Are you literate?
A. I am 10th class pass.
Q. How much time has passed since your marriage?
Ans. Eight years.
Q. How many children do you have?
Ans. Two, one son and one daughter.
Q. How did you catch fire?
A. The father of children sprinkled oil and set me on fire. The sister of my husband Surinder came to quarrel with me. The sister of my husband Surinder is living in front of our house at Patiala Chowk, Jind. The husband of the daughter of Surinder's sister had given us money. My committee was received and Kamlesh came to demand money, I replied that I will not given the money of the Committee to her but would give to 'Janwai'. My husband quarreled with me on this account and abused me. He abused me and my parents. I also replied back. Upon this Surinder asked Kamlesh to go from the house but she did not leave but she left after some time. Thereafter Surinder on account of this dispute caught hold of my hair and dragged me out and after sprinkling oil set me on fire.
Thereafter, I don't know what happened. I
was taken to hospital.
Kumar Naresh N
2014.02.25 14:33
I attest to the accuracy and
integrity of this document
High Court Chandigarh
Criminal Appeal No.D-504-DB of 2002 -9-
Q. Have you to say anything more?
A. My mother-in-law and Devar (younger brother
of husband) are good and they remain in my
favour. My husband used to quarrel with me.
He consumes liquor daily. I have nothing to
say more.
RO&AC Sd/- (in English)
RTI Veera ACJM (Duty) 16.10.2000
at 11.43 A.M.
Statement of Veeran wife of Surender son of
Sohan Lal, 25 years, resident of Patiala Chowk.
Recorded by Shri Krishan Kumar Bali, HCS, Addl. Chief Judicial Magistrate, Rohtak, on 16.10.2000."
Before recording the dying declaration, the Additional Chief Judicial Magistrate, Rohtak, sought the opinion of PW1-Dr. Dharminder Sharma, whether Veera Devi is fit to make a statement. The doctor opined by Ex. PA, as follows:-
" Patient is fit to give statement at this time. 11-00 A.M. 16.10.2K Sd/- (in English) Dr. Dharminder.
PG 5/iv"
After recording the statement, the doctor once again opined vide certificate, Ex.PB, that:-
"Patient remain fit during the statement. 11-43 a.m. 16.10.2K Sd/- (in English) Dr. Dharminder.
PG 5/iv"
The Additional Chief Judicial Magistrate, Rohtak, certified Kumar Naresh N 2014.02.25 14:33 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.D-504-DB of 2002 -10- by Ex.PJ/5, as follows:-
"Certified that the statement made by Smt. Veeran was read over to her and admitted by her to be correct and it contains a full and true account of the statement made by her.
Sd/-(in English) A.C.J.M(Duty)
16.10.2000."
The appellant's first argument is that words used by the doctor "fit to make the statement" and "remained fit during the statement", are not sufficient to infer that the deceased was in a fit state of mind to depose as to the true facts of the alleged occurrence. In support of his argument, counsel for the appellant relies upon judgments of Hon'ble Supreme Court in Paprambaka Rsamma v. State of Andhra Pradesh,1999(4) RCR(Criminal) 104, Uka Ram v. State of Rajasthan 2001(2) RCR(Criminal), Panchdeo Singh v. State of Bihar, 2002(1) RCR(Criminal) 126 and Ramilaben Hasmukhbhai Khristi and Anr. Etc. v. State of Gujarat,2002(3) RCR(Criminal), 786.
A perusal of these judgments would reveal that while considering import of the word "conscious", used by a doctor while recording an opinion that the patient is fit to record his statement, the Hon'ble Supreme Court held that the word "conscious", does not denote that the patient is mentally alert. We can have no quarrel with the ratio of these precedents. The word "conscious" is obviously vague and denotes nothing more than a state of consciousness. An injured may be conscious but may, at the same time, be incapable of understanding questions or recounting with any degree of certainty Kumar Naresh N 2014.02.25 14:33 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.D-504-DB of 2002 -11- facts that led to his or her injuries. The fourth judgment relates to a case where the deceased was a mental patient, therefore, requiring the doctor to record a detailed opinion that the deceased was in a fit state of mind. It was, in this context, that the Hon'ble Supreme Court held that words "fit to make a statement" are insufficient to raise an inference that the deceased was mentally alert.
In the present case, the doctor has opined that the deceased is "fit to make a statement" and "remained fit during the statement". The words used by the doctor, cannot be equated with the word "conscious" as they inher a fit state of mind capable of understanding questions and responding by recounting all relevant facts, with a degree of certainty. The opinion recorded by the doctor that the deceased is fit to make a statement and remained fit during recording of her statement is sufficient to establish that the deceased was in a fit state of mind and capable of narrating the facts that led to burn injuries and her ultimate demise.
A perusal of the dying declaration, recorded in question- answer form, reveals that before proceeding to ask questions as to the cause of burn injuries, the learned Magistrate, asked five general questions relating to her name, her husband, her education, time elapsed since marriage, number of children, so as to ascertain whether she was actually in a fit state of mind. The deceased answered clearly, thereby removing any doubt as to her mental fitness. The deceased has stated that she was dragged out of the house and set on fire by the appellant after he sprinkled oil, on her. We find no reason to hold that the narrative of facts recorded in the Kumar Naresh N 2014.02.25 14:33 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.D-504-DB of 2002 -12- dying declaration are a fictional account of a delusional mind, the statement of a vindictive wife, bent upon wrecking vengeance or that she was tutored to depose against her husband.
Apart from the dying declaration the prosecution has produced PW7, who though not a witness of the entire occurrence has deposed that while Veeran Devi was lying on the ground, in a burnt condition, she told him that the appellant had set her on fire. We cannot but reject an argument raised by counsel for the appellant, that this witness was procured to corroborate the dying declaration as the vegetable market at Jind, where he came to shop, is at a greater distance from the vegetable market at Rohtak, or because he is a relative. Even, if we were to rule out the deposition of this witness, the dying declaration is by itself sufficient to bring home the appellant's guilt.
An argument that as the deceased was 100% burnt, she could not have affixed her thumb impression, merits rejection, as the thumb impression was affixed in the presence of the Additional Chief Judicial Magistrate, Rohtak, who had no reason to prepare dying declaration. This apart, to accept this argument, the appellant would have had to prove that thumb impression on the dying declaration are not of the deceased. The appellant has not adduced any such evidence.
An argument that the "can" containing kerosene was not sent for forensic examination, is meaningless as it is the case of the appellant himself that his wife set herself on fire. The prosecution, therefore, had no reason to send the "can" for forensic examination. Kumar Naresh N 2014.02.25 14:33 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.D-504-DB of 2002 -13- The deposition of DW1-Joni Kumar, son of the deceased, cannot enure to the benefit of the appellant for the simple reason that in his cross-examination he has admitted that he arrived after the deceased was set on fire. DW1 has also admitted the strained relationship between his parents.
In view of what has been recorded hereinabove, we find no infirmity or illegality in the judgment and order recorded by the trial court convicting and sentencing the appellant for the murder of his wife Veeran Devi and consequently dismiss the appeal. The bail bonds furnished by the appellant shall stand cancelled. The appellant shall be taken into custody forthwith to undergo the remainder of his sentence.
(RAJIVE BHALLA)
JUDGE
January 23, 2014 (JASPAL SINGH)
nt JUDGE
Kumar Naresh N
2014.02.25 14:33
I attest to the accuracy and
integrity of this document
High Court Chandigarh