Punjab-Haryana High Court
Suraj Bhan And Others vs State Of Haryana on 5 April, 2010
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal, Jora Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl. A. No. 424-DB of 2006
DATE OF DECISION : 05.04.2010
Suraj Bhan and others
.... APPELLANTS
Versus
State of Haryana
..... RESPONDENT
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE JORA SINGH
Present: Mr. V.K. Bali, Advocate,
for the appellants.
Mr. S.S. Randhawa, Addl. A.G., Haryana.
***
SATISH KUMAR MITTAL , J.
1. Accused Suraj Bhan. Rajender and Smt. Nazina (hereinafter referred to as A-1, A-2 and A-3, respectively), have filed this appeal against the judgment of their conviction and the order of sentence, passed by the court of Additional Sessions Judge, Sonepat, whereby they have been convicted under Section 302 read with Section 34 IPC for committing the murder of Nargis (wife of A-1) and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/- each.
2. A-1 is the husband of the deceased. A-2 is the cousin of A-1. A-3 is the wife of A-2. The grand fathers of A-1 and A-2 were real brothers. A-2 is running the Audio and Video Cassettee shop at village Pooth Kalan, Crl. A. No. 424-DB of 2006 -2- Delhi and is residing there along with his wife (A-3).
3. According to the prosecution version, deceased Nargis was married to A-1 in November, 1999. She was residing with her husband in village Kakroi, District Sonepat. On the intervening night of 7/8.7.2003, she was got admitted by her husband Suraj Bhan (A-1) in Civil Hospital, Sonepat with 90% burn injuries. Dr. V.K. Gupta (PW.7) conducted the medico legal examination of Nargis. He found superficial deep injuries on her whole body. The burn injuries were fresh. He sent ruqa (Ex.PD/1 to the police. Thereupon, ASI Balraj Singh (PW.16) reached the Hospital and moved application (Ex.PD/2 seeking opinion of the Doctor about the fitness of the patient to make statement. Dr. V.K. Gupta, vide his opinion (Ex.PD/3) declared the patient unfit to make statement. In the meanwhile, Nargis was referred to Lok Nayak Hospital, Delhi.
4. At 5.10 AM, on 8.7.2003, Nargis was admitted in Lok Nayak Hospital, Delhi. On the same day, at 11.45 AM, Shri J.P. Singh, Sub Divisional Magistrate (HQ) Central District, Delhi, recorded the statement (Ex.PB) of the patient in Lok Nayak Hospital, Delhi, in which she stated that her husband Suraj Bhan caught her and poured kerosene oil upon her. He also caught hold of her hands. Then Gatthu, her Jeth and her Jethani set her ablaze with match stick. They were demanding dowry from her. She had given a sum of Rs. 40,000/-, but they were demanding Rs. 40,000/- more. She told them that her parents were poor. In spite of that, they were demanding more money from her. She further stated that from the day of her Crl. A. No. 424-DB of 2006 -3- marriage, her in-laws were raising demand of various things.
5. On 9.7.2003, ASI Balraj Singh of Police Station Sadar Sonepat went to the Hospital and moved an application (Ex.PN) before the Doctor, seeking his opinion about the fitness of the patient to make statement. The Doctor, vide opinion (Ex.PN/1) declared the patient fit to make statement. When the aforesaid police officer went to record the statement of the patient Nargis, he came to know that the SDM, Delhi had already recorded her statement, therefore, he contacted the SDM, Delhi through SI Anil Sharma of Delhi Police and collected the said statement given by Nargis. On the basis of the said statement, the formal FIR (Ex.PB/2) under Sections 498-A, 307 IPC was recorded against the accused on 10.7.2003.
6. On 10.7.2003, ASI Balraj Singh inspected the spot and vide recovery memo (Ex.PG) took into possession one plastic can (Ex.P1), in which a little kerosene oil was present, and a match box (Ex.P2).
7. On 11.7.2003 at about 1.00 AM (night), patient Nargis succumbed to his injuries. Thereafter, the offence under Section 304-B IPC was added. On 11.7.2003, Dr. Bhim Singh (PW.18) of Lok Nayak Hospital, Delhi, conducted the post mortem of the deceased. In his opinion, the cause of death of the deceased was due to septicemia, consequent upon infected burn injuries, which were ante-mortem and could be caused by flames of fire.
8. On 16.7.2003, A-1 and A-2 were arrested. However, A-3 could not be arrested and challan was filed against A-1 and A-2. During trial, Crl. A. No. 424-DB of 2006 -4- when some of the witnesses were examined by the prosecution, A-3 was arrested and supplementary challan was filed against her.
9. The accused were charge sheeted for the offences punishable under Sections 498-A/304-B IPC and alternatively, they were also charge sheeted for the offence punishable under Section 302 read with Section 34 IPC. The accused did not plead guilty to the charge and claimed trial.
10. In support of its case, the prosecution examined 19 witnesses, out of whom PW.2 Randhir Singh, father of the deceased, PW.3 Seema, real sister of the deceased, who is married to Surender - real brother of A-1, PW.4 Shri J.P. Singh, SDM, Delhi, who recorded the statement of the deceased, which was taken by the prosecution as her dying declaration, PW.16 ASI Balraj Singh, the Investigating Officer of the case, PW.7 Dr. V.K. Gupta, who conducted the medico legal examination of Nargis in Civil Hospital, Sonepat, PW.17 Dr. Arun Goel of Lok Nayak Hospital, Delhi, who produced the treatment record of the patient and PW.18 Dr. Bhim Singh, who conducted the post mortem examination of the deceased Nargis, are the material witnesses.
11. PW.2 Randhir Singh stated that in November, 1999, he married his daughter Nargis with A-1. His second daughter Seema (PW.3) was married to Surender, real brother of A-1. He stated that A-1 used to harass and beat Nargis on account of demand of dowry. According to him, A-2 used to reside in village Kakroi, but he also used to visit village Puth Kalan, Delhi, quite often, where he was doing his business. In his statement, this Crl. A. No. 424-DB of 2006 -5- witness did not level any allegation of harassment and beating against A-2 and A-3 on account of demand of dowry. He stated that on the intervening night of 7/8.7.2003 at about 2.30 AM (night), he received a telephonic message from his daughter Seema, who told him that A-2 had caught hold of the hands of Nargis, A-1 poured kerosene oil on her, whereas A-3 set her on fire. After receiving the said information, he came to General Hospital, Sonepat. The Doctor had referred Nargis to Lok Nayak Jai Parkash Hospital, Delhi, where SDM, Delhi recorded her statement. According to him, his daughter was done to death by all the three accused on account of demand of dowry. In his cross-examination, he has admitted that A-1 and A- 2 are not real brothers. However, their grand-fathers were the real brothers. He also admitted that his daughter Nargis was previously married to one Haroon, a resident of U.P. The said marriage sustained for about four-five months. He further admitted that A-2 used to reside in village Puth Kalan, Delhi, in the house of his uncle, which was situated in front of the house of this witness. However, he denied the suggestion that he had concealed the factum of previous marriage of his daughter Nargis with Haroon from A-1, and he suspected A-2 and A-3 for having disclosed this fact to A-1, after the marriage.
12. PW.3 Seema, in her statement, admitted that she and her sister Nargis were married with A-1 and his real brother Surender, on the same day. She sated that on 7.7.2003 at about 12 night, she heard the shrieks of her sister Nargis. Thereafter, she rushed towards her house. She saw that her Crl. A. No. 424-DB of 2006 -6- sister was lying in the burning condition on the ground and all the three accused were standing there. On enquiry made by her from her sister, she told that A-2 caught hold of her hands, A-1 had poured kerosene oil upon her and A-3 set her on fire with a burning match stick. She further stated that she informed her father about the same through a telephonic message. According to her, the accused used to demand dowry from her sister Nargis and on that account, they set her on fire. In her cross-examination, she has admitted that her sister Nargis was already married before she was married to A-1. However, she denied the suggestion that her father had concealed the fact of previous marriage of her sister Nargis with Haroon from A-1. In her cross-examination, she has also admitted that A-2 is permanent resident of village Puth Kalan, Delhi, however, he resides in village Kakroi.
13. PW.4 Shri J.P. Singh, SDM, Delhi, stated that on 8.7.2003, he recorded the statement (Ex.PB) of Nargis at his own. He had read over the contents of the statement to her and thereafter, she put her thumb impression on the same. He further stated that before recording the statement of Nargis, he had taken the opinion of the Doctor about her fitness to make the statement (this fact has not been established, as no such opinion is available on the record). When the statement of this witness was recorded, he was brought from Tihar Jail, Delhi, where he was lodged in a corruption case. In his cross-examination, he has stated that he was taken to the Hospital by the police for recording the statement of Nargis. However, he stated that he could not name the police official, who had taken him to the Hospital. (This Crl. A. No. 424-DB of 2006 -7- fact has also not been established on record, because neither there is any such request made by the police nor the police officials, namely PW.6 SI Anil Sharma and PW.16 ASI Balkar Singh, the Investigating Officer of the case, who appeared in the case, made statement to this effect). He denied the suggestion put by the defence that he was brought to the Hospital by one Surja of village Puth Kalan, Delhi. It has also come in evidence that on the day of recording the statement of Nargis by this witness, he was on officiating duty, as PW.5 Shri Shamim Akhtar, who was the SDM of the area, was on leave.
14. In their statements under Section 313 Cr.P.C., all the accused denied the incriminating evidence appearing against them. A-1 stated that he is innocent and has been falsely implicated in this case. A-2 and A-3 also pleaded innocence and false implication in the case. They further stated that they have no relation with A-1 and his family members, and for the last more than 35 years, they are residing in village Puth Kalan, Delhi, whereas A-1 is residing in village Kakroi, District Sonepat. In defence, the accused examined 12 witnesses.
15. DW.1 Jeet Ram Solanki, Ex-MLA and DW.2 Brahm Singh stated that they know A-2 for the last so many years. He was running a cassette shop at village Puth Kalan, Delhi. He was also residing with his family in the said village.
16. DW.3 Tara Chand, a resident of village Puth Kalan, Delhi, stated that on the day of occurrence, a telephonic message was received by Crl. A. No. 424-DB of 2006 -8- Randhir Singh, father of deceased Nargis. He brought Randhir Singh to Civil Hospital, Sonepat, in his Maruti van. On enquiry made by Randhir Singh, his daughter told him that her husband had given 2-3 slaps to her. Thereafter, she set herself on fire.
17. DW.4 Jagdish Singh, a resident of village Puth Kalan, Delhi, stated that on 6.7.2003, A-2 came to him and borrowed some money from him to attend a marriage in village Katlana, District Bhiwani.
18. DW.5 Anand Kumar Sharma, Ex-Sarpanch of village Puth Kalan, Delhi, stated that on 7.7.2003, A-2 and his wife (A-3) were present in the village in connection with marriage. They came to the village on 6.7.2003.
19. DW.6 Suman stated that on the day of occurrence, Nargis told her that she will set herself on fire, as she was fed up with life. She further stated that she saw that Nargis had set herself on fire by pouring kerosene on her. This witness tried to extinguish the fire. After some time, husband of Nargis also came there. Thereafter, they shifted her to the Hospital. This witness stated that Seema (PW.3) was not present at that time.
20. DW.7 Amir Jahan, a resident of village Kakroi, stated that the deceased had told her that she will commit suicide and in the evening, this witness came to know that the deceased had died of burning.
21. DW.8 Rajesh Kumar is not the material witness.
22. DW.9 Mahabir Singh is the landlord of Seema (PW.3). He stated that on the night of the occurrence, on hearing the noise, he and his Crl. A. No. 424-DB of 2006 -9- wife woke up at about 11 PM. When they reached the spot, the deceased had already been shifted to the Hospital. Thereafter, Seema asked them to make a call to her father.
23. DW.10 Angrej Singh, a resident of village Kakroi, stated that he attended the marriage of A-1. The marriage party had gone to village Puth Kalan, Delhi, but A-2 had not been invited in the marriage.
24. DW.11 Babli is the wife of Mahabir (DW.9). She has corroborated the statement of her husband Mahabir.
25. DW.12 Rakesh, who is brother of A-1 and a resident of village Kakroi, stated that when SDM, Delhi, recorded the statement of Nargis, he was present in the Hospital. The SDM recorded the statement of Nargis at the instance of Randhir Singh. Nargis did not make any statement to him.
26. The accused also tendered into evidence original voter cards (Ex.D4 and Ex.D5) of A-2 and A-3 of Delhi State, voter list (Ex.D6) of village Puth Kalan. Besides this, certain other documents were also tendered into evidence by the accused.
27. The trial court, after considering the evidence on record, did not convict the accused for the offence under Section 498-A IPC, while coming to the conclusion that regarding the demand of dowry by the accused persons from the deceased, PW.2 Randhir Singh has not corroborated the statement of deceased, recorded by the SDM, Delhi. He has not deposed specifically as to what items or cash was demanded by the accused persons. Regarding the offence under Section 304-B IPC, the trial court held that Crl. A. No. 424-DB of 2006 -10- death of the deceased was not suicidal, but it was homicidal. However, while relying upon the dying declaration (Ex.PB) of the deceased, recorded by PW.4 Shri J.P. Singh, SDM, Delhi, the trial court convicted all the three accused for the alternative charge framed against them for the offence under Section 302 read with Section 34 IPC, for committing the murder of Nargis, and they were sentenced, as indicated above.
28. Shri V.K. Bali, Advocate, learned counsel for the appellants, vehemently argued that the trial court has convicted all the three appellants, while relying upon (i) the alleged dying declaration (Ex.PB) made by the deceased to Shri J.P. Singh, SDM, Delhi (PW.4); (ii) the statement of PW.3 Seema, to whom the deceased had told about the occurrence; and (iii) the endorsement made by the Doctor of Lok Nayak Hospital, Delhi, on the bed head ticket of the deceased. Learned counsel argued that none of these evidence is reliable and has been proved in accordance with law. Therefore, the appellants cannot be convicted on the basis of these kinds of evidence. While arguing regarding the alleged dying declaration, learned counsel submits that the version given in the said dying declaration and in the endorsement of the Doctor on the bed head ticket of the deceased as well as the version given by Seema (PW.3), as narrated to her by the deceased, are entirely different and contradictory with each other. He further argued that before recording the alleged dying declaration of the deceased, Shri J.P. Singh (PW.4) did not obtain any opinion about the fitness of the patient to make the statement. He has not explained as to how he had come in the Crl. A. No. 424-DB of 2006 -11- Hospital to record the statement of the patient. It is not the case of the prosecution that he was called by the police for recording the statement of the patient. Learned counsel further pointed out that Shri J.P. Singh was not a man of good character. At the time of his deposition in the court as PW.4, he was in custody in a corruption case. Therefore, the dying declaration recorded in such illegal manner by a man of dubious character is not reliable at all. According to the learned counsel, father of the deceased, who was a resident of the village, has manipulated the recording of the aforesaid dying declaration in connivance with Shri J.P. Singh, SDM, Delhi (PW.4). Learned counsel further argued that the Doctor, who had made the endorsement on the bed head ticket of the patient, has not been examined, therefore, it has not been proved as to who has made the endorsement on the bed head ticket of the patient. In absence of the proof, the said document cannot be relied upon to convict the appellants for committing the offence of murder. Regarding the statement of PW.3 Seema, learned counsel argued that the same is not only highly unreliable being made by an interested person, but it is totally contrary to the alleged dying declaration. While referring to the statement of the landlord and the landlady of PW.3 Seema, learned counsel argued that actually, she had not met the deceased after the incident, as when she reached to the house of the deceased, the deceased had already been shifted to the Hospital. Learned counsel further argued that the demand of dowry has not been proved. The trial court has also come to the conclusion to this effect. Therefore, the prosecution has failed to Crl. A. No. 424-DB of 2006 -12- prove the alleged motive. Regarding A-2 and A-3, learned counsel argued that both these appellants are not real brother and `Bhabhi' of A-1. They are having distant relations with A-1. As per the evidence on record, the grand- fathers of A-1 and A-2 were the real brothers. Learned counsel further argued that A-2 and A-3 are residing in a different village since long and they have no motive at all to participate in the alleged crime. Learned counsel argued that both these appellants have been falsely implicated, because they had disclosed the factum of the previous marriage of the deceased, which was concealed by her father, to A-1. For that reason, A-2 and A-3 were falsely implicated in the instant case. Learned counsel further argued that the prosecution has miserably failed to prove the guilt against the appellants beyond a reasonable doubt, therefore, they are entitled to be acquitted.
29. On the other hand, learned counsel for the respondent-State argued that the prosecution has fully proved its case against all the accused and they have been rightly convicted and sentenced by the trial court under Section 302 read with Section 34 IPC.
30. We have considered the submissions made by learned counsel for the parties and have perused the record of the case.
31. From the evidence led by the prosecution i.e. PW.18 Dr. Bhim Singh, who conducted post mortem of the deceased Nargis and proved the post mortem report Ex.PS, it has been established that on 11.7.2003 at about 1.00 AM (night), the deceased had died due to burn injuries. From the Crl. A. No. 424-DB of 2006 -13- statement of PW.7 Dr. V.K. Gupta, it has also been established that on 8.7.2003 at 12.45 AM (night), A-1 got admitted his wife Nargis in Government Hospital, Sonepat, in burnt condition. This witness conducted the medico legal examination of Nargis. He found 90% deep burn injuries on her body. The burn injuries were fresh at that time. This fact further establishes that the alleged incident might have taken place on 7.7.2003 at 11 PM, as alleged by the prosecution. It is PW.7 Dr. V.K. Gupta, who for the first time sent medical ruqa to the police. On receiving the medical ruqa, ASI Balraj Singh (PW.16) reached the Hospital. He sought opinion of the Doctor about the fitness of the patient to make statement, but PW.7 Dr. V.K. Gupta, vide his opinion (Ex.PD/3) declared the patient unfit to make statement. Lateron, the patient was referred to Lok Nayak Hospital, Delhi, where she died on 11.7.2003, due to burn injuries.
32. According to the prosecution, on 7.7.2003 at 11 PM, in the matrimonial house of Nargis, A-2 caught hold of her hands, A-1 poured kerosene oil on her and A-3 set her on fire. The accused had done so, as they were demanding more money from the deceased on account of dowry. In support of this, the prosecution is relying upon three kinds of evidence, led by it. Firstly, the dying declaration (Ex.PB) of the deceased, on the basis of which the formal FIR (Ex.PB/2) was registered against all the accused; secondly the statement of PW.3 Seema, the real sister of the deceased, before whom the deceased had narrated the whole occurrence and the statement of PW.2 Randhir Singh, father of the deceased, to whom PW.3 Crl. A. No. 424-DB of 2006 -14- Seema told about the alleged occurrence; and thirdly the endorsement made by the Doctor on the bed head ticket of the deceased in Lok Nayak Hospital, Delhi. On careful perusal and analysis of these evidence, led by the prosecution, we are of the opinion that these are not the reliable and trust- worthy evidence, for the reasons recorded hereinafter.
33. It is well settled that conviction can be based on a dying declaration, if the court is satisfied that the dying declaration is true and voluntary. Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. A dying declaration which suffers from infirmity cannot form the basis of conviction. Normally, the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration has to look upon the medical opinion. Where the deceased was unconscious or was not in a position to make the dying declaration, the evidence with regard to it is to be rejected. In the instant case, the alleged dying declaration (Ex.PB) was recorded by Shri J.P. Singh, SDM, Delhi (PW.4) on 8.7.1993 at 11.30 AM, in Lok Nayak Hospital, Delhi. It has not been proved by the prosecution as to who had called him to record the dying declaration of the deceased. There is no evidence to this effect. There is no written request made by the police or by the Doctor to the said witness to come present in the Hospital and record the dying declaration. In his statement, this witness has stated that he had recorded the statement (Ex.PB) of the deceased on his own. However, in his cross- examination, he has stated that the police had taken him from his office to Crl. A. No. 424-DB of 2006 -15- record the statement of the deceased, but he could not recollect the name of that police official. It is pertinent to mention here that this part of his statement has not been corroborated by two police officials, who have been examined by the prosecution, i.e. PW.6 SI Anil Sharma and PW.16 ASI Balkar Singh, the Investigating Officer of the case. It is further pertinent to mention here that when this witness (PW.4) appeared in the court, he was brought from Tihar Jail, Delhi, where he was lodged in connection with a bribery case. It has further come in evidence i.e. statement of PW.5 Shri Shamim Akhtar that on 8.7.2003, the day when the alleged dying declaration was recorded, he was the SDM of the area and was on leave and PW.4 J.P. Singh was on officiating duty.
34. The second aspect of the matter is whether at the time of recording her statement, the deceased was conscious enough and was in a fit mental condition to make statement. It has come in evidence that when the patient was admitted in General Hospital, Sonepat, a ruqa was sent to the police. PW.16 ASI Balraj Singh reached the Hospital and wanted to record the statement of the patient. In this regard, he moved an application (Ex.PD/2) seeking opinion of the doctor. On that application, Dr. V.K. Gupta vide his opinion (Ex.PD/3) opined that the patient was not fit to make the statement. That opinion was given on 8.7.2003 at 2.15 AM (night). Thereafter, the patient was referred to Lok Nayak Hospital, Delhi, where she was admitted on 8.7.2003 at 5.10 AM. PW.4 Shri J.P. Singh recorded the statement of the deceased on the same day at 11.30 AM, but before Crl. A. No. 424-DB of 2006 -16- recording the alleged statement, he did not obtain any opinion from the Doctor with regard to the condition of the patient to make the statement. Though in his statement before the Court, this witness has stated that he recorded the statement (Ex.PB) of Nargis, after the Doctor declared her fit to make statement, but there is no such evidence on record, which prove that before recording her statement, any opinion with regard to the fitness of the patient was obtained or any of the Doctors declared her fit to make the statement. It has come in evidence that on the next day i.e. on 9.7.2009, PW.16 ASI Balraj Singh went to Lok Nayak Hospital, Delhi and moved an application (Ex.PN) about the fitness of the patient to make the statement. Thereupon, the concerned Doctor, vide endorsement (Ex.PN/1) declared the patient fit to make the statement, but this witness did not record the statement of the patient on the pretext that her statement (Ex.PB) had already been recorded by PW.4 Shri J.P. Singh, SDM, Delhi. This witness obtained the said statement through PW.6 SI Anil Sharma and thereupon, he registered the FIR (Ex.PB/2). Therefore, from the evidence, it is clear that when statement of the deceased was recorded by the Sub Divisional Magistrate, she was not declared fit by the Doctor to make statement. These facts create a doubt about the making of dying declaration (Ex.PB) by the deceased to Shri J.P. Singh (PW.4). Therefore, it will not be safe to base conviction of three persons on the basis of such dying declaration. In Kaka Singh v. State of M.P., AIR 1982 S.C. 1021, where the deceased was unconscious and could never make any dying declaration, it was held that Crl. A. No. 424-DB of 2006 -17- the evidence with regard to it is to be rejected.
35. The other piece of evidence, which is being relied upon by the prosecution, is the statement of PW.3 Seema. In her statement, she has stated that on 7.7.2003 at about 12 night, she heard the shrieks of her sister Nargis. Then she rushed towards that side and saw that her sister Nargis was lying on the ground in burning condition and all the three accused were standing there. On enquiry, her sister told her that A-2 had caught hold of her hands, A-1 had poured kerosene on her and A-3 set her on fire with a burning match stick. This witness had told these facts to her father Randhir Singh (PW.2). Undisputedly, PW.3 Seema is the real sister of the deceased and she was married with the real brother of A-1. It has come in evidence that this witness was residing in a different rented house, which was situated across the street. On carefully scrutinizing her statement, we have found the testimony of this witness unreliable for various reasons. Firstly, there is contradiction in the version given by this witness and the version given by the deceased in the dying declaration. In the dying declaration, it has been stated that A-1 had caught hold her hands and poured kerosene oil upon her and then A-2 and A-3 lit her with match stick, whereas this witness has stated that the deceased had told her that A-2 had caught hold her, A-1 poured kerosene oil and A-3 lit fire. Secondly, there is another contradiction with regard to the time of the occurrence. According to the dying declaration (Ex.PB), the occurrence had taken place at 11 PM, whereas this witness had stated that the occurrence had taken place at about 12 mid- Crl. A. No. 424-DB of 2006 -18- night. Thirdly, the version given by this witness that across the street, she had heard the shrieks of her sister and then came on the spot, where her sister told about the occurrence, is highly improbable. The landlord and landlady of this witness have been examined by the defence as DW.9 and DW.11. Both these witnesses have stated that they had woken up on hearing the noise at 11 PM and when they reached the spot, the deceased had already been shifted to the Hospital. Subsequently, PW.3 Seema also came on the spot. No suggestion was put to these witnesses that PW.3 Seema was not their tenant. From the statements of these witnesses, it appears that when Seema went to the spot, the deceased had already been shifted to the Hospital, therefore, the statement made by this witness that her sister told her about the alleged occurrence seems to be doubtful. There are many other contradictions in the statement of PW.3 Seema, which render her statement to be unreliable. She has stated that she went to the spot and tried to save her sister, but she could not tell the name of the person, who had shifted her sister to the Hospital, whereas it has come in evidence that she was shifted to the Hospital by A-1. However, this witness has denied that A-1 had shifted her sister to the Hospital. She has admitted that her sister was earlier married to one Haroon, a resident of U.P. However, she denied that her father had concealed this fact from A-1.
36. Another evidence, which the prosecution is relying upon, is the statement of PW.2 Randhir Singh. This witness has not supported the prosecution version with regard to the demand of dowry. He has stated that Crl. A. No. 424-DB of 2006 -19- on the intervening night of 7/8.7.1993, he received a telephonic message at about 2.30 AM (night) from his daughter Seema, who told him that the accused have set Nargis on fire. Thereupon, he reached Civil Hospital, Sonepat, where the Doctor had referred his daughter to Lok Nayak Hospital, Delhi. His statement to the effect that the accused set his daughter on fire is based upon the information given to him by his daughter Seema (PW.3). When we have already reached to the conclusion that the testimony of PW.3 Seema is not reliable, the statement of this witness (PW.2) to the effect that she told him that the accused had set the deceased on fire cannot be relied upon, because his version is based upon the information given to him by PW.3 Seema. Further, it has come in the statement of DW.3 Tara Chand, who had taken Randhir Singh (PW.2) in his car to Civil Hospital, Sonepat, that when they reached the Hospital, daughter of Randhir Singh told him that her husband had given two/three slaps to her and thereupon, she set herself on fire. No suggestion was put to this witness (DW.3) that Randhir Singh was not taken by him to the Hospital in his car.
37. The third piece of evidence, relied upon by the prosecution, is the endorsement made by a Doctor on the bed head ticket (Ex.PK) of the deceased, wherein it is recorded that as per the history given by the patient, her husband gave beating to her and her `Bhabhi' and her brother-in-law poured kerosene oil upon her and lighted match stick on her, due to which her clothes caught fire. The version given in this endorsement is different from the earlier two versions. Even the prosecution has not proved this Crl. A. No. 424-DB of 2006 -20- endorsement. The Doctor, who had made this endorsement, was not examined. The prosecution has only examined PW.17 Dr. Arun Goel, who had produced the bed head ticket of the deceased. He did not name the Doctor, who had made the said endorsement and he could not identify his signatures. Therefore, such endorsement, which is contradictory with the alleged dying declaration, cannot be relied upon for convicting three persons for the offence of murder.
38. In light of the aforesaid factual and legal position, now we will examine the involvement and participation of A-2 and A-3 in the alleged crime. Undisputedly, A-2 and A-3 are not real brother and sister-in-law of A-1. Surender, the real brother of A-1, was married to Seema (PW.3), the real sister of the deceased. Neither he nor the father-in-law and mother-in- law of the deceased are the accused in this case. A-1 and A-2 are the cousins. Their grand-fathers were real brothers. Therefore, A-2 and A-3 are not the members of the family of A-1. It has come in evidence that A-2 running a Audio-Video Cassettee shop at village Puth Kalan, Delhi. He along with his wife (A-3) was residing in a house situated in front of the house of complainant Randhir Singh (PW.2) in village Puth Kalan, Delhi. It is the admitted case that the complainant is resident of village Puth Kalan, Delhi. Though it has been alleged that A-2 is residing in village Kakroi, his native village, but PW.2 Randhir Singh and PW.3 Seema have admitted in their statements that A-2 along with his wife (A-3) was residing in village Puth Kalan, Delhi, in front of the house of PW.2 Randhir Singh. In defence, Crl. A. No. 424-DB of 2006 -21- A-2 and A-3 have examined several witnesses, belonging to village Puth Kalan, Delhi, who also confirmed that A-2 was residing in village Puth Kalan and was doing the business of Audio-Video Cassettes. A-2 and A-3 have placed on record their original voter cards (Ex.D4 and Ex.D5) of Delhi State and the voter list (Ex.D6) of village Puth Kalan, which show that they are residents of the said village. Even as per the prosecution version, there is no allegation of demand of dowry or any kind of harassment by these two accused. The prosecution did not allege any motive against these two accused for committing the alleged crime. There are other family members, like real brother, father and mother of A-1, who are members of the family and are residing in the same village, but there is no allegation of any demand of dowry against them. When the real brother-in-law, father-in-law and mother-in-law of the deceased were not making any demand of dowry, then there was no reason for A-2 and A-3, who are not members of the family and are residing separately in a different village, to make demand of dowry and participate in the alleged crime.
39. Now, the question arises whether there is any possibility of false implication of A-2 and A-3. A close scrutiny of the prosecution evidence reveals that the real dispute between A-1 and his wife (since deceased) was not on account of demand of money from her or from her parents and that is why, PW.2 Randhir Singh and PW.3 Seema did not support the prosecution version with regard to the demand of Rs. 40,000/-. If A-1 or his family would have been greedy of dowry, they could have Crl. A. No. 424-DB of 2006 -22- demanded the dowry from Seema, the real sister of the deceased, who was married to the real brother of A-1 on the same day. It appears that the real dispute between A-1 and his wife Nargis was with regard to the factum of the previous marriage of the wife, which perhaps was not disclosed to the husband at the time of the marriage. PW.2 Randhir Singh and PW.3 Seema, in their statements, have categorically admitted that deceased Nargis was earlier married to one Haroon, but the said marriage could not survive for more than six months. A suggestion was put to both these witnesses that they did not disclose the factum of the previous marriage of the deceased to A-1. But in the facts and circumstances of the case, it appears that the said fact was not disclosed to the husband (A-1) or his parents and lateron, A-2 or his wife (A-3), who were residing in village Puth Kalan, Delhi, in front of the house of the complainant, disclosed the said fact to the husband (A-1) and due to that, some differences had arisen between the husband and the wife and their relations did not remain cordial. Since the deceased and the complainant were having grouse against A-2 and A-3 for disclosing the factum of earlier marriage to A-1, the possibility of the false implication of A-2 and A-3 in the instant case cannot be ruled out. This conclusion is supported by the facts and circumstances of the case that there was no occasion for A-2 and A-3 to remain present in the house of A-1 in the odd hours i.e. at 11 P.M. (night), when the alleged occurrence had taken place. It has come in evidence that whenever, A-2 and A-3 were visiting village Kakroi, they were used to stay in the house of their uncle and not in the Crl. A. No. 424-DB of 2006 -23- house of A-1. Therefore, from the appraisal of the evidence led by the prosecution, we are of the opinion that the presence of A-2 and A-3 at the spot and their participation in the alleged crime or common intention with A-1 to commit the alleged offence is highly doubtful. Thus, both these accused cannot be convicted on the basis of the aforesaid unreliable and un- trusthworthy alleged dying declaration (Ex.PB) made by the deceased to PW.4 Shri J.P. Singh, which has not been corroborated by any other evidence led by the prosecution.
40. Now, the question arising for consideration is under what circumstances, the deceased received the burn injuries in her matrimonial house at 11 PM (night) in the presence of her husband. From the medical evidence, it is not clear whether the un-natural death of the deceased was homicidal or suicidal, but it has been established on record that when the deceased received burn injuries at 11 PM (night), her husband was present in the house. After the occurrence, he got her admitted in the Hospital. In these facts and circumstances, in view of Section 106 of the Indian Evidence Act, 1872, the burden lies upon the husband to explain under what circumstances and in which manner his wife had received burn injuries, due to which she had died lateron. If the husband does not offer any explanation as to the manner in which his wife died or received injuries or if his explanation is found false, then it gives strong circumstance indicating that he has committed the crime. Section 106 provides that that when any fact is especially within the knowledge of any person, the burden of proving that Crl. A. No. 424-DB of 2006 -24- fact is upon him. If an offence takes place inside the privacy of a house where the accused has all the opportunity to plan and commit the offence at the time and in the circumstances of his choice, it is extremely difficult for the prosecution to lead the direct evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the court. It is the duty of the court to see that no innocent person is punished. It is equally also duty of the court to see that a guilty person does not escape. Both are the public duties. In the present case, in his statement under Section 313 Cr.P.C., the husband (A-1) has simply pleaded his innocence and false implication in the case. He neither explained the reason as to how his wife had received burn injuries nor took the stand that she had tried to commit suicide. In the instant case, it has been proved that when the deceased received burn injuries at 11 PM in her matrimonial house, A-1 was very much present there. Therefore, the initial burden on the prosecution to establish the case has been discharged and thereafter, the burden lies upon A-1 to give a cogent explanation as to how his wife had received burn injuries in the house.
41. The question of burden of proof where the fact which resulted into the death of the wife was within the personal knowledge of the accused was examined by the Hon'ble Supreme Court in State of W.B. v. Mir Mohd. Omar, (2000) 8 SCC 382, wherein it was held as under :
"31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be Crl. A. No. 424-DB of 2006 -25- taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof on the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.
32. In this case, when the prosecution succeeded in establishing the afore-narrated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognised by the law for the court to rely on in conditions such as this.
33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct, etc. in relation to the facts of the case.
34. When it is proved to the satisfaction of the Court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time Crl. A. No. 424-DB of 2006 -26- after the abduction the permitted reasoning process would enable the Court to draw the presumption that the accused have murdered him. Such inference can be disrupted if the accused would tell the Court what else happened to Mahesh at least until he was in their custody."
In Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681, it was held that where an accused is alleged to have committed murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling house where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. Similarly, in Nika Ram v. State of H.P., (1972) 2 SCC 80, it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with "khukhri" and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra, (1992) 3 SCC 106, the husband was prosecuted for the murder of his wife which took place inside his house. It was held that when the death had occurred in his custody, the husband is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 Cr.P.C. The mere denial of the prosecution case coupled with the absence of any explanation was held to be Crl. A. No. 424-DB of 2006 -27- inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife.
42. In the instant case, A-1 was having a motive to commit the alleged crime because of his strained relations with his wife (since deceased) on account of her previous marriage. Therefore, we are of the opinion that the prosecution has fully proved the guilt of A-1 beyond a reasonable doubt.
43. In view of the above, the appeal is partly allowed. The impugned judgment of conviction and order of sentence qua A-1, namely Suraj Bhan (appellant No.1), is upheld and qua A-2 and A-3, namely Rajender (appellant No.2) and Smt. Nazina (appellant No.3), is set aside. Accordingly, appellants No.2 and 3 are acquitted of the charges. Appellant No.2, who is in custody, be set at liberty forthwith, if not required in any other case.
( SATISH KUMAR MITTAL )
JUDGE
April 05, 2010 ( JORA SINGH )
ndj JUDGE