Punjab-Haryana High Court
Om Parkash And Anr vs State Of Haryana on 10 December, 2014
Author: Anupinder Singh Grewal
Bench: Ashutosh Mohunta, Anupinder Singh Grewal
Criminal Appeal No. D-754-DB of 2002 #1#
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
Criminal Appeal No. D-754-DB of 2002
Date of Decision : 10-12-2014
Om Parkash and another
.......... Appellants
Versus
State of Haryana
...... Respondent
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CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA,
ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE ANUPINDER SINGH GREWAL
Present : Ms. Aditi Girdhar, Advocate as Amicus Curiae
for the appellants.
Ms. Shalini Attri, DAG, Haryana.
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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?
ANUPINDER SINGH GREWAL , J.
Instant criminal appeal is directed against the judgment and order of sentence dated 17.07.2002, whereby the appellants have been convicted for the offence under Section 302 IPC read with Section 34 IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.1000/- each. In default of payment of fine, they were to further undergo rigorous imprisonment for one year each.
In nutshell, the case of the prosecution as unfolded during trial is that a theft had taken place in the house of the accused. Both the accused MOHAN SINGHare husband and wife. A portion of the house of the accused was in 2014.12.11 13:05 I attest to the accuracy and authenticity of this document Criminal Appeal No. D-754-DB of 2002 #2# possession of one Munna as tenant. Ashok Kumar (since deceased) was his friend and the deceased used to visit him. Accused suspected that theft had been committed by the deceased. On 17.3.1999 the deceased was present at the house of accused when they set him on fire by pouring kerosene oil on his body. He was taken to General Hospital Jagadhri at 8.35 PM with 100% burns. On receipt of a medical ruqa (Ex.PB) in respect of Ashok Kumar son of Des Raj, R/o Dwarka Puri, Jagadhri, ASI Dalip Kumar (PW11) after making an entry in the daily diary rushed to the hospital and then appeared before the court of Sh. R.P. Goel, the then Judicial Magistrate Ist Class, Jagadhri with the request Ex.PF to record the statement of the injured. On having been declared fit by the doctor, statement of the injured was recorded as Ex.PD. ASI Dalip Kumar obtained the copy of the statement and sent the same to police station for registration of a case with his endorsement Ex.PH/2. On the basis of that, FIR Ex.PH/1 was registered. ASI then went to the spot and carried out spot inspection. He called a photographer who took photographs of the site. From the spot, one can containing some kerosene oil and one funnel were recovered which were taken into possession vide recovery memo Ex.PK. Rough site plan Ex.PO of the place of occurrence was also drawn. The deceased succumbed to injuries the following morning. Doctor sent his report regarding the death of the deceased to police station at 6.40 a.m. ASI Dalip Kumar again reached the hospital and held inquest proceedings Ex.PM. An application Ex.PN/1 was moved before the doctor for conducting post-mortem examination on the dead body of the deceased. Both the accused were arrested. After completion of investigation, challan was presented in the MOHAN SINGH 2014.12.11 13:05 I attest to the accuracy and authenticity of this document Criminal Appeal No. D-754-DB of 2002 #3# Court. The case being triable by the court of Sessions, the same was committed to learned Sessions Judge,Yamuna Nagar at Jagadhri.
In support of its case, the prosecution examined as many as thirteen witnesses.
While appearing as PW1, Dr. Sandeep Gupta, Medical Officer, Civil Hospital, Jagadhri deposed that on 17.3.1999 at 8.35 PM, he medicolegally examined the deceased Ashok Kumar and found that there was alleged history of sustaining burns with pouring of kerosene oil. The patient was conscious and was crying in pain. His vital signs could not be recorded due to 100% burns. He further deposed that there were superficial to deep burns all over the body including head and neck, upper and lower limbs, chest, abdomen and Perineum. There was smell of kerosene emitting out of the body of the patient. The injuries were dangerous to life. The probable duration of injuries was within six hours. During cross examination, he stated that the fact whether sedative was administered to the injured for relieving pain can be ascertained from the record available in the hospital. Generally in such burn cases, to relieve pain, they give injection pethidine or injection tramadol or injection fortwin. By giving this sedative, the patient usually becomes drowsy and this effect remains for 6 to 8 hours. He admitted that the burns caused by kerosene oil cause agonising pain. He could not tell when asked whether he remained with the Magistrate, when the statement of the injured was being recorded or he had gone to attend some other patient.
PW2- HC Karamvir Singh, PoliceStation City Jagadhri tendered in evidence his affidavit.
MOHAN SINGH2014.12.11 13:05 I attest to the accuracy and authenticity of this document
Criminal Appeal No. D-754-DB of 2002 #4# Sh. R.P. Goel, Judicial Magistrate, Ist Class, Jagadhri while appearing in the witness box as PW3 stated that on 17.3.1999 on police request (Ex.PF, he went to Civil Hospital, Jagadhri for recording the statement of Ashok Kumar son of Des Raj R/o Dwarkapuri, Jagadhri. After obtaining the opinion of Dr. Sandeep Gupta Ex.PD that Ashok Kumar was in a conscious state and was oriented to make the statement, he recorded the statement of Ashok Kumar, which is Ex.PG and the same bears his signatures. At the end of the statement, he gave his certificate (Ex.PG/1) and passed order (Ex.PG/2) at 8.35 PM on the police request.
PW4- Pala Ram ASI, Police Station City Jagadhri stated that he recorded FIR (Ex.PH/1) and made his endorsement (Ex.PH/2) on the ruqa (Ex.PH) received from Civil Hospital, Jagadhri through ASI Dalip Kumar.
PW-5 Constable Maya Ram, Police Station City Jagadhri had delivered special report of this case at the residence of S.P Yamunanagar as also at the residence of Sh. R.P. Goel, JMIC, Jagadhari.
PW6- Mulakh Raj Constable, S.P Office, Yamunanagar stated that on 4.5.1999, he prepared scaled map (Ex.PJ) of the place of occurrence on the pointing out of ASI Dalip Kumar being a qualified draftsman.
Kapil Sehgal-Photographer appeared as PW7 and deposed that on 17.3.1999, on having been called by the police, took three photographs of the site of which negatives are Ex.P1 to P3 and handed over the photos to the police.
Krishan Lal-brother of the deceased appeared as PW8 and deposed that at about 8.30 PM, he came to know that his brother Ashok Kumar had been burnt by both the accused. Then he went to the house of MOHAN SINGH 2014.12.11 13:05 I attest to the accuracy and authenticity of this document Criminal Appeal No. D-754-DB of 2002 #5# the accused. On reaching there, he came to know that his brother had already been taken to Civil Hospital, Jagadhri. Then he rushed to the hospital and police also arrived there. From spot inspection, the police had recovered one can containing some kerosene oil, one funnel, one broken lock, and one sleeper in his presence vide memo Ex.PK. During his cross examination, he admitted that both the accused were also present in the hospital when he reached there and most of the medicines required for the treatment of his brother were also purchased by the accused.
PW9-D.P Singh, Medical Officer, Civil Hospital Jagadhri, on 18.3.1999 conducted post mortem examination on the dead body of Ashok Kumar (since deceased) son of Des Raj. As per his opinion, the cause of death was due to burns. He found that rigor mortis was present in all the four limbs and neck, pugilistic appearance of the body was present. There were superficial to deep burns present all over the body. The smell of kerosene oil was present on the body. Blackening of the skin was present. Red lining and red pathes were present. The probable time that elapsed between injury and death was within hours and between death and post mortem was within 12 hours. During cross examination, he admitted that burn by kerosene oil caused agonising pain to the person. In this case, the burns were 100% superficial to deep.
PW-10 Tilak Raj deposed that he reached the place of occurrence after he received a message from his brother-in-law Krishan Lal that Ashok Kumar had been burnt. Police arrived after he reached and effected recovery of various articles.
PW11 is Dalip Kumar ASI/Investigating Officer, who deposed MOHAN SINGH 2014.12.11 13:05 I attest to the accuracy and authenticity of this document Criminal Appeal No. D-754-DB of 2002 #6# that on receiving a medical ruqa from Civil Hospital, Jagadhri regarding admission of Ashok Kumar (since deceased) in burnt condition in the hospital, he recorded DD No.17 and reached the hospital and thereafter moved an application (Ex.PF) to the duty Magistrate, Jagadhri for recording the statement of the patient under Section 164 Cr.P.C on the basis of which formal FIR was recorded. He thereafter inspected the spot and got photographs taken and took into possession one can, one chappal, one broken lock and one Funnel vide recovery memo Ex.PK, site plan of the place of occurrence (Ex.PO) was prepared. He also recorded the statements of the witnesses. He prepared inquest report Ex.PM of deceased Ashok Kumar and moved application for conducting post mortem of said Ashok Kumar and arrested the accused-appellant Kanta.
PW12-Jai Pal Singh Constable,PS City Jagadhri sealed all the articles, which were deposited by ASI Dalip Kumar with him with the seal of HS on 18.3.1999 and then he further deposited the same with MHC Karamvir through Constable Rajbir Singh.
Prem Singh-Inspector while appearing as PW13 deposed that he arrested accused-appellant Om Parkash in this case and after completion of investigation, challan was also prepared by him.
No defence witness was produced on behalf of the accused- appellant.
When the incriminating circumstances appearing in the prosecution evidence were put to accused-appellants for eliciting their explanation as provided under Section 313 Cr.P.C., they pleaded innocence and alleged false implication.
MOHAN SINGH2014.12.11 13:05 I attest to the accuracy and authenticity of this document
Criminal Appeal No. D-754-DB of 2002 #7# We have heard learned counsel for the parties and appraised the contents of paper book.
Learned counsel for the appellants has submitted that the dying declaration should not be relied upon inasmuch as the deceased was not in a fit state of mind at the time of making the declaration. He had suffered 100% burns was crying with pain and he died on next date i.e. 18.03.1999 at 7.30.am. Learned counsel has relied upon the testimony of PW-1 Dr. Sandeep Gupta in cross-examination wherein, he has stated that in burn cases they used to give injection pethidine or injection tramadol or injection fortwin which causes drowsiness. It has been further argued by learned counsel that PW-9 namely Dr. D.P.Singh who conducted post mortem stated that if the patient has burn injuries and is in a shock he will be in an altered mental state. 100% burns would cause cereberal anoxia and the supply of oxygen to the brain is reduced. Learned counsel for the appellant has also argued that the defence of the accused is plausible that the deceased had committed suicide due to shame and fear after committing theft and in apprehension of his arrest which would defamed him before his relatives. It was the accused who had taken the deceased to the hospital and they had also met the medical expenses as PW-8 Krishan Lal had admitted that accused purchased medicines for the deceased. Lastly it has been argued by the learned counsel that in the dying declaration only Kanta Devi has been named and accused Om Parkash has not been named, therefore, at least accused Om Parkash is entitled to acquittal.
We are of the view that there is no basis in the submission of the learned counsel that the dying declaration should not have been relied MOHAN SINGH 2014.12.11 13:05 I attest to the accuracy and authenticity of this document Criminal Appeal No. D-754-DB of 2002 #8# upon. The principles which have to be followed while testing the dying declaration have been laid down in the judgment of Hon'ble Supreme Court of India in case titled as Rafique v. State of U.P., (2013) 12 SCC 121. and the relevant paragraphs are reproduced hereunder:
"23. After considering the above legal principles, this Court has set down the following six tests to be applied for relying upon a material statement as a dying declaration: (Kushal Rao case, AIR pp. 28-29, para 16) "16. On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character; and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been MOHAN SINGH 2014.12.11 13:05 I attest to the accuracy and authenticity of this document Criminal Appeal No. D-754-DB of 2002 #9# impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties."
24. We also wish to add that as on date, there is no statutory prescription as to in what manner or the procedure to be followed for recording a dying declaration to fall within the four corners of Section 32(1) of the Evidence Act. The presence of the Magistrate; certification of the doctor as to the mental or the physical status of the person making the declaration, were all developed by judicial pronouncements. As has been repeatedly stated in various decisions, it will have to be found out whether in the facts and circumstances of any case the reliance placed upon by the prosecution on a statement alleged to have been made by the deceased prior to his death can be accepted as a dying declaration, will depend upon the facts and circumstances that existed at the time of making the statement. In that case it would mainly depend upon the date and time vis-a-vis the occurrence when the statement was alleged to have been made, the place at which it was made, the person to whom the said statement was made, the sequence of events, which led the person concerned to make the statement, the physical and mental condition of the person who made the statement, the cogency with which any such statement was made, the attending circumstances, whether throw any suspicion as to the factum of the statement said to have been made or any other factor existing in order to contradict the statement said to have been made as claimed by the prosecution, the nexus of the person who made the statement to the alleged crime and the parties involved in the crime, the circumstance which made the person to come forward with the statement and last but not the least, whether the said statement fully supports the case of the prosecution."
MOHAN SINGH The dying declaration has been recorded by learned Judicial 2014.12.11 13:05 I attest to the accuracy and authenticity of this document Criminal Appeal No. D-754-DB of 2002 #10#
Magistrate (1st Class) after having obtained certificate of fitness about the mental condition of the deceased from the Doctor. Learned Judicial Magistrate (1st Class) has also been examined as PW-3 wherein he had categorically stated that he had recorded the statement of Ashok Kumar after obtaining the opinion of Doctor Sandeep Gupta, as Ex.PD that Ashok Kumar was in a concious state and oriented to make a statement. He had recorded the statement Ex.PG and appended his signatures thereto. He has further submitted in his cross-examination that when he recorded the statement, no relative of the patient was present and that recording of the statement took seven minutes.
Dr. Sandeep Gupta who had certified about the fitness of Ashok Kumar to make the statement has also been examined as PW-1, wherein he had stated that the statement of Ashok Kumar was recorded in his presence by the learned Judicial Magistrate. As regards the submission that the deceased had sustained 100% burn injuries and had been given painkillers which may render him unfit to be in a concious state of mind, we are of the view that in the light of clinching evidence in the form of PW-1 one cannot doubt the mental capacity of the deceased to make the statement. Reference may be made to the judgment of the Hon'ble Supreme Court of India in Jaishree Anant Khandekar Vs. State of Maharashtra 2009 (11) SCC 647 wherein victim had suffered severe burn injuries which were estimated at 100%. The dying declration was relied upon although the victim remained alive for 15 days thereafter. The Doctor had cerified that the declarant was fully concious to make the declaration.
In the instant case not only the Doctor has stated that the victim MOHAN SINGH 2014.12.11 13:05 I attest to the accuracy and authenticity of this document Criminal Appeal No. D-754-DB of 2002 #11# was in a fit medical condition to make the statement, but it has been recorded by the learned Judicial Magistrate as well.
The incident is stated to have taken place at 7.30.pm. The deceased was rushed to the Civil Hospital, Jagadhari. The ruqa was sent by the Doctor at 8.45.pm which was received in the Police Station at 8.55.pm. PW-1 recorded certificate of fitness of the injured to make statement at 9.10.pm. The statement was recorded upto 9.17.pm and the proceedings were completed by 9.23.pm. The deceased succumbed to the injuries at 7.30.am on the next day i.e. 18.03.1999. A perusal of the dying declaration will also reveal that it has been properly recorded in question-answer form. The translated version of the dying declaration Ex.PG is reproduced hereunder:
"Q-1 How it happened?
A. I was working in the house. I used to sell meat eggs on a hand cart. Kanta who is the wife of Om Parkash set me on fire.
Q-2 Why was he set on fire?
A. A theft had taken place in their house. I told them that
I had not committed the theft. They gave me slaps and fist blows. They set me on fire. One more person was with them. I do not know what they were possessing. They set me on fire at their house.
Q-3 Do you want to say anything else?
A. No Sir."
Therefore, tested in the light of aforementioned parameters laid down by the Hon'ble Supreme Court of India the dying declaration is trust worthy and convincing. We are convinced about the truth of the statement and there is no scope as to doubt its credibility.
Further, we cannot accept the submission of learned counsel for MOHAN SINGH 2014.12.11 13:05 I attest to the accuracy and authenticity of this document Criminal Appeal No. D-754-DB of 2002 #12# the appellants that the defence version of deceased having committed suicide is plausible as he had also been taken to the hospital by the appellants. It is rather improbable to accept that a person who is accused of theft in a house would commit suicide. The accused have not led any evidence in defence except their averments under Section 313 of the Cr.P.C. Even the averment of accused taking the deceased to the hospital does not in any manner cast any doubt on their culpability in the crime.
However, we do find merit in the submission of learned counsel that in the dying declaration appellant No.1 Om Parkash has not been named and it is only appellant No.2 Kanta Devi who has been specifically mentioned by the deceased. A perusal of the dying declaration does reveal that the deceased had stated that Kanta Devi had set her on fire "Kanta who is the wife of Om Parkash set me on fire". It was only later that he had stated that they had set him on fire and one more person was with them. The use of the term "they" cannot be construed to be a reference to Om Parkash accused. In case he had really committed the crime, he would have also have been named along with Kanta Devi by the deceased. Even otherwise in common parlance in vernacular the term "they" (mUgksaus) is some times used singularly also. The only other evidence which has comeforth against Om Parkash is the statement of PW-8 Krishan Lal who had submitted that he had learnt that his brother had been burnt by Om parkash and Kanta Devi. In cross-examination he had submitted that he had learnt from about 4-5 persons who were present at Gandhi Dham that Kanta Devi had sprinkled kerosene oil on Ashok Kumar and Om Parkash set him on fire. However in cross-examination he stated that he does not know the MOHAN SINGH 2014.12.11 13:05 I attest to the accuracy and authenticity of this document Criminal Appeal No. D-754-DB of 2002 #13# name of the person who had said so and he had also not stated this to the police when his statement was recorded in the hospital.
Therefore, it would be rather risky to rely upon such sketchy evidence to convict Om Parkash accused. We are of the view that the benefit of doubt is to be given to accused Om Parkash as the case against him has not been proved beyond reasonable doubt.
Consequently, we acquit Om Parkash appellant No.1 by giving him the benefit of doubt. However, the case against Kanta Devi appellant No.2 is proved beyond reasonable doubt, especially in the wake of the dying declaration of the deceased. The appeal qua appellant No.2 is resultantly, dismissed. The appellant No.2 Kanta Devi who is on bail, be taken into custody forthwith to serve the sentence while the bail bonds of appellant No.1 Om Parkash are discharged.
(ASHUTOSH MOHUNTA) (ANUPINDER SINGH GREWAL)
ACTING CHIEF JUSTICE JUDGE
10-12-2014
Mohan
MOHAN SINGH
2014.12.11 13:05
I attest to the accuracy and
authenticity of this document