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2004 DIGILAW 330 (HP)

PARAT SINGH v. STATE OF H. P.

2004-12-14

K.C.SOOD

body2004
JUDGMENT K.C. Sood, J.: The order will dispose of this petition for the grant of bail under Section 439 of the Code of Criminal Procedure. 2. It appears, petitioner was arrested on 20th May, 2004 in a case registered with Police Station, Paonta Sahib, District Sirmaour, for an offence punishable under Section 302 of the Indian Penal Code, in terms of FIR No. 193 of 2004 dated 20.5.2004. 3. Prosecution case. 4. Bimal Devi, deceased, was married to Parat Singh, petitioner herein, in the year 1982. She could not bear a child. For this reason, she was always abused, maltreated and the petitioner wanted divorce from her. A year back, petitioner solemnized second marriage with one Suman, without the consent of Bimal Devi (the deceased). Suman delivered a child, early this year, Suman is living in her in-laws house. 5. On the evening of 19th May, 2004, husband picked up a quarrel with Bimal Devi. She went to the house of Randip Kaur and told her that her husband is demanding divorce from her and is quarreling with her. Randip Kaur accompanied Bimal Devi to her residence. Looking at the atmosphere in the house, she returned back and went to the house of one Pritam Singh, retired Superintendent, and informed him about Bimal Devi. She and Pritam Singh came to the house of accused and tried to pacify the husband and wife. Thereafter, Randip Kaur returned back to her own house. At about 12.30, after mid night, Bimal Devi (deceased) again came to the house of Randip Kaur and told her that her husband is harassing her. Randip Kaur asked her to sleep in her house but Bimal Devi left for her own house. In the morning at about 6.30, she again came to her and told her that she had spent the entire right, sitting on a chair and that her husband had been saying that why she does not die. Thereafter, Bimal Devi went back to her house. At about 8 in the morning, some body informed her that Bimal Devi has been put to file. She went to her house. At that time, accused-petitioner was trying to put new clothes on her. She immediately put up a bed sheet on her body and asked her husband to take her to the hospital but husband dilly-dallied. After some time Bimal Devi was taken to the hospital. She went to her house. At that time, accused-petitioner was trying to put new clothes on her. She immediately put up a bed sheet on her body and asked her husband to take her to the hospital but husband dilly-dallied. After some time Bimal Devi was taken to the hospital. She made a statement to the Inspector/SHO Paonta Sahib, in the presence of the Doctor, that she could not bear any child and her husband had been harassing her and insisting for divorce. About a year back, he contracted another marriage without her consent with one Suman, who is living in her in-laws house at Narwana. In the morning, her husband poured kerosene oil on her, and lit her on fire. 6. The Doctor, when she admitted in the hospital, before recording of the statement, noticed that deceased was conscious and well orientated to time and place, with 100% burn injuries. 7. Accused and deceased Bimal Devi had adopted Pankaj, son of the brother of the accused, as wife of his brother had expired after giving birth to Pankaj. He was living with the deceased and accused. 8. Statement of Pankaj, who is about 6 years of age, was recorded, Pankaj stated that in the night preceding the occurrence, his father packed up a quarrel with his mother and told her that he would put her under the vehicles which ply on the road. He also hit her with leg. In the morning his mother went to kitchen to warn the milk, his father came and poured kerosene oil on her and lit her with matchbox. His mother came out shouting saying water should be poured on her. His father brought her inside and took her to the bath room. He saw his mother putting water on her with a pipe. 9. Mr Kuldip Singh, learned Senior Counsel would contend that, no case is made out. against the accused. He refers to Paparambaka Rosamma and others v. State of A.P., 1999(7) SCC 695 and tried to make a distinction between a person being conscious and fit state of mind to make the statement or dying declaration. 9. Mr Kuldip Singh, learned Senior Counsel would contend that, no case is made out. against the accused. He refers to Paparambaka Rosamma and others v. State of A.P., 1999(7) SCC 695 and tried to make a distinction between a person being conscious and fit state of mind to make the statement or dying declaration. The contention is that the Doctor, who medically examined the deceased, on her admission in the hospital, had noticed that Bimal Devi was conscious and well orientated to time and place but has not stated that she was in fit state of mind to make a statement or declaration and, therefore, this dying declaration cannot be relief upon. 10. It is true that in Paparambaka, the Apex Court in an appeal against conviction noticed that the deceased had sustained extensive bum injuries on her person and the Doctor certified on the dyinc declaration to the effect that "patient is conscious while recording the statement" In this context, their Lordships observed that it was necessary for the prosecution to prove the dying declaration as being genuine, true and free from all doubts. The certificate of the doctor merely shows that the patient was conscious while recording the statement. It would not mean that the Dying Declaration was true and genuine. Dying declaration, observed their Lordships, would only be true and genuine when the injured was in a fit state of mind. In medical science two stages, namely, conscious and fit state minds are distinct and are not synonymous. One may be conscious but no necessarily in a fit state of mind. This distinction was overlooked. In the dying declaration, in the aforesaid case, the deceased had state that she poured kerosene on herself. Dying declaration was not relied upon and the order of conviction was set aside. 11. At this stage of bail, this Court will refrain from either appreciating the evidence on record minutely or consider the worth of the statement made by the deceased. It is not given to the Court at this stage to critically examine the evidence, collected by the Investigating Agency or find loop holes in it. The Court must confine itself to the barest minimum facts necessary to come to the conclusion about the existence or otherwise of a prima facie case. The Court will also refrain from commenting on the possible defence. 12. The Court must confine itself to the barest minimum facts necessary to come to the conclusion about the existence or otherwise of a prima facie case. The Court will also refrain from commenting on the possible defence. 12. It is true that powers of this Court, under Section 439 of the Code of Criminal Procedure, are wider than those of the Magistrate; under Section 437(1) of the Code in the matter of granting bail, yet this Court in exercise of its jurisdiction, under Section 439 of the Code would consider, particularly in a case which is punishable with death whether there exists reasonable grounds on which the accused an likely to be charged and the gravity or heinousness of the offence. 13. Without commenting on the merits or evidence collected by the Investigating Agency, I am of the view that the police record show; that this is not a fit case for the grant of bail under Section 439 of the Code of Criminal Procedure. 14. Dismissed.