Punjab-Haryana High Court
Ram Niwas vs State Of Haryana on 11 September, 2014
Bench: Rajive Bhalla, Surinder Gupta
CRA-40-DB-2003 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No.40-DB-2003
Date of Decision: 11.09.2014
Ram Niwas @ Lasha S/o Bhagwana, R/O Village Daya, District Hisar.
.....Appellant
Versus
State of Haryana
.....Respondent
*****
CORAM: Hon'ble Mr.Justice Rajive Bhalla
Hon'ble Mr.Justice Surinder Gupta
PRESENT: Ms. Ruchi Sekhri, Advocate, for the appellant.
Mr. Sandeep Varmani, Addl. A.G., Haryana.
*****
Rajive Bhalla, J(Oral)
The appellant, who has been convicted and sentenced for the murder of his wife, challenges order of conviction dated 03.12.2002 and order of sentence dated 07.12.2002, passed by the Sessions Judge, Hisar, convicting and sentencing him in the following terms:-
To undergo imprisonment for life and pay a fine of Rs.2,000/-. In default of payment of fine further RI for a period of three months.
Kailo Devi wife of the appellant was admitted to General Hospital, Hisar, on the night intervening 27/28.11.2001 with extensive burns injuries. Dr. Rajiv Johar Bishnoi, medico legally examined her at 12:15 AM on 28.11.2001 and forwarded intimation Ex.PH to Incharge Police Post, General Hospital, Hisar about the admission of Kailo Devi.
ASI Vinod Kumar received a V.T. message (Ex.PL), from VINAY 2014.12.11 16:09 I attest to the accuracy and integrity of this document Punjab & Haryana High Court, Chandigarh CRA-40-DB-2003 -2- SHO Police Station, Sadar, Hisar, at 02:15 AM and accompanied by other police officials proceeded to the hospital, collected intimation Ex.PH and MLR Ex.PG pertaining to Kailo Devi and as he found that she was fit and conscious to make a statement, recorded her statement Ex.PI, in the presence of Dr.Rajiv Johar Bishnoi.
Kailo Devi stated that she was married to the appellant about 18/19 years ago. The appellant is an employee in Dadi Gauri Temple. She has three children whereas her sister Bimla has four children. She also stated that yesterday, the elder son of her sister Bimla got married at about 8:00 PM. She was alone at home as her children had gone to watch Ramleela. Ram Niwas her husband returned home in an inebriated condition, began quarrelling with her, picked up a can of kerosene, poured kerosene over her, lit a match stick and set her on fire. She raised an alarm, which attracted her father Ram Chander who had come to attend the marriage. The appellant's brother, also witnessed the entire occurrence. Her husband, however, managed to escape. Her father arranged conveyance and admitted her in Government Hospital, Hisar. The doctor has applied bandages. Her husband drinks and harasses her and has repeatedly proclaimed that he will kill her and only then will he be able to heave a sigh of relief. Kailo Devi thereafter added that yesterday her husband poured kerosene on her and set her on fire with intention to kill her. Kailo Devi affixed her right thumb impression at Point-A on the statement. ASI Vinod Kumar and Dr.Rajiv Johar Bishnoi attested this statement and appended their signatures.
ASI Vinod Kumar appended an endorsement on Ex.PI and VINAY 2014.12.11 16:09 I attest to the accuracy and integrity of this document Punjab & Haryana High Court, Chandigarh CRA-40-DB-2003 -3- forwarded it to PS Sadar where it led to recording of FIR (PI/2) by ASI Chand Singh at 4:30 AM. ASI Vinod Kumar accompanied by constable Randhir Singh and Ramu went to the house of the appellant and recovered a can without its lid (Ex.P1) which was converted into a parcel sealed with seal impression VKK and taken into possession vide recovery memo Ex.PM, attested by Ramu and UGC Randhir Singh. ASI Vinod Kumar also lifted kerosene stained earth from the spot which was also converted into a sealed parcel Ex.P2 and taken into possession vide Ex.PN, attested by the same witnesses. Burnt clothes Ex.P3, half burnt chunni Ex.P4 were also taken into possession, vide recovery memo Ex.PO. The photographs of the place of occurrence are Ex.P5 to P7 and their negatives are Ex.P8 to P10. A rough site plan of the place of occurrence with correct marginal notes is Ex.PP. The investigating officer recorded the statements of Ram Chander Ex.PK, Ramu and UGC Randhir Singh. The case property was thereafter deposited with MHC Police Station Sadar, Hisar.
Kailo Devi, passed away on 28.11.2001 at about 8:45 AM. Intimation Ex.PJ was forwarded to Incharge Police Post, General Hospital, Hisar by Dr.Rajiv Johar Bishnoi. On receipt of the intimation, ASI Vinod Kumar returned to the hospital, prepared inquest report Ex.PE and filed an application Ex.PD for post mortem.
The appellant was arrested on 01.12.2001, by Inspector Ram Rattan in the presence of ASI Vinod Kumar in Village Daya. After completion of the investigation, the prosecution filed a final report under Section 173 of the Cr.PC but as the report disclosed the commission of VINAY 2014.12.11 16:09 I attest to the accuracy and integrity of this document Punjab & Haryana High Court, Chandigarh CRA-40-DB-2003 -4- an offence exclusively triable by the Courts of Sessions, the case was committed to the Court of Sessions where the Sessions Judge, Hisar framed a charge under Section 302 of the IPC but as the appellant pleaded not guilty and claimed trial, the prosecution was directed to lead its evidence.
The prosecution in its endeavour to prove that the appellant set his wife on fire, examined PW1 Raju, a draftsman, who had prepared Ex.PA scaled site plan of the place of occurrence, PW2 HC Bhanwar Lal, PW3 constable Satpal, who tendered affidavits Ex.PB and PC, respectively, PW4 Dr.Veena Dhanda, a member of Board that conducted post mortem to prove the post mortem report, and the cause of death, namely ante mortem burns sufficient to cause death in the ordinary course of nature, etc. The prosecution also examined PW5 Dr.Rajiv Johar Bishnoi, who medico legally examined the deceased at 0:15 AM, on the night intervening 27/28.11.2001 to prove MLR Ex.PG, pictorial diagram Ex.PG/1, intimation Ex.PH and his attestation on Ex.PI, statement made by Kailo Devi, a few hours before her death. The doctor also proved intimation Ex.PJ. PW6 is Ram Chander, father of the deceased, who was cited as eye witness but did not support the prosecution case and was declared hostile. PW7 ASI Vinod Kumar is the investigating officer. Ex.PQ is the report received from Forensic Science Laboratory.
Upon completion of prosecution evidence, incriminating circumstances were put to the appellant under Section 313 of the Cr.PC. The appellant denied these circumstances and stated that he has been VINAY 2014.12.11 16:09 I attest to the accuracy and integrity of this document Punjab & Haryana High Court, Chandigarh CRA-40-DB-2003 -5- falsely implicated as his wife received burn injuries while cooking meals on a stove. She was taken to hospital but as her condition was serious, she could not have made any statement implicating the appellant. The appellant also stated that ASI Vinod Kumar demanded Rs.10,000/- from him, Ramu and other relatives of his wife in the presence of Bhim Singh Ex-Sarpanch but as they did not make the payment he has falsely implicated the appellant by fabricating the statement Ex.PI.
After considering the evidence on record and arguments for and against, the trial court convicted and sentenced the appellant for the murder of Kailo Devi, by relying upon statement Ex.PI, made by Kailo Devi before ASI Vinod Kumar and other relevant evidence.
Counsel for the appellant submits that Ex.PI, the alleged statement made by Kailo Devi is the only piece of evidence against the appellant and as it was recorded by a police officer without obtaining a certificate from a doctor that Kailo Devi was fit and conscious and remained fit and conscious during the recording of the statement has been wrongly construed as a dying declaration. The deposition by PW5 Dr.Rajiv Johar Bishnoi that the statement was recorded in his presence, is irrelevant as Ex.PI does not bear a certification about the mental and physical state of Kailo Devi. It is further argued that though it is alleged that the appellant poured kerosene on the deceased, but PW5 Dr.Rajiv Johar Bishnoi has admitted that he could not smell kerosene while he was treating the deceased. The trial court has accepted the bald statement made by the investigating officer and the doctor that Kailo Devi made a statement before them, despite the fact that it is not supported by medical VINAY 2014.12.11 16:09 I attest to the accuracy and integrity of this document Punjab & Haryana High Court, Chandigarh CRA-40-DB-2003 -6- evidence to prove that the deceased was conscious and capable of making a statement at the time of recording of the statement. It is further submitted that as the only eye witness has resiled, the trial court should have acquitted the appellant. The recovery of a can containing kerosene, from the house of the appellant, is irrelevant as it is natural for a can of kerosene to be present as meals were cooked on a kerosene stove. It is further submitted that deposition, by DW1 Ramu and DW2 Bhim Singh that the deceased was injured in an accident and remained unconscious till she died has been wrongly rejected. The deposition that the investigating officer demanded Rs.10,000/- has also been discarded by the trial court without assigning any reason.
Counsel for the State of Haryana submits that though it is true that the sole eye witness, father of the deceased, has resiled but this alone does not detract from the statement Ex.PI, made by the deceased and recorded by the investigating officer, in the presence of a doctor, duly thumb marked by the deceased. The FSL report (Ex.PQ) received from the Forensic Science Laboratory proves that residue of kerosene were found on the clothes of the deceased. The deceased admittedly, received burn injuries in the appellant's house. The appellant's attempt to explain these injuries as an accident and by getting DW1 and DW2 to depose that the ASI demanded money have been rightly discarded by the trial court. The prosecution having proved the appellant's guilt, the appeal may be dismissed.
We have heard counsel for the parties, appraised the record and considered the impugned judgment and order. VINAY 2014.12.11 16:09 I attest to the accuracy and integrity of this document Punjab & Haryana High Court, Chandigarh CRA-40-DB-2003 -7- Admittedly, the appellant's wife, received burn injuries and was admitted to Civil Hospital, Hisar at about 12:15 AM by her father Ram Chander on the night intervening 27/28.11.2001 and died due to these burn injuries on 28.11.2001.
Kailo Devi was medico legally examined by PW5 Dr.Rajiv Johar Bishnoi, Medical Officer, who is one of the main prosecution witnesses. Dr. Rajiv Johar Bishnoi has deposed that Kailo Devi was admitted with a history of burns, she was half naked, her clothes were burnt and though she was conscious, her pulse and blood pressure were not recordable because of burns. The burns were superficial to deep and covered about 65% of her body except her lower limbs. The injuries were dangerous to life. PW5 has also proved the MLR Ex.PG and the pictorial diagram Ex.PG/1 which prove the nature and extent of burn injuries. The prosecution also examined PW4 Dr.Veena Dhanda to prove the post mortem report and the cause of death namely ante mortem burn injuries, sufficient to cause death. The depositions by PW4 Dr.Veena Dhanda, PW5 Dr.Rajiv Johar Bishnoi, the MLR, the pictorial diagram of the burn injuries and the post mortem report prove that Kailo Devi died due to burn injuries.
The prosecution, apart from relying upon other evidence which we shall deal with later, relies upon a statement made by Kailo Devi while lying admitted in hospital accusing the appellant of dousing her with kerosene and then setting her on fire. The statement Ex.PI was recorded by ASI Vinod Kumar PW7 in the presence of PW5 Dr.Rajiv Johar Bishnoi, the attending doctor. PW5 Dr.Rajiv Joshar has deposed VINAY 2014.12.11 16:09 I attest to the accuracy and integrity of this document Punjab & Haryana High Court, Chandigarh CRA-40-DB-2003 -8- that he sent intimation to Police Post, General Hospital, Hisar. PW7 ASI Vinod Kumar and other officials arrived at 04:00 AM and as Smt. Kailo Devi was conscious, she made an oral statement, which was reduced into writing. PW5 has also deposed that the statement was read over to Kailo Devi, after which she affixed her right thumb impression at point 'A'. Dr.Rajiv Johar Bishnoi and ASI Vinod Kumar attested the statement. During his cross-examination, PW5 admitted that the police did not obtain any fitness certificate from him at the time recording of the statement and he could not remember whether ASI Vinod Kumar himself scribed the statement or asked a subordinate to scribe the statement. He also made an admission that there was no smell of kerosene from the clothes and body but denied that Kailo Devi was unconscious when she was brought to the hospital or remained unconscious throughout.
A perusal of the deposition by PW5, reveals that though Kailo Devi had suffered 65% burn she was conscious when she was brought to the hospital and remained conscious during the recording of her statement and after narrating the cause of her burn injuries affixed her right thumb impression on the statement Ex.PI which was also attested by Dr.Rajiv Johar Bishnoi.
PW7 ASI Vinod Kumar has deposed that after his arrival at the hospital he found that Smt.Kailo Devi was conscious and fit and, therefore, recorded her statement Ex.PI, in the presence of Dr.Rajiv Johar Bishnoi, who remained present throughout the recording of the statement. PW7 has also deposed that Smt.Kailo Devi affixed her right thumb impression at point 'A' on Ex.PI and he and Dr.Rajiv Johar VINAY 2014.12.11 16:09 I attest to the accuracy and integrity of this document Punjab & Haryana High Court, Chandigarh CRA-40-DB-2003 -9- Bishnoi attested the statement Ex.PI.
The prosecution relies upon Ex.PI and presses it into service as a dying declaration that proves the culpability of the appellant. The trial Court has accepted Ex.PI as sufficient evidence of the appellant's culpability. Ex.PI, which has been recorded without obtaining a formal certificate from a doctor but is attested by ASI Vinod Kumar and Dr.Rajiv Johar Bishnoi must necessarily give rise to a question whether it can be treated as a dying declaration and is, therefore, sufficient to fasten culpability upon the appellant.
Before proceeding to record our opinion on Ex.PI, it would be appropriate to point out that the only eye witness of the occurrence PW6 Ram Chander, father of the deceased resiled from his statement made before the police that he had seen the appellant pouring kerosene over the deceased and setting her on fire. However, the appellant's statement under Section 313 of the Cr.P.C., deposition by defence witnesses that the deceased caught fire while she was cooking meals in the house where the appellant and the deceased resided together and the site plan prove that Kailo Devi received burn injuries in this house. The can taken into possession from the house as well as the clothes on the person of the deceased, as per report received from the Forensic Science Laboratory, showed traces of kerosene. The only point of difference between the prosecution and the defence is whether burn injuries which were the cause of Kailo Devi's death were accidental or homicidal.
Kailo Devi recorded her statement Ex.PI before PW7 ASI Vinod Kumar, in the presence of PW5 Dr.Rajiv Johar Bishnoi. The VINAY 2014.12.11 16:09 I attest to the accuracy and integrity of this document Punjab & Haryana High Court, Chandigarh CRA-40-DB-2003 -10- statement bears the right thumb impression of the deceased. At no stage of the proceedings whether during the trial or during arguments before this Court, has the right thumb impression of Kailo Devi on the statement Ex.PI been challenged or doubted by or at the behest of the appellant. The statement Ex.PI signed by PW7 ASI Vinod Kumar and PW5 Dr.Rajiv Johar Bishnoi, as translated by the trial court reads as follows:-
"She stated that she is a labourer. She and her sister Bimla were married together about 18-19 years back. Bimla was sent to her in-laws house there and then. However, she was sent to her in-laws house after 5-6 years. She and her sister lived separately. Her husband is employee in Dadi Gauri temple. She has three children. However, her sister Bimla has four children. Yesterday, there was marriage of Bilu, the eldest son of Bimla. His marriage party had already returned. At about 8.00 P.M. she was alone in her house. Her children to watch Ram Lila. Her husband Ram Niwas came to the house under the influence of liquor and started quarrelling with her. He during the course of quarrel picked up a can of kerosene oil which was lying in the house and poured the same on her. He, in order to finish her, lit the match stick and set her on fire on account of which she received burns. She raised noise "Mar Dia. Mar Dia". On hearing her noise, her father Ram VINAY 2014.12.11 16:09 I attest to the accuracy and integrity of this document Punjab & Haryana High Court, Chandigarh CRA-40-DB-2003 -11- Chander who had come to attend the marriage and her Devar Ramu came there. They had witnessed the occurrence with their own eyes. When her father Ram Chander and Devar Ramu reached there, her husband managed to escape after leaving her. Later on, her father had arranged conveyance and admitted her in Government Hospital, Hisar. The doctor had applied the bandage. Her husband is a daily drinker and harassed her. He also used to proclaim that she will be done to death and only they he will have sigh of relief. Yesterday, her husband had poured kerosene oil on her and set her on fire with intention to kill her. Action be taken against her husband Ram Niwas."
A perusal of the statement reveals that Smt.Kailo Devi had stated that the appellant returned home in an inebriated condition, began quarrelling with her and during the quarrel poured kerosene on her and set her on fire. She was removed to the hospital by her father Ram Chander who had come to attend the wedding of her elder sister's son which had concluded a day earlier.
The question, as already recorded, is the evidentiary value of Ex.PI and whether it can be conferred the status of a dying declaration admissible as a relevant fact to infer a homicidal death and, therefore, fasten culpability upon the appellant for the murder of Kailo Devi?
A statement made by a person soon before his or her death VINAY 2014.12.11 16:09 I attest to the accuracy and integrity of this document Punjab & Haryana High Court, Chandigarh CRA-40-DB-2003 -12- identifying the perpetrator of the injuries is a relevant fact (Section 32 of the Evidence Act) and if credible is sufficient to fasten culpability. As a matter of prudence, however, the statement of an injured, recorded while admitted in hospital, should be preceded by a certificate from the attending doctor that the person making the statement was fit, conscious and capable of making the statement. Where such a certificate has not been obtained, would a Court be justified in discarding or accepting such a statement and if so in what circumstances? The rule that a statement, by a person as to the cause of his death, recorded while such a person is lying admitted in a hospital must be accompanied by a certificate from the attending doctor certifying both mental and physical fitness, is a rule of prudence and, therefore, must admit to certain exceptions. One such exception is where the statement is recorded in the presence of the attending doctor who attests the statement and thereafter steps into the witness box in support of the recording of the statement and deposes that the person making the statement was fit and conscious before, during and after the recording of the statement. The absence of a formal certificate may, thus, be over come by the attending doctor who was present during the recording of the statement deposing that the deceased was fit, conscious and sufficiently capable of recounting relevant facts recorded in the statement. The attestation by the attending doctor and his deposition in Court, may be construed as a certification that the author of the statement was fit and conscious enough to narrate relevant facts about the cause of his/her injuries that lead to his/her eventual death. It is true that a dying declaration, cannot be tested by cross-examination and is, VINAY 2014.12.11 16:09 I attest to the accuracy and integrity of this document Punjab & Haryana High Court, Chandigarh CRA-40-DB-2003 -13- therefore, an exception to the general rule of heresay evidence but a dying declaration if credible and believable receives judicial approval. Thus where a formal certificate of the attending doctor has not been obtained but the doctor has attested the statement and takes to the witness box to depose that the deceased was fit and conscious to make a statement, his deposition, if credible may be considered as a certification of the capacity of the deceased to recount relevant facts that led to injuries which eventually proved to be fatal.
A perusal of the evidence on record reveals that the investigating officer did not obtain any separate certificate from Dr.Rajiv Johar Bishnoi, the attending doctor, but the statement Ex.PI, was recorded in the presence of the doctor who appended his signatures in attestation of recording of the statement, by ASI Vinod Kumar. PW5 Dr.Rajiv Johar Bishnoi stepped into the witness box and apart from proving the medico legal report has deposed that the statement Ex.PI was recorded in his presence and after it was read over to Kailo Devi, she affixed her right thumb impression on Ex.PI at point 'A'. The doctor has also deposed that he remained present throughout the recording of the statement, till the statement was completed and that Kailo Devi remained conscious during recording of Ex.PI thereby in our considered opinion certifying that the deceased was conscious and capable of narrating relevant facts, during the recording of her statement. It would be appropriate to point out by reference to a judgment of the Hon'ble Supreme Court in Ghulam Hasan and anr. V/s State of Delhi 2000 Supreme Court Cases (Criminal) 1343, that a certificate from the doctor VINAY 2014.12.11 16:09 I attest to the accuracy and integrity of this document Punjab & Haryana High Court, Chandigarh CRA-40-DB-2003 -14- is a rule of prudence. The ultimate test is whether the statement is truthful, voluntary and credible. The attestation of the statement Ex.PI by Dr.Rajiv Johar Bishnoi, who stepped into the witness box to depose that the deceased was conscious, leaves no manner of doubt that while recording Ex.PI Smt.Kailo Devi was conscious and fit to make a statement as to relevant facts that led to her burn injuries and to her eventual death. It would also be appropriate to once again point out that PW5 Dr.Rajiv Johar Bishnoi, was the attending doctor, who prepared the MLR Ex.PG at the time of Kailo Devi's admission to hospital. PW5 Dr.Rajiv Johar Bishnoi is an independent witness and the appellant does not allege any animus by Dr.Rajiv Johar Bishnoi. At no stage of the trial, did the appellant or any of his witnesses produced in defence allege that the thumb impression appearing on Ex.PI was not affixed by Kailo Devi. Thus, in view of what has been discussed above, we accept Ex.PI as a relevant piece of evidence and hold that the trial court has rightly placed reliance upon Ex.PI while holding the appellant guilty for the murder of his wife, Kailo Devi.
An argument that PW5 Dr.Rajiv Johar Bishnoi, could not detect the smell of kerosene appears to be an error either in his deposition or in the recording of evidence as PW4 Dr.Veena Dhanda, who conducted post mortem has deposed about the smell of kerosene and the Forensic Science Laboratory report has confirmed the presence of kerosene on the clothes of the deceased. This apart, even the appellant has admitted in his statement recorded under Section 313 of the Cr.P.C. that the deceased received burn injuries while cooking on a kerosene VINAY 2014.12.11 16:09 I attest to the accuracy and integrity of this document Punjab & Haryana High Court, Chandigarh CRA-40-DB-2003 -15- stove.
The argument that there was a delay of 21 days in sending the clothes etc. for forensic examination and the report was received after four months, advanced to raise a plea alleging tampering with the evidence, could have been accepted if there is any evidence that the seals affixed were tampered. A perusal of the FSL report reveals that the case property was received with all the seals intact.
Another argument is that Ex.PB, affidavit filed by the malkhana incharge shows that only clothes and a can were deposited but the affidavit Ex.PC filed by constable Satpal shows that he took clothes, a plastic can and sample of earth for forensic examination. The error in recording the articles entrusted to the malkhana cannot be used by the appellant to discredit prosecution evidence as it appears to be a bonafide error as kerosene stained earth was taken into possession.
The defence set up by the appellant in his statement under Section 313 of Cr.P.C. and the depositions by DW1 and DW2 are that the appellant was not present and his wife died due to an accident, while cooking meals on a stove. It is also alleged that ASI Vinod Kumar demanded Rs.10,000/- to exonerate the appellant. The evidence adduced in defence has been rightly discarded by the trial court. The deceased having recorded her statement duly witnessed by the doctor, there was no way in which the investigating officer could have exonerated the appellant. This apart, there is an increasing trend by accused to level allegations against investigating officers, the reputation of the police force, being what it is, but in our considered opinion, these allegations do VINAY 2014.12.11 16:09 I attest to the accuracy and integrity of this document Punjab & Haryana High Court, Chandigarh CRA-40-DB-2003 -16- not aid the appellant in any manner and are but a desperate attempts to save the appellant.
The statement Ex.PI when read along with the medico legal report, the site plan establishing the site of the occurrence i.e. the house of the appellant, the presence of kerosene having been detected during post mortem, corroborated by the FSL report and the absence of any credible explanation by the appellant, in our considered opinion are circumstances and relevant facts sufficient to prove that the appellant poured kerosene on his wife and set her on fire, leading to her eventual death in Civil Hospital, Hisar.
In view of what is recorded hereinabove, we affirm the impugned judgment and order, and dismiss the appeal. The bail/surety bonds furnished by the appellant are cancelled. The appellant shall be taken into custody forthwith to undergo the remainder of his sentence.
[ RAJIVE BHALLA ] JUDGE [ SURINDER GUPTA ] JUDGE 11.09.2014 Vinay VINAY 2014.12.11 16:09 I attest to the accuracy and integrity of this document Punjab & Haryana High Court, Chandigarh