Punjab-Haryana High Court
State Of Haryana vs Phool Chand And Others on 20 April, 2010
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal, Jora Singh
Crl.Appeal No.561-DBA of 2001 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl.Appeal No.561-DBA of 2001
DATE OF DECISION: APRIL 20, 2010
State of Haryana
.....APPELLANT
Versus
Phool Chand and others
....RESPONDENTS
CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL
HON'BLE MR.JUSTICE JORA SINGH
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Present: Mr.S.S. Randhawa, Addl.Advocate General,Haryana,
for the appellant.
None for the respondents.
..
SATISH KUMAR MITTAL, J.
The State of Haryana has filed the instant appeal against the judgment of acquittal dated 3.7.2000 passed by Additional Sessions Judge, Jagadhri, whereby all the three accused, namely, Phool Chand (father-in- law), Satya Devi (mother-in-law) and Sarwan Lal (husband of deceased Suman Devi) have been acquitted from the charge framed against them for committing the murder of Suman Devi.
In the present appeal, the prosecution case is based upon the dying declaration made by the deceased. It has come in evidence that before her death due to burn injuries on 16.9.1998, she made three statements, one after another. Her first statement (Ex.DA) was recorded by ASI Ved Parkash (PW7) at 11.45 p.m. on 2.9.1998. The said statement was recorded by him in Civil Hospital, Jagadhri, where he went on receiving the telephonic message regarding admission of Suman Devi (deceased) in Civil Hospital, Jagadhri in burning condition. In the said statement, she stated that she was residing in village Nalagarh Majri, Jagadhri along with her husband Sarwan Crl.Appeal No.561-DBA of 2001 -2- Lal, who was working in Ravi Emporium, Jagadhri. She was having three children, two sons and one daughter. Elder son was 13 years of age, daughter was 10 years of age and younger son was 7 years old. On the day of occurrence, her children were sitting by her side near the `Chulah'. At that time, there was cut in the electricity supply. Her younger son Sachin while sitting by her side, pulled a burning wooden stick from the `Chulah' from which her clothes caught fire. Thereupon, on hearing her noise, her father-in-law came running. He threw carpet on her and extinguished the fire. In the meanwhile, her husband Sarwan Lal also returned from his work. He took her in burnt condition to Sharma Hospital. In that hospital dressing was done and treatment was given to her. Thereafter, she was referred to Civil Hospital. She stated that the said incident had taken place due to the child pulling the wooden stick from the `Chulah' and in that nobody was at fault. It has come in evidence that the said statement was recorded by ASI Ved Parkash (PW7) after obtaining the opinion (Ex.PC/1) of the doctor about the fitness of the patient to make the statement. ASI Ved Parkash read over the said statement to Suman Devi and who after admitting the same as correct thumb marked the same. It has further come in evidence that the said statement was also attested by the Medical Officer.
On the next day, i.e., 3.9.1998 at 11.15 a.m., ASI Ved Parkash (PW7) again recorded the statement (Ex.PK) of Suman Devi on the pretext that her earlier statement was given under pressure of her husband. In the second statement, she stated that on that date, i.e., 3.9.1998, she returned to her house at about 6.00 p.m. after doing the labour work. She had three children, elder son aged 13 years, younger daughter aged 10 years and youngest son aged about 6/7 years. She went to take Atta from the flour Crl.Appeal No.561-DBA of 2001 -3- mill and after putting the Atta in her house she went outside in the field to ease herself. When she returned to her house, her father-in-law (Phool Chand), who was present in the house, asked her where she had gone. She replied that she had gone to ease herself. Thereupon, her father-in-law caught her by her hair and caused beatings to her and told her that she should go away from there. In the meanwhile, her husband returned from his job and he did not pay heed to what she told to him, and instead he started abusing her and causing beating to her. When she entered in the room, her father-in-law sprinkled kerosene oil on her clothes, which was contained in the Pipi, and put her on fire with the help of a match stick. When she started crying due to burning, her husband threw water on her. Her mother-in-law was also present in the house, but she did not help her in rescuing. The occurrence had been caused by her father-in-law Phool Chand and her husband Sarwan Lal with intention to kill her by sprinkling kerosene oil on her and putting her on fire. She also stated that she had earlier made a statement under threat and pressure of her husband and father-in-law. Therefore, the second statement be considered as her correct statement, which had been given in senses to ASI Ved Parkash (PW7).
It is pertinent to mention here that on the basis of the aforesaid statement, initially the case was registered against all the three accused under Section 307 read with Section 34 IPC. The aforesaid statement was recorded by ASI Ved Parkash (PW7) after obtaining the opinion (Ex.PF/1) of the doctor about the fitness of Suman Devi (deceased) to make the statement. No time has been mentioned on the said opinion. Even the second statement was not attested by any doctor.
The third statement (Ex.PO) of Suman Devi was recorded by Crl.Appeal No.561-DBA of 2001 -4- PW8-Shri Lal Chand, JMIC, Jagadhri at 2.18 p.m. on 3.9.1998 after obtaining the opinion of the doctor about the fitness of the patient to make the statement. In the said statement, she stated that on 2.9.1998 she returned to her house at 8.00 p.m. after doing the labour work. She had gone to bring Atta from the flour mill and after bringing the Atta, she had gone outside to ease herself. When she returned back, her father-in-law asked her why she had gone outside alone and why she did not take any one from the house with her. Thereupon, she replied as to what had happened if she had gone alone. Then she put oil in the lamp and went to the hand pump for washing her hands. Her father-in-law Phool Chand came there and sprinkled kerosene oil on her from a Pipi. Her mother-in-law caught her by her hands and her husband Sarwan Lal lit match stick from match box. They also harassed her earlier and used to say that she had brought less dowry. In this statement, entirely a different version was given by the deceased.
It has also come in evidence that before her death on 16.9.1998, she gave an affidavit (Ex.DB) dated 14.9.1998 scribed by one Amar Singh, Advocate and attested by Sadhu Ram, Notary Public, Jagadhri and witnessed by DW1-Dharam Pal. According to the said affidavit, on 2.9.1998 her clothes suddenly caught fire while she was cooking the meal and due to that she sustained burn injuries. Nobody had put her on fire. She made the statement before the police as well as before the Magistrate due to misunderstanding. On 16.9.1998 she had died and PW2-Dr.Ashok Kumar Sharma, Medical Officer, Civil Hospital, Jagadhri conducted the autopsy of Suman Devi. In his opinion, the cause of death was due to shock because of extensive burns over the body which were ante-mortem in nature and sufficient to cause death in normal course of events. There was no ligature Crl.Appeal No.561-DBA of 2001 -5- mark on the neck. No other injury was noticed.
After filing the challan, all the three accused were tried for the charge under Section 302 read with Section 34 IPC to which they pleaded not guilty and claimed trial.
In support of its case, the prosecution examined 8 witnesses, including PW1-Dr. Ramesh Kumar, Medical Officer, Civil Hospital, Jagadhri, who conducted the medico-legal examination of Suman Devi (deceased) at 11.15 p.m. on 2.9.1998. He found 90% burn injuries on her body, but he did not notice any other injury on her body. PW2-Dr. Ashok Kumar Sharma, Medical Officer, Civil Hospital, Jagadhri, who conducted the post-mortem examination on the dead body of Suman Devi. PW3-Dr. Santosh Kumar Thakur, who gave an opinion (Ex.PF/1) about the fitness of Suman Devi to make the statement. PW5-Gurdev Singh, brother of the deceased. PW6-Bakhtawara Ram, a resident of the village. PW7-ASI Ved Parkash and PW8-Lal Chand, JMIC, Jagadhri.
In their statements recorded under Section 313 Cr.P.C., all the three accused denied the prosecution allegations made against them and stated that they have been falsely implicated in this case. In defence, the accused examined DW1-Dharam Pal, who proved the affidavit (Ex.DB) of Suman Devi (deceased).
The trial Court after considering the evidence led by the prosecution, acquitted the accused while coming to the conclusion that the first statement of the deceased (Ex.DA) was recorded immediately after the occurrence after obtaining the opinion of the doctor about the fitness of Suman Devi (deceased) to make the statement. PW7-ASI Ved Parkash went to the hospital on receiving the ruqa and after completing all the formalities, Crl.Appeal No.561-DBA of 2001 -6- he recorded the statement (Ex.DA) correctly, which was read over to Suman Devi, and who after understanding put her thumb impression on the same. The said statement was recorded by him in presence of the doctor, who had attested the said statement. The trial Court further come to the conclusion that the subsequent two statements (Ex.PK and PO), which were recorded by ASI Ved Parkash (PW7) and Shri Lal Chand, JMIC, Jagadhri (PW8), respectively, are contradictory to each other and are not reliable. It has been noticed that the second statement (Ex.PK) of Suman Devi (deceased) was not attested by the doctor. It has been further found as a matter of fact that in the second statement, last two lines were added subsequently in which father-in-law and husband of Suman Devi (deceased) were implicated by saying that they burnt her with intention to kill her and that she gave her earlier statement under threat and pressure of her husband and father-in-law. It has been further found that the possibility of recording the second and third statements of Suman Devi (deceased) under pressure of her parents and brother cannot be ruled out, particularly when PW5-Gurdev Singh, real brother of the deceased stated that his sister Suman Devi changed her statement before the police initially and subsequently before the Magistrate under pressure. It has been further held that the affidavit (Ex.DB) was given by the deceased on 14.9.1998 to the effect that on 2.9.1998 she suddenly caught fire when she was preparing meals and that she made statement to the police and Magistrate due to misunderstanding. The said affidavit further shows that the second and third statements of Suman Devi (deceased) were not the correct statements made by her. The trial Court has observed that when the subsequent dying declaration, which is the only basis of the prosecution case, does not inspire any confidence, Crl.Appeal No.561-DBA of 2001 -7- then the same cannot be relied upon without any independent corroboration for convicting a person for the offence of murder. It has been further observed that in the instant case the alleged version given in the dying declaration made by the deceased, has not been corroborated by any other evidence. On these reasonings, the trial Court acquitted all the three accused. Against the said judgment, the State has filed the instant appeal.
After hearing the learned counsel for the appellant and going through the record of the case, we do not find any ground to interfere in the impugned judgment passed by the trial Court.
A dying declaration is admissible in evidence as an exception to the general rule against the admissibility of hearsay. It, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in the light of the surrounding circumstances and its weight determined by reference to the principles governing the weighing of evidence. If in a given case a particular dying declaration suffers from any infirmities, either of its own or as disclosed by other evidence adduced in the case or circumstances coming to its notice, the Court may as a rule of prudence look for corroboration and if the infirmities be such as render the dying declaration so infirm as to prick the conscience of the Court, the same may be refused to be accepted as forming safe basis for conviction. If the Court finds that the dying declaration is suspicious, it should not be acted upon without corroborative evidence. Further the Court has to scrutinize the dying declaration carefully and it must be ensured that the dying declaration is not the result of tutoring, prompting or imagination or made under pressure of someone.
In Mohanlal Gangaram Gehani v. State of Maharashtra, AIR Crl.Appeal No.561-DBA of 2001 -8- 1982 SC 839, it was held that where there is more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declarations could be held to be trustworthy and reliable, it has to be accepted. It is well settled that if the Court is satisfied that the dying declaration is true and voluntary, it can base conviction on it, without corroboration.
But, in the present case, the deceased made three statements, one after another. The trial Court found that the first statement made by the deceased immediately after the occurrence appears to be true version and the same is most reliable and trustworthy. The trial Court further came to the conclusion that the second and third statements are contradictory and the same do not inspire confidence as there are many infirmities which have been noticed in the trial Court judgment. Therefore, those two statements were not relied upon as the version given in those statements has not been corroborated by any other evidence available on the record. After going through all the three dying declaration and the other evidence led by the prosecution, we do not find any illegality, infirmity or perversity in the judgment passed by the trial Court. In our view, in the facts and circumstances of the case and the evidence led by the prosecution, the trial Court was fully justified while not relying upon the second and third statements made by the deceased before ASI Ved Parkash (PW7) and Shri Lal Chand, JMIC, Jagadhri (PW8), respectively. In our opinion, when the last two statements made by the deceased, are contradictory to each other, then these statements become suspicious, and in such situation, it is the duty of the Court to look into the corroborative evidence, if any, available on the record in order to rely upon the version given in these dying declaration. Crl.Appeal No.561-DBA of 2001 -9- When these two statements were recorded on 3.9.1998, the father and brother of the deceased were present in the hospital. Though it is stated that when these statements were recorded they were sent outside the room. But possibility of pressurising the deceased to make such statement could not be ruled out. Even brother of the deceased (PW-5 Gurdev Singh) has stated that the second and third statements were made by the deceased under their pressure.
In the instant case the version given in the second and third statements has not been corroborated by any other evidence. The brother of the deceased has also not supported the prosecution case. Rather he has stated that the second and third statements were recorded under their pressure. Keeping in view all these facts and circumstances and also the affidavit (Ex.DB), the trial Court has acquitted all the three accused by giving them the benefit of doubt. We do not find any illegality, manifest error or perversity in the judgment of acquittal passed by the trial Court. It is well settled that this Court can interfere in the judgment of acquittal only if it is found that from the evidence led by the prosecution, the guilt of the accused has been clearly established. In our opinion, the view taken by the trial Court is the only possible view. Therefore, in our view, the judgment of acquittal passed by the trial Court does not require any interference in this appeal.
In view of the aforesaid reasons, the appeal is dismissed.
(SATISH KUMAR MITTAL)
JUDGE
April 20, 2010 ( JORA SINGH )
vkg JUDGE