Punjab-Haryana High Court
Mahavir Parshad vs State Of Punjab on 28 April, 2009
Author: Daya Chaudhary
Bench: Mehtab S. Gill, Daya Chaudhary
Crl.Appeal No.318 DB of 2000 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Crl.Appeal No.318 DB of 2000
Date of decision: 28.4.2009
Mahavir Parshad
.....Appellant
Vs.
State of Punjab
....Respondent
CORAM : HON'BLE MR.JUSTICE MEHTAB S. GILL.
HON'BLE MRS.JUSTICE DAYA CHAUDHARY.
PRESENT: Mr.Sandeep S. Majithia, Advocate,
for the appellant.
Mr.S.S.Gill, Additional Advocate General, Punjab,
for the respondent.
***
DAYA CHAUDHARY, J.
The present appeal arises out of judgment/order dated 24.5.2000 passed by Additional Sessions Judge, Mansa in Sessions Case No. 10 dated 26.7.1999 vide which accused-appellant Mahavir Parshad has been convicted under Sections 302 and 436 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.1000/-; in default of payment of fine to further undergo RI for one month for offence under Section 302 IPC. He was further sentenced to undergo RI for seven years and to pay fine of Rs.500/-; in default of payment of fine to further undergo RI for one month for offence under Section 436 IPC. The substantive sentences were directed to run concurrently.
The facts of the prosecution case, as unfolded by Sheela Devi complainant (PW2) who is none else but the wife of appellant Mahavir Crl.Appeal No.318 DB of 2000 [2] Parshad and daughter of Ambhe Ram (deceased) who was residing with his daughter Sheela Devi at Budhlada as he had no son. Her husband Mahavir Parshad (appellant) used to take liquor and was not working anywhere. He used to beat Sheela Devi. On 8.3.1999 at about 7.00 a.m. Sheela Devi along with her son Rakesh Kumar was present in her house and her father Ambhe Ram was also lying inside the room on a cot. Accused Mahavir Parshad demanded money from her for taking liquor. On refusal, he became angry with her. Mahavir Parshad was advised by his father-in-law Ambhe Ram to do some work for bringing up his children. Upon this, Mahavir Parshad picked up a stove lying in the courtyard and sprinkled kerosene oil on Ambhe Ram and set him on fire. Sheela Devi and her son raised alarm which attracted Randhir Kumar, a neighbour, and efforts were made to put off the fire but till the time the fire was brought under control, Ambhe Ram got burnt and died. The accused ran away from the spot. On the basis of statement (Ex.PE) made by complainant Sheela Devi, a formal FIR (Ex.PE/2) was registered. The inquest report Ex.PC of the dead body was prepared which was attested by Sheela Devi and Randhir Kumar and they identified the dead body of Ambhe Ram. Post mortem examination on the dead body was got conducted. The stove (P1), match box (P2) and some ash from the spot were lifted. The ash was converted into a parcel, duly sealed with the seal of Sukhwinder Singh SI. Thereafter the stove, match box, parcel of ash, burnt parts of the cot were taken into possession vide memo Ex.PF. The site plan (Ex.PG) was prepared. The accused was arrested. No recovery was effected from his personal search. After completion of investigation, the accused was challaned under Section 302 IPC.
Crl.Appeal No.318 DB of 2000 [3]
The case was committed to the Court and a charge under Sections 302 and 436 IPC was framed against the accused. It was read over and explained to the accused to which he pleaded not guilty and claimed trial.
The prosecution, in order to prove its case, examined as many as five witnesses, namely, Dr.Kashmir Singh Medical Officer (PW-1) conducted the post mortem examination on the dead body of Ambhe Ram, Sheela Devi (PW2) complainant and Rakesh Kumar (PW3) were eye witnesses of the occurrence, Sukhwinder Singh SI (PW4) partly investigated the case and then Manjinder Singh Inspector (PW5) was investigating officer of the case. Statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded false implication and stated that he was suspecting the character of his wife Sheela Devi and on account of that reason, the relations between him and Sheela Devi became strained. Ambhe Ram, his father-in-law used to sleep in a room. He was aged about 75 years and was suffering from many old age ailments and was bed ridden. It was further stated by him that his wife used to keep burning stove in the room of Ambhe Ram to keep him warm. On 7.3.1999 at about 10.00 p.m., he came to his house and asked his wife to prepare meals for him and his two sons had already gone to fair of village Kulana for arranging a stall. During night his wife refused to cook meal for him and quarreled with him. She locked the room of Ambhe Ram after keeping a burning stove in his room near his cot. In the morning, he found that smoke was coming out of the room and his father-in-law was burnt. Due to enmity, a false case was registered against him. In defence, the accused-appellant examined Suresh Kmar as DW1 and closed his evidence.
Crl.Appeal No.318 DB of 2000 [4]
The trial Court after hearing both the parties and going through the evidence on record, convicted and sentenced the accused as mentioned above.
The appellant has challenged the judgment/order of the trial Court on various grounds.
Mr.Sandeep S. Majithia, learned counsel for the appellant, has argued that presence of two eye-witnesses i.e. Sheela Devi (PW2) and Rakesh Kumar (PW3) is doubtful as they were not present at the spot. Their statements are not only contradictory to each other but they are self contradictory also and the same cannot be relied upon. Sheela Devi (PW2) has stated before the police that her husband Mahavir Parshad was not working anywhere and remained idle but in the same statement before the police she has stated that he used to sell vegetables in the Grain Market Budlada. Similarly, Sheela Devi has stated in her statement before the Court that accused used to sell vegetables in the Grain Market, Budlada and again she said that he sold the vegetables for about 2/2-1/2 years. Her son Rakesh Kumar PW-3 also worked with him for selling vegetables for one year. She has further stated that accused and her son Rakesh Kumar used to go to vegetable market for purchasing vegetables in auction at about 4.00-5.00 a.m. and her son Rakesh Kumar started going to market to purchase vegetables about two years ago.
Rakesh Kumar PW-3 has stated that his father Mahavir Parshad was doing some work but for the last 2-3 years, and further stated that he was not doing any work and was idle. He further stated that he used to go to the vegetable market to purchase vegetables at about 4.00-5.00 a.m. and his father did not accompany him to the market on the date of occurrence. He Crl.Appeal No.318 DB of 2000 [5] and his father never used to go to Kulana fair for selling vegetables.
Mr. Majithia further argued that the conduct of both the eye- witnesses was unnatural and improbable as both of them were present at the time of occurrence but no efforts were made to save Ambhe Ram deceased and none of them received any burn injury which shows that they never tried to save the deceased from burning which doubts their presence at the spot.
Mr.Majithia further argued that the accused-appellant has falsely been implicated in the present case as the conduct of the accused was very caring as he used to bring medicines for Ambhe Ram during his illness and was helpful in giving medical treatment. The question of pouring kerosene on his body does not arise. Moreover, there was no motive to commit murder of Ambhe Ram. The prosecution has also failed to prove the motive and otherwise also, the accused cannot be convicted on a weak motive.
Mr. Majithia further argued that the death in the present case was accidental as he has mentioned in his statement under Section 313 Cr.P.C. that his wife used to keep stove in the room of Ambhe Ram who was suffering from old age ailments and burning was accidental. Because of strained relations between him and his wife, he has falsely been implicated. Sheela Devi PW-2 has also stated that the accused was addicted to liquor and was idle and used to beat her. It has further been argued by Mr. Majithia that the prosecution has examined only closely related witnesses and no independent witness from the locality was examined. Complainant Sheela Devi PW-2 is the daughter of deceased Ambhe Ram whereas Rakesh Kumar PW-3 is the grandson of the deceased Crl.Appeal No.318 DB of 2000 [6] and their statements cannot be relied upon but the trial Court has convicted the accused-appellant on the basis of statements of closely related witnesses.
The next argument of learned counsel for the appellant is that as per opinion of the doctor, there was no smell of kerosene oil and moreover, it was not practically possible for the appellant to pour kerosene oil on the body of Ambhe Ram in presence of all family members. Since both the eye-witnesses did not receive any injury while extinguishing the fire, their presence was doubtful.
Mr. S.S.Gill, learned Additional Advocate General, Punjab, appearing for the respondent, argued that the prosecution case was fully proved against the accused beyond a reasonable doubt. The FIR was quick. There was no delay in sending the special report. The presence of both the eye-witnesses (being wife and son) was natural and they witnessed the occurrence. The trial Court has rightly convicted and sentenced the appellant.
We have heard the arguments of learned counsel for the parties and perused the evidence available on record with their assistance.
In the present case, the occurrence took place at about 7.00 a.m. on 8.3.1999. Sheela Devi (PW2) and Rakesh Kumar (PW-3) were eye- witnesses of the incident and their presence was natural and probable as it was morning time. The argument of learned counsel for the appellant that presence of two eye-witnesses is doubtful and their statements are not consistent with each other is not tenable. As far as the presence of two eye witnesses is concerned, this fact cannot be doubted because the deceased was residing in the house of the accused as he was not having any son and was suffering from some old age ailments and was bed-ridden. The incident Crl.Appeal No.318 DB of 2000 [7] was witnessed by these two eye-witnesses and their presence at the spot was natural. Moreover, there are no inconsistencies in the statements of these two eye-witnesses. Rakesh Kumar (PW3) stated in his statement that although he used to bring vegetables early in the morning but on that day, he was in the house and the incident took place in his presence, so there is no reason to disbelieve the statement of Rakesh Kumar. Rakesh Kumar is the son of the appellant and no son would like to depose against his own father. Similarly, Sheela Devi is the daughter of the deceased and also wife of the appellant. There is nothing on the record to show that relations between Sheela Devi and accused Mahavir Parshad were not cordial. The only thing that has come out from the statements of the prosecution witnesses that the appellant was a drunkard and used to demand money for liquor. Moreover, their marriage took place 17 years prior to the date of occurrence and three children were born out of this wedlock and there was no reason for Sheela Devi to falsely implicate her husband. The argument of learned counsel for the appellant that no independent witness was examined and statements of closely related witnesses cannot be relied upon, does not carry weight as on raising alarm by Sheela Devi, a neighbour, Randhir Kumar came at the spot but later on he was given up by the prosecution as won over by the accused. This view has been supported by Hon'ble the Supreme Court in Gurdev Raj v. State of Punjab (2007) 13 Supreme Court Cases 380 and Arjan Singh and others v. State of Rajasthan 1994 Supp.(3) SCC 189 that the statements of closely related witnesses cannot be discarded on the ground that they were directly related to the deceased. In case of closely related witnesses the Court should be careful in scrutinizing their statements. In the present case, the statements of Crl.Appeal No.318 DB of 2000 [8] these two eye-witnesses cannot be brushed aside simply on account of their relationship with the deceased as they were most natural witnesses and their statements were also consistent. It is a settled law that in case of evidence of related witnesses, the Court is put on guard to scrutinize the evidence carefully and cautiously, and after careful and cautious scrutiny, if the Court comes to the conclusion that the evidence of such a witness does not suffer from any serious infirmity, the same can be believed. In the instant case, the evidence of Sheela Devi (PW2) and Rakesh Kumar (PW3) is credible. They are very consistent in their statements and their presence was natural and probable at the time of occurrence. There is no reason to discard their statements. The defence taken by the accused in his statement under Section 313 Cr.P.C. is not of much force.
The prosecution version has been corroborated by medical evidence. As per statement of Dr.Kashmir Singh (PW1), the deceased died due to shock and asphyxia as a result of burns which were 100%, which were ante mortem in nature and were sufficient to cause death in the ordinary course of nature. He further deposed that many parts of the body were missing due to 100% burns. As per opinion of Dr.Kashmir Singh, mucosa was congested sooty particles were present. There was blackening on the dead body of Ambhe Ram deceased and the deceased died due to shock and asphyxia as a result of burns which were 100%. As per opinion of the doctor, the death took place within 5 to 10 minutes. In cross- examination, it was stated by the doctor that sooty blackening was present on the dead body and sooty particulars were present in the larynx and trachea. The kerosene oil burning caused sooty blackening. It is proved from the statement of the doctor that sooty blackening was present on the Crl.Appeal No.318 DB of 2000 [9] dead body of Ambhe Ram. The presence of sooty blackening was only on account of burning by kerosene oil, meaning thereby that kerosene oil was sprinkled on the bed and the bedding on which Ambhe Ram was lying and death in the present case was due to burns and it was not a case of accidental fire but was due to the act of the accused-appellant.
For the reasons recorded above, we find no ground to interfere with the judgment/order dated 24.5.2000 of Additional Sessions Judge, Mansa. Hence, the appeal is dismissed. The appellant if on bail shall surrender to custody for serving out the remaining sentence.
( DAYA CHAUDHARY) JUDGE (MEHTAB S. GILL) JUDGE April 28, 2009 raghav Note: Whether to be referred to the Reporter or not. .......Yes /No.