Punjab-Haryana High Court
Rajesh vs State Of Haryana on 15 March, 2012
Bench: Jasbir Singh, Sabina
CRIMINAL APPEAL NO. 76-DB OF 2008 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
DATE OF DECISION: March 15 , 2012
Parties Name
Rajesh
...APPELLANT.
VERSUS
State of Haryana
...RESPONDENT
CORAM: Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mrs. Justice Sabina
PRESENT: Mr. Vinod Ghai,
Advocate, for the appellant.
Mr. Sandeep Vermani, Addl. A.G., Haryana;
Jasbir Singh, J.
JUDGMENT
Appellant Rajesh was put to face trial along with three others, namely, Baldev( his brother), Khazani (his mother), his mother, and Vidya Devi (sister-in-law) for commission of offences under Sections 498-A/34, 304-B/34, in the alternative u/S 302/34 and 316/34 IPC. It was allegation against them that they, on October 12, 2005, in furtherance of their common intention, caused death of Bhateri wife of the appellant by setting her on fire CRIMINAL APPEAL NO. 76-DB OF 2008 -2- and at that time, she was pregnant, as a result of which, her unborn child also died in the womb. After trial, other three were acquitted. However, appellant was convicted for commission of offences under Sections 498-A and 302 IPC vide judgment dated October 10, 2007.
On November 11, 2007, following sentence was imposed upon him:
"302 IPC To undergo imprisonment for life and to pay a fine of Rs. 5,000/- and in default of payment of fine, to further undergo R.I. for six months.
498-A IPC To undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 1,000/- and in default of payment of fine to further undergo R.I. for one month."
Both the sentences were ordered to run concurrently and period of detention undergone by the appellant during investigation and trial was ordered to be set off against the substantive sentences. Hence this appeal.
FIR in this case was registered on the basis of a dying declaration Ex. PM/1 of Bhateri, which was recorded by Gurwinder Kaur (PW6), Judicial Magistrate Ist Class, Kaithal, on October 12, 2005, at 5.55 PM. As per statement made by the deceased, on the above date, at about 11 AM, her husband Rajesh poured kerosene oil upon her and set her on fire for not bringing a scooter. The other accused were also present at the spot. ASI Balwan Singh (PW11), reached the Government Hospital at Kaithal on receipt of ruqqa (intimation) Ex. PC and moved an application Ex. PM to the Duty Magistrate (PW6) to record statement of Bhateri. PW6 went with CRIMINAL APPEAL NO. 76-DB OF 2008 -3- him to the Hospital, where Bhateri's statement Ex. PM/1 was recorded in the presence of a doctor. SHO Rajinder Singh (PW12) obtained a copy of the above statement by moving an application Ex. PR, on the basis of which an FIR Ex. PS was recorded in Police Station Rajound on October 12, 2005 against the above named four accused under Sections 498-A/304- B/302/316/34 IPC.
Appellant was arrested on October 14, 2005. His disclosure statement led to recovery of the dowry articles. Deceased Bhateri gave birth to a dead child on October 16, 2005. Post-mortem on the dead body was conducted by Dr. Vinod Kumar (PW3) on October 16, 2005, at 4.45 PM. Smt. Bhateri also died on October 20, 2005. On receipt of intimation, ASI Raj Pal (PW4) went to PGI, Rohtak, conducted inquest proceedings on the dead body and sent it for post-mortem examination. Post-mortem on the dead-body was conducted by Dr. Ranbir Singh (PW2) on April 20, 2005, at 5 PM. He found superficial to deep burns on whole of the body, which were to the extent of 100%. Cause of death was declared above burns and its complications. Injuries were ante mortem in nature and sufficient to cause death in ordinary course.
On completion of investigation, final report was presented in Court. Copies of the documents were supplied to the accused as per norms. Case was committed to the competent Court for trial. The appellant and his co-accused were charge-sheeted vide order dated February 20, 2006, to which they pleaded not guilty and claimed trial. The prosecution produced 13 witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution evidence, statements of the appellant CRIMINAL APPEAL NO. 76-DB OF 2008 -4- and his co-accused were recorded under Section 313 Cr.P.C. Incriminating material on record was put to them, which they denied, claimed innocence and false implication. They also led evidence in defence. The appellant in his statement under Section 313 Cr.P.C. deposed as under:
"I am innocent. I have been falsely implicated in this case. On 12.10.2005, my wife Bhateri had compelled me to go to the house of her sister at village Kultaran and when I showed inability to accompany her, she started quarrelling with me. Then I went to my field at 10/11 a.m. I along with my brother Baldev and his wife Anita were present in the fields and at about 11.30/12.00 noon a child came in the field and told that Bhateri had received burn injuries, on which I immediately went to my house and brought Bhateri to Government Hospital, Kaithal for treatment, and from there she was referred to PGI Rohtak. My brother Baldev alongwith his wife and children were living separately from me and my mother Khazani. I never harassed my wife for any demand of dowry."
The trial Judge, on appraisal of evidence, found the appellant guilty and accordingly he was convicted and sentenced as found mentioned in earlier part of this order. Others were, however, acquitted.
Counsel for the appellant has vehemently contended that it was a case of suicide. The marriage between the parties was solemnised in the year 2000. Muklawa ceremony took place about 8 - 9 months prior to the date of occurrence. The deceased could not adjust with the appellant. On the fateful day, she wanted to go to her sister at village Kultaran, when CRIMINAL APPEAL NO. 76-DB OF 2008 -5- inability was shown by the appellant, she started quarreling with him. The appellant went to the fields. At noon, he received information through the children that Bhateri has received burn injuries. She was taken to Government Hospital at Kaithal for treatment and then shifted to PGI at Rohtak. To say that couple was living happily, reference was made to the statement made by DW1 and to further show that it was a case of suicide, reference was made to the statement of DW3. He further argued that there was no complaint ever made by Anita Devi (PW8) sister of the deceased who was married to Baldev Singh accused in this case. No report was ever made to the police regarding maltreatment, to bring less dowry. After the death of Bhateri, with a view to extract money from the appellant, relatives of the deceased put up a false story. They reached in the hospital and tutored Bhateri to make a false statement. He prayed that the appeal be allowed, judgment and order under challenge be set aside and the appellant be acquitted of the charge framed against him.
Prayer made has vehemently been opposed by the State counsel, who by making reference to the statements made by the deceased, PW6 JMIC Gurwinder Kaur and Dr. T.S. Bagri (PW1) argued that the deceased Bhateri made the statement without any pressure and she was conscious at that time. To say that Bhateri was killed for not bringing a scooter, he made reference to the statement made by Anita Devi (PW8). By stating that the death has occurred in the house of the appellant, it is for him to show how Bhateri has died, which he has failed. Counsel prayed that the appeal having no substance be dismissed.
After hearing counsel for the parties, this Court is of the CRIMINAL APPEAL NO. 76-DB OF 2008 -6- opinion that the present appeal deserves dismissal. It is not in dispute that Bhateri was living with the appellant and she received burn injuries in his house. She was pregnant at that time. After receipt of burn injuries, she was shifted to Government Hospital at Kaithal. She was got admitted in the Hospital by Dr. R.D.Chawla (PW7). She was taken away from the hospital against medical advice. Again she was brought back at 2.40 PM to the hospital, where she was readmitted by Dr. T.S. Bagri (PW1). On an application moved, PW6 JMIC Gurwinder Kaur came present at the spot. After getting opinion regarding fitness of the deceased from Dr. T.S.Bagri (PW1), she recorded statement of the deceased. At the end of the statement, this witness put her signatures by certifying that the patient remained fit at the time when her statement was recorded. This witness has specifically stated that when her statement was recorded, no attendant was available with the deceased. PW6 JMIC Gurwinder Kaur has also deposed on the same lines. She has stated that after getting opinion from the doctor Ex. PD regarding fitness of the deceased, her statement Ex. PM/1 was recorded. Both thumb impressions of Bhateri were burnt. On account of that, at the end of her statement, right toe impression was obtained. This witness has further stated that the patient remained fit throughout when her statement was recorded. Before recording her statement, all the attendants except Doctor were sent out. The statements made by above witnesses go to show that the deceased made statement Ex. PM/1 without any pressure and of her own free will. She was in senses and was capable of understanding the questions put to her.
As per law, dying declaration, if trustworthy and proved on CRIMINAL APPEAL NO. 76-DB OF 2008 -7- record, conviction can be based upon it without any further corroboration. It is true that to know authenticity of the statement (dying declaration) , veracity of that statement cannot be subjected to cross-examination. In view of above, to know truthfulness of the statement /dying declaration, the Court is supposed to carefully analyse the same and also its mode and manner of recording. It is also to be seen as to whether maker was in a fit state of mind or not. We have analysed statement of the deceased Ex. PM/1 in the light of above principles.
Their Lordships of the Supreme Court in Smt. Laxmi v. Om Parkash and others, 2001(3) RCR (Criminal) 358, have discussed the importance of dying declaration during trial and observed as under:
"The law is well settled; dying declaration is admissible in evidence. The admissibility is founded on principle of necessity. A dying declaration, if found reliable, can form the basis of conviction. A Court of facts is not excluded from acting upon an uncorroborated dying declaration for finding conviction. A dying declaration, 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. It is, as if the maker of the dying declaration was present in the Court, making a statement stating the facts contained in the declaration, with the difference that the declaration is not a statement on oath and the maker thereof cannot be subjected to CRIMINAL APPEAL NO. 76-DB OF 2008 -8- cross-examination. 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."
In this case, as has been discussed in earlier part of this order, the statement of the deceased inspires confidence. It is clear that she has only shown presence of the other family members and made no attempt to attribute any specific act to them. She was clear when stating that the appellant had fought with her for not bringing a scooter and she was put to fire only by the appellant. The statement made by the deceased is supported by the statement made by Anita Devi (PW8), sister of the deceased, who was also married in the same house. PW9 Basau has also deposed regarding demand of dowry by the appellant from parents of the deceased.
Their Lordships of the Supreme Court in Sher Singh and another v. State of Punjab, (2008) 4 Supreme Court Cases 265, have opined that "acceptability of a dying declaration is greater because the declaration is made in extremity when the party is at the verge of death. One rarely finds any motive to tell falsehood and it is for this reason that the requirements of oath and cross-examination are dispensed with in case of dying declaration." It was further observed that the Courts are required to analyse the dying declaration in a careful manner as the accused has no power to CRIMINAL APPEAL NO. 76-DB OF 2008 -9- cross-examine the maker of the statement and if the statement is truthful, the same can be relied upon to convict an accused. Minor technicalities with regard to opinion of the doctor etc. are to be ignored.
In Bijoy Das v. State of West Bengal, (2008) 4 Supreme Court Cases 511, their lordships of the Supreme Court has opined that there was no reason as to why the doctor or the other witnesses should make a false statement about the dying declaration especially when there is no allegation of enmity between the accused and those witnesses (Para 10).
Similarly, in the case of Narain Singh v. State of Haryana, AIR 2004 Supreme Court 1616, after discussing the entire case law on the subject, it was opined that "if a dying declaration is found to be reliable, then there is no need of any corroboration by any witness and conviction can be sustained on its basis alone. Merely because statement of the deceased was not recorded before a Magistrate is no ground to discard the dying declaration made by her in view of facts mentioned above."
Their Lordships of the Supreme Court in Pores Yadav and others v. State of Bihar, (1999) 2 Supreme Court Cases 126 and in Mange Ram and another v. State, Delhi Administration, 1998 Supreme Court Cases (Criminal) 909, have justified reliance of the Courts on dying declaration made by the deceased to the Investigating Officer, as it was found to be reliable and trust-worthy.
As per evidence on record, in the present case, deceased was not under pressure when her statement was recorded. Dr. T.S. Bagri (PW1) and JMIC Gurwinder Kaur (PW6) adopted proper mode to record statement of the deceased.
CRIMINAL APPEAL NO. 76-DB OF 2008 -10-
Defence taken that it was a case of suicide does not inspire any confidence. Admittedly, deceased was pregnant. She gave birth to a dead child on October 16, 2005. Post-mortem was conducted on the dead body by Dr. Vinod Kumar (PW3). Contention of counsel for the appellant that the deceased committed suicide because she was not taken to her sister's village is not believable. At the stage of pregnancy, a woman is supposed to be very happy with a thought of having a child. Otherwise also, there is no evidence on record that the deceased had ever insisted upon the appellant to take her to her sister's village.
Furthermore, the deceased has suffered burn injuries when living with the appellant in his house. It is for the appellant to state the mode and manner in which burn injuries were received by the deceased. The appellant has failed to discharge his burden as imposed upon him under Section 106 of the Indian Evidence Act. 1872.
The process of investigation is also fair and proper. It has been supported by ASI Balwan Singh (PW11) and Inspector Rajinder Singh (PW12). ASI Raj Pal (PW4) has also deposed the manner in which intimation regarding admission of Bhateri in the hospital, with burn injuries, was received from the hospital. The above witness has also deposed the mode and manner in which Duty Magistrate was approached and thereafter statement of the deceased was recorded. PW8 Anita Devi, sister of the deceased, who is also married in the same house, has further corroborated case of the prosecution. It is correct that she has tried to exaggerate certain facts, however, by excluding those exaggerated facts, her evidence can be accepted qua a fact that the deceased was being harassed for not bringing a CRIMINAL APPEAL NO. 76-DB OF 2008 -11- scooter/ other dowry articles. The trial Judge has analysed the evidence in a proper manner when convicting the appellant and acquitting his co-accused.
Counsel for the appellant has failed to show any misreading of evidence by the Court below, which may necessitate any interference by this Court. Dismissed.
( Jasbir Singh ) Judge ( Sabina) Judge March 15, 2012 DKC