Punjab-Haryana High Court
Mukesh Kumar vs State Of Haryana on 8 July, 2013
Author: Anita Chaudhry
Bench: Anita Chaudhry
CRA No.562-DB of 2009 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA No.562-DB of 2009
Date of decision: 08.07.2013
Mukesh Kumar .... Appellant
Versus
State of Haryana .... Respondent
CORAM: HON'BLE MR. JUSTICE M.JEYAPAUL
HON'BLE MRS. JUSTICE ANITA CHAUDHRY
Present: Mrs. Anju Arora, 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 dated 15.04.2009 and order of sentence dated 18.04.2009 passed by the Sessions Judge, Kurukshetra vide which the appellant- accused - Mukesh Kumar has been convicted under Sections 302 IPC in FIR No.196 dated 14.08.2007 registered at Police Station Kurukshetra University, Kurukshetra. He was sentenced to undergo life imprisonment and pay a fine of Rs.2,000/- under Section 302 IPC. In default of payment of fine he was to further undergo rigorous imprisonment for a period of three months.
Kamini -wife of Mukesh Kumar was admitted in the hospital with burn injuries. The Duty Magistrate was called in to record her statement. She made a statement at 10.00 am that she had caught fire while she was preparing meals. No FIR was register. On the same Bura Sonia 2013.07.30 14:21 I attest to the accuracy and integrity of this document Chandigarh CRA No.562-DB of 2009 -2- day, Kamini was shifted to Balaji Plastic Surgery and Burn Centre, Mall Road, Karnal. The Medical Officer sent intimation to the local police station regarding her admission.
On 13.08.2007, the injured and her attendants asked the Medical Officer that Kamini wanted to make another statement and her previous statement was made under pressure. The police approached the Duty Magistrate vide application Ex.P-25 and her statement was recorded at 8.50 pm on 13.08.2007 where she named her husband and two three wheelers' drivers who were unknown to her. The FIR under Section 307 read with Section 34 IPC was registered. Investigations were completed and accused - Mukesh Kumar alone was arrested. Kamini subsequently died due to burn injuries on 28.08.2007. The police laid a challan under Section 302 IPC. On the basis of allegation, accused - Mukesh Kumar was charge-sheeted under Section 302 IPC to which he pleaded not guilty and claimed trial.
The prosecution examined the Medical Officers, who had treated her and her two brothers besides the official witnesses and the Magistrate, who had taken her statement on 13.08.2007.
Shekhar - PW-4 and Mohinder Kumar - PW-5 had disclosed that Mukesh Kumar was working as beldar in PWD Department and the couple had a daughter, who was 6 years old. He had disclosed that his sister had told him that Mukesh Kumar - accused and his relatives used to beat and harass her. He also informed the Court that his sister had revealed while she was admitted in Karnal hospital that her statement was wrongly recorded as she was under pressure at that point of time. Mukesh Kumar and his friends poured kerosene oil on her body and the accused set her on fire. She Bura Sonia 2013.07.30 14:21 I attest to the accuracy and integrity of this document Chandigarh CRA No.562-DB of 2009 -3- further disclosed to him that she wanted to make another statement.
Dr. N.P.Singh - PW-1 had examined Kamini on 10.08.2007 and had found 50 to 55% burn over the body. He had stated that clothes were not taken for chemical examination and the injured was fit to make the statement and he had given his opinion on the application Ex.P-3. He had further disclosed that the patient was accompanied by Shekhar - brother of Kamini(deceased).
Dr. Rakesh Jindal - PW-6 of Balaji Plastic Surgery and Burn Centre, Karnal deposed that Shekhar (brother) and Durga Devi - mother of Kamini brought the patient with the history of burns when the patient was working over the kerosene stove. He had found that the patient had burns all over the body except some parts of lower legs and there were 88% thermal burns for which treatment was started by him. He stated that he sent intimation to the police that the patient wanted her statement to be recorded again and on 13.08.2007 the Magistrate had visited the hospital. He further stated that the patient was fit to make statement and after obtaining his opinion, the Magistrate recorded her statement.
Dr. Balwan Singh - PW-8 had conducted the postmortem examination and had found the following burn injures:
"There were infected superficial to deep burns with scab formation at places. There were blister formation at places. Burns were present almost all over the body except - bilateral soles, posterior aspect of the left forearm and some portion of the abdomen on lower aspect. Pubic and scalp hairs were singed."
The cause of death was septicemia due to extensive burns which were ante-mortem in nature and sufficient to cause death in the normal course of life.
Bura Sonia 2013.07.30 14:21 I attest to the accuracy and integrity of this document Chandigarh CRA No.562-DB of 2009 -4-
The Forensic report Ex.P-25 only says that kerosene oil was detected in the metallic stove.
Durgi Devi - PW-11, who was tenant in Rai Dharamshala, Kurukshetra where Kamini was staying with her husband disclosed that she and Saroj heard the noise coming from the first floor. They went up and saw the wife of Mukesh Kumar in a nude condition and her body was burnt. She was lying in the verandah. She further stated that she covered her with a sheet and the accused was sitting with her and thereafter, Mukesh Kumar took her to the hospital. She stated that Kamini was conscious when she reached the first floor but she did not give the reason for the incident but hands of Mukesh Kumar were burnt. She stated that she did not ask Mukesh about the incident nor he told her.
Sh. A.K.Sharma, PW-13 was the Duty Magistrate at Karnal and recorded the statement of Kamini wife of Mukesh Kumar.
At the close of prosecution evidence, when the accused was examined under Section 313 Cr.P.C. he simply denied the case and pleaded false implication. He had examined Sh. Naresh Kumar Singhal, who was the Duty Magistrate at Kurukshetra and had recorded the first statement of Kamini. He proved the statement Ex.D-5.
We have heard the submissions made by learned counsel for the parties and perused the case file.
Learned counsel representing the appellant had urged that there were two dying declarations and in the circumstances the credibility of the second statement has to be of impeccable character. It was urged that when the first statement was recorded, the brothers Bura Sonia 2013.07.30 14:21 I attest to the accuracy and integrity of this document Chandigarh CRA No.562-DB of 2009 -5- of the deceased were present and in the second statement Kamini does not definitely say that her husband has poured kerosene on her or had set her on fire. It was urged that there was serious lacuna in the prosecution case as the clothes of the deceased were not taken into possession nor sent to the Forensic Science Laboratory to verify whether there was any traces of kerosene on her body. It was contended that there was no previous history of any incident and the deceased had a six year old child and even her brothers did not speak about any reason and the reason for making the second statement is that there arose a monetary dispute as to who would pay the hospital bills and the appellant was a labourer and was unable to bear the expenses of a private hospital and it was the brother, who had brought the injured to Balaji Plastic Surgery and Burn Centre, Karnal and conviction can only be recorded where the evidence is of impeccable character and it would be unsafe to rely upon the second dying declaration and the appellant deserves to be acquitted.
Learned counsel representing the State had urged that Kamini was under pressure of her husband when the first statement was given and the family as well as the injured had insisted that her second statement should be taken and the Medical Officer informed the police, who in turn requested the Magistrate and Kamini had named her husband for the incident. It was urged that the husband was present in the house when the incident occurred and he did not offer any explanation for the incident and the judgment of the trial court should be affirmed.
The prosecution case rests on two dying declarations, which contradict each other. In the first statement made by Kamini, Bura Sonia 2013.07.30 14:21 I attest to the accuracy and integrity of this document Chandigarh CRA No.562-DB of 2009 -6- which was recorded on 10.08.2007, she had merely stated that she caught fire while working on the stove. Three days later, she wanted to make another statement and the following statement was recorded:
"Statement of Kamini, aged 26 years, wife of Mukesh resident of Rai Dharamshala Kurukshetra (under Section 164 Cr.PC) (S/A) Question: Where and when you got burnt? Answer : I got burnt on Friday (10.08.2007) at about 7.00 am in the morning in my house at Rai Dharamshala. Question: How did you get burnt?
Answer: There were two three wheelers walas along with my husband Mukesh, whose name I do not know. One of them is resident of Shanti Nagar Kurukshetra. Question: Why were you burnt?
Answer: My husband asked that you did not allow my friends to come, I will burn in the same way. Question: Do you want to say anything?
Answer: My in-laws do not give money for treatment. My Devars (brothers of husband) Rajesh and Naresh are also do not give money for treatment.
Sd/-A.K.Sharma (Duty), JMIC Karnal Dated 13.08.2007 8.50 pm"
The FIR was registered on 14.08.2007. Kamini had died on 28.08.2007.
We are concerned with two dying declarations Ex.P-26 and Ex.D-5. Ex. D-5 was recorded at the earliest point of time and the injured had stated that she caught fire accidentally. This statement was recorded by the Magistrate. By then the brothers of the injured were already in the hospital. Shekhar - PW-4 had disclosed that they had received intimation at 7.00 am and had reached Rai Dharamshala at about 8.00 am and then they went to the Civil Hospital at about Bura Sonia 2013.07.30 14:21 I attest to the accuracy and integrity of this document Chandigarh CRA No.562-DB of 2009 -7- 8.10 am. The statement Ex.D-5 was recorded by the police at 1.10 pm. The Medical Officer had deposed that the patient was in a fit state of mind and was capable of making the statement.
Learned counsel for the appellant had submitted that when there are two dying declarations, which are contradictory, the trial Court could not base the conviction on the second statement made three days after the incident.
The Hon'ble Apex Court in P.Mani vs. State of Tamil Nadu, 2006 (3) SCC 161 has observed as under:
"Indisputably conviction can be recorded on the basis of dying declaration alone but therefore the same must be wholly reliable. In a case where suspicion can be raised as regard the correctness of the dying declaration, the court before convicting an accused on the basis thereof would look for some corroborative evidence. Suspicion, it is trite, is no substitute for proof. If evidence brought on records suggests that such dying declaration does not reveal the entire truth, it may be considered only as a piece of evidence in which event conviction may not be rested only on the basis thereof. The question as to whether a dying declaration is of impeccable character would depend upon several factors; physical and mental condition of the deceased is one of them. In this case the circumstances which have been brought on records clearly point out that what might have been stated in the dying declaration may not be correct. If the deceased had been nurturing a grudge against her husband for a long time, she while committing suicide herself may try to implicate him so as to make his life miserable. In the present case where the appellant has been charged under Section 302 of the Indian Penal Code, the presumption in terms of Section 113A of the Evidence Act is not available. In absence of such a presumption, the conviction and sentence of the Bura Sonia 2013.07.30 14:21 I attest to the accuracy and integrity of this document Chandigarh CRA No.562-DB of 2009 -8- accused must be based on cogent and reliable evidence brought on record by the prosecution. In this case, we find that the evidences are not such which point out only to the guilt of the accused."
Hon'ble Supreme Court in State of Punjab v. Parveen Kumar, has held as follows:
"While appreciating the credibility of the evidence produced before the Court, the Court must view evidence as a whole and come to a conclusion as to its genuineness and truthfulness. The mere fact that two different versions are given but one name is common in both of them cannot be a ground for convicting the named person. The Court must be satisfied that the dying declaration is truthful. If there are two dying declarations giving two different versions, a serious doubt is created about the truthfulness of the dying declaration."
Both the dying declarations have been recorded by the Magistrate. In the first version, Kamini had disclosed that the incident occurred while she was working on the stove. Three days later, she made another dying declaration, which contradicts the first one but it also does not say that the husband had poured kerosene or had lit the fire. A perusal of the statement goes to show that in response to the query by the Magistrate as to how she had caught burnt the reply was that there were two three wheelers walas along with her husband but she did not know their name and one of them was resident of Shanti Nagar. Again a direct question was put to her as to why she was burnt and Kamini had responded that her husband had asked as to why she did not allow his friends to come and he would burn in the same way. In the end Kamini spoke about the money, required for the treatment and that her in-laws were not paying. She did not accuse the husband Bura Sonia 2013.07.30 14:21 I attest to the accuracy and integrity of this document Chandigarh CRA No.562-DB of 2009 -9- for the incident.
Durgi Devi, who was a tenant in the same dharamshala reached on hearing the cries. She was the first person to reach the place of occurrence. Kamini did not give any reason for the incident to her or even to the Medical Officer. There is no evidence of discord between the husband and wife. Therefore, the dying declarations have been examined with caution. The law is that if there are two dying declarations giving different versions, a serious doubt is created about the truthfulness.
The irresistible conclusion is that the dying declaration is inconsistent. In such a situation we cannot pick one statement and base conviction on the basis of Ex.P-26. We have carefully scrutinized the dying declaration. In the instant case, the deceased has wavered for the reasons only known to her. A serious doubt is created about the truthfulness of the dying declaration. Kamini did not specifically blame the husband. There is no other reliable evidence, which could have been considered as corroborative piece of evidence. It would be unsafe to rely on the dying declaration and uphold the conviction.
The foregoing discussion lead us to conclude that the conviction of the appellant cannot be sustained. The appeal is allowed. The judgment of the trial Court is set aside. The appellant shall be released forthwith, if not required in any other case.
(M.Jeyapaul) (Anita Chaudhry)
Judge Judge
08.07.2013
sonia
Bura Sonia
2013.07.30 14:21
I attest to the accuracy and
integrity of this document
Chandigarh