Punjab-Haryana High Court
Ram Piari And Anr. vs State Of Haryana on 28 April, 2005
Equivalent citations: 2005CRILJ3251, I(2006)DMC523
Bench: Mehtab S. Gill, Kiran Anand Lall
JUDGMENT
1. This is an appeal against the Judgment/order dated 5/8-5-1997 of Additional Sessions Judge, Karnal, whereby he convicted Ram Piari and Sanjay Kumar under Sections 302 and 498-A of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for life under Section 302 of the Indian Penal Code and to pay a fine of Rs. 1,000/- each. In default of payment of fine, they were ordered to undergo rigorous imprisonment for a period of one year each. Appellants were further directed to undergo rigorous imprisonment for two years each and to pay a fine of Rs. 500/- each under Section 498-A of the Indian Penal Code. In default of payment of fine, they were ordered to undergo rigorous imprisonment for a period of three months each. The substantive sentences of imprisonment awarded by the trial Court were ordered to run concurrently.
2. The case of the prosecution is unfolded by Pirthi Singh, Executive Magistrate, Panipat (PW-1) who recorded the dying declaration of deceased - Santosh. She stated in her dying declaration that on 8-4-1995 at about 7.00 a.m., her Devar (husband's brother) sprinkled kerosene oil on her and her mother-in-law Ram Piari set her on fire with a match stick. Her husband Ram Chander was sent out to get water. She further stated that she is a resident of village Kabri. About two years back, she was married to Ram Chander of village Faridpur. From the day, she had come to her husband's house, appellant Ram Piari, her mother-in-law, demanded money. On 7-4-1995 Ram Piari had put pressure on her to get the money demanded by her. Deceased could not get money from her parents. Due to this, she was set ablaze. On the basis of dying declaration, FIR dated 8-4-1995 (Exhibit PQ) was recorded at 2.00 p.m. Special report was sent to the Illaqa Magistrate on 8-4-1995 at 4.30 p.m.
3. Prosecution, to prove its case, brought into the witness box PW-1 Pirthi Singh, Executive Magistrate, who recorded the dying declaration, PW-2 Savitri, the mother of the deceased, PW-3 Phool Singh, the father of the deceased, PW-4 Shamsher Singh, the brother of the deceased, PW-5 Head Constable Devi Singh, PW-6 Dr. Punam Malhotra, who conducted the post-mortem on the dead body, PW-7 Constable Mulakh Raj, PW-8 Ram Mehar Singh, Assistant Sub-Inspector, the Investigating Officer, PW-9 Azad Singh, Assistant Sub-Inspector, who prepared the site plan and PW-10 Dr. P. K. Gandhi.
4. Learned counsel for the appellants has stated that the dying declaration is shrouded by suspicious circumstances. It has been scribed by PW-8 Ram Mehar Singh, Assistant Sub-Inspector. The right thumb impression on the dying declaration is not that of deceased-Santosh but of some other person. There is no note on the dying declaration written by the doctor that the deceased was fit to make a statement or that she was conscious. No note has come from the side of the Investigating Officer or Pirthi Singh, Executive Magistrate, (PW-1) to this effect. Dying declaration is not in the form of question and answer. As per the statement of PW-1 Pirthi Singh, the Executive Magistrate, who has stated that the right thumb impression of Santosh was put on dying declaration but this fact does not get corroboration from the medical evidence. Dr. Punam Malhotra (PW-6) has stated that there were 90% superficial burns on the body of the deceased. Dr. P. K. Gandhi (PW-10) has stated that there were 1st degree to 3rd degree burns on the body of the deceased except on her fore-head and sole of both feet. He has further stated that the right thumb impression of the deceased was also burnt.
5. Savitri, the mother of the deceased (PW-2), Phool Singh, the father of the deceased (PW-3) and Shamsher Singh, the brother of the deceased (PW-4) have resiled from their statements. Statements given on 31-1-1996 before the Court were given on the asking of the police. Truthful version has come out from the statements of these witnesses which were given before the Court on 15-7-1996.
6. Learned counsel for the State has stated that ridges and curves on the dying declaration are clear, as the right thumb of the deceased was not burnt. In the medico-legal report, Exhibit PU, the ridges and curves of the right thumb impression of the deceased can be seen. Apart from the official witnesses, the other witnesses have been won over by the appellants. They, though, have resiled from their testimony, but their examinations-in-chief, when they came before the Court on 31-1-1996 and 15-7-1996, should be taken into consideration, where they have implicated the appellants.
7. We have heard the learned counsel for the appellants, learned counsel for the State and perused the records with their assistance.
8. The entire case of the prosecution revolves around the dying declaration made by deceased-Santosh before Pirthi Singh, Executive Magistrate (PW-1). This statement has been signed by the Executive Magistrate and the deceased has attested it by putting her right thumb impression. Statement of deceased-Santosh was recorded, after the doctor had opined that Santosh was fit to make a statement.
9. PW-8 Ram Mehar, Assistant Sub-Inspector, put on record the police proceedings. He has stated that Smt. Santosh, after admitting the contents word for word of the dying declaration, put her right thumb impression underneath it. The statement was read over to her by the Executive Magistrate.
10. Pirthi Singh (PW-1) has stated in his testimony that an application (Exhibit PA) was made to him for recording of the statement of deceased-Santosh. Application was made by Assistant Sub-Inspector Ram Mehar Singh to Shri Radha Krishan, the Sub-Divisional Magistrate, Panipat on 8-4-1995. He made an endorsement, Exhibit PP and sent the same to him. Pirthi Singh (PW-1) went to the hospital. Assistant Sub-Inspector Ram Mehar Singh moved an application before the Medical Officer, who declared Smt. Santosh fit to make a statement at 11.40 p.m. on 8-4-1995. Thereafter, he recorded her statement, Exhibit PC. The statement was read over to her and in token of its correctness she thumb marked her statement at point 'A'.
11. The dying declaration, Exhibit PC, is shrouded by suspicious circumstances. Pirthi Singh, the Executive Magistrate, who recorded the statement, has stated in his testimony before the Court that Santosh was lying in the Emergency Ward. None else was present with her at that time. The Medical Officer pointed her out. He did not take opinion of the Medical Officer, as to whether she was fit to make a statement, though he was present. Ram Mehar Singh, Assistant Sub-Inspector (PW-8), who has stated in his testimony that the dying declaration was read over to the deceased, contradicts the statement of Pirthi Singh (PW-1), who has stated in his testimony that Ram Mehar Singh, Assistant Sub Inspector (PW-8) went with him up to the hospital, but he was not present, when the statement of the deceased was recorded. Pirthi Singh has further stated that no Nurse was present, but the Medical Officer some time came to the Emergency Ward and some time went out. From the statement of these witnesses, it is clear that the doctor was present, but after recording of the statement, the doctor (Medical Officer) was not asked to attest it as a witness to the dying declaration. The Medical Officer would have been the best witness and independent witness to the dying declaration.
12. Pirthi Singh (PW-1), in his testimony before the Court, has stated that the recorded statement of Santosh, Exhibit PC, is in the hand of some other person and not his. Some members of the staff of the hospital were present to whom he dictated the statement. It is strange that the name of the scribe (medical staff) is not coming forward from the testimony of this witness. Ram Mehar Singh, Assistant Sub-Inspector (PW-8) has stated and contradicted the statement of Pirthi Singh (PW-1) by stating that the Executive Magistrate-cum-Tehsildar, Panipat went with him to General Hospital, Panipat and after obtaining opinion of the Medical Officer regarding fitness of Smt. Santosh to make a statement on 8-4-1995 at 11.40 a.m., the Executive Magistrate recorded statement (Exhibit PC) of Smt. Santosh. This statement was read over to her and in token of its correctness, she thumb marked the statement. It is clear that the Investigating Officer Ram Mehar Singh (PW-8) was present at the time of recording of the alleged dying declaration. He has further stated that he made endorsement, Exhibit PP and sent it to the police post Gharaunda through constable Devi Singh for recording of a formal FIR.
13. We have seen the original of the Medico-legal report, Exhibit PU, of the deceased. Ridges and curves of the right thumb impression of the deceased are clear. From the naked eye, one can make out that a thumb impression has been imposed on another thumb impression on Exhibit PC.
14. Pirthi Singh (PW-1) has stated that the father, mother and brother or any other relative of Smt. Santosh was not present. They may have been outside. Ram Mehar Singh, Assistant Sub-Inspector (PW-8) in his testimony, has stated that father, mother and brother of Smt. Santosh along with the Sarpanch of village Kabrl were present in the hospital. He recorded the statements of the aforementioned persons along with the statement of Pirthi Singh, Executive Magistrate under Section 161 of the Code of Criminal Procedure.
15. Pirthi Singh (PW-1) in his testimony has stated that the dying declaration (Exhibit PC) was scribed by a person, whose name he had forgotten. Ram Mehar Singh, Assistant Sub-Inspector (PW-8) in his cross-examination has stated that statement (Exhibit PC) of Smt. Santosh was recorded in his hand. Now he had recorded the state ment of Santosh on the dictation of the Executive Magistrate. He could not recollect whether right thumb impression or left thumb impression of Santosh was obtained.
18. We have seen the original of the dying declaration (Exhibit PC). Dr. P. K. Gandhi (PW-10) has categorically stated in his cross-examination that right thumb impression of the deceased was burnt. In document, Exhibit PC, at point 'A' ridges and curves are very clear. There is not point from where we can make out that the right thumb impression is burnt. Apart from it being attested by Pirthi Singh, the Executive Magistrate, there is no witness to this dying declaration. The doctor (Medical Officer), who was present, should have been made a witness. Pirthi Singh (PW-1) has stated that dying declaration was scribed by someone, but he does not remember the name of the scribe. It was the duty of the Executive Magistrate to have the dying declaration attested by the scribe of the document. PW-8 Ram Mehar Singh, Assistant Sub-Inspector has stated in his testimony that it was he, who scribed the document (Exhibit PC), but his signatures are also not present on the dying declaration. It seems that the document (Exhibit PC) was prepared by the Investigating Officer and the right thumb Impression at point 'A' is not that of Smt. Santosh but of some other person. Prosecution witnesses Savitri (PW-2), Phool Singh (PW-3) and Shamsher Singh (PW-4) resiled from their statements. They did not support the prosecution case. No worthwhile cross-examination has been done on these witnesses by the Public Prosecutor, so that the truth could come out.
17. Learned counsel for the appellants has relied upon a judgement of the Hon'ble Supreme Court rendered in the case of State of Punjab v. Gian Kaur, 1998 (2) Rec Cri R (Criminal) 142 : (1998 Cri LJ 2909), wherein the Apex Court held that the prosecution did not explain satisfactorily, as to how a thumb mark could appear on the dying declaration when the deceased had 100% burns over her body. The Court in that case disbelieved the dying declaration", though the thumb mark of the deceased had clear ridges and curves on the dying declaration.
18. In the case in hand, ridges and curves of the right thumb impression are clear, though the deceased had 90% burns. Dr. P. K. Gandhi (PW-10) in his statement has stated that burns from 1st degree to 3rd degree were present all over the body except on her forehead and sole of both feet. Bleaching of skin, peeling of skin with blister formation was present all over the body. From the testimony of the doctor, it is clear that hands including the thumb and fingers of the deceased had 1st to 3rd degree burns Skin was peeled at some places and had blister formation at some places.
19. In view of the foregoing discussion, appeal of the appellants is allowed. Conviction and sentence recorded by the trial Court vide judgment/order dated 5/8-5-1997 is set aside. Appellants are acquitted of the charges framed against them. If the appellants are in custody, they be released forthwith.