Punjab-Haryana High Court
Tek Chand And Another vs State Of Haryana on 2 April, 2013
Author: Inderjit Singh
Bench: Jasbir Singh, Inderjit Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No.D-103-DB of 2011
Date of decision : 02.04.2013
Tek Chand and another
.... Appellants
VERSUS
State of Haryana
.... Respondent
CORAM : HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MR.JUSTICE INDERJIT SINGH
***
Present : Mr.Ashwani Bhardwaj, Advocate, for the appellants.
Mr.Sandeep Vermani, Addl. Advocate General, Haryana, for the respondent-State.
*** INDERJIT SINGH, J Appellants Tek Chand and Krishna Devi have preferred the present appeal against the judgment of conviction dated 16.12.2010 and order of sentence dated 18.12.2010, passed by Addl. Sessions Judge, Hisar, vide which appellant Tek Chand has been held guilty for the commission of offence punishable under Section 498-A IPC and appellant Krishna has been held guilty for the commission of offence punishable under Section 302 IPC and accordingly Tek Chand has been convicted and sentenced to imprisonment already undergone and to pay a fine of Rs.2,000/- and Criminal Appeal No.D-103-DB of 2011 [2] in default of payment of fine to further undergo rigorous imprisonment for one month under Section 498-A IPC and appellant Krishna Devi has been convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- and in default of payment of fine to further undergo rigorous imprisonment for six months under Section 302 IPC. However, both the appellants-accused have been acquitted of the charge under Section 304-B IPC.
Brief facts of the prosecution case are that on 13.05.2008, a V.T. message from Control Room, Hisar, was received in Police Station, Barwala that Sulochana wife of Tek Chand was admitted in General Hospital, Hisar on account of burns, whereupon ASI Joginder Singh, Investigating Officer, alongwith EHC Pritam reached General Hospital, Hisar and collected medical ruqa and MLR of Sulochana and sought the opinion of the doctor regarding her fitness for recording her statement. Thereafter, Investigating Officer submitted an application for recording the statement of Sulochana before Duty Magistrate, Hisar, who dismissed the said application vide order Ex.PM with the observation that no FIR in this case was registered so far. Then, Investigating Officer went to General Hospital, Hisar and recorded the statement Ex.PR of Sulochana, in which she stated that about six years back, she was married with Tek Chand. She has two daughters. Her elder daughter is about three years old and younger daughter is aged about six months. On 13.05.2008 at about 6/7:00 a.m., when she was sleeping, her Criminal Appeal No.D-103-DB of 2011 [3] husband and her brother-in-law (devar) gave her beatings. Thereafter, when her husband went to bring milk, her mother-in-law poured kerosene from a cane over her and set her on fire. She also stated that the cause of the occurrence was that her mother-in-law, her husband and her brother-in-law Surender were generally raising demand of dowry and used to give her beatings and used to say that her family members had given insufficient dowry in the marriage. They used to say her to bring more money. About 4-5 months earlier, she had brought Rs.50,000/- from her brother and mother and handed over the same to her in-laws. On 13.05.2008, they have again asked her to bring Rs.30,000/- to which she replied that her mother and brother are poor persons and they could not give that much amount at once. On this account, her mother-in-law flared up and set her on fire. In the meanwhile, her husband and brother-in- law also came there but on seeing her ablaze, they went. No one extinguished the fire. She continuously cried loudly. In the meanwhile, her mother's sister's son Om Parkash, who is also residing in Barwala, reached there and extinguished the fire and brought her to hospital, Hisar, for treatment where the doctor started giving her treatment. Statement of Sulochana was recorded at about 3:15 p.m. on 13.05.2008 by ASI Joginder Singh of Police Station, Barwala. On the basis of her statement, ruqa was sent to the police station pursuant to which FIR was registered. Thereafter, Investigating Officer moved another application Ex.PN before Duty Criminal Appeal No.D-103-DB of 2011 [4] Magistrate, Hisar, for recording the statement of Sulochana, pursuant to which Duty Magistrate, Hisar, reached General Hospital, Hisar and recorded her statement. Thereafter, Investigating officer inspected the spot. Rough site plan Ex.PT of the place of occurrence was prepared. On 14.05.2008, information from General Hospital, Hisar was received regarding death of Sulochana. Special report Ex.PV regarding her death was also sent to higher police officials/officers and offence under Section 304-B IPC was added. Inquest proceedings Ex.PC of the dead body of Sulochana were conducted. Postmortem examination on the dead body of Sulochana was got conducted. Accused Tek Chand was arrested. On interrogation, he suffered disclosure statement Ex.PW regarding concealing of cane of kerosene and Rs.20,000/- in the house of his maternal uncle and in pursuance thereof, he got recovered cane of kerosene which was taken into police possession vide memo Ex.PY. Statements of witnesses were recorded. After necessary investigation, challan against accused Tek Chand was presented before the Court.
On presentation of challan, copies of challan and other documents were supplied to accused Tek Chand under Section 207 Cr.P.C. Firstly, finding a prima facie case against accused Tek Chand, he was charge-sheeted for the offence punishable under Section 304-B IPC to which he pleaded not guilty and claimed trial. Thereafter, on an application under Section 319 Cr.P.C., filed by Public Prosecutor, Krishna Devi was summoned as accused in this Criminal Appeal No.D-103-DB of 2011 [5] case. Copies of challan and other documents were also supplied to her under Section 207 Cr.P.C.
Finding a prima facie case against both the accused, accused Tek Chand was charge-sheeted for the commission of offence punishable under Section 304-B IPC and accused Krishna Devi was charge-sheeted for the commission of offence punishable under Section 302 IPC to which they pleaded not guilty and claimed trial.
The prosecution, in support of its case, examined PW1 Dr.Anita, who mainly deposed that on 14.05.2008, she alongwith Dr.Ashok Goyal conducted the postmortem examination on the dead body of Sulochana. She deposed that on examination, superficial to deep burns were found present all over the body except both soles of the feet about 100%. Line of demarcation was seen between burnt and healthy area. Right side of heart was full of blood, left side was empty. The cause of death in this case, as per the opinion of the doctors, was shock due to extensive burns which were ante-mortem in nature and sufficient to cause death in the normal course of nature. Probable time between death and injury was variable and between death and postmortem was within 24 hours. PW2 Raju, Draftsman, mainly deposed regarding preparing of scaled site plan. PW3 Dr.Sunita Garg mainly deposed regarding medico legal examination of Sulochana on 13.05.2008. She deposed that it was a case of alleged history of burns. On examination, patient was Criminal Appeal No.D-103-DB of 2011 [6] conscious but pulse BP was unrecordable. This witness also deposed regarding sending ruqa to Incharge Police Post, Government Hospital, Hisar. PW4 Jasbir Singh, Sub Divisional Judicial Magistrate, Ratia, deposed that on 13.05.2008, an application Ex.PK was moved for recording dying declaration of Sulochana and he dismissed that application and made a noting Ex.PL. He also passed separate order Ex.PM. He deposed that on the same day, ASI Joginder Singh moved separate application Ex.PN for recording statement of Sulochana under Section 164 Cr.P.C. He (PW4) further deposed that after seeking the opinion of the doctor qua fitness of injured Sulochana, he recorded her statement which was read over and explained to her and her left toe impression was taken in token of its correctness. He also deposed that Sulochana was also asked to make voluntarily statement without any pressure. PW5 Dr.Dalel Singh mainly deposed regarding his opinion about the fitness of Sulochana on police application Ex.PN. He also deposed regarding his opinion about the fitness of Sulochana before recording her statement by the Judicial Magistrate. This witness also deposed that Sulochana was not able to do signatures or to put thumb impression due to burns, so impression of left big toe was obtained on her statement. PW6 ASI Joginder Singh (Retd.), Investigating Officer, mainly deposed regarding the investigation conducted by him in this case. PW7 Sub Inspector Manjit Singh mainly deposed regarding recording of FIR in this case. He also deposed regarding Criminal Appeal No.D-103-DB of 2011 [7] suffering of disclosure statement by accused Tek Chand and recovery of dowry articles, plastic cane etc. in pursuance of disclosure statement.
At the close of prosecution evidence, the accused were examined under Section 313 Cr.P.C. and confronted with the evidence of prosecution. The accused denied the correctness of the evidence and pleaded themselves as innocent. Accused Tek Chand also pleaded that relations between him and Sulochana were cordial and she gave birth to two girls. They were leading quite happy life but Sulochana was under depression due to mental sickness and she sprinkled kerosene upon her under depression and ended her life. He, Sulochana and his children used to reside separately from his parents and brother. Accused Krishna Devi also took the same plea as taken by accused Tek Chand.
In defence, accused examined DW1 Vishnu Dutt, who deposed that marriage of his real sister Sulochana was solemnized with accused Tek Chand. Tek Chand and his family members kept her sister properly. This witness also deposed that Tek Chand or his parents and other family members never demanded any dowry or cash amount from them. He deposed that he did not pay amount of Rs.50,000/- to his sister Sulochana for giving it to Tek Chand. He further deposed that his sister never complained of any ill treatment given to her by her husband or in-laws. DW2 Om Parkash, cousin of Sulochana (deceased), mainly deposed the same facts as stated by Criminal Appeal No.D-103-DB of 2011 [8] DW1 Vishnu Dutt. DW3 Sub Inspector Prahlad Rai mainly deposed that he, after investigation, filed challan against accused Tek Chand. He deposed that remaining accused, mentioned in the dying declaration, were found innocent by DSP Puran Chand Panwar. This witness also deposed that in the present case, deceased had made dying declaration before the police as well as before the Magistrate. He (DW3) deposed that as per verification, it was found that deceased Sulochana was set on fire. He further deposed that dying declaration of deceased was found false. DW4 DSP Puran Chand Panwar deposed that statements of Sulochana, which were made to ASI Joginder Singh and Shri Jasbir Singh, Judicial Magistrate, were found incorrect qua Krishna, mother-in-law and Surender, Devar of Sulochana. This witness deposed that during his verification, he found that deceased Sulochana was residing with her husband Tek Chand in a separate house from other family members. In cross- examination, he (DW4) admitted that at the time of verification of facts, there were statements of Vishnu, Om Parkash son of Mangal, Shanti and Om Parkash son of Shiv Dass under Section 161 Cr.P.C., levelling allegation of harassment against accused Krishna. This witness also deposed that deceased Sulochana and her husband Tek Chand were residing in a separate house but the compound was common with other family members. DW5 Sub Inspector Pankaj Sharma brought the record of ration card of Piare Lal, Tek Chand and Rajinder. He deposed that as per record, Piare Lal son of Ganesh is Criminal Appeal No.D-103-DB of 2011 [9] resident of House No.400 Ward No.16, Barwala and members in his family are Piare Lal, Krishna Devi, Surender and Parveen. He further deposed that Tek Chand son of Piare Lal is resident of House NO.401, Ward No.16, Barwala and members of his family are Tek Chand, Seema Rani and Manju Rani. He deposed that Rajinder son of Piare Lal is resident of House No.402 Ward No.16, Barwala and members of his family are Rajinder Kumar, Suman and Bala. This witness proved photocopies of forms Ex.DW5/A, Ex.DW5/D and Ex.DW5/F of ration card.
The trial Court, after appreciation of evidence, convicted and sentenced appellants-accused, as stated above.
At the time of arguments, learned counsel for the appellants contended that appellants are innocent and have been falsely implicated in the present case. There was no demand of dowry nor any harassment was given to Sulochana (deceased). The dying declarations, made by Sulochana (deceased), cannot be relied upon being tutored one and were found false in the inquiry. Therefore, learned counsel for the appellants contended that appeal should be allowed and appellants should be acquitted accordingly.
On the other hand, learned Addl. Advocate General, Haryana, contended that the case of the prosecution has been duly proved beyond doubt. There is no evidence on record that dying declarations made by Sulochana (deceased) were tutored one. From the dying declarations, it is proved that Sulochana was murdered by Criminal Appeal No.D-103-DB of 2011 [10] pouring kerosene and setting her on fire. He also contended that from the dying declarations, it is clear that accused Tek Chand harassed her and raised demand of dowry. Learned Addl. Advocate General, Haryana, further contended that there is no merit in the appeal and it should be dismissed.
We have heard learned counsel for the appellants and learned Addl. Advocate General, Haryana and with their assistance, we have gone through the evidence on record minutely and carefully.
From the evidence on record, we find no merits in the contentions of learned counsel for the appellants. Two dying declarations were made by Sulochana (deceased), one before ASI Joginder Singh, Investigating Officer and second before PW4 Shri Jasbir Singh, Judicial Magistrate. In both the dying declarations, Sulochana consistently stated against accused. She stated that her mother-in-law Krishna Devi put kerosene oil on her and set her on fire. In no way, these dying declarations can be held as a result of tutoring as there is no cogent evidence on record to show that these statements have been given by Sulochana on being tutored. Similarly, perusal of dying declarations does not show any exaggeration as Sulochana (deceased) did not make any allegation regarding murder against her husband. Though she stated that her husband gave her beatings and also stated regarding demand of dowry and harassment on that account. If she had to made any exaggeration then she might have implicated her husband also and Criminal Appeal No.D-103-DB of 2011 [11] would have attributed some act for setting her on fire but she had not done so. This fact alone shows that statements of Sulochana (deceased) made to ASI Joginder Singh, Investigating Officer, (PW6) and Shri Jasbir Singh, Judicial Magistrate (PW4) in no way can be held as result of tutoring and exaggeration. Further, no defence evidence was produced on record to show that how Sulochana (deceased) caught fire. The occurrence took place in the house of accused and it was for the accused to explain how the occurrence took place as these facts were especially within their knowledge. The defence version, as given by DW1 Vishnu Dutt and DW2 Om Parkash, brother and cousin of Sulochana (deceased) respectively, cannot be believed as even DW3 Sub Inspector Prahlad Rai has stated that as per verification, it was found that deceased Sulochana was set on fire. Though, he stated that challan against accused Tek Chand was not filed under Section 302 IPC and it was filed under Section 498-A and 304-B IPC. Statement of DW3 Sub Inspector Prahlad Rai does not show how he found dying declaration of deceased as false. DW4 DSP Puran Chand Panwar stated in cross- examination that at the time of verification of facts, there were statements of Vishnu, Om Parkash son of Mangal, Shanti and Om Parkash son of Shiv Dass under Section 161 Cr.P.C., levelling allegation of harassment against accused Krishna. But now they have appeared as a defence witness. As per cross-examination of DW4 DSP Puran Chand Panwar, though deceased Sulochana and Criminal Appeal No.D-103-DB of 2011 [12] her husband Tek Chand were residing in a separate house but the compound was common with other family members. Therefore, even if ration card is separate, even then the parties are residing in the same house having common compound though in separate portions. Therefore, from the evidence on record, we find that dying declarations, which have been recorded after obtaining the opinion of doctor regarding fitness of Sulochana and further there is satisfaction of the Magistrate regarding her voluntarily statement and in view of the fact that dying declarations are not the result of tutoring and exaggeration, can be safely relied upon. There is nothing in the dying declarations which can be said to be contradictory to prosecution version. Therefore, from the evidence on record, we find that both the dying declarations made by Sulochana are duly supported by medical evidence and recovery of cane of kerosene. Prosecution has duly proved its case by leading cogent evidence beyond reasonable doubt. Therefore, judgment of conviction and order of sentence passed against appellants-accused are upheld.
Resultantly, finding no merit in the appeal, the same is dismissed.
(JASBIR SINGH) (INDERJIT SINGH)
JUDGE JUDGE
02.04.2013
mamta