Punjab-Haryana High Court
Jagan Singh And Ors vs State Of Haryana on 2 November, 2012
Author: S.S.Saron
Bench: S.S.Saron
CRIMINAL APPEAL NO.485-DB OF 2005 - 1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRIMINAL APPEAL NO.485-DB OF 2005
Date of decision : 02.11.2012
Jagan Singh and ors. ......Appellants
Versus
State of Haryana ......Respondent
CORAM : HON'BLE MR. JUSTICE S.S.SARON
HON'BLE MR. JUSTICE S.P.BANGARH
Present : Mr. Ashwani Bhardwaj, Advocate for the appellants.
Mr. H. S. Sran, Addl. AG, Haryana.
S.S.SARON, J.
Mr. Ashwani Bhardwaj, Advocate at the outset has submitted that appellant No.1 had died on 31.01.2006. The appeal has been filed by the appellants-Jagan Singh, Om Pal and Asharfi Devi, who are the father-in-law, husband and mother-in-law respectively of the deceased Kaushalya Devi.
The marriage between Kaushalya Devi (deceased) and Om Pal (appellant No.2) was solemnized in 1982. The FIR (Ex.PM) has been registered on 24.12.1996 on the basis of dying declaration of Smt.Kaushalya Devi which was recorded by Sh.Manjit Singh, HCS, Addl. Chief Judicial Magistrate, Bhiwani (PW-17).
The FIR was registered initially for the offence under Section 307 of the Indian Penal Code (IPC - for short). Thereafter on account of the demise of Smt.Kaushalya Devi, the case was converted to that for the offence under Section 302 IPC. CRIMINAL APPEAL NO.485-DB OF 2005 - 2-
A memo (ruqa) was received at the police station on 24.12.1996 from the doctor at General Hospital, Bhiwani inter alia stating that Kaushalya Devi (deceased) wife of appellant No.2-Om Pal, resident of village Haluwas had received 100% burn injuries. On receipt of the said memo, ASI Krishan Kumar (PW-9) reached General Hospital, Bhiwani for recording the statement of Kaushalya Devi. He collected medico legal report from the doctor in which the doctor had recorded that the injuries suffered by the patient were dangerous to life. An application was accordingly moved before the Illaqa Magistrate for recording the statement of Smt.Kaushalya Devi. Another application was submitted for obtaining certified copy of the statement of Kaushalya Devi. The learned Additional Chief Judicial Magistrate, Bhiwani recorded the following statement of Kaushalya Devi:-
"Statement of Smt.Kaushalya Devi w/o Ompal R/o Haluwas.
Q. Do you want to give your statement voluntarily and without any pressure and temptation?
Ans. Yes.
Q. What do you want to say how you burn?
Ans. I prepare tea, my husband was sitting with
me. Kerosene oil poured on me, my 'sasur'
(father-in-law) poured kerosene oil on me. My 'sas' (mother-in-law) poured kerosene oil on me. I don't know her name. My husband fired (sic. lit) me with match-box. They don't give me food and harass me and say left (sic. leave) this house. I told them that I would not left (sic. leave) this house so they burnt me.
My husband told me that I have not married CRIMINAL APPEAL NO.485-DB OF 2005 - 3- with you. My marriage takes place 17 years ago, I have a male child who has gone to his maternal uncle's house, I don't want (sic.to) say any more. My 'sasu' (mother-in-law) say, "Hold her and put up match sticks. I don't want to say anything. Santosh is also beat me, I don't want to say anything more.
RO&AC
Sd/- in Hindi
Kaushalya Sd/-
ACJM, Bhiwani
Dt.24.12.96
At 2.15 p.m."
ASI Krishan Kumar (PW-9) on the basis of medico legal report as well as the statement that was recorded found that an offence under Section 307 read with Section 34 IPC had been committed. Constable Raj Karan alongwith the statement of Kaushalya Devi that had been recorded was sent to lodge the FIR. At night, Krishan Kumar ASI (PW-9) received a memo from General Hospital, Bhiwani through the In charge Police Post General Hospital Bhiwani that the patient Kausalya Devi had died. Accordingly, the case was converted to that for the offence under Section 302 IPC. Krishan Kumar ASI (PW-9) alongwith Sher Singh Constable and Raj Pal Constable went to General Hospital, Bhiwani and inquest proceedings (Ex.PK) were conducted. After investigation of the case, a cancellation report was filed in the court of the concerned Magistrate. It has come in evidence in terms of the deposition of Ram Bilas Inspector (PW10) that he recorded the FIR (Ex.PM) on the basis of the certified copy of the statement of Smt. Kaushalya Devi recorded under Section 164 of the Code of Criminal Procedure CRIMINAL APPEAL NO.485-DB OF 2005 - 4- (Cr.P.C.-for short) by Shri Manjit Singh, the then Additional Chief Judicial Magistrate, Bhiwani being the Duty Magistrate. The same entry in verbatim was made by ASI Krishan Kumar (PW9) in the police diary. He submitted cancellation report in this case and verbatim version of the certified copy of Kaushalya Devi was given under Section 173 Cr.P.C.
After submission of cancellation report, further investigations were conducted in the case some time in the year 2003. Rajinder Singh Inspector, Special Staff (PW-11) has deposed that on 13.01.2003 consequent upon the order of the I.G.Hissar, he was entrusted with the investigation of the present case. He sought permission of Superintendent of Police, Bhiwani to reconstruct the present case as the original file, which was lying in the record room had been eaten by termites. The file was reconstructed and investigation was conducted. On 24.01.2003, statements of Shiv Charan Singh (PW1) (father of the deceased), Ram Chander (PW6) (brother of the deceased), Ajay Pal (PW5) (son of the deceased as also the son of Om Pal-appellant No.2) were recorded under Section 161 Cr.P.C. On the next day i.e. 25.01.2003, he (PW-11) recorded the statement of Smt.Roopmati (PW-2) (sister of the deceased). On 02.02.2003, Om Pal (appellant No.2) was arrested and on 15.02.2003 Jagan Singh (appellant No.1) and his wife - Asharfi Devi (appellant No.3) were arrested. After completion of investigation, police report (challan) was prepared by SHO, Police Station Sadar, Bhiwani. It may, therefore, be noticed that in respect of the incident that had occurred on 24.12.1996, further investigations were CRIMINAL APPEAL NO.485-DB OF 2005 - 5- conducted in the months of January and February, 2003. On the filing of the police report (challan), the case was committed by the learned Addl. Chief Judicial Magistrate, Bhiwani vide order dated 09.04.2003 to the Court of Session.
The learned Addl. Sessions Judge, Bhiwani to whom the case was assigned framed charges against the appellants on 02.05.2003. It was alleged that the appellants on 24.12.1996 in furtherance of their common intention in the area of village Haluwas did commit murder by intentionally causing the death of Smt.Kaushalya Devi and thereby committed an offence punishable under Section 302 read with Section 34 IPC. The contents of the charges were heard and understood by the appellants. They pleaded not guilty to the same and claimed trial.
The prosecution examined as many as 17 witnesses; besides, tendered documents in evidence. The statements of the accused in terms of Section 313 Cr.P.C. were recorded by the learned Additional Sessions Judge, Bhiwani on 17.05.2005. They in their respective defence stated that they were innocent and had not committed any offence.
The learned trial court after considering the evidence and material on record vide impugned judgment dated 03.06.2005 has convicted the appellants for the offence under Section 302 read with Section 34 IPC and by a separate order dated 04.06.2005 sentenced them to undergo rigorous imprisonment for life; besides, pay a fine of Rs.2,000/- each and in default of payment of fine to undergo further rigorous imprisonment for six months each. Aggrieved against the CRIMINAL APPEAL NO.485-DB OF 2005 - 6- said judgment and order of the learned Additional Sessions Judge, Bhiwani, the appellants have filed the present appeal.
After hearing the learned counsel for the parties and perusing the record, it is appropriate to note that it is the admitted case of the parties that the prosecution witnesses, who are relatives of deceased Smt.Kaushalya Devi, had not supported the prosecution case.
Shiv Charan (PW-1) is the father of the deceased, Roopwati (PW-2), is the sister of the deceased and is married in village Dhhirana which is 5 k.m. away from village Haluwas where the incident had occurred. Ajay Pal (PW-5) is the son of the deceased and also son of Om Pal (appellant No.2). Ram Chander (PW-6) is the brother of the deceased Smt. Kaushalya Devi. They all resiled from their statement recorded under Section 161 Cr.P.C. Statements recorded by the police during investigation under Section 161 Cr.P.C. were got confronted from them wherein they had named the appellants as the accused. It is well known that statements recorded under Section 161 Cr.P.C. are not substantiative evidence. It is also admitted case between the parties that the original dying declaration is not traceable and has been destroyed. The learned Addl. Sessions Judge, Bhiwani on 14.05.2004 during the trial passed the following order:-
"Present : Shri B.S.Sindhu, PP for State.
Accused Om Pal, Jagan Singh and Asharfi Devi in custody represented by S/Shri R.N.Sharma and Baljeet Singh, Advocate.CRIMINAL APPEAL NO.485-DB OF 2005 - 7-
Vide letter endorsement no.2962/G dated 11.5.2004, learned District & Sessions Judge, Bhiwani directed this court to reconstruct the missing statement of Smt.Kaushalya Devi recorded u/s 164 Cr.P.C. from all available sources and the loss of the same from record has also been informed to the Hon'ble High Court.
Accused persons as per their joint statements as well as their defence counsel as per their joint statement stated that they do not possess any certified, uncertified or carbon copy of the statement (if any) under Section 164 Cr.P.C. of Smt.Kaushalya Devi deceased. Whereas Shri B.S.Sindhu, PP as per separate recorded statement submitted that certified copy of statement of Smt.Kaushalya Devi though was obtained but was destroyed alongwith Police record being eaten by termites. He further stated that prosecution is not possessing any certified, uncertified or carbon copy of the statement of Smt.Kaushalya Devi, He referred copy of FIR in the case containing contents of the said statement of Smt. Kaushalya Devi, deceased.
In view of the aforesaid, it is established on record that re-construction of the missing statement under Section 164 Cr.P.C. of Smt. Kaushalya Devi deceased cannot be made. Accordingly, intimation to this effect may be communicated to learned District & Sessions Judge, Bhiwani. At the same time, learned Public Prosecutor submitted at bar that a date may be given for enabling the prosecution to file application for secondary evidence of the referred statement of Smt.Kaushalya Devi, under Section 164 Cr.P.C. recorded by Shri Manjit Singh, the then learned Addl. C.J.M./Duty Magistrate, Bhiwani. This being so, let application, if any, be filed by prosecution on 21.05.2004.CRIMINAL APPEAL NO.485-DB OF 2005 - 8-
Dated; 14-05.2004. Sd/-
ASJ, Bhiwani."
On 21.05.2004, an application was filed by the prosecution to produce secondary evidence. The said application was allowed vide order dated 08.07.2004 and the dying declaration was taken on record in evidence.
The prosecution examined Dr.Meena Barwar (PW-7) Medical Officer, General Hospital, Bhiwani who on police application Ex.PHG/1 conducted the post-mortem examination on the dead body of Kaushalya Devi wife of appellant No.2-Om Pal on 26.12.1996. It was inter alia observed in the post-mortem examination that there were superficial to deep burns present on hand, face, neck, both upper limbs, front of chest, front of abdomen and back, both lower legs, Burn was 100%. Red line of demarcation was present between bone and healthy skin. In the opinion of Dr.Meena Barwar (PW-7) cause of death in this case was due to shock which was caused by extensive burns. All the burns on the skin were ante mortem in nature and sufficient to cause death in normal course of nature.
Dr.J.B.Gupta (PW-12) who was posted as Medical Officer, General Hospital, Bhiwani on 24.12.1996, was examined. He deposed that he had medico legally examined Kaushalya Devi wife of Om Pal (appellant No.2) who was brought by Hari Om and he noted following injuries on her person:-
"She was conscious. There was smell of kerosene oil from the body. Burnt skin and clothes present on various part of the body. She had sustained 100% deep and CRIMINAL APPEAL NO.485-DB OF 2005 - 9- superficial burns. Burns were dangerous to life and duration was within 24 hours."
It is further stated that Ex.PN is the true carbon copy of MLR, which bears his signatures. He also sent memo (ruqa) regarding admission of Kaushalya to the police post, General Hospital, Bhiwani, on the same day. After admission, he gave her treatment. As per bed head ticket, she expired on the same day at 11.10 p.m. The original writing of the dying declaration of Kaushalya Devi is not available and has not been filed in Court. The secondary evidence of the same has been taken on record. The dying declaration is, therefore, on record and forms part of the FIR. However, it may be noticed that there is no certificate of the doctor or any other material on record from which it can be said that Kaushalya Devi was in a fit state of mind to get her statement recorded.
Mr.H.S.Sran, Addl. A.G. Haryana learned counsel for the State has contended that Dr.J.B.Gupta (PW-12) had deposed that Kaushalaya Devi was conscious. However, in our view this by itself is not sufficient in the facts and circumstances of the case to hold that she was in a fit and sound state of mind to get her dying declaration recorded. It is to be noticed that Kaushalya Devi had suffered 100% burn injuries. Therefore, certain amount of certainity was required to instill confidence that she had made her statement in a fit state of mind. This is moreso for the reason that all the witnesses who are relatives of the deceased have resiled from their statements made before the police. In the dying declaration which CRIMINAL APPEAL NO.485-DB OF 2005 - 10- forms the basis of the FIR, Kaushalaya Devi has inter alia stated that her husband was sitting with her and kerosene oil was poured on her by her father-in-law and mother-in-law. She further states that she did not know the name of her mother-in-law. Thereafter, her husband lit her with a match stick. It is quite unnatural to say that Kaushalya Devi did not know the name of her mother-in-law especially when she has been married with Om Pal (appellant no.2) for almost 14 years earlier from the date of the incident. Therefore, it may be noticed that sound, mental condition of Kaushalaya Devi was required to be ascertained before recording her dying declaration. Had she been in a fit state of mind, she would have stated the name of her mother-in-law. She would not say that she did not know her name.
In Laxman vs. State of Maharashtra, (2002) 6 SCC 710 a Five Judge Bench of the Supreme Court while considering the case of a dying declaration held that the situation in which a man is on the death bed is very solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason that the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The Court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the CRIMINAL APPEAL NO.485-DB OF 2005 - 11- opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. It was further held that what is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of a Magistrate that the declarant was fit to make a statement even without examination by the doctor, the declaration can be acted upon provided the Court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of the declaration can be established otherwise.
In the present case, in the absence of medical opinion regarding the fitness of Kaushalya Devi to make a statement and in the absence of any statement by the Magistrate that Kaushalaya Devi was fit or in a sound mind to make a dying declaration; besides, the relatives of the deceased also resiling from their statements, it would be quite unsafe to rely on such a dying declaration. There is no certificate from the doctors to the effect that Smt.Kaushalya Devi (deceased) during the recording of her statement was in a fit state of mind and neither has Manjit Singh, the then Additional Chief Judicial Magistrate, Bhiwani (PW-17) deposed in this regard.
In Shaikh Rafiq and anr. Vs. State of Maharashtra, AIR 2008 SC 1362, the certificate from Medical Officer as to fitness and consciousness of declarant was not taken and time of recording of CRIMINAL APPEAL NO.485-DB OF 2005 - 12- declaration was also not recorded. It was held that the declaration was not liable to be relied upon.
State of Rajasthan Vs. Teja Ram and ors., AIR 1999 SC 1776, the victim had sustained brain injuries and his brain functions were impaired. It was observed that even if the injured is able to mutter something or even speak out something after sustaining the injuries, it is extremely unsafe to place any credence on such statement as the brain functions would have impaired due to the brain injury.
Therefore, the present case being that of 100% burn injuries and in the absence of medical certificate regarding fitness of the injured to record such a statement and the fact that Kaushalya Devi did not remember the name of her mother-in-law, we feel that it would be wholly unsafe to rely on such declaration. This is more so for the reason that the other relatives of the deceased have resiled from their earlier statements.
The learned trial Court while recording its finding of guilt has referred to a Photostat copy of an order passed between the parties in proceedings between Smt.Kaushalya Devi and Om Pal (appellant No.2) under Section 125 Cr.P.C. It was observed by the learned trial court as regards the previous relations between accused persons and the victim, a photocopy of the order dated 13.02.1990 passed by Additional Chief Judicial Magistrate, Bhiwani, in the petition, filed by the victim against her husband under Section 125 Cr.P.C., reflects that maintenance allowance to the tune of Rs.300/- per mensem was awarded. A photocopy of the statement of the CRIMINAL APPEAL NO.485-DB OF 2005 - 13- victim in the said petition, recorded before the Additional Chief Judicial Magistrate, Bhiwani, on 20.01.1990, it was observed by the learned trial Court also falsified the stand taken by the accused persons (present appellants). It was further, observed in the wake of the above order, it could safely be gathered that from the very inception of marriage, she had been hard-hit of the callous and cruel behaviour of her husband.
We are, however, of the view of that a photostat copy of the order dated 13.02.1990 and photostat copy of the statement of the victim recorded on 20.01.1990 before the Additional Chief Judicial Magistrate, Bhiwani were not documents that were admissible in evidence. These were not exhibited documents and photostat copies of such documents in a criminal trial where the guilt of the accused is to be established and proved beyond shadow of reasonable doubt were not liable to be taken into account. In a criminal trial the documents on record are to be proved in accordance with the mode of proving documents provided by the Evidence Act and photostat copies of documents are inadmissible and impermissible for being tendered in evidence. Therefore, the learned trial Court erred in taking into account the said documents which were clearly inadmissible in evidence and even otherwise not tendered in evidence. The said documents were in fact taken in possession by the police by way of recovery memo (Ex.PJ). However, these were not proved on record. Therefore, no reliance whatsoever can be placed on such documents.
CRIMINAL APPEAL NO.485-DB OF 2005 - 14-
In view of the foregoing reasons, we are of the view that the learned trial court erred in convicting the appellants and therefore, the appeal is liable to be allowed.
Accordingly, the appeal is allowed and the impugned judgment and order of the learned trial court are set aside and the appellants No.2 and 3 are acquitted for the offences attributed to them. They are on bail and the bail bonds furnished by them shall stand discharged.
Appellant No.1-Jagan Singh, it is stated has died and the appeal as against him shall stand abated in terms of Section 394(1) Cr.P.C.
(S.S.SARON) JUDGE (S.P.BANGARH) JUDGE 02.11.2012 A.Kaundal