Punjab-Haryana High Court
Satbir Singh vs U.T on 18 September, 2012
Author: Inderjit Singh
Bench: Satish Kumar Mittal, Inderjit Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No.D-926-DB of 2008
Date of decision : 18.09.2012
Satbir Singh
....APPELLANT
VERSUS
U.T., Chandigarh
....RESPONDENT
CORAM : HON'BLE MR.JUSTICE SATISH KUMAR MITTAL
HON'BLE MR.JUSTICE INDERJIT SINGH
***
Present : Mr.Karambir Singh Nalwa, Advocate, for the appellant.
Mr.Rajiv Sharma, Advocate, for the respondent-U.T., Chandigarh.
*** INDERJIT SINGH, J The appellant has filed the present appeal against the judgment and order dated 05.12.2012, passed by the Sessions Judge, Chandigarh vide which he has been convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.5,000/- and in default of payment of fine to further undergo imprisonment for six months under Section 302 IPC.
Brief facts of the prosecution case are that on 28.02.2007 Inspector Prem Chand received information that Sheela Devi was admitted in the Burns Ward of PGI, Chandigarh. He reached PGI and thereafter, after obtaining the opinion of the doctor regarding fitness of Sheela Devi, he made request in the Court of Criminal Appeal No.D-926-DB of 2008 [2] Sh.M.D.S.Dhillon, Judicial Magistrate Ist Class, Chandigarh for recording her dying declaration. The Magistrate recorded the dying declaration at 4:55 p.m. on 28.02.2007 in which Sheela Devi stated as under:-
"Q: What is your name ?
A: Sheela.
Q: How did you get burns ?
A: I was preparing chapatti on the stove. The palla of
my shirt fell on the stove. My husband tried to save me but the fire did not extinguish. My husband tried to extinguish the fire with water but the fire did not extinguish. I sat under the tap of water but the fire did not extinguish. Our neighbour came there and put a blanket upon me and as such the fire was extinguished. I myself got burnt.
Q: Who brought you to the hospital ?
A: My husband."
The Investigating Officer then went to the spot alongwith other police officials and got the photographs of the place of occurrence. He took into possession a stove and a plastic bottle containing two drops of kerosene oil after preparing separate sealed parcels.
On 02.03.2007, Investigating Officer again received memo Ex.PA from the Medical Officer of PGI, Chandigarh, that Sheela Devi wanted to make fresh statement. The Investigating Officer again reached PGI and submitted application to the doctor for knowing the fitness of Sheela Devi. After obtaining the opinion of the Criminal Appeal No.D-926-DB of 2008 [3] doctor that she was fit to make the statement, he again came to the Court and gave application Ex.PH to Sh.A.S.Shergill, Judicial Magistrate Ist Class/Duty Magistrate, Chandigarh who got recorded the statement of Sheela Devi on 02.03.2007 which reads as under:-
"Q: How did it happen ?
A: On 01.03.2007 at 11:30 a.m. my husband set me on fire.
Q: How did he set you on fire ?
A: By pouring kerosene oil.
Q: How ?
A: I was preparing tea.
Q: On which were you preparing tea ?
A: On the stove.
Q: Where was the oil ?
A: In the bottle.
Q: Where the oil bottle was lying ?
A: I was there only.
Q: What happened when oil was poured ?
A: Fire came in contact with the stove.
Q: What happened then ?
A: My husband poured water on me.
Q: Who brought you to the hospital ?
A: My husband.
Q: Who is at fault in setting you on fire ?
A: My husband's.
Q: Do you want to say anything more ?
A: No.
On the basis of statement of Sheela Devi recorded on
02.03.2007, FIR was registered. Statement of Sheela Devi under Criminal Appeal No.D-926-DB of 2008 [4] Section 161 Cr.P.C. was also recorded. The accused, who was standing in the PGI complex was arrested on the same day i.e. 02.03.2007. Investigating Officer again visited the place of occurrence and prepared the rough site plan Ex.PL. Statement of witnesses were recorded. On 18.03.2007, Sheela Devi died and offence under Section 302 IPC was added in the FIR. Inquest report Ex.PM was prepared.
On 19.03.2007, Dr.S.P.Mandal conducted the postmortem examination on the dead body of Sheela Devi and found 80% burnt area. In his opinion, the cause of death was on account of septicaemic shock as a result of 80% septic burns, which were anti mortem in nature and sufficient to cause death in ordinary course of nature. After necessary investigation, challan was presented.
Finding a prima facie case against the accused, he was charge-sheeted for the offence under Section 302 IPC to which he pleaded not guilty and claimed trial.
The prosecution in support of its case examined PW1 Dr.Neelam, who mainly deposed that on 02.03.2007, she was posted as SMO at PGI, Chandigarh. On that day Sheela Devi, who was admitted at PGI, expressed her desire to again make a statement before the Magistrate whereupon she sent information to SHO, Police Station, Sector 39, Chandigarh vide memo Ex.PA. In cross- examination, PW1 Dr.Neelam stated that she had sent the information on the request of some relative of Sheela Devi. She had Criminal Appeal No.D-926-DB of 2008 [5] not asked from Sheela Devi whether she was willing to give statement or not. PW2 Dr.S.P.Mandal mainly deposed regarding conducting the post-mortem examination on the dead body of Sheela Devi on 19.03.2007. PW3 Constable Resham Singh is the photographer who mainly deposed regarding taking the photographs. PW4 Constable Yashpal deposed regarding preparing of scaled site plan Ex.PC. PW5 Krishna is the mother of Sheela Devi (deceased) who mainly deposed that her daughter was married with accused Satbir about 10-11 years ago. After about six months of the marriage, the accused started harassing Sheela and he used to give her beatings under the influence of liquor. She also deposed that on 28.02.2007, after receiving the information on telephone at about 3:00 p.m. regarding receiving burn injury by Sheela, she reached Chandigarh alongwith her sons Sanjay Kumar and Naresh. She asked the accused how Sheela received burns, he told her that she had caught fire from the stove. Two days after, Sheela on her asking told her that accused had poured kerosene on her person and set her on fire. She told her that she had not disclosed this fact to her earlier on account of the well being of her children. She had got four children. Sheela also told her that she apprehended that if she disclosed this fact to her the accused may subject his children to beating. PW6 Constable Babu Ram mainly deposed that after making endorsement by Sub Inspector Prem Chand, dying declaration of deceased Sheela Devi Ex.PD was handed over to him Criminal Appeal No.D-926-DB of 2008 [6] for registration of the case. PW7 Dr.Deepak Midda, Senior Scientific Officer, CFSL, Chandigarh, deposed regarding examination of stove and bottle containing kerosene oil. PW8 Constable Surender Singh deposed as per prosecution version and he was also with the Investigating Officer when plastic bottle etc. were taken into possession. He also deposed regarding depositing the parcels in Central Forensic Scientific Laboratory, Chandigarh. PW9 MMHC Gurmail Singh is a formal witness, who mainly deposed regarding depositing of the parcels with him and then handing over these parcels to Constable Surender Singh for depositing the same in the office of Central Forensic Science Laboratory, Chandigarh. PW10 Head Constable Lakhbir Singh mainly deposed regarding DDR No.39 dated 02.03.2007. PW11 Sh.A.S.Shergill, Judicial Magistrate Ist Class, mainly deposed regarding recording the statement of Sheela Devi on 02.03.2007. PW12 Inspector Prem Chand is the Investigating Officer, who mainly deposed regarding the investigation.
On close of prosecution evidence, the accused was examined under Section 313 Cr.P.C. and confronted with the evidence of prosecution. The accused denied the correctness of the evidence and pleaded himself as innocent. He also took the plea that on 02.03.2007, his wife accidentally caught fire from the stove while preparing the meal. He immediately tried to save her and he also received burn injuries on his hands. His neighbours also helped. He removed his wife to PGI, Chandigarh. His wife also Criminal Appeal No.D-926-DB of 2008 [7] suffered statement on 28.02.2007 itself before JMIC, Chandigarh about the actual facts. Lateron under the pressure of her mother Krishna and other close relatives, he has been falsely involved in the present case.
In defence, the accused examined DW1 Smt.Asha, who mainly deposed that on 28.02.2007 at about 9:30/10:00 a.m. She heard cries as there was a fire. She went to the house of Satbir who was extinguishing fire on the person of Sheela Devi. He was spraying water also but the fire did not extinguish and she was made to sit under the tap. Some neighbour put a blanket on her. On her inquiry, Sheela Devi told him that she was preparing food and the part of shirt fell on the stove. Satbir removed her to hospital. She also deposed that she narrated these facts to the police but her statement was not recorded. She also stated that Satbir and Sheela had cordial relation. DW2 M.D.S.Dhillon, Judicial Magistrate Ist Class, mainly deposed regarding recording the statement of Sheela on 28.02.2007. DW3 Dr.Charanjit Lal deposed regarding the fitness of Sheela Devi before recording the statement before the Magistrate on 28.02.2007.
The trial Court after appreciation of evidence on record convicted and sentenced the accused as stated above. Hence the present appeal has been filed.
At the time of arguments, learned counsel for the appellant contended that in the present case the only evidence Criminal Appeal No.D-926-DB of 2008 [8] against the accused is second dying declaration dated 02.03.2007 but that dying declaration is tutored one and has been given under the pressure of her mother by Sheela Devi (deceased). This dying declaration cannot be relied upon in view of first dying declaration dated 28.02.2007 made by Sheela Devi to the Judicial Magistrate. Secondly, this second dying declaration is made at the instance of mother by Sheela Devi as it is clear that Dr.Neelam has sent the memo Ex.PA to the police for recording the statement of Sheela Devi again at the asking of relatives of Sheela Devi and the doctor has not inquired from Sheela Devi whether she want to make statement or not. Learned counsel for the appellant contended that even in the second dying declaration recorded on 02.03.2007, Sheela Devi has stated that her husband tried to extinguish the fire and had taken her to hospital which creates reasonable doubt in the prosecution version. If her husband wants to kill her then why he will extinguish the fire while spraying the water on her. Learned counsel for the appellant further contended that PW5 Krishna, mother of Sheela Devi, has stated that after two days, on her asking Sheela Devi told her that she was put on fire and no reason or explanation given why on that day Sheela Devi had not disclosed this fact to her mother Krishana (PW5). Learned counsel for the appellant next contended that in the second dying declaration, the date of occurrence has also been given incorrectly. Therefore, he contended that a reasonable doubt exists in the prosecution version and defence version is more Criminal Appeal No.D-926-DB of 2008 [9] probable and appeal should be accepted accordingly.
On the other hand, learned counsel for U.T., Chandigarh contended that the case of prosecution has been duly proved. The first dying declaration was given by Sheela Devi under pressure of her husband and for the welfare of her children. The second dying declaration is correct as at that time she was fit to make statement. The second dying declaration is also supported by statement of PW5 Krishna, mother of Sheela Devi and further the recovery of bottle containing kerosene oil from the place of occurrence also supports and corroborate the prosecution version. He argued that appeal having no merit should be dismissed.
We have heard learned counsel for the appellant and learned counsel for U.T., Chandigarh and have gone through the evidence on record minutely and carefully.
From the evidence on record, we find merits in the contentions of learned counsel for the appellant. The present case is mainly based on dying declaration recorded on 02.03.2007 by Sh.A.S.Shergill, Judicial Magistrate Ist Class, Chandigarh. Occurrence took place on 28.02.2007 at about 9:30 a.m. Even as per first dying declaration, Sheela Devi stated that she caught fire while preparing 'chappati' on the stove and her husband tried to extinguish the fire with water but did not extinguish. She sat under the tap of water but the fire did not extinguish. Their neighbour came there and put a blanket upon her, as such the fire was extinguished. Criminal Appeal No.D-926-DB of 2008 [10] This first statement given on the same day was the earliest version. Then after two days, Dr.Neelam (PW1) sent memo Ex.PA to the SHO of Police Station, Sector 39, Chandigarh. PW1 Dr.Neelam stated in cross-examination that the information Ex.PA was sent on the request of some relative of Sheela Devi. Doctor had not asked from Sheela whether she was willing to give statement or not. Therefore, this fact shows that some other relative of the deceased was interested to get statement of Sheela recorded again. From this evidence, it is proved that Sheela Devi never made any request to change her statement or to get it recorded again. The perusal of second dying declaration recorded on 02.03.2007 by Sh.A.S.Shergill, Judicial Magistrate Ist Class, shows that even in that statement she stated that she has been brought to the hospital by her husband. She also stated that her husband poured water on her. In this statement she has also given the incorrect date of occurrence. The occurrence took place on 28.02.2007 whereas in the second dying declaration, the date has been given as 01.03.2007. The appellant has been convicted under Section 302 IPC. If there would have been an intention to kill Sheela Devi by her husband Satbir Singh appellant-accused then question of bringing her to hospital does not arise. It also looks unnatural that the person who wanted to kill his wife by pouring kerosene oil on her also make attempt to extinguish the fire by putting water on her. Therefore, from this second dying declaration dated 02.03.2007, it looks that statement has been given Criminal Appeal No.D-926-DB of 2008 [11] at the instance of someone to implicate the accused. From the evidence on record, we find that mother of Sheela (deceased) was present in the hospital when the second dying declaration was recorded. PW5 Krishna, mother of the deceased Sheela, came to hospital on 28.02.2007 but Sheela Devi never told that her husband had put her on fire and also on the next day. As per statement of PW5 Krishna two days after reaching in the hospital, Sheela on her asking told her that accused had poured kerosene oil on her. This version also cannot be believed. If actually accused had put her on fire then Sheela might have told her mother immediately on her arrival in the hospital on 28.02.2007. In the cross-examination, PW5 Krishna has stated that the Magistrate recorded the statement of her daughter on 02.03.2007 in her presence. She alone was present at that time. This fact creates reasonable doubt in the version of prosecution that the second statement was tutored one and under pressure. PW5 Krishna also stated in cross-examination that she approached Dr.Neelam and told her that her daughter wanted to make a further statement. She also admitted that it was on her request that Dr.Neelam gave information to the police that Sheela Devi (deceased) wanted to make second statement. Further, we find that PW5 Krishna in her statement has stated that the doctor had asked my daughter as to how she had received burns in the presence of the Magistrate and she replied that she had been set on fire by her husband. The Magistrate was recording this statement of Criminal Appeal No.D-926-DB of 2008 [12] her daughter. PW11 Sh.A.S.Shergill, Judicial Magistrate Ist Class in chief-examination stated that Doctor remained present within the ward but no other person or police official stayed with Sheela Devi. He also stated that he was satisfied that Sheela Devi was mentally and physically fit to make statement. In cross-examination, he stated that he do not know if relatives of Sheela Devi were present by her bed side when he met her for the first time. He did not ask any specific question to assure himself about the mental fitness of Sheela Devi. However, the doctor had voluntarily asked her name and the question whether she was able to make statement. From these questions of doctor and answers of Sheela Devi, he was satisfied about her mental and physical fitness. He also stated that he did not make a separate note of the fact that he had disclosed his identity to Sheela Devi. Lateron, in cross-examination, he stated that all the questions were put by him to Sheela Devi. He also stated in the cross-examination that doctor was not present by the bed side of Sheela Devi during recording of her statement but otherwise present in the ward. This statement of Magistrate (PW11) is contradictory to the document where he obtained the opinion of the doctor at 3:45 p.m. regarding the fitness of Sheela Devi and then again he obtained the opinion of the doctor that during recording of statement of Sheela Devi, she has remained fit and conscious, which was given at 3:55 p.m. This opinion of the doctor itself shows that he remained present during the recording of statement that is why he gave the opinion that Criminal Appeal No.D-926-DB of 2008 [13] patient remained fit during recording of the statement. In view of the above discussion and the fact that there are two contradictory dying declarations, a reasonable doubt exists in the prosecution version. The mere fact that no blanket was found or the appellant-accused has not got himself medically examined regarding his burn injuries on the hand etc. are no ground to hold the accused guilty. We are conscious about the law that even on the basis of dying declaration alone accused can be convicted but in the facts and circumstances of the present case there being two contradictory dying declarations both recorded by the Magistrate and there being doubt regarding tutoring and pressure upon the patient and further that a husband had made attempt to extinguish the fire and got Sheela Devi admitted in the hospital even as per dying declaration, create reasonable doubts in the prosecution version. Therefore, a reasonable doubt exists in the prosecution case and benefit of doubt is to go to the accused. Hence giving benefit of doubt to the accused he is held not guilty of the charges framed against him.
Therefore, the present appeal filed by Satbir Singh is allowed and the impugned judgment of conviction and order of sentence is set aside. Appellant Satbir Singh, who is in custody, be set at liberty forthwith, if not required in any other case.
(SATISH KUMAR MITTAL) (INDERJIT SINGH)
JUDGE JUDGE
18.09.2012
mamta