Punjab-Haryana High Court
Banwari Lal Son Of Chemla vs State Of Haryana And Others on 12 August, 2013
Author: S.S.Saron
Bench: S.S.Saron
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA NO.D-589-DB OF 2013(O&M)
Decided on:- 12.08.2013
Banwari Lal son of Chemla, resident of village Soank, District Panipat.
..................Appellant
vs.
State of Haryana and others
..................Respondents
CORAM HON'BLE MR. JUSTICE S.S.SARON
HON'BLE MR. JUSTICE S.P.BANGARH
Present:- Mr. K.S.Dhaliwal, Advocate
for the appellant.
S.P.BANGARH,J
On 26.10.2010, an information was received from CHC Julana in Police Station Julana to the effect that Sunita wife of Sanjay, resident of village Malvi was brought as a burn case and she has been referred to PGIMS Rohtak. On receipt of this information, ASI Ranbir Singh alongwith Constable Jaimal Singh went to police post PGIMS Rohtak after collecting MLR of Sunita injured, therefrom, he went to ward no.4 of PGIMS Rohtak and obtained opinion of the attending doctor regarding fitness of Sunita to make statement. Doctor declared Sunita, injured fit to make a statement. Thereupon, ASI Ranbir Singh went to learned Duty Magistrate, Rohtak and requested him by moving an application to record statement of Sunita, injured under Section 164 of the Code of Criminal Procedure 'Cr.P.C' for short). Thereupon, learned Duty Magistrate came to ward no.4 of PGIMS Rohtak and sought opinion of the attending doctor regarding fitness of injured Sunita. She was declared fit to make statement and thereafter, following statement of Mamta 2013.08.29 16:37 I attest to the accuracy of this order Chandigarh Sunita in question and answer form was recorded:-
Q. What happened with you and how?
A The occurrence took place today around 09:00 a.m. I was present in the house and all have burnt me. My husband, mother-in-law and younger brother-in-law Sandeep have set me on fire jointly.
Q. How you were burnt and why?
A I was burnt by sprinkling kerosene oil. I was set ablaze because there was a dispute about sale of land in the house. I was refusing to sell the land.
Q. At the time when you were set on fire, who were present at the house?
A When I was put to flame, my husband, younger brother-in-law were present in the house.
Q. Whether your father-in-law also set you on fire or helped? A My father-in-law had also helped in igniting the fire on my body. Q. Had your father-in-law not played any role in burning you? A I have been burnt with their common conspiracy. Q. Have you anything else to say?
A I have not to say anything more.
Right thumb impression of Sunita Sd/-
Basruddin,
Duty Magistrate/JMIC, Rohtak
After recording the aforementioned statement of Sunita, learned Magistrate gave a certificate that he had explained to Sunita that she was not bound to make statement and if she does so, it can be read against her in her evidence. Learned Magistrate believed that the statement made by prosecutrix was voluntary. He read over and explained the statement to Sunita, who admitted the correctness, thereof.
After obtaining copy of statement of Sunita (since deceased), ASI Ranbir Singh made his endorsement, thereon, and sent the same to Police Station Julana through Constable Jaimal Singh for registration of the Mamta 2013.08.29 16:37 case. Thereafter, he alongwith Sunita's brother Kaptan Singh visited the spot I attest to the accuracy of this order Chandigarh and recovered burnt clothes, one five litre capacity plastic container containing residue approximately one litre kerosene oil, match box and a pair of half burnt slippers of the deceased. Those were made into separate parcels, that were sealed by ASI Ranbir Singh. On 04.11.2010, on receipt of a message regarding death of Sunita, Section 302 IPC was added in the case. Thereafter, SI Chhotu Ram, SHO Police Station Malvi went to PGIMS Rohtak and conducted inquest report on the corpse of Sunita and sent the same to the mortuary for autopsy. Respondents nos. 2 to 5 were arrested in this case.
After completion of investigation, Station House Officer of Police Station Julana instituted police report under Section 173 Cr.P.C before the learned Illaqa Magistrate to the effect that it appears that the respondents nos. 2 to 5 have committed offences punishable under Section 302 IPC read with Section 120-B IPC.
On presentation of police report, copies of documents, as required under Section 207 Cr.P.C, were furnished to the respondents nos. 2 to 5 and the case was committed to the learned Court of Session. On receipt of session case, learned Sessions Judge, Jind framed charge under Section 120-B IPC and under Section 302 IPC read with Section 120-B IPC against respondents nos. 2 to 5, whereto, the latter pleaded not guilty and claimed trial. Consequently, prosecution evidence was summoned.
At he trial,prosecution examined as many as 16 witnesses, who deposed as under:-
PW1 Kaptan Singh, brother of Sunita deceased deposed that the latter was married with Sanjay (respondent no.4) on 02.03.1996 and two children had born out of this wedlock. He further deposed that since from the very beginning of marriage, she was being harassed and maltreated by her husband and family members for not bringing motorcycle and for not fulfilling Mamta 2013.08.29 16:37 their other dowry demands and they used to beat her on that account. He I attest to the accuracy of this order Chandigarh also deposed that panchayat was convened several times to dissuade them, but they relented for some time, but started maltreating and harassing her after some time. He also deposed that Sanjay (respondent no.2) was running a computer centre, where he had employed a girl named Priti and developed illicit relations with her and thus was spending his entire income upon her. He had also started selling his holdings, whereto, the deceased objected to and he further deposed that around 11:00/11:30 a.m on 26.10.2010, some unknown person had telephonically informed them about setting his sister ablaze by respondents nos. 2 to 5 by sprinkling kerosene oil, whereupon, he and his brother Dalbir Singh alongwith their wives and some other persons reached PGIMS Rohtak at about 03:00/03:30 pm, but were stopped outside the room wherein his sister was hospitalized saying that the learned Magistrate was recording her statement.
PW1 further deposed that after the learned Magistrate left the hospital, they saw their sister, who also told them that she was set ablaze by respondents nos. 2 to 5 by pouring kerosene oil upon her. PW1 further deposed that thereafter, he alongwith ASI Ranbir Singh and Constable Jaimal Singh went to the spot in village Malvi from where the police collected one five litres' capacity plastic can, one match box, one pair of burnt chappal, besides, few burnt clothes of his sister, that were converted into separate parcels, which were sealed with the seal bearing impression 'RS' and parcels were seized vide memo Ex.PA. Plastic can Ex.P1, match box Ex.P2, pair of chappals Ex.P3 and Ex.P4 and burnt clothes Ex.P5 were produced during the deposition of this witness, who further deposed that Sunita expired on 09.11.2010 in PGIMS Rohtak due to burn injuries.
PW2 Dalbir Singh is another brother of Sunita who deposed likewise and corroborated the testimony of PW1.
PW3 Kuldeep Gupta, Draftsman deposed that after visiting the Mamta 2013.08.29 16:37 place of incident in village Malvi alongwith ASI Ranbir Singh and Dalbir, he I attest to the accuracy of this order Chandigarh prepared scaled site plan Ex.PC on the demarcation of Dalbir.
PW4 Om Parkash, ASI also deposed that on 26.10.2010, on receipt of statement mark A of Sunita wife of Sanjay recorded by JMIC, Rohtak duly endorsed by ASI Ranbir Singh through Constable Jaimal Singh, he recorded FIR Ex.PD under his signatures.
PW5 Jaimal Singh, Constable also deposed that on 26.10.2010 he accompanied ASI Ranbir Singh to PGIMS Rohtak from where the latter gave ruqa mark A duly endorsed by him and he brought the same to the Police Station Julana and thereupon, they both went to the spot in village Malvi and found two matchboxes, one plastic can of kerosene, some burnt clothes and one chappal lying there, that were converted into separate parcels which were sealed and seized vide memo Ex.PA. Plastic can Ex.P1, matchbox Ex.P2, pair of chappal Ex.P3 & Ex.P4 and burnt clothes Ex.P5 were produced during the deposition of this witness.
PW6 Jaibir Singh Photographer also deposed that on 26.10.2010, he went to village Malvi on the asking of police and took photographs Ex.PE and Ex.PE/1 to Ex.PE/10 from the place of occurrence from different angles with his digital camera.
PW7 Suresh Kumar deposed that after having received ruqa on 04.11.2010 regarding death of Sunita, he converted the offence from Section 307 IPC to Section 302 IPC and made entry in this regard in the DDR vide entry Ex.PG. PW7 further deposed that he also sent a copy, thereof, as special report to the learned Illaqa Magistrate through HC Satish Kumar. He also tendered his affidavit Ex.PF regarding deposit of three sealed parcels along with specimen signatures with him in the malkhana on 26.10.2010 by ASI Ranbir Singh and regarding sending the same to FSL Madhuban on 10.11.2010 through EHC Surinder Singh.
PW8 EHC Surinder Singh also tendered in evidence his affidavit Mamta 2013.08.29 16:37 Ex.PH regarding sending of the sample. I attest to the accuracy of this order Chandigarh PW7 and PW8 both also deposed that so long as the case property remained in their possession, no one tampered, therewith.
PW9 Dr.Viney Kumar, Medical Officer, General Hospital, Bahadurgarh tendered his affidavit Ex.PJ regarding conducting of post mortem examination on the corpse of Sunita deceased on 05.11.2010. PW9 also proved police request Ex.PL, inquest report Ex.PM and autopsy report Ex.PK.
PW10 Dr.Kuldeep, Senior Resident, Department of Burns and Plastic Surgery, PGIMS Rohtak deposed on the basis of the short stay file Ex.PN of Sunita deceased that she was admitted in the said institute on 26.10.2010 vide CR No. 897427 in ward no.4 and expired on 04.11.2010 at 04:50 p.m. He further deposed that information Ex.PO was sent to police in this regard and he had also treated her during medical treatment.
PW11 Dr.Vikas also deposed that on 26.10.2010, on police request Ex.PQ, he gave his opinion Ex.PQ/1 declaring the injured Sunita fit to make her statement. After seeing the statement Ex.PR of Sunita, he deposed that it was the same that was recorded by the learned Magistrate, Rohtak in his presence. He also deposed that she remained fit during recording of her statement.
PW12 Dr. Satya Parkash, Junior Resident, General Surgery, PGIMS, Rohtak corroborated the statement of PW11 Dr.Vikas and also deposed that on police request Ex.PQ moved on 26.10.2010 for seeking his opinion regarding fitness of injured Sunita to make statement around 01:35 p.m, he gave his opinion that she was fit to make statement.
PW13 ASI Randhir Singh investigated this case at the initial stage. He deposed that on 26.10.2010, he was posted as such in Police Station Julana and on that day, after receipt of ruqa Ex.PQ regarding admission and referral of Sunita from CHC, Julana, he alongwith a Constable Mamta 2013.08.29 16:37 went to police post, PGIMS, Rohtak and collected ruqa Ex.PS along with I attest to the accuracy of this order Chandigarh MLR mark B of injured Sunita and went to ward of said institute and sought opinion of the attending doctor and the latter vide his opinion Ex.PQ/2 declared her fit to make statement. He further deposed that thereafter, he went to the Court and moved application Ex.PT before Sh.Basruddin, Judicial Magistrate Ist Class, Rohtak for recording the statement of injured Sunita under Section 164 Cr.P.C and, thereafter, learned Magistrate came to PGIMS, Rohak and recorded her statement after obtaining opinion of the attending doctor. He further deposed that he obtained a copy Ex.PV /mark A, thereof, by moving application Ex.PV and after making his endorsement Ex.PV/1, thereon, he sent the same to Police Station through Constable Jaimal Singh. He further deposed that, thereafter, he recorded the statement of Dalbir Singh witness under Section 161 Cr.P.C and joined Kaptan Singh in the investigation and left for the place of occurrence and on his way back at bus stand, Julana, Constable Jaimal Singh met them who was joined him in the investigation. They reached the spot, where Jaibir Singh, Photographer was also called and after making inquiry from the persons present there, he inspected the spot and got it photographed, as also, he took into possession can Ex.P1 containing some kerosene oil, match box Ex.P2, pair of chappals Ex.P3 and Ex.P4 and burnt clothes from the spot vide recovery memo Ex.PA. After converting those articles into separate parcels, that were sealed by him with his seal bearing impression 'RS'.
He further deposed that he prepared rough site plan Ex.PX of the place of incident and recorded the statement of Kaptan Singh and Constable Jaimal Singh under Section 161 Cr.P.C. He also deposed that on return to Police Station, he deposited the case property with MHC with seals intact and he arrested Sanjay (respondent no.4) on 28.10.2010, Parkash (respondent no.2) on 01.11.2010, Gianmati and Sandeep (respondents nos.3 and 5) on 04.11.2011 and on the latter date, on receipt of V.T message from PGIMS, Mamta 2013.08.29 16:37 Rohtak regarding death of Sunita, he accompanied SI Chhotu Ram, SHO of I attest to the accuracy of this order Chandigarh police post, PGIMS, Rohtak and collected ruqa Ex.PY.
PW14 Sh.Basruddin, the then Judicial Magistrate Ist Class, Rohtak deposed that on 26.10.2010 on application Ex.PT moved by ASI Randhir Singh, SI he went to ward no.4, PGIMS, Rohtak and after seeking opinion Ex.PQ/1 of the attending doctor, recorded the statement Ex.PR of injured Sunita under Section 161 Cr.P.C, that was read over to her and she thumb marked the same in token of its correctness and thereafter, he gave certificate Ex.PR/1 on its bottom and passed order Ex.PR/2. He also allowed application Ex.PU moved by the Investigating Officer for supplying of carbon copy of the statement of Sunita.
PW15 SI Chhotu Ram deposed that on 04.11.2010, on receipt of telephonic message from police post, PGIMS, Rohtak regarding death of Sunita, he took up the investigation of this case from ASI Ranbir Singh and added Section 302 IPC and sent special report Ex.PG to the learned Illaqa Magistrate through HC Satish Kumar and, thereafter, he went to PGIMS, Rohtak but due to darkness, proceedings under section 174 Cr.P.C were not initiated. He further deposed that on 05.11.2010 he prepared inquest report Ex.PM and got conducted autopsy on the corpse of Sunita by moving application Ex.PL and after doing needful, doctor gave him a copy of autopsy report of Sunita Ex.PK and he then handed over the corpse of Sunita to her relatives and recorded the statements of Sunil and Raja sarpanch under Section 161 Cr.P.C. He further deposed that on return to Police Station, he recorded statement of HC Satish Kumar under Section 161 Cr.P.C and thereafter, on different dates, he recorded statements of the relevant witnesses and after completion of investigation prepared police report under Section 173 Cr.P.C on 17.11.2010.
PW16 Dr. Rakesh Kumar, Casualty Medical Officer, PGIMS Rohtak tendered his affidavit Ex.PG regarding medicolegal examination of Mamta 2013.08.29 16:37 Sunita, who died on 09.11.2010. He proved MLR of Sunita Ex.PAA. She I attest to the accuracy of this order Chandigarh deposed that there were superficial to deep burns present all over the body. There were approximately 95-100% burns. The injuries were kept under observation that were caused by burns within a probable duration of six hours. He advised surgeon's opinion and further management. He also sent ruqa Ex.PS to the incharge police post regarding hospitalization of Sunita. Thereafter, the prosecution evidence was closed.
After the closure of prosecution evidence, respondents nos. 2 to 5 were examined under section 313 Cr.P.C, wherein, they denied the allegations of prosecution, pleaded innocence and false implication in the case. Parkash (respondent no.2) gave his own version that he was an old man suffering from paralysis for the last eight years. He had been taking treatment from local vaids of villages Khatiwas and Kheri. Because of bad habits of Sunita, he had disinherited her and her husband from his movable and immovable property. Sandeep (respondent no.5) had constructed a new house at the outskirt of the village where he alongwith his wife was living separately from Sanjay (respondent no.4). He was unable to move without the support of some other person. Sunita deceased had made a false statement before the Magistrate with a revengeful intention. Gianmati and Sandeep (respondents nos.3 and 5) also gave the similar version that had been given by Parkash (respondent no.2). Sanjay (respondent no.4) also gave his own version which need not to be reproduced in his appeal, as the same is irrelevant to the present appeal.
Respondents nos. 2 to 5 were called upon to enter in defence. They tendered documents Ex.DC and Ex.DD and copy of the jamabandi Ex.DE and closed evidence.
After hearing both the sides, learned trial Court vide impugned judgment dated 06.01.2012 acquitted Parkash (respondent no.2) of the charge framed against him, while convicted respondents nos 3 to 5 for Mamta 2013.08.29 16:37 commission of offences punishable under Sections 120-B IPC and 302 IPC I attest to the accuracy of this order Chandigarh read with Section 120-B IPC and sentenced them to undergo rigorous imprisonment for life each and to pay fine of Rs.10,000/- each and in default of payment of fine to undergo rigorous imprisonment for one year each for commission of offence punishable under Section 120-B IPC and to undergo rigorous imprisonment for life and to pay fine of Rs.10,000/- each and in default of payment of fine, to further undergo rigorous imprisonment for a period of one year each for the commission of offence punishable under Section 302 IPC read with Section 120-B IPC.
Aggrieved against the impugned judgment, appellant herein, who is the father of the deceased has come up in this appeal with prayer for acceptance, thereof, and for convicting and sentencing respondent no.2 for commission of offence punishable under Section 120-B IPC and 302 IPC read with Section 120-B IPC like respondents nos. 3 to 5. In this appeal, compensation against the respondents has also been sought.
It may be mentioned that respondents nos. 3 to 5 have been convicted and sentenced vide impugned judgment and order of sentence dated 06.01.2012. They have already filed a criminal appeal No. D-245-DB of 2012 in this Court.
Learned counsel for the appellant contended that the impugned judgment dated 06.01.2012 regarding acquittal of respondent no.2 is based on conjectures and surmises. He further contended that the learned trial Court did not appreciate the evidence on record in a proper manner and fell in grave error in acquitting respondent no.2. He also contended that the learned trial Court failed to compensate the aggrieved appellant for the loss suffered by him due to death of his daughter Sunita. So, he contended that the appellant deserves to be awarded compensation to the tune of Rs.5,00,000/-.
We have given our thoughtful consideration to the contentions Mamta 2013.08.29 16:37 raised by the learned counsel for the appellant. I attest to the accuracy of this order Chandigarh From the dying declaration Ex.PR of the deceased that has been reproduced at page no.3 of the impugned judgment, as also, at page no.2 of this judgment, it is candid that deceased told that her husband, mother-in-law and younger brother-in-law Sandeep had set her on fire jointly. If respondent no.2, father-in-law of the deceased would have set her on fire, she would have given his name in the first question put to her by the Judicial Magistrate Ist Class, Rohtak at the time of recording of her statement under Section 164 Cr.P.C. The first question was put to Sunita deceased, as to what happened with her and how. The answer to the first question must prevail to be the right answer. This answer rules out the participation of respondent no.2 in the occurrence.
Even, third question was put to Sunita to the effect that at the time of fire, who were present at the house. She again answered that when she was put to flame, her husband and younger brother-in-law were present in the house. If her father-in-law (respondent no.2) would have been present in the house, she would have told that her father-in-law respondent no.2 was also present in the house. So, in view of this answer of deceased, the presence of respondent no.2 in the house where alleged incident had taken place is ruled out. When another question was put to deceased whether her father-in-law also set her on fire or helped, then she answered that her father- in-law had also helped in igniting the fire on her body. Then another question was put to her, had her father-in-law not played any role in burning her? She answered that she had been burnt with their common conspiracy. When in question no.1 and question no.3, she ruled out the participation of respondent no.2 in the incident and presence of respondent no.2 in the house,then her answer to the fourth question to the effect that her father-in-law also helped in igniting the fire on her body becomes false. It is otherwise a very vague answer, as the alleged role performed by respondent no.2 has not been Mamta 2013.08.29 16:37 narrated tersly by the deceased. I attest to the accuracy of this order Chandigarh So, respondent no.2 was not present at the time of incident. Apart from that, it is his version that he is suffering from paralysis for the last eight years and has been taking treatment from local vaids. As per his version, he and his wife were living separately. There is no evidence on the record that respondent no.2 was living in the house where the incident had taken place. When there is no prosecution evidence regarding the joint residence of the respondent no.1 with the deceased, he could not be present at the alleged place of incident and even if he would have been present at the time of alleged incident, he being a paralytic could not participate in the incident, as also, because of his bodily condition, he could also not dissuade the alleged culprits of the incident.
So, respondent no.2 was suffering from paralysis for the last eight years and was taking treatment from local vaids of villages Khatiwas and Kheri. That apart, PW1 and PW2, brothers of Sunita deceased, during cross examination pleaded ignorance about the physical condition of respondent no.2 and they deposed that they do not know whether Parkash (respondent no.2) was suffering from paralysis for the last seven years and was getting treatment from some vaids of villages Khatiwas and Kheri. They, thus, could not deny that the deceased was suffering from paralysis. In other words, PW1 and PW2 could not state categorically that respondent no.2 was not suffering from paralysis. Meaning, thereby, that, they are impliedly admitting that respondent no.2 was suffering from paralysis.
Dying declaration Ex.PR of the deceased qua participation of the respondent no.2 is not true and voluntary and the learned trial Court rightly held so. Even, this question was not required to be put regarding setting her on fire or helping him in fire by respondent no.2 especially when in earlier questions she had ruled out presence and participation of respondent no.2. If she had named respondent no.2 in her earlier questions, only in that event, Mamta 2013.08.29 16:37 participation and presence of the respondent no.2 at the time of alleged I attest to the accuracy of this order Chandigarh occurrence could be held to have been established.
Learned trial Court rightly observed that throughout the trial of the case, it was observed that Parkash (respondent no.2) was being brought in the court room with the support of two persons who was not able to walk independently and sit properly. In this view of the matter, learned trial Court rightly observed that the defence version that respondent no.2 was suffering from paralysis for the last eight years stands proved. Besides, respondent no.2 being in advance age of 65 years could not be expected to participate in the burning of her deceased daughter-in-law Sunita. Learned trial Court, thus, rightly came to the conclusion that participation of respondent no.2 in committing the crime in this case has not been proved beyond shadow of reasonable doubt and, therefore, he is entitled for acquittal.
There is no illegality or infirmity in the findings of the learned trial Court in acquitting the respondent no.2. It is well settled that when two views are possible, the view favourable to the accused should prevail and the judgment of acquittal cannot be reversed simply on the ground that other view was possible.
Resultantly, impugned judgment, whereby, respondent no.2 was acquitted is upheld and affirmed and prayer for grant of compensation against him raised by the appellant also fails.
Regarding imposition of compensation against respondents nos. 3 to 5, suffice it to say that as per proviso to Section 372(2) Cr.P.C, the victim shall have a right to prefer an appeal against imposition of inadequate compensation. Indeed, no compensation was granted in favour of the appellant against respondents nos. 3 to 5. The appeal could be maintained against respondents nos. 3 to 5 only, if compensation granted by the trial Court would have been inadequate. So, appellant may seek remedy of compensation in the pending criminal appeal No. D-245-DB of 2012, that has Mamta 2013.08.29 16:37 been filed by respondents nos. 3 to 5. So, the instant appeal for grant of I attest to the accuracy of this order Chandigarh compensation against respondents nos. 3 to 5 is also not maintainable.
Resultantly, appeal fails and is, hereby, dismissed. CRM No.30018 of 2013 Keeping in view the fact that the appeal has been dismissed, question of condonation of delay of 390 days in filing the appeal is only academic and CRM No.30018 of 2013, is also, dismissed.
However, this order shall not be construed as an expression of opinion in the criminal appeal No.D-245-DB of 2012 filed by respondents nos. 3 to 5.
(S.P.BANGARH) (S.S.SARON)
JUDGE JUDGE
12.08.2013
mamta
1.Whether the Reporters of the Local papers may be allowed to see the judgment? Yes
2. To be referred to the Reporters or? Yes
3. Whether the judgment should be reported in the digest? Yes Mamta 2013.08.29 16:37 I attest to the accuracy of this order Chandigarh