Punjab-Haryana High Court
Surender Kumar vs State Of Haryana on 23 August, 2013
Author: Anita Chaudhry
Bench: Anita Chaudhry
CRA No.1278-SB of 2008 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA No.1278-SB of 2008 (O&M)
Date of decision:23.08.2013
Surender Kumar .... Appellant
Versus
State of Haryana .... Respondent
CORAM: HON'BLE MS. JUSTICE ANITA CHAUDHRY
Present: Mr. Mohit Jaggi, Advocate
for the appellant.
Mr. Dhruv Dayal, DAG, Haryana.
*****
1. Whether Reporters of local papers 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?
Anita Chaudhry, J.(Oral)
The present appeal is directed against the judgment of conviction and order of sentence dated 01.05.2008 passed by the Addl. Sessions Judge, Panipat. The appellant-accused - Surender Kumar was convicted under Section 304-B IPC in FIR No.28 dated 19.01.2006 registered at Police Station Samalkha. He was sentenced to undergo rigorous imprisonment for a period of ten years under Section 304-B IPC.
Before adverting to the merits of the appeal, it is necessary to delineate the synopsis of the case. Geeta (deceased) was married to Surender Kumar-appellant about 1½ years prior to her tragic end. The incident took place in her matrimonial home on the intervening night of 18/19.01.2006. Geeta died due to burn injuries on 27.01.2006. Surender Kumar was working in the Railway Department Bura Sonia 2013.09.02 12:56 I attest to the accuracy and integrity of this document Chandigarh CRA No.1278-SB of 2008 (O&M) -2- in Delhi. Surender Kumar's grand-father Malkhan Singh was living with the couple at Samalkha. Geeta was brought to the hospital with burn injuries by her husband at 12.15 am on 19.01.2006. In the MLR, the Medical Officer had noted that the patient had come with the history of burn injuries due to fall of burning candle on the tilted kerosene can, which caught fire. Geeta had 70% burn injuries and her body smelt of kerosene. She was taken to Civil Hospital, Panipat but was referred to PGIMS, Rohtak the same night at 12.15 am. Ruqqa had been sent from the hospital at Panipat but by the time, the police official arrived in the hospital, the patient had been shifted to PGIMS, Rohtak. The investigating officer took the opinion of the medical officer at Rohtak at 11.10 am on 19.01.2006. Geeta was declared fit to make her statement. Ashok Kumar, ASI approached the Area Magistrate, who came to the hospital and recorded the statement of the deceased, which is Ex.PC. The victim named her husband and the grand-father- in-law for the incident. She gave a detail of her family and disclosed that her husband was working in the Railway Deptt. and was posted at Delhi and both her husband and grand-father-in-law were not happy with the dowry articles and were demanding Rs.50,000/- and she was being harassed. She also stated that on being pressurized for the amount, she had refused as her father was poor and she had five sisters and showed inability to fulfil the demand. The harassment increased and she was beaten up. Narrating the sequence of event of that fatalful night, she disclosed that at about 9.00/10.00 pm her husband and grand-father-in-law again demanded the amount. On her refusal, her husband caught her hand and the grand-father-in-law poured kerosene upon her with a bottle. The grand-father-in-law lit Bura Sonia 2013.09.02 12:56 I attest to the accuracy and integrity of this document Chandigarh CRA No.1278-SB of 2008 (O&M) -3- the match-stick and when she ran to save herself, her husband poured water upon her. She also disclosed the names of the persons, who brought her to the hospital.
Acting on the statement, the police registered the FIR at 4.15 pm and challaned only Surender Kumar - husband. Subsequently, an application under Section 319 Cr.PC was moved and accused Malkhan Singh was also summoned by the trial court.
Both the accused were charged under Section 304-B read with Section 34 IPC. They pleaded not guilty and claimed trial.
The prosecution examined Sh. Fakhruddin, JMIC, Rohtak - PW-1, who had recorded the dying declaration of the deceased Ex.PC, Ram Mehar, father of the deceased - PW-3 and her mother - Nirmala - PW-4. Both of them supported the prosecution version with respect to the demand of dowry. Dr. D.K.Gautam - PW-2 had examined Geeta in General Hospital, Panipat and had noted the following:
On examination, deep two superficial burn were found on her face, neck, anterior and posterior aspect, anterior chest and abdomen, both upper arms, fore arms and hand, right thigh above knee and anterior posterior aspect and lateral thigh posterior and medial aspect. Total burns were about 70%.
Dr. Pushpinder - PW-5 had conducted the postmortem examination on the dead body of Geeta deceased and he had noted the following:
On examination, superficial to deep burns were found present all over the body except on groin region, genital, left foot, scalp, back and abdomen below umbilicus. The cause of death was ante mortem burns and its complications which were sufficient to cause death in normal course of Bura Sonia 2013.09.02 12:56 I attest to the accuracy and integrity of this document Chandigarh CRA No.1278-SB of 2008 (O&M) -4- nature.
The police had sent some material to the Forensic Science Laboratory, which had given the report Ex.PQ. The bottle was found to contain kerosene. There were residue of kerosene on the clothes.
In the statement recorded under Section 313 Cr.PC, accused Surender Kumar pleaded false implication and pleaded that the case was registered at the instance of Ram Mehar and Nirmala and it was an accident and this fact was disclosed by the victim to the doctor at Panipat. Malkhan Singh had deposed that he was not present in the room and Geeta had made a statement to the police in this regard and she had not blamed anyone. He deposed that he had not been challaned by the police and even could not move without help on account of his old age.
The accused examined three witnesses in their defence. Amongst them was one of the neighbour namely Manoj-DW-1 who had stated that Surender Kumar was in his house when they heard the cries and found Geeta burning and he and Surender had extinguished the fire and at that time, Malkhan Singh was in his room and they had shifted the victim to the hospital to save her.
Sanjay, cousin of the appellant - DW-2 stated that he was called by Surender Kumar's sisters and it was disclosed that Geeta had received burn injuries. He made inquiries from Geeta in the hospital and she stated that she received burn injuries accidentally.
Monika - DW-3-sister of the appellant deposed that she was in the adjoining room along with her grand-father and she heard the cries and she along with her elder sister came out of the room. She then went to call Surender, who was sitting in the house of a Bura Sonia 2013.09.02 12:56 I attest to the accuracy and integrity of this document Chandigarh CRA No.1278-SB of 2008 (O&M) -5- neighbourer.
I have heard the learned counsel for the parties and perused the record file with their assistance.
It was contended on behalf of the appellant that there are two dying declarations and the law is that the statement which is first in point of time should be relied upon. It was contended that at the first point of time the girl has disclosed the incident to the doctor but later she named the husband and the grand-father-in-law, who was 96 years old, who could not even get up. It was urged that the trial court had not accepted some part of the statement and had acquitted Malkhan Singh but believed the remaining part of the statement. It was urged that Geeta had made a statement to the doctor and this fact is recorded in the MLR and it was the husband who brought Geeta to the hospital without any delay. It was contended that the investigating officer had stated that the parents of the deceased were present in the hospital when the statement was made to the Magistrate. It was vehemently urged that since there is more than one dying declaration, the first one must be preferred and the statement given later should not be believed. Reliance was placed upon Pappu singh vs. State of Punjab, 2000(1) RCR (Criminal) 479 and Panneerselvam vs. State of Tamil Nadu, 2008(3) RCR (Criminal) 54.
As against it, learned counsel for the State had urged that the first statement was made when the husband was around and the victim was helpless and she was at the mercy of her in-laws and her anxiety would have been to get medical help and one can understand why she had made that statement. It was urged that the investigating Bura Sonia 2013.09.02 12:56 I attest to the accuracy and integrity of this document Chandigarh CRA No.1278-SB of 2008 (O&M) -6- officer had taken the opinion of the doctor and had approached the Magistrate and she had made a detailed account of incident and the dying declaration should be believed and the judgment of the trial court be affirmed.
There are two dying declarations and the main argument made is that when the dying declarations are contradictory, then they should not be relied upon and the benefit should be given to the accused. The argument put-forward on behalf of the State is that it was an oral statement and it does not contain the signatures of the victim and the husband was accompanying the victim to the hospital and at that moment there could be tutoring and there would be fear in the mind of victim regarding her treatment and it could be on account of pressure that a clean chit was given to the husband but the incident of such kind is improbable.
The rival submissions made by both the sides have been considered. The question which arises for determination is, if there are two dying declarations, whether any one of them can be held to be true and voluntary and can be relied upon. Then the question would arise as to which one is acceptable and which one is to be excluded.
The time of incident is 9/10.00 pm as per the statement made to the Magistrate by the victim. The incident had occurred at Samalkha. Geeta was firstly taken to ESI Hospital, Panipat at 12.15 am. She was accompanied by her husband. She was recorded to be conscious in the MLR Ex.PE but her pulse was not recordable. The burns were about 70%. There was smell of kerosene. There were deep burns on face, neck, chest and abdomen, both upper arms, fore arms, hand and right thigh above knee. The Medical Officer had Bura Sonia 2013.09.02 12:56 I attest to the accuracy and integrity of this document Chandigarh CRA No.1278-SB of 2008 (O&M) -7- recorded that the history of the burns has been given by the patient as a burning candle fell on the kerosene can which caught fire. The defence had urged that the Medical Officer had made a statement that the history was given by the patient herself and that should have been accepted. Their argument was that the parents had arrived in the hospital and the second statement was given by the victim at their behest and should not be accepted.
The second dying declaration was recorded by the Magistrate. The police official had reached the hospital in the morning and had taken the opinion of the medical officer and the patient was declared fit to make the statement and the statement Ex.PC was recorded. Geeta was just 19 years old when the incident occurred. She had made a detailed statement giving the period of her marriage, giving details of the family members, about the demand and how the occurrence took place. The police did not challan the grand-father of the husband but he was summoned, but later acquitted by the trial court. The reason given by the trial Court in its verdict was that at that advance age, the grand-father would not need money for himself nor would be in a position to pour kerosene on the victim.
A dying declaration is admissible in evidence under Section 32 of the Indian Evidence Act. The Apex Court on numerous occasions had deprecated the practice of recording dying declaration by police official though there is no rule that a dying declaration recorded by the police official cannot be acted upon. When there are two dying declarations, which are in contradiction then it has to be dealt with care and caution and to see whether both of them should be rejected or there is one which can be accepted as trustworthy evidence. Bura Sonia 2013.09.02 12:56 I attest to the accuracy and integrity of this document Chandigarh CRA No.1278-SB of 2008 (O&M) -8-
Examining the two dying declarations, I find that in the first dying declaration the manner of the incident is only described and further it was an oral statement made to the Medical Officer. The husband had accompanied the victim to the hospital. She had reached the hospital after about two hours of the incident and would be in great pain and it could be possible that such information was supplied by the husband. One can understand the state of mind in which the victim would have been at that time. The exact words used by the victim are not available therefore, the oral dying declaration remains uncorroborated. The appellant had the occasion to describe how the candle fell on the kerosene can, which caught fire. The incident had taken place in the bedroom. The kerosene can would not be available in the bedroom. It would have been a different story if the incident had occurred in the kitchen. The appellant has not explained where the candle had been placed and where the kerosene can was lying. There is no pictorial account coming from the appellant. Therefore, it would be unsafe to place reliance on the same.
In Pyare Lal @ Peevar vs. State of Madhya Pradesh, 1994 CLJ, 958 the Madhya Pradesh High Court took the view that if the oral dying declaration remained uncorroborated then it would be unsafe to rely upon the same.
When the first dying declaration is discarded then this Court is left with the dying declaration which was made before the Magistrate. The police official had approached the Medical Officer, who had declared the patient fit to make the statement and thereafter, the police official approached the Magistrate, who came to the hospital and after making inquiries, he had recorded the statement. The statement Bura Sonia 2013.09.02 12:56 I attest to the accuracy and integrity of this document Chandigarh CRA No.1278-SB of 2008 (O&M) -9- is detailed. The Medical Officer had declared that the patient remained fit throughout the statement. The victim had implicated her husband. Had everything been normal the wife would not have named her husband. As regards the presence of the parents, the Judicial Magistrate was clear in his deposition that they were not inside when the statement was being recorded.
Geeta had been married 1½ years ago. She was just 19 years old. The girl had spoken about the demand of dowry and the amount that was demanded and she was categoric that since her parents were unable to fulfill the demand and she had conveyed to the appellants that the amount cannot be paid, thereafter her harassment increased. The trial Judge had found that the dying declaration recorded by the Magistrate was reliable and trustworthy. Her statement was properly recorded and it can form the basis of conviction since it passes the test of reliability and is not a result of tutoring. The statement contains truthful version as to the manner in which it was caused. It does not suffer from any infirmity and could form a base for the conviction. There is no reason to differ with the view adopted by the trial court.
For the reasons given above, the appeal filed by the appellant is dismissed. The appellant is directed to surrender before the learned Chief Judicial Magistrate, Panipat or before the Jail Authorities within a period of 10 days to undergo the remaining part of the sentence passed by the trial court. Registry is directed to collect the compliance report from the concerned CJM as to whether the accused had surrendered or not?
23.08.2013 (Anita Chaudhry)
sonia Judge
Bura Sonia
2013.09.02 12:56
I attest to the accuracy and
integrity of this document
Chandigarh