Punjab-Haryana High Court
Manoj And Others vs State Of Haryana on 15 February, 2012
Author: S.S. Saron
Bench: S.S. Saron
CRA No. 897-DB of 2006 & [1]
CRR No. 1604 of 2007
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
(1) CRA No. 897-DB of 2006
Date of decision : 15.2.2012
Manoj and Others
.... Appellants
Versus
State of Haryana
.... Respondent
CORAM: HON'BLE MR. JUSTICE S.S. SARON.
HON'BLE MR. JUSTICE M. JEYAPAUL.
Present: Mr. Vinod Ghai, Advocate for the appellants.
Mr. H.S. Sran, Addl. A.G., Haryana.
(2) CRR No. 1604 of 2007
Ved Pal
.... Petitioner
Versus
Mahabir and Others
.... Respondents
Present: None for the petitioner.
Mr. Vinod Ghai, Advocate for respondents No.1 to 4.
Mr. H.S. Sran, Addl. A.G., Haryana for respondent
No.5-State.
***
S.S. SARON, J.
This order will dispose of CRA No.897-DB of 2006 filed by Manoj son of Mahabir, Chameli wife of Mahabir and Suman wife of Daljeet Singh (appellants No. 1 to 3 in CRA No.897-DB of 2006) against the State of Haryana (Respondent) and CRR No.1604 of 2007 filed by Ved Pal, complainant (PW9) (Petitioner) against Mahabir son of Neki Ram, Manoj son of Mahabir, Chameli wife of Mahabir, Suman wife of Daljeet CRA No. 897-DB of 2006 & [2] CRR No. 1604 of 2007 Singh and State of Haryana (respondents No.1 to 5 in CRR No.1604 of 2007) as these arise out of the same judgment and order dated 4.9.2006 passed by the learned Sessions Judge, Bhiwani. In pursuance of the said judgment and order dated 4.9.2006 of the learned Sessions Judge, Bhiwani the appellants No. 1 to 3 in CRA No.897-DB of 2006, that is, Manoj son of Mahabir, Chameli wife of Mahabir and Suman wife of Daljeet Singh have been convicted for the offences punishable under Sections 498-A and 304-B Indian Penal Code ("IPC" - for short). They have been sentenced to undergo imprisonment for life for the offence under Section 304-B IPC as also sentenced to undergo rigorous imprisonment for three years, besides, pay a fine of Rs.5,000/- each and in default of payment of fine to undergo further imprsionment for a period of six months for the offence under Section 498-A IPC. Both the sentences have been ordered to run concurrently. The said appellants No.1 to 3 have been acquitted of the offence under Sections 302 and 406 read with Section 34 IPC, besides, the co-accused of the said appellants No.1 to 3 namely Mahabir Singh has been acquitted for the offences for which he was charged. The appellants No.1 to 3 of CRA No.897-DB of 2006 assail the order of their conviction and that of their sentence for the offences under Sections 304-B and 498-A IPC. Ved Pal, complainant (PW9) (Petitioner in CRR No.1604 of 2007) seeks enhancement of sentence awarded to Manoj and Chameli (respondents No.2 and 3 respectively) and for remand of the case to the trial Court as against Mahabir (respondent No.1) who has been acquitted. The facts are taken from the criminal appeal.
CRA No. 897-DB of 2006 & [3]CRR No. 1604 of 2007
The FIR (Ex.PB) in the case has been registered on the statement (Ex.PA) of Ved Pal, complainant (PW9). It is alleged by the complainant Ved Pal (PW9) that he had one daughter and two sons. His daughter Meena Devi (deceased) was married with Manoj (appellant No.1) son of Mahabir (since acquitted) about five years earlier to the incident that had occurred on 14.4.2005. It is stated by Ved Pal, complainant (PW9) that in the marriage of his daughter, he had given dowry beyond his financial capacity. However, his daughter on her return from her matrimonial home for the first time told him (complainant PW9) that her in-laws were not satisfied with the dowry articles that were given in marriage. The complainant had given double bed, television, fridge, cooler, sofa set, almirah, fan, 21 utensils and clothes etc., besides, Rs.2100/- in cash. When the daughter of the complainant (PW9) went to her matrimonial home for the second time, his son-in-law Manoj (appellant No.1), the mother-in-law of his daughter namely Chameli Devi (appellant No.2), the father-in-law of his daughter namely Mahabir (since acquitted) and the husband's elder brother's wife (Jethani) of his daughter namely Suman (appellant No.3) etc. raised a demand for a motorcycle and started beating her for this. Therefore, Meena Devi (deceased), daughter of the complainant (PW9) started living with him (complainant). She stayed with her father (complainant PW9) for 14 months. About 10 months earlier from the incident that occurred on 14.4.2005, the complainant (PW9) made his daughter understand and sent her back in the presence of the Panchayat of Hetampura and Sant Mann Singh son of Chandu Ram resident of Hisar. CRA No. 897-DB of 2006 & [4] CRR No. 1604 of 2007 However, even then the accused were demanding a motorcycle and kept troubling his daughter for dowry. On 14.4.2005 at about 8.00 a.m., Mahabir (since acquitted) informed on telephone from the hospital at Bhiwani that Meena Devi (deceased) had been admitted in the Government Hospital, Bhiwani with burn injuries. On receiving this information, Ved Pal (complainant-PW9) and Dayanand son of Jogi Ram and his brother Shamsher reached the hospital at Bhiwani. There they came to know that Meena Devi (deceased) had been referred to the Post Graduate Institute of Medical Sciences (PGIMS - for short) at Rohtak. Then they all reached PGIMS, Rohtak where he met his daughter in the Emergency Ward of PGIMS Rohtak. His daughter told him that in the morning on that day, her mother-in-law namely Chameli Devi (appellant No.2) had called her in the room and her husband Manoj (appellant No.1) poured kerosene oil on her and her husband's elder brother's wife (Jethani) namely Suman (appellant No.3) lit a matchstick and set her on fire on account of which she got burnt. After sometime Meena Devi (deceased) while she was under treatment breathed her last. It is alleged by the complainant (PW9) that on account of greed for dowry, his daughter Meena Devi (deceased) had been set on fire by pouring kerosene oil on her by her husband Manoj (appellant No.1), mother-in-law Chameli Devi (appellant No.2) and husband's elder brother's wife (Jethani) Suman (appellant No.3) after colluding with each other. He requested for action being taken. The statement as given was heard by the complainant (PW9) and was accepted as correct. The said statement (Ex.PA) of the complainant (PW9) was recorded by Chhattarmal ASI, Police CRA No. 897-DB of 2006 & [5] CRR No. 1604 of 2007 Station Sadar Bhiwani (PW11). Thereafter, Chhattarmal ASI (PW11) recorded the police proceedings (Ex.PA/1) to the effect that on 14.4.2005 a telephone message was received at the Police Station from the Incharge Police Post, General Hospital, Bhiwani regarding admission of Meena Devi wife of Manoj resident of Hetampura with burn injuries. On this Chhattarmal ASI (PW11) along with HC Ram Avtar and Constable Sita Ram reached General Hospital, Bhiwani. He collected medical ruqa (memo) along with medico-legal report (MLR) of Meena Devi (deceased). They sought opinion from the doctor regarding fitness of the injured Meena Devi to record her statement before a Magistrate. The doctor stated that she was fit to make a statement. Then ASI Chhattarmal (PW11) got the Duty Magistrate to the General Hospital for recording the statement of Meena Devi. However, the doctor in the meanwhile had referred injured Meena Devi to PGIMS Rohtak. Then ASI Chhattarmal (PW11) along with the police officials accompanying him reached PGIMS Rohtak. There he collected two medical ruqas (memos.) regarding Meena Devi (deceased) from the Police Post PGIMS Rohtak. In one of the ruqas (memos.) it was mentioned as 'expired'. Then Chhattarmal ASI (PW11) reached the gallery of the Emergency Ward where Ved Pal (complainant) (PW9) met him and he got his above statement (Ex.PA) recorded. The statement after recording it was read over to him, which he heard and after accepting it as correct put his left thumb impression below it which was attested by Chhattarmal ASI (PW11). From the statement (Ex.PA) and the medical report dated 14.4.2005 the offences under Sections 304-B, 34 and 406 IPC were made out. The CRA No. 897-DB of 2006 & [6] CRR No. 1604 of 2007 writing (Ex.PA) was sent to the Police Station through Constable Sita Ram for registration of a case (FIR). After registration its number was asked to be informed. Besides, special reports were asked to be sent to the senior officers. Chhattarmal ASI (PW11) along with the accompanying Head Constable proceeded for carrying out inquest proceedings under Section 174 of the Code of Criminal Procedure ("CrPC" - for short). Ramesh Chand MHC on receipt of the writing (Ex.PA) registered FIR No.103 dated 14.4.2005 (Ex.PB) for the offences under Sections 304-B, 406 and 34 IPC. Chhattarmal ASI (PW11) conducted inquest proceedings and prepared inquest report (Ex.PM) in the presence of Satpal (PW10) (brother of Ved Pal
- PW9) and Raj Pal. The statements of Satpal (PW10) and Raj Pal were recorded under Section 175 CrPC regarding identification of the dead body. Chhattarmal ASI (PW11) then submitted an application (Ex.PL) for conducting postmortem examination and the dead body of Meena Devi was sent for postmortem examination. However, the same could not be conducted on that day due to late hours. Chattarmal ASI (PW11) then stayed at Rohtak during the night. On the next day, postmortem examination on the dead body of Meena Devi was conducted. After postmortem examination, the dead body was handed over to Raj Pal and Satpal (PW10).
Chhattarmal ASI (PW11) then went to the spot at village Hetampura and prepared a rough site plan (Ex.PT) with correct marginal notes in his hand. He called a photographer from village Hetampura and got photographs taken of the site where the incident had occurred. He also recovered from the spot some burnt pieces of the clothes CRA No. 897-DB of 2006 & [7] CRR No. 1604 of 2007 (Ex.P13) and ash of the clothes (Ex.P14) along with a bottle of kerosene oil (Ex.P15). These were converted into a parcel and sealed with seal 'CM'. These articles were taken in possession vide recovery memo (Ex.PU) which was attested by HC Ram Avtar. The statement of HC Ram Avtar was recorded. Then they came to the Police Station Sadar Bhiwani and deposited the case property with seals intact.
Mahabir (since acquitted) and Manoj (appellant No.1) were arrested on 16.4.2005. Mahabir (since acquitted) on interrogation disclosed that he had concealed the key to the lock of the room where the dowry articles had been kept and he could get the same recovered. His statement (Ex.PV) was recorded which was signed by him and attested by Constable Surjit. On 17.4.2005 Mahabir (since acquitted) got recovered the dowry articles in pursuance of his disclosure statement, which were taken in possession after mentioning their details vide recovery memo (Ex.PX) which was attested by Jagdish and Constable Sunil whose statements were also recorded. On return to the Police Station the case property was deposited with the MHC. A search was made for the other accused but they were not traceable. On 23.4.2005 Chhattarmal ASI (PW11) arrested the accused Chameli (appellant No.2) and Suman (appellant No.3). On 26.4.2005 he collected the photographs from Giri Raj (photographer) and recorded his statement under Section 161 CrPC. On 3.5.2005 he recorded the statements of formal witnesses including that of MHC and Constable regarding the case property. The complainant Ved Pal (PW9) produced the marriage card (Ex.P11) and note book (Ex.P12) before Chhattarmal ASI CRA No. 897-DB of 2006 & [8] CRR No. 1604 of 2007 (PW11) on 5.5.2005 which were taken in possession vide memo Ex.PN attested by Ved Pal (PW9). He recorded his statement. Besides, the statement of Kanwar Pal Parmar, Draftsman (PW5) who prepared the scaled site plan (Ex.PJ) was recorded. After completion of investigations, the case file was handed over to Mahabir Singh, SHO PS Sadar Bhiwani (PW7) who prepared the police report (challan) in terms of Section 173 CrPC. The police report (challan) was filed in the Court of learned Additional Chief Judicial Magistrate, Bhiwani on 11.5.2005. The learned Additional Chief Judicial Magistrate, Bhiwani on perusal of the challan and the documents accompanying the challan vide his order dated 3.6.2005 observed that a prima facie case punishable under Section 304-B and Section 406 read with Section 34 IPC was made out against the accused. Out of these offences, the offence punishable under Section 304-B IPC was exclusively triable by the Court of Session. Accordingly, the case was committed to the Court of learned Sessions Judge, Bhiwani and the accused were directed to be produced before the said Court.
The learned Sessions Judge, Bhiwani initially framed charges on 1.7.2005. It was alleged that Smt. Meena Devi since deceased was married with Manoj (appellant No.1) about five years prior to her death on 14.4.2005 and that Manoj (appellant No.1) being her husband, Mahabir (since acquitted) being her father-in-law, Smt. Chameli Devi (appellant No.2) being the mother-in-law and Suman (appellant No.3) being the sister- in-law (Jethani) of deceased Meena Devi in furtherance of their common intention subjected her to cruelty and harrasment in connection with CRA No. 897-DB of 2006 & [9] CRR No. 1604 of 2007 demands of dowry soon before her death on 14.4.2005 at their house in village Hetampura and the death of Smt. Meena Devi had occurred otherwise than under normal circumstances within seven years of her marriage and thereby they all committed an offence punishable under Section 304-B read with Section 34 IPC. Secondly, all the accused from the day of marriage of deceased Meena till her death on 14.4.2005 at their house in village Hetampura in furtherance of their common intention subjected Smt. Meena (deceased) to cruelty in connection with demands of dowry and thereby, they all committed an offence punishable under Section 498-A read with Section 34 IPC. Thirdly, all the accused were entrusted with double bed, television, fridge, cooler, sofa set, almirah, fan, 21 utensils, clothes and Rs.2100/- in cash and they all converted the same for their own use and thereby committed an offence of breach of trust under Section 406 read with Section 34 IPC. Thereafter, on 12.9.2005 an application for framing alternative charge under Section 302/34 IPC was filed by the learned Public Prosecutor. Reply was filed after some time. The learned trial Court vide order dated 12.9.2005 allowed the application and framed amended charge against the accused for the offences under Sections 304-B, 302, 498-A and 406/34 IPC. The appellants as also Mahabir (since acquitted) were charge sheeted on the allegations that Smt. Meena Devi, since deceased, was married with Manoj (appellant No.1) about five years prior to her death on 14.4.2005 and Manoj being her husband, Mahabir being her father-in-law, Chameli Devi being the mother-in-law and Suman being the sister-in-law (Jethani) of deceased Meena Devi in furtherance of CRA No. 897-DB of 2006 & [10] CRR No. 1604 of 2007 their common intention subjected Smt. Meena, since deceased, to cruelty and harrasment in connection with demands of dowry soon before her death on 14.4.2005 at their house in village Hetampura and death of Smt. Meena Devi had occurred otherwise than under normal circumstances within seven years of her marriage and they all thereby committed an offence punishable under Section 304-B read with Section 34 IPC and in the alternative the accused were charged that they on 14.4.2005 in the area of village Hetampura, in furtherance of their common intention, did commit murder by intentionally causing the death of Smt. Meena and thereby committed an offence punishable under Section 302 read with Section 34 IPC. Secondly, all the accused from the day of marriage of deceased Meena till her death on 14.4.2005 at their house in village Hetampura, Manoj being her husband, Mahabir being her father-in-law, Chameli Devi being her mother-in-law and Suman being her Jethani (sister-in-law) in furtherance of their common intention subjected Smt. Meena (deceased) to cruelty in connection with demands of dowry and thereby, they all committed an offence punishable under Section 498-A read with Section 34 IPC. Thirdly, all the accused were entrusted with double bed, television, fridge, cooler, sofa set, almirah, fan, 21 utensils, clothes and Rs.2100/- in cash, which they all converted to their use and thereby they all committed an offence of breach of trust in respect of the said entrusted property under Section 406 read with Section 34 IPC.
The prosecution in order to prove its case examined as many as 11 witnesses; besides, tendered documents in evidence. The CRA No. 897-DB of 2006 & [11] CRR No. 1604 of 2007 statements of the accused in terms of Sections 313 CrPC were recorded. Manoj (appellant No.1) in his defence stated that he was innocent. He and his co-accused had been falsely implicated in this case. They had never harassed the deceased on account of dowry. He and the deceased Meena were living separately. Her statement (Ex.PF) (dying declaration) was wrongly recorded by Dr. Rajender Rai (PW4) in connivance with the complainant party because Dayanand first cousin of the deceased was serving as a Pharmacist in the hospital where Dr. Rajender Rai (PW4) was working and wife of said Dayanand was also serving as a staff nurse in the said hospital. The deceased Smt. Meena sustained accidental burns while preparing food. The co-accused Suman was residing separately at Bhiwani with her husband Daljeet, as he was serving as a compounder in a private nursing home at Bhiwani. The deceased was only 10+2 and they had met all the expenses for her studies upto M.A. after the marriage. Chameli (appellant No.2) also took the defence on the same lines as that of her son Manoj (appellant No.1). Suman (appellant No.3) also stated on the same lines. She also stated that deceased Meena was living separately with her husband.
In defence the appellants examined Smt. Prem (DW1) who stated that she knew the deceased Meena and she was her neighbour and also her friend. It is stated by Smt. Prem (DW1) that after marriage Meena was happily living with her husband in her matrimonial home and there was no harassment to her on account of dowry. She was studying in M.A. It is stated that about one year back it was sunrise time and there was CRA No. 897-DB of 2006 & [12] CRR No. 1604 of 2007 some noise in the street upon which she went to the house of Manoj (appellant No.1) where the deceased Meena had already suffered burn injuries. On her asking Meena told her that she had sustained burn injuries while she was working on the stove and preparing meals, when all of a sudden the kerosene oil came out from the stove and her clothes got in flames as a result of which she sustained burn injuries on her body. At that time only Manoj (appellant No.1) was present in the house. All the accused were living separately. She narrated the above said facts to the police who had reached at the spot. Many neighbours had also collected at that time at the spot. In cross-examination it is stated that there were 4-5 houses in between her house and the house of the accused persons. Her marriage was performed prior to the marriage of Meena (deceased) and she was her friend since her marriage. She was illiterate. She did not know where Meena used to go for studies. She heard the noise at about 6.00 a.m. When she reached in the house of the accused, the fire had already been extinguished. It was a kerosene stove where pumping was involved. The deceased was taken to the hospital by arranging a vehicle in her presence but she did not remember as to who had accompanied the deceased Meena to the hospital. She had come to the Court on that day at the asking of the accused person. She denied the suggestion that Meena had not received accidental fire as deposed by her or that she was set on fire by the accused Manoj, Chameli and Suman (appellants).
Smt. Darshana (DW2) was also examined in defence who stated that she knew Meena (deceased). She was already married before CRA No. 897-DB of 2006 & [13] CRR No. 1604 of 2007 her marriage. She was married about 5-6 years back. She knew Meena as she was her friend. She was living nicely and happily in her in-laws house without any kind of harassment by the accused. At about a year back at about 6.00 in the morning, there was whispering in the street that Meena had sustained burn injuries. She went to the house of Meena. Meena (deceased) had already suffered burn injuries. On her inquiries, Meena told her that she was preparing meals on the stove and that all of a sudden while preparing meals, the kerosene oil came out of the stove and got sprinkled on her clothes as a result of which her clothes caught flames and she sustained burn injuries. At that time only Manoj, her husband was present in the house. She was shifted to the hospital in a vehicle. Darshana (DW2) was cross-examined. It is stated by her that besides herself, another friend whose name she did not remember but had just appeared as a DW in the Court, was also present. Her house was at a distance of 2-3 houses from the house of accused. It was incorrect to suggest that she was not aware of the domestic affairs of the accused persons or that she was not known to Meena as her friend or that Meena was being harassed and maltreated by her in- laws on account of dowry or that she was put on fire by her in-laws or that she was deposing falsely. Mahabir (since acquitted) in defence tendered documents i.e. receipts of chulha tax mark D1 to mark D3 and photo copies of ration card mark D4 to mark D6. The evidence of the defence was closed.
The learned trial Court after considering the material and evidence on record, as already noticed, found the appellants guilty for CRA No. 897-DB of 2006 & [14] CRR No. 1604 of 2007 the offence punishable under Section 304-B and Section 498-A IPC and convicted them accordingly. They have been sentenced to undergo imprisonment for life for the offence under Section 304-B IPC; besides, undergo imprisonment for a period of three years and pay a fine of Rs.5000/- each and in default of payment of fine, to undergo rigorous imprisonment for a period of 6 months each for the offence under Section 498-A IPC. Both the sentences have been ordered to run concurrently. The period of detention already undergone during investigation and trial has been ordered to be set off. Mahabir co-accused of the appellants has been acquitted by the learned trial Court. Besides, it was held by the learned trial Court that the prosecution had miserably failed to proved its case against the accused for the offences under Sections 302 and 406 read with Section 34 IPC and all the accused including the appellants were acquitted for the said offences. Aggrieved against the order of the trial Court the appellants Manoj, Chameli and Suman have filed Crl. Appeal No.897-DB of 2006 while Ved Pal, complainant (PW9) has filed Crl. Revision No.1604 of 2007 seeking enhancement of sentence of Manoj (respondent No.2), Chameli (respondent No.3) and Suman (respondent No.4) and against the acquittal of Mahabir (respondent No.1) and for remanding the case to the learned trial Court alleging that the matter had not been properly appreciated.
Mr. Vinod Ghai, Advocate, learned counsel appearing for the appellants has contended that the learned trial Court has based its conclusions in convicting the appellants primarily on the statement (Ex.PF) of Meena Devi which is recorded by Dr. Rajender Rai (PW4) and has CRA No. 897-DB of 2006 & [15] CRR No. 1604 of 2007 wrongly been taken to be the dying declaration of Meena Devi (deceased). It is submitted that the said statement (Ex.PF) is not the dying declaration of the deceased Meena Devi and has been recorded by Dr. Rajender Rai (PW4) on his own as Dayanand first cousin of the deceased was serving as a Pharmacist in the hospital where Dr. Rajender Rai (PW4) was working and the wife of Dayanand namely Shashi was serving as a staff nurse in the said hospital. Therefore, the statement (Ex.PF) (dying declaration) of Meena Devi was on his own recorded by Dr.Rajinder Rai (PW4). Besides, it is submitted that Chameli Devi, mother-in-law of Meena Devi (deceased) and Suman, sister-in-law of Meena Devi (deceased) were residing separately from Manoj (appellant No.1) and Meena Devi (deceased) and they were, therefore, not liable for the offences attributed to them. It is submitted that the ration card (Ex.D4) of Mahabir (since acquitted) and Chameli (appellant No.2) shows that they are residing at house No.507; besides, ration card (Ex.D5) of Daljit, husband of Suman (appellant No.3) shows that they are residing at house No.609. Manoj has a separate ration card (Ex.D6) which is of house No.705. Therefore, the complainant (PW9) has roped in all the family members of in-laws of the deceased Meena Devi. In any case it is submitted that the appellants have been acquitted for the offence under Section 302 IPC and, therefore, the sentence of imprisonment of the appellants for the offence under Section 304-B IPC, is liable to be reduced to a period of seven years imprisonment, which is the minimum as the appellants on the receipt of burn injuries by Meena Devi had taken her to the hospital at Bhiwani and thereafter on a reference made by Dr. Rajender CRA No. 897-DB of 2006 & [16] CRR No. 1604 of 2007 Rai (PW4) she was taken to PGIMS Rohtak.
In response, Sh. H.S. Sran, learned Additional Advocate General, Haryana has submitted that the prosecution has proved its case against the appellants beyond shadow of reasonable doubt and the contentions as raised by learned counsel for the appellants are not tenable. It is submitted that the doctor had no motive to record the statement (Ex.PF) in case Meena Devi had not made such a statement. Rather it is submitted that the doctor (PW4) has done well and has performed his duty, which he was expected to perform by recording the correct position and there is no infirmity in the same. Besides, it is submitted that in any case the sentence of life imprisonment in the facts and circumstances of the case is just and proper and commensurate with the gravity of the offence and the same is not liable to be reduced.
We have given our thoughtful considerations to the contentions of the learned counsel for the parties and with their assistance gone through the records of the case. The bone of contention that has been raised by the learned counsel for the parties is the statement (Ex.PF) of Meena Devi (deceased), which was recorded by Dr. Rajender Rai (PW4) on the medico-legal report (Ex.PE). The said statement (Ex.PF) of Meena Devi (deceased) has been recorded by Dr. Rajender Rai (PW4) in Hindi and its English translation is to the effect that she (Meena Devi-deceased) was called inside the room and by bolting the door of the room, kerosene oil was poured on her. Her husband's elder brother's wife (Jethani) namely Suman (appellant No.3) had lit the matchstick and set her on fire. In this her CRA No. 897-DB of 2006 & [17] CRR No. 1604 of 2007 husband (appellant No.1) and mother-in-law (appellant No.2) were also involved. The learned counsel appearing for the appellants has vehemently attacked the statement (Ex.PF) by stating that it is not signed or thumb- marked by Meena Devi (deceased). It is stated that Meena Devi (deceased) had received 100% burn injuries, therefore, she was in any case not in a position to make such a statement. Besides, it has come in evidence that her toe was not burnt as such at least her toe impression ought to have been taken on the statement (Ex.PF). In this regard it may, however, be noticed that Ved Pal, complainant (PW9) corroborates the said statement (Ex.PF). He (PW9) in his statement recorded before the police as also in his deposition in Court, states that on receiving a telephone message from Mahabir (since acquitted) from Bhiwani at about 8.00 a.m. on 14.4.2005 regarding admission of his daughter in a burnt condition at the Civil Hospital, Bhiwani, he along with Dayanand and Shamsher went there. From there they came to know that his daughter had already been referred to PGIMS, Rohtak. Therefore, he along with the person accompanying him, went to PGIMS Rohtak and found his daughter Meena Devi admitted there in the emergency ward. On inquiry from Meena Devi by him, she disclosed that her mother-in-law Chameli Devi (appellant No.2) in the early hours in the morning had called her in the room where her husband Manoj (appellant No.1) sprinkled kerosene oil on her and her sister-in-law (Jethani) ignited the fire as a result of which she was burnt. On hearing this Ved Pal (PW9) got angry and raised a grouse against the accused who were outside. After sometime her daughter Meena Devi sccummbed to her injuries. The police CRA No. 897-DB of 2006 & [18] CRR No. 1604 of 2007 came to PGIMS Rohtak and recorded his (PW9) statement (Ex.PA) duly thumb marked at point 'A'. The accused had burnt his daughter for the lust of dowry. In cross-examination he was confronted with the discrepancies regarding the fact that he got recorded in his statement (Ex.PA) to the police that Satyawan of Khera and other brotherhood had participated in the Panchayat which was not so recorded in his said statement (Ex.PA). He had also recorded in his statement (Ex.PA) that Mahabir and Chameli had come to take his daughter about 10 months prior to the present occurrence. He was confronted with his statement (Ex.PA) where it was not so recorded. He also recorded in his statement (Ex.PA) that after the panchayat, the accused again started maltreating his daughter. He was confronted with his statement (Ex.PA) where the time of 4 days was not recorded. He reached the Civil Hospital, Bhiwani at 9.30/10.00 a.m. accompanied by Dayanand and Shamsher. It is stated as correct that Dayanand was his nephew and was employed as a compounder in Government Hospital, Siwani. His wife Shashi was also posted as a staff nurse there. He denied as incorrect that he got manipulated the statement of Meena (deceased) in connivance with the police by hatching a conspiracy with Dr. Rajender Rai (PW4). It is also stated as incorrect that he recorded a false statement of Meena of the MLR despite the fact that she had not made any such statement. It is also denied that his daughter was not in a position to speak. He voluntarily stated that he did not know Dr. Rajender Rai (PW4) at all. He reached PGIMS Rohtak at about 11.30/11.45 p.m. Emergency ward where his daughter was admitted was on the ground floor. He contacted his daughter at about 11.45 a.m. It CRA No. 897-DB of 2006 & [19] CRR No. 1604 of 2007 was incorrect to suggest that his daughter was not in a position to speak. His daughter died within a few minutes after his reaching and after she talked to him. Within few minutes i.e. within 5-10 minutes after his talking to her. The discrepancies that have been brought out by way of confrontation of the statement (Ex.PA) before the police and that made in Court are quite insignificant and do not in any manner affect the case of the prosecution nor do they create any doubt as regards the deposition of Ved Pal, complainant (PW9).
The deposition of Dr. Rajender Rai (PW4) shows that on 14.4.2005 at 7.30 a.m. he medico legally examined Meena wife of Manoj; 25 years female resident of village Hetampura brought by her husband Manoj, mother-in-law Chameli Devi and father-in-law Mahabir. He found the following: there was a history of burns, kerosene like smell was present, clothes were burnt. On examination, she was conscious. Clothes were burnt. Singing of hair was present. Kerosene like smell was present. Degloving of the skin was present. Fresh avulision of skin at places was present. Fresh bleeding was present. There were superficial to deep burns about 100% within a duration 12 hours. Statment (Ex.PF) by the patient (Meena Devi) was recorded in Hindi script on the MLR (Ex.PE). The patient (Meena Devi) stated before Dr. Rajinder Rai (PW4) that she was called inside and the door was latched from inside. Kerosene oil was sprinkled on her and her Jethani Suman had ignited the fire with a matchstick. Her husband and mother-in-law were also involved in it. After recording the statement (Ex.PF) in Hindi, Dr. Rajinder Rai (PW4) signed it. CRA No. 897-DB of 2006 & [20] CRR No. 1604 of 2007 The statement (Ex.PF) was again read over to the patient by Dr. Rajinder Rai (PW4) after recording it in Hindi. She stated 'Yes'. He (PW4) again asked the patient whether the above statement (Ex.PF) was correct and she again stated 'yes'. He (PW4) again signed the endorsement and put the time of 7.55 a.m. Dr. Rajinder Rai (PW4) prepared the MLR (Ex.PE) on which the statement (Ex.PF) of the patient recorded by him in his handwriting and is endorsed by him. The statement (Ex.PF) of the patient recorded by Dr. Rajinder Rai (PW4) is on the MLR (Ex.PE) bears his signatures. He had brought the original MLR containing the details of the burns as well as the statement (Ex.PF) of the patient and his endorsement which he had scribed on the MLR. He had sent ruqa (memo) Ex.PG to the Incharge, Police Post General Hospital, Bhiwani at 8.00 a.m. Thereafter, Chhattermal ASI, Police Station Sadar Bhiwani (PW11) moved an application (Ex.PH) before him (PW4) seeking his opinion regarding fitness of Meena Devi to make a statement. He made his endorsement Ex.PH/1 at 8.45 a.m. on 14.4.2005 and declared her fit to make a statement. Thereafter, he referred the patient to PGIMS Rohtak vide his endorsement Ex.PH/2. He had recorded the statement Ex.PF (carbon copy) of Meena correctly without any addition thereto and on the basis of whatever had been stated before him.Dr. Rajinder Rai (PW4) was cross-examined on behalf of the accused. It is stated that he had not given any certificate either on the MLR (Ex.PE) or in the statement or under the statement (Ex.PF) made by the patient (Meena Devi) to the effect that whatever mentioned therein was correct or that he wrote whatever she had stated and nothing was added by him. He voluntarily CRA No. 897-DB of 2006 & [21] CRR No. 1604 of 2007 stated that not much time was available with him. The statement (Ex.PF) was recorded after giving treatment to the patient. He did sign every MLR. He had signed the MLR (Ex.PE) at point 'A'. It is stated that he had not mentioned specifically that the patient (Meena Devi) was fit to make a statement before recording her statement because it was not necessary as the patient was fit before him (PW4) when he medico-legally examined her. Such a certificate of fitness, it is stated, is given only when someone else asks him. He did not give any separate certificate that she remained fit throughout. He did not record her BP (blood pressure) because of burns. He did not note down the pulse of the patient because of burns. He did not agree that blood pressure and pulse rate were important factors for judging the fitness of the person to make a statement because a person may be conscious which is a different aspect. It is accepted as correct that consciousness of a person and fit to make statement are different positions of the patient. It is correct that burns from kerosene oil were different from that of gas or other liquid. It is stated that he did not obtain signatures of the patient (Meena Devi) on the MLR (Ex.PE) or under her statement (Ex.PF) as she was completely burnt. It is thereafter stated on his own that he had made a column to obtain thumb impression of Meena Devi by writing the words 'RTI' (right thumb impression) but the same could not be obtained as her hands were burnt and resultantly, he obtained the signatures of her husband. He did not mention the fact of burning of her hands in the MLR separately. He did not make any separate endorsement in the MLR or under her statement that she was not in a position to either sign or put her CRA No. 897-DB of 2006 & [22] CRR No. 1604 of 2007 thumb impression because of being completely burnt. He did not know whether cousin brother of the deceased was posted in their hospital as a 'Pharmacist' or that his wife was posted as a staff nurse. He denied the suggestion that he had wrongly recorded the statement Ex.PF of Meena Devi in connivance with them later on after referring the deceased to PGIMS Rohtak. He stated that he could not rule out the possibility of accidental burns having been sustained by the patient while working on a kerosene oil stove. Some of the medicines were administered or given to Meena Devi (deceased) from the hospital and some were brought by her attendants. He did not take any attestation upon MLR (Ex.PE) of any police official or his colleague doctors or some official of the hospital. It was correct that the police post was situated at a distance of 10 paces from the Emergency Ward. It is stated by him as wrong to suggest that he was deposing falsely in order to oblige the complainant party or that no such statement like Ex.PF was ever made by the patient before him.
The statement of Dr. Rajinder Rai (PW4) and that of the complainant Ved Pal (PW9) are quite consistent with regard to the manner in which Meena Devi (deceased) had died. The fact that the statement (Ex.PF) was not signed by the patient Meena Devi (deceased) or endorsement regarding fitness of the patient is not there are not such circumstances which would, in any manner, discredit the same. Dr. Rajinder Rai (PW4) has explained that Meena Devi was completely burnt and she was unable to put her thumb impression. In fact he had drawn a circle on the MLR (Ex.PE) for obtaining her right thumb impresson. However, due to CRA No. 897-DB of 2006 & [23] CRR No. 1604 of 2007 the burnt condition of the hand of Meena Devi, the same could not be obtained. He then obtained the signatures of Manoj (appellant No.1). Learned Counsel for the State has emphasized to draw an inference to the effect that Manoj (appellant No.1) in fact had accepted the statement (Ex.PF). However, we are not inclined to accept the same as he must have been asked to put his signatures and he must have signed the MLR (Ex.PE) without knowing the fact that it contained the dying declaration of Meena Devi, but nevertheless the value of the statement (Ex.PF) of Meena Devi is not in any manner affected so as to rule out the same from consideration. The contention of the learned counsel for the appellants is that it was got done by Dr. Rajinder Rai (PW4) in connivance with the cousin brother of the deceased namely Dayanand and his wife Shashi who were working as compounder and staff nurse respectively. This, however, is not borne out from the record. Dr. Rajinder Rai (PW4) in his cross-examination states that he did not know whether cousin brother of the deceased was posted in their hospital as a 'Pharmacist' or that his wife was posted as a staff nurse. In fact the cross-exmination of Ved Pal (PW9) shows that Dayanad was his nephew and was employed as a compounder in Government Hospital Siwani and his wife Shashi was also posted as a staff nurse there. Therefore, Dayanand and his wife Shashi were posted at Siwani whereas the statement (Ex.PF) of Meena Devi (deceased) was recorded by Dr. Rajinder Rai (PW4) at the Civil Hospital, Bhiwani which is an entirely separate hospital and at a considerable distance from Siwani where cousin brother of the deceased namely Dayanand and his wife Shahshi were working. The CRA No. 897-DB of 2006 & [24] CRR No. 1604 of 2007 statement (Ex.PF) of Meena Devi (deceased) is in the nature of a dying declaration recorded by Dr. Rajinder Rai (PW4). Clause 1 of Section 32 of the Evidence Act makes a statement of a person who has died relevant when that statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death is in question. Meena Devi died because of burn injuries which is established from the medical evidence on record; besides, the manner in which she died and the cause of her death is given by her Dr. Rajinder Rai (PW4) who was treating her. Dr. Rajinder Rai (PW4) is a doctor at the Civil Hospital, Bhiwani and it was natural for him to record the statement of the patient in case he apprehended that the time was short which he does say, that the time was very little. It is not shown or proved that Meena Devi did not die in a manner other than from burn injuries. In Amrik Singh, Satnam Singh and another v. State of Rajasthan (1994) 1 SCC 563 it was held by the Supreme Court that conviction can be founded on the testimony of a sole eye witness, if it suffers from no infirmity. The statement of the sole eye witness was recorded by the doctor as a dying declaration giving names of all the assailants, time, place, manner of occurrence and the weapons used. There was no enmity with the accused persons and his statement was found to be consistent and corroborated by medical and other evidence. It was held that his testimony was highly reliable and mere non-disclosure of the names of all the assailants to other witness, prior to the recording of his statement by doctor would not render his testimony unreliable. Therefore, the statement CRA No. 897-DB of 2006 & [25] CRR No. 1604 of 2007 (Ex.PF) of Meena Devi (deceased) recorded by Dr. Rajinder Rai (PW4) inspires confidence and can be safely acted upon. This is moreso for the reason that the same circumstances have been narrated by Meena Devi (deceased) to her father Ved Pal, complainant (PW9), whose statement (Ex.PA) is recorded by the Investigating Officer Chhattarmal ASI, Police Station Sadar Bhiwani (PW11).
In the circumstances it may be noticed that it has come in evidence that Meena Devi (deceased) after her marriage and soon before her death was harassed in connection with demand for dowry. As already noticed that the complainant (PW9) has also stated in this regard. Besides, Satpal (PW10) who is the brother of Ved Pal (PW9) stated that his niece Meena Devi was married with Manoj (appellant No.1) on 6.5.2000. Sufficient dowry consisting of all necessary domestic articles was given as per the status. However, on her first return, his niece disclosed that her in- laws were not satisfied with the dowry articles. She was sent back and when she came the second time, she again complained regarding the behaviour of the accused and the ill-treatment meted out to her and that they were demanding a motorcycle. It is stated that the accused Mahabir (since acquitted), Chameli (appellant No.2), Suman (appellant No.3) and Manoj (appellant No.1) were responsible for the demand for dowry. Thereafter, for about three years, his niece carried on strained relations with her in-laws because of the aforesaid harassment and maltreatment. However, she was visiting her matrimonial home time and again. After three years, she was thrown out from her matrimonial home by her in-laws and thereafter, for CRA No. 897-DB of 2006 & [26] CRR No. 1604 of 2007 about 14 months she stayed in his brother's (Ved Pal's-PW9) house. They convened a Panchayat to make her in-laws understand to mend their behaviour. He did not remember as to how many days prior to her death she had gone to her matrimonial home. On 14.4.2005, she was killed by Manoj, Chameli and Suman (appellants No.1 to 3) by pouring kerosene oil on her for the lust of dowry. Therefore, the allegations of demand for dowry by the appellants soon before the death of Meena Devi are established from the deposition of Ved Pal (PW9) and Satpal (PW10).
The defence of the appellants that the statement (Ex.PF) of Meena Devi was obtained in connivance with Dayanand and his wife Shashi is not borne out or established in any manner. The depositions of the defence witnesses namely Smt. Prem (DW1) and Smt. Darshana (DW2) are hardly of any consequence. They were neighbours of the accused and their statements were not recorded in the police nor did they approach the police for getting their statements recorded. Smt. Prem (DW1) accepts that she had come to the Court on the asking of the accused. Smt. Darshana (DW2) states that she herself and another friend whose name she did not remember at present but had just appeared as a DW in the Court was also present. Darshana (DW2) who states that she was present after the occurence and does not remember that Smt. Prem (DW1) was also present there even though she had deposed just before her in Court on the same day i.e. 27.3.2006. In the circumstances, the learned trial Court has recorded cogent and convincing reasons for convicting the appellants for the offence under Sections 304-B and 498-A IPC.
CRA No. 897-DB of 2006 & [27]CRR No. 1604 of 2007
The contention of the learned Counsel for the appellants that Chameli Devi, mother-in-law of Meena Devi (deceased) and Suman, sister-in-law of Meena Devi (deceased) were residing separately from Manoj (appellant No.1) and Meena Devi (deceased) and they were, therefore, not liable for the offences attributed to them and that the ration card (Ex.D4) of Mahabir (since acquitted) and Chameli (appellant No.2) shows that they are residing at house No.507; besides, ration card (Ex.D5) of Daljit, husband of Suman (appellant No.3) shows that they are residing at house No.609 is not much of any significance as they are in any case residing in the same village Hetampura. In the face of the dying declaration of Meena Devi (deceased) which is corroborated by other evidence on record, the fact of residing separately is absolutely inconsequential to hold them to be innocent. The contention that the complainant (PW9) has roped in all the family members of in-laws of the deceased Meena Devi is, therefore, equally devoid of merit. Mahabir accused has been rightly acquitted by the learned trial Court and there is no infirmity in his acquittal. He was not named Meena Devi as one of the persons who had poured kerosene oil on her.
As regards the quantum of sentence, it may be noticed that the appellants indeed had taken Meena Devi (deceased) to the Civil Hospital soon after the occurrence. Dr. Rajinder Rai (PW4) states that Meena Devi (deceased) was brought to the hospital by her husband Manoj (appellant No.1) and her mother-in-law Chameli Devi (appellant No.2). Besides, they had taken her to PGIMS, Rohtak also. The conviction of the CRA No. 897-DB of 2006 & [28] CRR No. 1604 of 2007 appellants is recorded for the offence under Section 304-B IPC and they have been sentenced to imprisonment for life. In Hem Chand v. State of Haryana, 1994 (3) RCR (Crl.) 625 it was held by the Supreme Court that Section 304-B IPC only raises a presumption and lays down minimum sentence of seven years which may extend to imprisonment for life. Therefore, awarding of extreme punishment for life should be in rare cases and not in every case. In the present case, the appellants have been convicted for the offence under Section 304-B IPC and the sentence that has been awarded is of imprisonment for life. As held in Hem Chand's case (Supra) this should be in rare cases and not in every case. Therefore, in the facts and circumstances of the case we feel that the ends of justice would be met by sentencing the appellants to imprisonment for a period of 10 years for the offence under Section 304-B IPC instead of sentencing them to imprisonment for life. As regards the sentences for the offence under Section 498-A IPC, the sentence to undergo rigorous impriosnment for a period of 3 years each, besides, pay a fine of Rs.5000/- and in default of payment fine to undergo further rigorous imprisonment for six months each is just and proper and shall remain intact as it is. However, the sentences shall run concurrently.
Accordingly, with the modification in the sentence of imprisonment from imprisonment for life to imprisonment for 10 years for the offence under Section 304 B IPC; besides, rigorous imprisonment for three years for the offence under Section 498-A IPC and to pay a fine of Rs.5000/- and in defualt of payment to undergo further rigorous CRA No. 897-DB of 2006 & [29] CRR No. 1604 of 2007 imprisonment for six months each, the appeal (CRA No.897-DB of 2006) stands dismissed.
Insofar as the Crl. Revision is concerned, no one has appeared on behalf of the petitioner. However, we find that the reasons recorded by the learned trial Court for acquitting Mahabir (respondent No.1) are cogent and convincing and merely because another view may be possible against an order of acquittal, the same is not liable to be interferred. Besides, no ground is made out for enhancing the sentence of imprisonment awarded to respondents No.1 to 4 and their sentence has rather been reduced.
Accordingly, the Crl. Revision No.1604 of 2007 is dismissed.
(S.S. SARON) JUDGE (M. JEYAPAUL) JUDGE February 15, 2012 amit